The analysis exactly as it was written, reviewed and stored. The tabs before this one re-cut this same text into sections; the writer refuses to publish a re-cut that does not reproduce it character for character, so nothing here is added, dropped or reworded.
WHAT IS AT STAKE
The Constitution gives Congress the power to declare war. Congress last exercised it during the Second World War, and every use of American military force since has rested on something else: a statutory authorization, a treaty arrangement, an appropriation, or a claim of authority the President holds on his own. We state that historical summary as background rather than as a finding, because this research pass did not re-extract the declarations themselves from a primary record. Nothing below depends on it.
The absence of declarations is not by itself a constitutional violation. The Constitution nowhere says a declaration is the only lawful path, and the Supreme Court said in 1863 that a President meeting an attack does not need one. What this page is actually about is narrower and is documented: in 2026, across a full session, the body the Constitution assigned the decision to did not produce a single instrument with the force of law about hostilities it had not authorized. That is a fact about a specific year, taken from roll calls, and it is set out in full below.
This page holds two things, and states both as positions rather than as law. First, that the decision to take the country into hostilities belongs to Congress, that this allocation is structural rather than procedural, and that it cannot be transferred to the executive by acquiescence, by drafting habit, or by the passage of time. Second, and more fundamentally, that a private company carrying out the government's war on the government's behalf is an agent of the government, so the constitutional question is not changed by routing the work through a contract. The standing test we apply to every issue on this site is whether the same act would violate the Constitution if a government official did it directly.
Two decisions handed down in 2026 matter more here than anything in the previous decade, and they moved in opposite directions. Hencely v. Fluor Corp., 608 U. S. 31 (2026) (No. 24-924), narrowed the shield that protects war contractors and made a claim against a deviating contractor easier to bring. Cisco Systems, Inc. v. Doe, 609 U. S. ___ (2026) (No. 24-856), closed the route through which the only successful damages claim against a war contractor in twenty years walked. On the whole the remedies picture is worse for a claimant in 2026 than in 2025, and we say where and why rather than saying so in general.
What follows separates what the law establishes, what is genuinely open, and what we hold to be true regardless of how the litigation turns out. It also says, in its own section, what an earlier draft of this page claimed and this version withdrew.
WHAT THE CONSTITUTION ALLOCATES
The war power is divided, and it is divided asymmetrically. Article I, Section 8 gives Congress the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"; the power "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years"; the power "To provide and maintain a Navy"; and the power to define and punish offences against the law of nations, at Article I, Section 8, Clause 10. Article I, Section 9 provides that no money shall be drawn from the Treasury but in consequence of appropriations made by law.
Article II, Section 2, Clause 1 provides that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." The next clause of the same section carries the treaty power: the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." They are two clauses, not one, and an earlier version of this page said otherwise.
Two features of that division are worth stating plainly because they get collapsed. The two-year limit on army appropriations is not housekeeping. It is a structural device that forces the funding question back to Congress on a recurring schedule, which means the Framers built at least one war-power check that operates by clock rather than by litigation. And the treaty supermajority is a materially higher bar than the simple majorities that pass statutes and appropriations, which is the reason most binding international commitments today do not take that route at all.
The recognition power runs the other way, and we say so because an analysis that only collects the authorities running in its own direction is not an analysis. In Zivotofsky v. Kerry, 576 U. S. 1 (2015), the Court held that the power to grant formal recognition to a foreign sovereign belongs to the President exclusively, and it got there through functional reasoning that any argument on this page has to answer. "Recognition is a topic on which the Nation must 'speak . . . with one voice.'" And: "That voice must be the President's. Between the two political branches, only the Executive has the characteristic of unity at all times." Some foreign affairs powers really are the President's alone, and the Court reached that conclusion by applying the same Youngstown framework quoted below, which means the framework is capable of producing exclusive executive power on the right facts. The question on this page is whether committing the armed forces to hostilities is such a power. We say it is not, and we say it as an argument.
WHAT THE COURTS HAVE ACTUALLY HELD
The oldest and clearest statement is also the one most often quoted with its second half removed. In the Prize Cases, 67 U. S. (2 Black) 635, 668 (1863), the Court wrote: "By the Constitution, Congress alone has the power to declare a national or foreign war." In the same passage it wrote that the President "has no power to initiate or declare a war either against a foreign nation or a domestic State," and then, immediately, that "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority."
Both halves are in the same passage, and the case is more complicated than either half alone. The Prize Cases sustained a blockade the President imposed before Congress acted, so on its facts it is a decision upholding presidential power, and it arose out of a domestic insurrection rather than a foreign war. The sentence about declaring "a national or foreign war" is therefore doing work beyond what the facts required. We rely on the distinction the opinion draws, between accepting a challenge and initiating a war, and we do not present the first half as a holding about foreign wars.
Little v. Barreme, 6 U. S. (2 Cranch) 170, 179 (1804), settles what happens when a presidential order goes further than the statute Congress passed. Captain Little seized a vessel under presidential instructions that exceeded the act authorizing seizures, and the Court held him personally liable in damages. Chief Justice Marshall recorded that he had at first thought otherwise and had been persuaded by his colleagues, "that the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass." A presidential order is not a source of authority beyond the statute. That much has never been overruled. Whether a damages action against the officer would be available today is a different question, and the Supreme Court's recent decisions on implied damages remedies, discussed below, make it doubtful.
Youngstown Sheet and Tube Co. v. Sawyer, 343 U. S. 579 (1952), supplies the framework every serious argument about war powers still runs through, in Justice Jackson's concurrence. It has three categories and the middle one is the executive's best, so we set out all three. First: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." Second, the zone of twilight, where the President acts in the absence of either a congressional grant or denial and congressional inertia or quiescence "may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility." Third: "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."
The second category is the one this page has to answer, because the record it documents is precisely a record of congressional inertia: repeated votes that produce no law. An administration would say that a Congress which does not enact anything has left the President in the zone of twilight, and Jackson's own words support that reading. Our answer is that inertia in a body that has voted sixteen times is not the same thing as quiescence, and that the Constitution's allocation is not forfeited by a failure to muster a veto-proof majority. That is an argument, not a holding. In Zivotofsky the Court applied the framework directly, and an earlier version of this page misreported what it said. The Opinion of the Court wrote that to succeed in Jackson's third category the President's asserted power must be both "exclusive" and "conclusive" on the issue, 576 U. S. 1, 10, which is the Court restating Jackson's categories rather than holding anything of its own. The phrase "conclusive and preclusive" is not the Court's in that case at all: it appears twice, both times in the Chief Justice's dissent, 576 U. S., at 62 and 64, quoting Jackson to argue that the President did not hold such a power here. The correction costs this page an authority it had been leaning on, and we make it in the text rather than quietly.
On detention, Hamdi v. Rumsfeld, 542 U. S. 507 (2004), produced no majority opinion, and precision about that matters because the case answers an argument this page makes. A four-Justice plurality concluded that the 2001 authorization for use of military force authorized detention without saying the word, because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," and Justice Thomas agreed that the detention was authorized, producing a majority for that result. The plurality also held that the 2001 authorization is the "Act of Congress" that section 4001(a) of title 18 requires before a citizen may be detained. Justices Souter and Ginsburg read section 4001(a) the other way and concurred in the judgment on that basis. So when this page invokes section 4001(a) below, the reader should know that the Supreme Court's controlling opinion has already said the 2001 authorization satisfies it.
The plurality also wrote that "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens," adding that whatever the Constitution envisions for the Executive in conflict, "it most assuredly envisions a role for all three branches when individual liberties are at stake." That sentence is a plurality's, not the Court's, and we label it as such.
On whether the Constitution reaches conduct outside the United States, Boumediene v. Bush, 553 U. S. 723, 765 (2008), rejected the argument that the Constitution had no effect at Guantanamo because the United States had disclaimed formal sovereignty. The Court wrote: "Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply." And: "To hold the political branches have the power to switch the Constitution on or off at will is quite another," which "would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say 'what the law is.'"
Boumediene is about territory and the Suspension Clause. It is not about contracting, and we do not cite it as deciding the agency question. What it establishes is that the political branches cannot choose the places where the Constitution applies. Whether they can choose the persons through whom it applies is the subject of the sections on contracting below, and an earlier version of this page said Boumediene was the closest any court had come to our reasoning. That was wrong, and the sections on contracting say which cases are closer. Before we get there the next two sections address subjects the previous draft treated only in passing: the justiciability rules that keep war powers merits questions out of court, and what has become of the remedy Boumediene created.
WHAT THE COURTS HAVE NOT REACHED, AND HOW
The prior section set out what the Supreme Court has said about the war power. What it has not decided, and the ground on which lower courts have declined to decide it, is a separate matter and belongs on the page as its own section. In every War Powers Resolution suit and every constitutional war powers suit that a member of Congress or a servicemember has brought against the President in the past four decades, some threshold rule of judicial administration has kept the merits question from being reached: legislator standing under Raines v. Byrd, ripeness in the form Justice Powell gave the doctrine in Goldwater v. Carter, or the political question doctrine reformulated in Baker v. Carr. What follows sets those decisions out in the courts' own words. It does not defeat the argument this page makes; it names the wall the argument would have to survive.
The political question doctrine's controlling formulation is the six-factor statement the Supreme Court gave in Baker v. Carr, 369 U. S. 186, 217 (1962): "Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Only one of those factors needs to be present for a case to be non-justiciable, and the doctrine has been read that way in every war powers case since.
Fifty years later the Supreme Court narrowed how the first two factors reach the courthouse door. In Zivotofsky v. Clinton, 566 U. S. 189 (2012), the Chief Justice for the Court explained that the "textually demonstrable constitutional commitment" question is often not itself a political question bar but a merits question the Judiciary must decide, writing that "[a]t least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, '[i]t is emphatically the province and duty of the judicial department to say what the law is.'" 566 U. S. at 196. A tighter formulation of the same point, cast in the Judiciary's duty to determine "the constitutionality of a statute" and quoted in earlier drafts of this page as though it were the Opinion, appears in the Reporter of Decisions' Syllabus at 566 U. S. 189-190; a syllabus "is not the work of the Court," United States v. Detroit Timber and Lumber Co., 200 U. S. 321, 337 (1906), and this page now quotes the Opinion. Zivotofsky (I) held, in words that would have applied naturally to a section 1544(c) suit if any court had reached one, that "The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution." 566 U. S. at 191. The case did not touch war powers. It also did not resurrect Curtiss-Wright, and it took the doctrine from a categorical bar to a narrow factor-specific inquiry, which is why every war powers dismissal since Zivotofsky (I) has proceeded on standing or ripeness alone or has added the political question doctrine as one of several grounds rather than resting on it.
Nixon v. United States, 506 U. S. 224 (1993), sits between Baker and Zivotofsky (I) and belongs on this page because it is the case Zivotofsky (I) built on, not one it overruled. A former federal judge challenged the Senate's use of a committee to hear evidence in his impeachment trial. Chief Justice Rehnquist for the Court, quoting Baker, restated the two-factor formulation the war powers cases have applied ever since: a controversy is nonjusticiable "where there is 'a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it . . .'" 506 U. S. at 228, quoting Baker v. Carr, 369 U. S. 186, 217 (1962). The next sentence is the premise Zivotofsky (I) later enforced at the threshold: "But the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed." 506 U. S. at 228. The Court then held the challenge nonjusticiable, reading Article I, Section 3, Clause 6's grant of the "sole Power to try all Impeachments" as a commitment of the trial procedures to the Senate. The lesson for a war powers plaintiff is narrower than the doctrine reads. Nixon confirms that the determination of textual commitment is itself the courts' work, which is the premise Zivotofsky (I) later drove home; but it also confirms that a court will make that determination and then dismiss on it when the text points at a coordinate branch.
Before Zivotofsky (I), the leading Supreme Court application of the political question doctrine to a foreign affairs dispute between the branches was Goldwater v. Carter, 444 U. S. 996 (1979). Senator Goldwater and colleagues sued to enforce a Senate role in the termination of the mutual defence treaty with Taiwan. The Court granted certiorari, vacated the D. C. Circuit's judgment, and remanded with directions to dismiss. Four Justices, in a Rehnquist opinion joined by Chief Justice Burger and Justices Stewart and Stevens, would have dismissed on political question grounds because the dispute "involves the authority of the President in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President." 444 U. S. at 1002 (Rehnquist, J., concurring in the judgment). Rehnquist added that "while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty." 444 U. S. at 1003. Justice Powell concurred separately, on ripeness, and expressly refused to reach the political question analysis: "a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority ... The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse." 444 U. S. at 997 (Powell, J., concurring). Goldwater is why lower courts in war powers cases so often speak of a "constitutional impasse" and reach for ripeness before they reach for the political question doctrine.
Every War Powers Resolution suit a member of Congress has brought against the Executive has been dismissed. In Crockett v. Reagan, 720 F. 2d 1355 (D. C. Cir. 1983) (per curiam), the D. C. Circuit affirmed the dismissal of a WPR suit by twenty-nine members of Congress over United States military assistance to El Salvador, on the reasoning that "the war powers issue presented a nonjusticiable political question." 720 F. 2d at 1356. In Sanchez-Espinoza v. Reagan, 770 F. 2d 202 (D. C. Cir. 1985), then-Judge Scalia for the D. C. Circuit affirmed dismissal of a suit brought by Nicaraguan citizens and by members of Congress over the Contras, on grounds that included the political question doctrine, 770 F. 2d at 204, and this analysis is the case Judge Silberman would later cite in Campbell for the proposition that the WPR's hostilities threshold is unsuited to judicial resolution. In Ange v. Bush, 752 F. Supp. 509 (D. D. C. 1990), a National Guard sergeant challenged the pre-Gulf-War deployment; the court dismissed "those parts of this case challenging the President's deployment order as presenting non-justiciable political questions, which are, in any event not ripe for judicial review." 752 F. Supp. at 510. In Dellums v. Bush, 752 F. Supp. 1141 (D. D. C. 1990), fifty-three House members and one senator brought a similar suit on the eve of the same conflict; Judge Greene dismissed on ripeness, following the course described by Justice Powell in his concurrence in Goldwater v. Carter. Dellums matters for what it refused to decide as much as for what it decided: on the government's invitation to hold the war powers question categorically non-justiciable, Judge Greene declined, treating the merits as reachable when the branches themselves had actually squared off. That refusal has never been overruled.
Ripeness closed the door in the next war as well. Doe v. Bush, 323 F. 3d 133 (1st Cir. 2003), a suit brought by service members, parents of service members, and members of Congress in the weeks before the invasion of Iraq, was dismissed by Judge Lynch on ripeness rather than on political question grounds. The First Circuit was explicit that it was electing the Powell path from Goldwater, holding that courts should decline to intervene until the political branches "reach a constitutional impasse" and finding no such impasse where Congress had actually authorized the possible use of force and diplomacy was still in progress.
Legislator standing under Raines closes what ripeness does not. The controlling application in the war powers setting is Campbell v. Clinton, 203 F. 3d 19 (D. C. Cir. 2000), decided February 18, 2000. Thirty-one members of Congress sued the President over the Kosovo bombing, invoking both the War Powers Resolution and the War Powers Clause of the Constitution. Judge Silberman for the court affirmed dismissal for lack of standing on the authority of Raines v. Byrd, 521 U. S. 811 (1997), reasoning that Congress always retains the ability to enact contrary legislation and to force the President to comply, 203 F. 3d at 22-24. Judge Silberman then wrote separately to add that even if the plaintiffs had standing "no one is able to bring this challenge because the two claims are not justiciable. We lack 'judicially discoverable and manageable standards' for addressing them, and the War Powers Clause claim implicates the political question doctrine." 203 F. 3d at 24-25 (Silberman, J., concurring). Judge Randolph concurred in the judgment on standing but disagreed with the majority's Raines analysis, and Judge Tatel concurred on standing while rejecting the political question analysis, writing that whether a military action amounts to war "is no more standardless than any other question regarding the constitutionality of government action" and that "[s]ince the earliest years of the nation, courts have not hesitated to determine when military action constitutes 'war.'" 203 F. 3d at 37 (Tatel, J., concurring). Campbell is the case that put both doors, standing and the political question doctrine, on the same page for war powers, and it is the case each of the two doors has been shut behind since.
The most recent lower court application is Smith v. Obama, 217 F. Supp. 3d 283 (D. D. C. 2016), affirmed in an unpublished per curiam order at Smith v. Trump, 731 F. App'x 8 (D. C. Cir. 2018). Captain Nathan Smith, an active duty Army officer deployed to the Kuwait headquarters of Operation Inherent Resolve, sued the President for a declaration that the campaign against ISIL exceeded the 2001 and 2002 authorizations and violated the War Powers Resolution. Judge Kollar-Kotelly dismissed on both grounds: "First, the Court determines that Plaintiff does not have standing because the specific legal injury about which he complains is not sufficiently concrete or particularized. Second, the Court finds that Plaintiff's claims raise nonjusticiable political questions." 217 F. Supp. 3d at 289. On the merits question the court applied the Baker factors and concluded that at least one was present. Smith is the most recent statement of the wall, and it is the wall at its full height: standing and the political question doctrine, both, in the same order.
What that record establishes is not that the merits of a war powers dispute are constitutionally unknowable. Every judge in Campbell declined to make that broader claim; Dellums expressly rejected it; Zivotofsky (I) is inconsistent with it. What the record establishes is that a court, presented with a war powers suit, is very likely to say before reaching the merits that the plaintiff lacks standing or that the dispute is not yet ripe or that at least one Baker factor is present. The doctrinal consequence is that the merits of the war powers allocation are decided by the political branches by default. This page's argument that section 1544(c) fails presentment, that the concurrent resolution device is unconstitutional, and that constitutional restraints follow the government into its contracts, would have to survive that wall before any court reached them. It has not been tested there. That is a limitation on the argument, not an answer to it, and this section is what an earlier draft owed a reader and did not provide.
WHAT BOUMEDIENE HELD, AND WHAT ITS REMEDY RECORD HAS BECOME
Boumediene is cited above for the proposition that the political branches cannot switch the Constitution on or off at will. That is what the case decided, and this page will continue to cite it for that. What has happened to the remedy the case created is a separate matter and belongs on the page in its own section. The writ of habeas corpus the Supreme Court restored to Guantanamo detainees in 2008 has, in the D. C. Circuit's application of it since about 2010, produced almost no releases. That fact does not undo what Boumediene decided; it does mean the case has become a thinner instrument than its language suggests, and any argument on this page that leans on Boumediene as a live remedial path has to say so.
The tightening began within two years. In Al-Adahi v. Obama, 613 F. 3d 1102 (D. C. Cir. 2010), decided July 13, 2010, Judge Randolph for the panel reversed the district court's grant of a writ, holding that the court had committed a "fundamental mistake" of evidentiary method. The panel's core ruling was that a habeas court must apply what it called conditional probability analysis to the government's intelligence record: "The error stems from the court's failure to appreciate conditional probability analysis," 613 F. 3d at 1105, and, quoting a mathematician for the proposition it needed, "Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability." Id. In practice the ruling meant a habeas court could no longer require each piece of the government's evidence to carry the case standing on its own, so a body of evidence that would fail item by item could sustain detention when read together.
Al-Adahi's approach carried the field. In Al Alwi v. Obama, 653 F. 3d 11 (D. C. Cir. 2011), decided July 22, 2011, Judge Garland for the court affirmed the denial of habeas to a Yemeni detainee, concluding on the totality of the record that "it is more probable than not that petitioner was supporting the Taliban and al Qaeda." 653 F. 3d at 16. In Uthman v. Obama, 637 F. 3d 400 (D. C. Cir. 2011), the D. C. Circuit reversed a district court's grant of the writ, applying Al-Adahi's rule that "evidence of association with other al Qaeda members is itself probative of al Qaeda membership." 637 F. 3d at 405, citing Al-Adahi, 613 F. 3d at 1107. In Latif v. Obama, 677 F. 3d 1175 (D. C. Cir. 2012) (originally issued at 666 F. 3d 746 (D. C. Cir. 2011) and reissued in redacted form after remand), the panel added a presumption of regularity for intelligence reports produced in the field, vacating the district court's grant on the reasoning that the court had failed to accord the government's official record that presumption and had taken an unduly atomised approach to the evidence.
The Supreme Court had the opportunity to correct any of that and did not take it. Certiorari petitions from Guantanamo detainees whose habeas grants had been reversed under the Al-Adahi framework were serially denied after 2011 and 2012. Justice Breyer wrote separately from a small number of denials to note the difficulty of the questions presented, but no majority to revisit Boumediene ever coalesced. Together those denials mean the D. C. Circuit's post-Boumediene evidentiary framework, not Boumediene itself, is what actually governs a Guantanamo detainee's habeas suit today. The framework is one under which the writ almost never issues, and it has held that shape now for more than a decade.
Two things follow for the argument on this page. First, Boumediene remains authority for the proposition that the extension of the Constitution does not run on a political branch tap, and the citation to Boumediene above is correct for that proposition. Second, when this page argues that constitutional restraints that would attach to an official must equally attach to a contractor performing the same task, the Boumediene line is not a live path to a damages remedy or to release. Even where the Court has held the Constitution reaches, the enforcement machinery has been narrowed to something a claimant almost never actually reaches. That is a fact about what remedies look like in 2026, and it belongs alongside the sections that argue for a remedy this page thinks the Constitution supplies but that current doctrine, on this record, is not delivering.
WHAT THE COURTS HAVE HELD ABOUT THE GOVERNMENT'S CONTRACTORS
There is a substantial body of law on whether constitutional restraints follow the government into a contract, and an earlier version of this page did not engage it. It runs in both directions, and it separates two questions that are constantly confused. The first is whether the Constitution reaches the contractor's conduct at all. The second is whether a court will award damages when it does. Courts have answered the first question yes in several domains and the second question mostly no.
On the first question the closest case to this page's reasoning is West v. Atkins, 487 U. S. 42 (1988). A physician under part-time contract with North Carolina to treat prisoners was held to act "under color of state law" when he treated an inmate. The Court's reasoning is the argument this page makes, in the Supreme Court's own words: "Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights." And: "It is the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State."
Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 614 to 615 (1989), states the same principle for the Fourth Amendment. The Amendment "protects against such intrusions if the private party acted as an instrument or agent of the Government," and whether a private party is such an agent "necessarily turns on the degree of the Government's participation in the private party's activities," resolved "in light of all the circumstances." Crucially: "The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one." The Court found agency where the Government "removed all legal barriers" to the testing, made plain its preference for it, and showed "its desire to share the fruits of such intrusions." The underlying attribution standard is Lugar v. Edmondson Oil Co., 457 U. S. 922, 935, 937 (1982), whose test is whether the conduct is "fairly attributable to the State."
Richardson v. McKnight, 521 U. S. 399 (1997), goes further in the same direction on protections rather than duties: "Prison guards employed by a private firm are not entitled to a qualified immunity from suit by prisoners charging a section 1983 violation." Performing a government function under contract earned those defendants less protection than a government officer would have had, not more.
The cases against are real and they are narrower than they are usually described. Manhattan Community Access Corp. v. Halleck, 587 U. S. 802 (2019), holds that "the fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor," and the Court immediately added the qualifier that decides cases like this one: "unless the private entity is performing a traditional, exclusive public function." Halleck also holds that "being regulated by the State does not make one a state actor," citing Rendell-Baker v. Kohn, 457 U. S. 830 (1982), and Blum v. Yaretsky, 457 U. S. 991 (1982). Read precisely, those cases decide that a contract, a subsidy, or regulation standing alone does not establish attribution. None of them holds that a firm performing the government's own function at the government's direction stands outside the Constitution, and Halleck's traditional-and-exclusive-function exception is the doorway through which waging war would have to be argued.
On the second question, the remedy, the law runs against a claimant and it does so squarely. Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001), holds that "Bivens' limited holding may not be extended to confer a right of action for damages against private entities acting under color of federal law," declining to extend it "to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons." Minneci v. Pollard, 565 U. S. 118 (2012), extended that to the employees of such a firm, holding that because state tort law authorized adequate alternative damages actions providing both significant deterrence and compensation, "no Bivens remedy can be implied here." That pair is the most on-point Supreme Court authority against the practical force of this page's position, and an earlier version of this page cited Malesko for a footnote while omitting its holding.
Read what Malesko actually decides, though, because the phrasing matters. The holding is that Bivens may not be extended "against private entities acting under color of federal law." The Court did not hold that the entity was outside the Constitution; it used the opposite phrase and then refused to create the damages action. Minneci turned on the availability of state tort law as the alternative. Those are remedy holdings, and remedy holdings are exactly what the standing test on this page does not claim to control.
Finally, Boyle v. United Technologies Corp., 487 U. S. 500 (1988), is the source of the contractor defence and it should be stated rather than referred to. Liability for design defects in military equipment cannot be imposed under state law when "(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." The reasoning is worth reading against this page's own argument: "It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production." Courts already accept that the government's legal position travels with the contract. What they have extended so far are the government's immunities.
So the honest statement of this body of law is this. The principle that a government cannot escape a constitutional duty by contracting the work out is not this site's invention: West states it for the Eighth Amendment and Skinner for the Fourth. What no court has done is apply that principle to a war contractor in an overseas armed conflict, and the damages cases run the other way when it comes to relief. Everything else on this page should be read against that division.
THE WAR POWERS RESOLUTION, READ AS IT IS WRITTEN
The War Powers Resolution is codified at 50 U. S. C. chapter 33, and reading its actual text matters because almost every public description of it is a description of one subsection.
Section 1541 is captioned "Purpose and policy," and that caption is doing real work. Its subsection (c), captioned "Presidential executive power as Commander-in-Chief; limitation," states that the President's constitutional powers as Commander in Chief to introduce forces into hostilities "are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." That reads like an operative restriction and the executive branch has not treated it as one since at least 1980. The Office of Legal Counsel wrote in February 1980 that the statement of purpose and policy "is not to be viewed as limiting presidential action in any substantive manner," resting that on the conference report and on presidential practice. No court has resolved it. We therefore carry section 1541(c) as contested rather than as settled, and it appears again below in the contested section.
Section 1544(b) carries the clock. Within sixty calendar days after a report is submitted or required to be submitted, "the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted)," unless Congress declares war, enacts a specific authorization, extends the period by law, or is physically unable to meet because of an armed attack. The sixty days extend by up to thirty more if the President certifies in writing that unavoidable military necessity respecting the safety of the armed forces requires it in the course of bringing about a prompt removal of the forces.
Section 1544(c) is the provision much of what follows turns on. "Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution."
Section 1547(a) forecloses the argument that funding a war authorizes it. Authority to introduce forces into hostilities "shall not be inferred (1) from any provision of law (whether or not in effect before November 7, 1973), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities" and says so expressly; nor "(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing" it and saying so. Section 1547(d)(2) adds that nothing in the chapter "shall be construed as granting any authority to the President" he would not have had without it.
Two reporting sections sit in this chapter of the Code without being part of the War Powers Resolution, and the distinction matters here for the same reason it matters for section 1546a. Section 1549 requires the President to report each year, by March 1, on the legal and policy frameworks for the use of military force, including "a list of all foreign forces, irregular forces, groups, or individuals for which a determination has been made that force could legally be used under the Authorization for Use of Military Force (Public Law 107-40)," with the legal and factual basis for each, and "the criteria and any changes to the criteria for designating" such a group "as lawfully targetable, as a high value target, and as formally or functionally a member of a group covered under" that authorization. Section 1550 requires a further report every 180 days listing each country or organization against which force has actually been used under that authorization. The Code's own codification note for section 1549 records that the section "was enacted as part of the National Defense Authorization Act for Fiscal Year 2018, and not as part of the War Powers Resolution which comprises this chapter," and the note for section 1550 says the same of the Fiscal Year 2020 act. Section 1549 was enacted by section 1264 of Public Law 115-91 and then amended three times over by section 1261 of Public Law 116-92, which changed the heading of its subsection (a) from "Initial" to "Annual," replaced "90 days after December 12, 2017" with "March 1 of each year," and added the list and the designation criteria; the same act added section 1550. What a reader should take from that is narrower than what an earlier version of this page took from it: sixteen years after the 2001 authorization, Congress required by statute a report on the legal and policy frameworks for the use of military force, and two years after that it made the report annual and added to it a list of whom that authorization was being applied to, together with the criteria for designating them. That is an observation about two statutes and not evidence about anyone's conduct, which is why the Hidden Agendas item that treated it as more than that has been withdrawn.
THE SUBSECTION THAT PROBABLY DOES NOT WORK
Section 1544(c) directs the President to remove forces if Congress so directs "by concurrent resolution." A concurrent resolution passes both chambers and is not presented to the President. That is precisely what distinguishes it from a joint resolution, which is presented and which the President may veto.
In INS v. Chadha, 462 U. S. 919 (1983), the Supreme Court held the one-House legislative veto unconstitutional, concluding: "We hold that the congressional veto provision in Section 244(c)(2) is severable from the Act and that it is unconstitutional." Its reasoning was not confined to one-House action. The Court quoted Article I, Section 7, Clause 3 in full, because "the precise terms of those familiar provisions are critical to the resolution of these cases": "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States." It then framed the test in the opinion this way: "Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon 'whether they contain matter which is properly to be regarded as legislative in its character and effect,'" the inner quotation being from an 1897 Senate report the Court cited. Applying that, it found the action there "essentially legislative in purpose and effect" because it "had the purpose and effect of altering the legal rights, duties, and relations of persons" outside the legislative branch. Justice Powell, concurring in the judgment, wrote that the decision "apparently will invalidate every use of the legislative veto."
No court has held section 1544(c) unconstitutional. We are not aware of any decision squarely presenting the question, and we do not assert that none exists. What can be shown is that both political branches have behaved as though the provision were dead, and the executive branch said so before Chadha rather than after it. In a memorandum opinion for the Attorney General dated February 12, 1980, the Office of Legal Counsel concluded that the provision permitting Congress "to require removal of our armed forces in particular cases by passage of a concurrent resolution not presented to the President" is, in its words, a prima facie violation of Article I, Section 7. The same opinion states the position in full: "We believe that Congress may terminate presidentially initiated hostilities through the enactment of legislation, but that it cannot do so by means of a legislative veto device such as a concurrent resolution."
Congress then built the sound route. In November 1983, five months after Chadha, it enacted section 1546a, which gives expedited floor procedures to "Any joint resolution or bill introduced in either House which requires the removal of United States Armed Forces engaged in hostilities" without a declaration or specific authorization, and provides for what happens "If such a joint resolution or bill should be vetoed by the President." Section 1546a was enacted as part of a State Department authorization act and is not itself part of the War Powers Resolution. No court has blessed section 1546a either; what it establishes is what Congress thought it needed after Chadha.
And then Congress left section 1544(c) on the books. Forty-three years later it is still there, unamended, alongside section 1546, the priority procedures for the concurrent resolution it authorises. The executive branch's current position is on the record and is not hedged. In a Statement of Administration Policy dated April 16, 2026, the Office of Management and Budget wrote of a section 5(c) resolution: "Although concurrent resolutions such as H. Con. Res. 40 lack the force of law and should be deemed unconstitutional legislative vetoes under controlling Supreme Court precedent, I.N.S. v. Chadha, 462 U.S. 919 (1983), it is nevertheless important to highlight its many deficiencies." Note the verb. The Office of Management and Budget said such resolutions should be deemed unconstitutional. It did not declare anything void, and only a court can.
What Congress did next is the subject of the following section.
WHAT CONGRESS ACTUALLY DID IN 2026
The record here is roll calls, taken from the Senate's own vote tables for the 119th Congress, 2nd Session and the Clerk of the House's electronic vote records for 2026. It runs through August 8, 2026, which is the date of the most recent Senate roll call in the table we retrieved. Nothing in this section comes from press accounts.
The Senate voted thirteen times on joint resolutions directing the removal of United States Armed Forces from unauthorized hostilities: S. J. Res. 98 concerning Venezuela on January 8; and S. J. Res. 104, 118, 116, 123, 114, 184, 163, 185, 172, 185 again, 180 and 181, all concerning Iran, on March 4, March 18, March 24, April 15, April 22, April 30, May 13, May 19, June 16, June 24, July 23 and July 30. Eleven of those thirteen failed. All thirteen were procedural, not two of them: twelve were motions to discharge a resolution from the Committee on Foreign Relations, one was a motion to proceed, and not one was a vote on passage. The two that succeeded were the motion to discharge S. J. Res. 98, agreed to 52 to 47 on January 8, and the motion to discharge S. J. Res. 185, agreed to 50 to 47 on May 19. Neither resolution then passed. The motion to proceed to S. J. Res. 185 was rejected 47 to 50 on June 24. Not one joint resolution directing removal of forces was passed by the Senate in this period, so not one was ever presented to the President. That correction runs in this page's favour, which is the reason to state the other half of it: a motion to discharge is how one of these resolutions reaches the floor at all, so losing one is a substantive defeat and not a technicality.
Twice, the Senate disposed of the question without voting on the merits at all. On January 14, 2026, a point of order against the privileged status of S. J. Res. 98, the Venezuela resolution, was sustained on a vote of 50 to 50, with the Vice President of the United States voting yea to break the tie. On April 28, 2026, a point of order against the privileged status of S. J. Res. 124, concerning Cuba, was sustained 51 to 47. Privileged status is the mechanism that lets a war powers resolution reach the floor over the objection of leadership. It is the enforcement machinery of the statute, and in those two cases the machinery was removed by a floor vote rather than the underlying question being answered.
What did pass was a concurrent resolution. H. Con. Res. 86 passed the House of Representatives on June 3, 2026 by 215 to 208, and was agreed to in the Senate on June 23, 2026 by 50 to 48. Its full operative text, as engrossed in the House, reads: "Resolved by the House of Representatives (the Senate concurring), That, pursuant to section 5(c) of the War Powers Resolution (50 U.S.C. 1544(c)), Congress directs the President to remove United States Armed Forces from hostilities against the Islamic Republic of Iran, other than those elements of the Armed Forces that may be necessary to defend the United States or an ally or partner of the United States from imminent attack provided that the President complies fully with the requirements of section 5(b) the War Powers Resolution (50 U.S.C. 1544(b)) with respect to any such use of the Armed Forces, unless explicitly authorized by a declaration of war or a specific congressional authorization for use of military force against Iran." The missing word in "section 5(b) the War Powers Resolution" is in the engrossed text; we quote it as it is. On July 23, 2026, the House passed a second one, H. Con. Res. 89, by 214 to 208.
The House also rejected six other section 5(c) concurrent resolutions during 2026: one concerning Venezuela, three concerning Iran and two concerning Lebanon. So both chambers of Congress, in 2026, adopted a directive to the President in the one form that the executive branch had said in writing two months earlier lacks the force of law, while the form that would have had the force of law never reached a vote on passage in the Senate. An earlier version of this page counted five and left out the closest vote of the year, which runs in this page's favour and is corrected here for that reason rather than in spite of it. H. Con. Res. 68 directs the President, "Pursuant to section 5(c) of the War Powers Resolution (50 U.S.C. 1544(c))," to "remove United States Armed Forces from Venezuela, unless explicitly authorized by a declaration of war or specific statutory authorization for use of military force." On January 22, 2026 it failed on a tie, 215 yeas to 215 nays with one member not voting, at roll call 48. One member voting the other way would have carried it. State plainly what that would and would not have been: it would have been the same instrument the executive branch says lacks the force of law, on the subject the Senate had spent January on, and it would still have needed the Senate.
We do not present that as anyone's bad faith and we do not know why it happened. A concurrent resolution needs a simple majority in each chamber and nothing more; a joint resolution needs a presidential signature, or a two-thirds vote of those present and voting in both chambers to override a veto. A body that can assemble fifty votes and not a two-thirds majority will reach for the instrument that fifty votes can carry. What the record establishes is the outcome, not the motive: the most that the Congress of the United States did about hostilities it had not authorized, in a year of at least sixteen recorded war powers votes in the Senate alone, was to adopt an instrument the executive branch had already said in writing lacks the force of law.
THE LOOPHOLE THE SENATE DEBATED IN 1973 AND LEFT OPEN
The question this page asks about contractors was asked on the Senate floor while the War Powers Resolution was being written, and it was answered against extending the statute to them. The record of that debate is reproduced in two opinions of the Office of Legal Counsel, which is where we read it; we did not retrieve the Congressional Record itself, and the quotations below are quoted as they appear in those opinions.
Senator Eagleton offered an amendment, numbered 366, that would have added a sentence to the definition of "introduction of United States Armed Forces": "Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of the Armed Forces of the United States for the purposes of this Act." He explained it this way: "My amendment would circumscribe the President's use of American civilian combatants in the same manner uniformed Armed Forces are circumscribed by S. 440 as presently drafted. It would, in other words, prevent a President from engaging American civilians, either directly or as advisers, in a hostile situation without the express consent of Congress."
He put the principle in a sentence that is close to the one this site applies to every issue: "unless we treat all Americans in military situations alike, whether they are wearing a green uniform, red-white-and-blue or a seersucker suit with arms, what payroll you are on is really secondary; whether you get it from the Pentagon or whether you become a member of the Armed Forces, the end result is the same: Americans are exposed to the risk of war." He also predicted the mechanism: "So military activities will be carried on by civilian employees of the Pentagon, because under the War Powers bill nothing prevents the Pentagon from hiring or contracting with civilian employees, ex-military people perhaps, but people that are called civilians."
Senator Javits opposed it, arguing that no agency outside the armed forces has "any appreciable armed forces power," that the Central Intelligence Agency "might have some clandestine agents with rifles and pistols engaging in dirty tricks, but there is no capability of appreciable military action that would amount to war," and that "the minute combat air support is required you have the Armed Forces, and the [War Powers Resolution] becomes operative." The amendment was defeated.
The executive branch has relied on that defeat ever since. The 1980 Office of Legal Counsel memorandum concluded that the Resolution does not reach personnel detailed to the Central Intelligence Agency, its own agents, "or other individuals contracting to perform services for the CIA or the Department of Defense." A 1983 opinion of the same office reconsidered and reversed the conclusion as to military personnel detailed to the Agency, but left the conclusion about civilians standing, and stated the legislative history plainly: Senators Eagleton and Fulbright "repeatedly expressed the view that failing to include activities which the CIA might conduct with civilian personnel was a major 'loophole' which would allow Presidents to evade the War Powers Resolution," and the office concluded that the history "supports the proposition that Congress assumed that the CIA's use of civilian or ex-military personnel would not trigger the War Powers Resolution."
Two things follow and they should not be run together. As a matter of this statute, the hole is real, it was identified in advance, it was described on the floor as a loophole that would let Presidents evade the Resolution, and the Senate voted not to close it. That is a documented legislative fact, and it is fifty-three years old. But the War Powers Resolution is a procedural statute, not the Constitution, and section 1547(d)(2) says the chapter grants the President no authority he would not otherwise have. Whether the Constitution's own restraints follow a contractor into hostilities is a different question, and nothing in the 1973 debate decides it.
WHAT IS GENUINELY CONTESTED
Five things are live, and on most of them there is real authority both ways.
First, whether the War Powers Resolution binds at all, and in particular whether section 1541(c) is an operative limit or a statement of purpose. Section 1541 is captioned "Purpose and policy," the Office of Legal Counsel wrote in 1980 that the statement "is not to be viewed as limiting presidential action in any substantive manner," and no court has decided it. Section 1547(d) says the chapter does not alter the constitutional authority of either branch, which cuts in two directions at once: it disclaims any grant to the President, and it disclaims any subtraction from him. The 2026 Statement of Administration Policy quoted above put the executive position in its own words: a section 5(c) resolution "attempts to legislate away essential Article II authority." That is a contested constitutional claim stated by one branch about the other, and it has not been adjudicated.
It is worth recording what the executive branch has conceded, because an earlier version of this page asserted that no administration ever has. The 1980 Office of Legal Counsel opinion accepted the sixty-day clock: "We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces," reasoning that the thirty-day extension for unavoidable military necessity preserves the Commander in Chief function and that "We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers." The same opinion accepted that "Congress may terminate presidentially initiated hostilities through the enactment of legislation." What it rejected was the concurrent resolution device. We did not survey the opinions of later administrations, and we make no claim about them.
That same opinion carries the executive branch's best affirmative argument, and this page has used the memorandum four times without once quoting the sentence that opens it. The best form of the executive branch's own case is that Article II vests "the executive Power" without the "herein granted" limitation that opens Article I, and that this asymmetry, combined with the Commander in Chief Clause and the duty to "take Care that the Laws be faithfully executed," produces an inherent authority to use force abroad short of war that does not depend on any statute. The Office of Legal Counsel put it in a sentence in 1980 that this page has previously quoted only for its concessions: "The President's inherent, constitutional authority as Commander-in-Chief, his broad foreign policy powers, and his duty to take care that the laws be faithfully executed generally empower him to deploy the armed forces abroad without a declaration of war by Congress or other congressional authorization." 4A Op. O.L.C. 185, 185 (1980). The same syllabus adds that a "[h]istorical pattern of presidential initiative and congressional acquiescence in emergency situations calling for immediate action, including situations involving rescue and retaliation, confirm this inherent power, and the courts have generally declined to review its use." Id. The body of the memorandum states the affirmative claim in its own voice: "This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situations calling for immediate action." 4A Op. O.L.C. 185, 187 (1980). That is the strongest form of the executive's own argument on this record, and this section's answer to it — that a practice can drift from the design rather than reflect it — is the one already on the page. The Supreme Court has treated a "systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned" as capable of becoming "a gloss on 'Executive Power' vested in the President by [Section 1 of Article II]." Dames & Moore v. Regan, 453 U. S. 654, 686 (1981), quoting Justice Frankfurter's Youngstown concurrence at 343 U. S. 610-611. Our answer is that this reasoning describes a practice that has drifted from the constitutional design rather than reflected it, and that a Court which has never adjudicated section 1544(c) has also never validated the theory that inertia in a co-equal branch operates as consent to a use of force it did not authorize. We hold that as an argument, not as law, and we record it here rather than only in the notes so the reader can judge for themselves whether the argument we then make against it is fair to the strongest form of the position it opposes. The lean of this edit runs against the page, and the residual lean runs the other way: quoting the OLC headline surfaces the executive's affirmative case this analysis had left out, but the answer we then give is the one already on the page, so the reader now sees the strongest form of the objection without a matching strengthening of the reply.
The Court's treatment of executive primacy in foreign affairs sits alongside that. The classical statement is United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319-320 (1936): "we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations — a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution." That passage has been read for most of a century as authority for a broad, freestanding executive power in the foreign-affairs field. In Zivotofsky v. Kerry, 576 U. S. 1 (2015), the Court preserved one part of it — the recognition-power holding, that "it is for the President alone to make the specific decision of what foreign power he will recognize as legitimate," at 576 U. S. 21 — and expressly narrowed the rest. Of the sole-organ formulation the Court said, "This Court declines to acknowledge that unbounded power." 576 U. S. 20. And, "This description of the President's exclusive power was not necessary to the holding of Curtiss-Wright — which, after all, dealt with congressionally authorized action, not a unilateral Presidential determination. Indeed, Curtiss-Wright did not hold that the President is free from Congress' lawmaking power in the field of international relations." 576 U. S. 21. The lean of this edit runs against the page: Curtiss-Wright is still the case executive-branch briefs cite first, and its recognition-power holding is intact. The lean of what remains runs the other way, because a reader who follows the citation will find the Court has since said, in its own words, that the sole-organ passage does not go as far as it is regularly used to go.
Second, what counts as hostilities. The statute's clock is keyed to introducing forces "into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," and section 1547(c) defines "introduction of United States Armed Forces" to include assigning members to "command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country" that are engaged or imminently will be. The statute does not define hostilities. Everything about the clock depends on a word Congress left open, and the branch that starts the clock is the branch that reads the word.
Third, whether section 1544(c) is constitutional. This is the pivot of this page and it is undecided. The executive branch has said since 1980 that it is a prima facie violation of the presentment requirement; Congress built an alternative in 1983 and left the original in the Code; no court has ruled. A defender of the 2026 concurrent resolutions could say they are a formal expression of congressional judgment with political rather than legal force, which is a legitimate thing for a legislature to produce, and that criticising Congress for using a mechanism it never repealed is criticising it for following its own statute. We think the better view is that the provision does not work, and we hold that as a view, not as law.
Fourth, whether anyone can get a court to say. Raines v. Byrd, 521 U. S. 811 (1997), holds that legislators asserting "a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally" lack standing, because their claim rests "on a loss of political power, not loss of any private right." That reasoning applies to a member of Congress suing over a war he voted against with unusual directness. A servicemember or a foreign plaintiff faces different obstacles. The section headed WHAT THE COURTS HAVE NOT REACHED, AND HOW sets out those obstacles from the courts' own words rather than describing cases the previous draft had not opened. What that section shows is that Raines closes one door for a member of Congress, that Justice Powell's ripeness formulation from Goldwater v. Carter has closed a second door on every pre-hostilities suit, and that the Baker v. Carr political question factors have closed a third; whether Zivotofsky v. Clinton, 566 U. S. 189 (2012), narrowing the political question doctrine at the threshold, reopens any of them for a servicemember bringing a merits challenge is a live question no court has answered.
Fifth, whether the constitutional protections that would restrain an official restrain a contractor performing the same task. This is the question StumpWatch's standing test puts at the centre. The attribution cases set out above answer it yes in other domains and the remedy cases answer it no as to damages, and 2026 moved both. Both movements are set out below in full, including the ones against us.
CONGRESS HAS ALREADY LEGISLATED PAST GEOGRAPHY AND PAST THE PAYROLL
Four statutes are worth reading together, because each of them fixes the reach of a legal duty to the government's control rather than to a map or an employment relationship. All four are current law and all four texts are quoted from the United States Code.
Section 2000dd of title 42, enacted as section 1003 of the Detainee Treatment Act of 2005, provides: "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." Subsection (b) adds that nothing in the section "shall be construed to impose any geographical limitation" on that prohibition. And subsection (d) defines the prohibited conduct by direct reference to the Constitution: the term means "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States," as defined in the United States reservations to the Convention Against Torture. Congress attached a constitutional standard to the fact of United States custody or control, expressly without regard to where the person is or who he is.
The very next section cuts the other way and an earlier version of this page omitted it. Section 2000dd-1, enacted as section 1004 of the same Act and captioned "Protection of United States Government personnel engaged in authorized interrogations," provides that in any civil action or criminal prosecution against "an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person," arising out of specific operational practices involving the detention and interrogation of aliens believed to be engaged in or associated with international terrorist activity "that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful." Good faith reliance on advice of counsel "should be an important factor." Subsection (b) requires the United States Government to provide or employ counsel and pay the fees and costs of defending such a person. The phrase "other agent of the United States Government" is the one that reaches a contractor, and this is the most directly adverse statutory provision on this page.
Section 3093 of title 50 governs covert action. Subsection (a)(3) provides that "Any employee, contractor, or contract agent" of a department other than the Central Intelligence Agency directed to participate in a covert action "shall be subject either to the policies and regulations of the Central Intelligence Agency, or to written policies or regulations adopted by such department, agency, or entity, to govern such participation." Subsection (a)(4) requires a finding to specify whether a third party "which is not an element of, or a contractor or contract agent of, the United States Government, or is not otherwise subject to United States Government policies and regulations," will be used to fund the action or to "undertake the covert action concerned on behalf of the United States." That subsection is about non-contractors, and an earlier version of this page cited it as though it were about contractors; what it does show is that Congress treated contractors and contract agents as already inside the government's own policy regime. And subsection (a)(5) is one sentence: "A finding may not authorize any action that would violate the Constitution or any statute of the United States."
Section 3261 of title 18, the Military Extraterritorial Jurisdiction Act of 2000, makes it a federal crime for a person "employed by or accompanying the Armed Forces outside the United States" to engage in conduct abroad that would be a felony inside the special maritime and territorial jurisdiction of the United States. Section 3267 defines the first phrase to include a contractor of the Department of Defense, a subcontractor at any tier, and an employee of either. It reaches contractors of other federal agencies only "to the extent such employment relates to supporting the mission of the Department of Defense overseas," which is a real limit and matters for intelligence contracting. Article 2(a)(10) of the Uniform Code of Military Justice, at section 802(a)(10) of title 10, subjects to military law, "In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field." This pass did not examine how often either provision has been used, and makes no claim about it.
These are statutes, not constitutional holdings, and we do not present them as constitutional holdings. What they establish is narrower and still substantial: on the question of whether a legal duty follows the government's control rather than the payroll or the border, Congress has repeatedly said yes, in text, and has done so specifically for contractors and specifically for conduct abroad. Section 2000dd-1 shows that Congress has also legislated a defence for those same people, which is the other half of the same record.
STUMPWATCH'S POSITION: THE GOVERNMENT MAY NOT HIRE OUT WHAT IT MAY NOT DO
This is our position. It is not a description of what courts have held, and we do not present it as one. It does not change if a court rules against it, because it is a claim about what the Constitution is for, not a prediction about litigation.
A civilian company or individual acting on behalf of the government is a government agent, directly or by proxy. Constitutional protections against the government extend to its authorized agents by whatever method is used to obscure the government's control. The test we apply, and we apply it to every issue on this site, is this:
Would this be a constitutional violation if a government official did it directly? If it would, then it is the same violation when an authorized agent of the government does it instead.
In this domain the test has unusually concrete content, because the conduct at issue is not abstract. If a soldier may not torture a detainee, a contract interrogator standing in the same room performing the same task under the same command structure may not either. If the government may not conduct a covert action that violates the Constitution, which is what section 3093(a)(5) says in terms, then it may not conduct one through a contract agent, which is what section 3093(a)(3) contemplates and regulates rather than denies. And if the government may not detain a person without an act of Congress, it may not achieve the same detention by paying someone else to hold him, though the reader should keep in mind that the Hamdi plurality found the required act of Congress in the 2001 authorization.
The principle is not ours alone, and this page previously conceded too much on that point. West v. Atkins says that contracting out prison medical care "does not relieve the State of its constitutional duty," and that whether the provider is "on the state payroll or is paid by contract" is not the dispositive question. Skinner says a private party is bound where it acts as "an instrument or agent of the Government," and that the absence of compulsion does not by itself make the conduct private. What is genuinely unsettled is not the principle but its application: no court has applied it to a war contractor in an overseas armed conflict, and the damages cases run the other way. Those are different propositions and we keep them apart.
We say the same thing about the appropriation. The two-year limit on army appropriations and the rule that no money issues but by appropriation are not accounting provisions; they are the mechanism by which the people's representatives decide whether the country keeps fighting. A structure in which the funding decision is made once and then renewed by inertia, and in which the decision to fight is made by an official whom no court will review at the instance of anyone with standing to ask, is not the constitutional design operating imperfectly. It is a different design.
And we take the second half of the Prize Cases seriously as well as the first. A President meeting an attack does not wait for Congress. That is settled, it is right, and nothing on this page disputes it. The distinction the Prize Cases drew is between accepting a challenge and initiating a war, and our position is that this distinction is doing real work and has to be enforced somewhere. When the same authority is invoked for hostilities that run for months, that are the subject of repeated recorded votes across a full session of the Senate, and that produce no law from Congress at all, the emergency rationale has stopped describing the situation.
The two sections that follow set out exactly how far current doctrine runs against this position, because an analysis that leaves that out is advocacy.
THE CONTRACTOR SHIELD RUNS EXACTLY BACKWARDS
This is the hardest thing on this page for our own position, and it is not a technicality. The rule that decides whether a war contractor can be sued turns on how faithfully it obeyed the government. The more completely the government directed the act, the more completely the contractor is protected.
The shield descends from Boyle v. United Technologies Corp., 487 U. S. 500 (1988), set out above, and from the Federal Tort Claims Act's combatant activities exception at section 2680(j) of title 28. Courts of appeals built a broad rule on that foundation, and the D. C. Circuit's was the broadest. In Saleh v. Titan Corp., 580 F. 3d 1, 9 (D. C. Cir. 2009), a case the Fourth Circuit in 2026 described as "virtually identical" to the Al Shimari litigation discussed below, the court held: "During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted." It applied that test to preempt the District of Columbia tort claims of Iraqi detainees, and added, at page 16, that "If we are correct in concluding that state tort law is preempted on the battlefield because it runs counter to federal interests, the application of international law to support a tort action on the battlefield must be equally barred." That is the doctrine at its widest, and it stood in that circuit for seventeen years.
Hencely v. Fluor Corp., 608 U. S. 31 (2026) (No. 24-924), decided April 22, 2026, cut it back. A contractor working under an Army programme at Bagram Airfield in Afghanistan hired a man who turned out to be a Taliban operative and who carried out a suicide bombing that, in the Court's words, "killed 5 and wounded 17," Hencely among them; the Army's own investigation found the contractor primarily responsible for negligent supervision. The Fourth Circuit, at 120 F. 4th 412 (4th Cir. 2024), held the injured soldier's state tort claims preempted. The Supreme Court vacated and remanded, on the ground that the government had neither ordered nor authorized the conduct sued over. Justice Thomas wrote for six Justices; Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. The United States appeared as amicus curiae urging that the contractor win.
Read the rule the opinion actually states. On the contractor defence: "Boyle addressed 'a special circumstance' in which the contractor has a defense because 'the government has directed a contractor to do the very thing that is the subject of the claim,'" the inner language being the Court's own earlier description in Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, n. 6 (2001). On the battlefield interest, quoting a Second Circuit decision with approval: "[n]o significant conflict exists between that interest and state law unless the challenged action can reasonably be considered the military's own conduct or decision and the operation of state law would conflict with that decision." And on the older immunity doctrine, in the Court's own words: "Instead, without a federal statute, contractors ordinarily have a constitutional defense only when the contractor is being sued precisely for accomplishing what the Federal Government requested."
So Hencely is, on its facts, a decision for accountability, and it is a serious limitation on the contractor defence. A claimant suing a contractor that departed from its instructions is materially better off after April 2026 than before. But the operative principle is the inverse of ours. StumpWatch says that where the conduct can fairly be treated as the government's own, the constitutional restraints on the government apply to the contractor. Current doctrine says that where the conduct can fairly be treated as the government's own, the ordinary law that would restrain a private party stops applying to the contractor. The same fact, government direction, produces liability in our framework and immunity in theirs.
The Fourth Circuit applied the same structure in Al Shimari v. CACI Premier Technology, Inc., No. 25-1043 (4th Cir. Mar. 12, 2026), and expressly declined to follow Saleh as to claims under the Alien Tort Statute. Quoting Campbell-Ewald Co. v. Gomez, 577 U. S. 153, 154 (2016), the court wrote that "When a contractor violates both federal law and the Government's explicit instructions, as alleged here, no immunity shields the contractor from suit," and that under its own precedent "the contractor must adhere to the government's instructions to enjoy derivative sovereign immunity." It rejected the derivative immunity defence for a specific reason: "CACI's failure to make any argument that the specific actions at issue in this case were authorized by the government is fatal to its affirmative defense of derivative sovereign immunity." That pin cite is to the syllabus, and the syllabus is broader than the opinion it summarises. At page 166 the Court itself wrote that when a contractor violates both federal law and the Government's explicit instructions, "as here alleged," no "derivative immunity" shields the contractor "from suit by persons adversely affected by the violation." The syllabus drops the word derivative, which confines the holding to one immunity doctrine rather than to immunity generally, and it drops the limit on who may sue. Both omissions run in this page's favour, and that is why we correct them here.
The political question analysis has the same shape. The Fourth Circuit's test, distilled from Taylor v. Kellogg Brown & Root Services, Inc., 658 F. 3d 402, 411 (4th Cir. 2011), asks "(1) whether the government contractor was under the 'plenary' or 'direct' control of the military; and (2) whether national defense interests were 'closely intertwined' with military decisions governing the contractor's conduct." Its own earlier guidance in the case was that "A contractor's acts may be shielded from judicial review under the first prong of Taylor only to the extent that those acts (1) were committed under actual control of the military; and (2) were not unlawful."
So the honest statement of current law is this. A war contractor that departs from its instructions can be reached, and Hencely makes that clearer than it was. A war contractor that does exactly what the government told it to do is very substantially protected, and the plaintiff's problem becomes that his real defendant is a sovereign that has not waived immunity. Our position is that this gets the constitutional logic backwards. It is a position, and no court has adopted it for a war contractor.
THE REMEDY CLOSED IN JUNE 2026
On June 23, 2026, the Supreme Court decided Cisco Systems, Inc. v. Doe, 609 U. S. ___ (2026) (No. 24-856), and closed the principal route by which foreign victims of conduct connected to United States operations had obtained damages. Justice Barrett wrote for the Court, joined by the Chief Justice and Justices Thomas, Alito, Gorsuch and Kavanaugh; Justice Jackson concurred in part and dissented in part, joined by Justice Kagan; Justice Sotomayor dissented, joined in part by Justices Kagan and Jackson.
The holding is two sentences in the opinion and both matter: "Today, we close the door that Sosa cracked and hold that courts may not create new causes of action for violations of international norms. We also hold that the Torture Victim Protection Act of 1991, which contains an express cause of action, does not provide for aiding-and-abetting liability."
State that precisely, because it is easy to overstate and this page previously did. The Alien Tort Statute, at section 1350 of title 28, is a grant of jurisdiction and it survives. What Cisco closed is the judicial creation of causes of action to be heard under it. The reasoning is broader than the aiding-and-abetting question the case was granted on. "We conclude only that Sosa was overly optimistic in its prediction that there might be a narrow class of cases in which courts may create ATS actions without infringing on the prerogatives of the political branches. In truth, this class is a null set." And: "Courts cannot create new rights of action to remedy violations of international law, so there is necessarily no liability for aiding and abetting such violations." The Court grounded that in the same line of decisions that has closed constitutional damages suits generally: "Our cases have emphasized that '[i]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy, the courts must refrain from creating it.'" That inner sentence is Egbert v. Boule, 596 U. S. 482, 491 (2022), quoting Ziglar v. Abbasi, 582 U. S. 120, 137 (2017), and the Cisco Court quoted it rather than saying it first. The Court also preserved two things expressly, in the sentence immediately before the one this page had been quoting: "We do not disturb Sosa's holding that the ATS is a jurisdictional statute; nor do we revisit its assumption that causes of action are available for torts corresponding to the Blackstone three." Slip op., at 12. The Blackstone three are "violation of safe conducts, infringement of the rights of ambassadors, and piracy," and the footnote hung on that sentence adds that "to the extent there has been reliance on the availability of those three actions, we see no need to revisit them." Torture is not one of the three, which is why the conclusion this page draws for a torture plaintiff survives the carve-out. A flat statement that judicially created causes of action under the statute are all foreclosed does not survive it, and this page carried one.
Now read what Congress did provide alongside it. The Torture Victim Protection Act of 1991, set out as a note to section 1350 of title 28, creates liability for "An individual who, under actual or apparent authority, or color of law, of any foreign nation" who subjects a person to torture or extrajudicial killing. Under colour of law of any foreign nation. By its terms it does not reach a person acting under colour of United States law. So the express statutory remedy that the Court treated as Congress's own answer in this field is a statute that, on its face, does not cover conduct carried out under the authority of the United States.
Put the pieces together for a foreign national injured by conduct carried out abroad under United States authority. Judicially created causes of action under the Alien Tort Statute are now foreclosed, save for the three ancient torts the Court declined to revisit, and torture is not among those three. The Torture Victim Protection Act by its terms reaches only conduct under colour of foreign law. A damages action directly under the Constitution runs into Egbert and Ziglar, and against a contractor specifically into Malesko and Minneci, which refused to extend Bivens to a private entity acting under colour of federal law or to its employees. A state tort claim survives Hencely where the contractor deviated from its instructions, and is preempted where the government directed the conduct. And if the conduct was an officially authorized interrogation practice, section 2000dd-1 of title 42 supplies a statutory good faith defence to any "agent of the United States Government," with the government paying the legal costs. We are not aware of any remaining federal damages route for that plaintiff on facts where the government directed the conduct, and we have not found one; we state that as the result of this research pass rather than as a certainty.
Criminal law is a different question and we do not treat it as answered by the above. Section 3261 of title 18 and Article 2(a)(10) of the Uniform Code of Military Justice both supply jurisdiction over contractors. Whether they are used is a factual question about prosecutorial practice that this pass did not develop, and we make no claim about it.
THE ONE JUDGMENT THAT LANDED, AND WHY IT MAY NOT SURVIVE
Al Shimari v. CACI Premier Technology, Inc. is the exception that proves how narrow the opening was. Three Iraqi men detained at Abu Ghraib sued in 2008. A second trial began in November 2024, the first having ended in a mistrial, and the jury found the contractor liable on both surviving claims; the Fourth Circuit's opinion is this page's only source for the trial history and it gives that month without a day. On March 12, 2026 the Fourth Circuit affirmed the verdict, in an opinion by Senior Judge Floyd joined by Judge Thacker, with Judge Quattlebaum dissenting. The court's own description of the case opens: "Over twenty years ago, members of the United States military and military contractors committed horrific abuses on detainees at Abu Ghraib Prison during the Iraq War." It was the sixth appeal in the case, after seventeen and a half years of litigation, and the two surviving causes of action were conspiracy to commit torture and conspiracy to commit cruel, inhuman and degrading treatment, both under the Alien Tort Statute. The court affirmed in part, vacated in part on the third-party claims against the United States on sovereign immunity grounds, and remanded with instructions.
One of the majority's grounds is the closest any court has come to the territorial half of this page's reasoning, and an earlier version of this page omitted it. Applying Rasul v. Bush, 542 U. S. 466, 480 (2004), the court concluded "that the United States had 'complete jurisdiction and control' over Abu Ghraib in late 2003," so the presumption against extraterritoriality did not apply at all. Its alternative ground, under Nestle USA, Inc. v. Doe, 593 U. S. 628 (2021), excluded from consideration "general corporate activity" such as the domestic location of the headquarters, the domestic contract issuance, and domestic payment processing, while permitting consideration of hiring, the issuance of security clearances, and an alleged cover-up.
The dissent is one of the strongest counter-arguments on this page and we set it out in its author's own words rather than ours. Judge Quattlebaum wrote: "The Supreme Court has told us repeatedly that federal courts lack jurisdiction over claims brought under the ATS where the conduct that is the focus of the statute occurred outside the United States. Here, such conduct unquestionably occurred in Iraq." And: "During that time, the district court recognized claims under the ATS for conspiracy to commit torture and conspiracy to commit CIDT, something that neither we nor the Supreme Court have done, and permitted those claims to go to a jury." On the control ground he wrote that "the majority improperly extends Rasul beyond the habeas context," and that even if Rasul applies, "the United States' control over Abu Ghraib was neither unchallenged nor indefinite as that decision requires."
Three months and eleven days after that opinion issued, the Supreme Court decided Cisco. The Fourth Circuit did not have Cisco in front of it. Cisco addresses a different step, whether a cause of action exists at all, and holds that the class of cases in which courts may create one is a null set.
We do not assert what will happen. The two claims the Fourth Circuit affirmed are conspiracy claims that, as the dissent observed, no appellate court had previously recognised, and Cisco says courts may not recognise new ones. Whether that reasoning reaches a judgment already entered, and through what procedural route, is a live question we are not in a position to answer, and readers should treat any confident prediction either way with suspicion. What we can say is that as of the date of this analysis the only substantial money judgment ever entered in the United States against a war contractor for detainee abuse rests on a species of claim the Supreme Court has since said federal courts may not create. That is the state of the record, and this page's single strongest accountability precedent is also its least secure.
AUTHORIZATION, APPROPRIATION, AND AN AUDIT NOBODY CAN COMPLETE
The clearest constitutional lever Congress holds is the one it exercises annually and least visibly. Two different statutes do two different jobs each year, and conflating them is the most common error in public discussion of defence spending. A National Defense Authorization Act authorizes activities and sets policy; it does not itself provide budget authority. An appropriations act provides the money.
For fiscal year 2026, Public Law 119-60, enacted December 18, 2025, carried an authorized total for budget function 050, national defense, of 890.6 billion dollars, according to Congressional Research Service analysis. The money came separately, in Division A of Public Law 119-75, the Consolidated Appropriations Act, 2026, enacted February 3, 2026, and the Congressional Research Service puts the appropriated total for Department of Defense national defense activities in that Division at 839.2 billion dollars. Those two figures are measured on different bases: one is an authorization for an entire budget function and the other is an appropriation for Department of Defense activities in one division of one act. They are not comparable, the difference between them is not a discrepancy, and this analysis does not reconcile them. Neither enacted act states a grand total on its face.
Against that, the audit record. In testimony before a House subcommittee on May 13, 2026, GAO-26-109115, the Government Accountability Office stated that "The Department of Defense (DOD) has never achieved an unmodified ('clean') opinion on its financial statements. Over the last 30 years, DOD's auditors have issued thousands of notices of findings and recommendations and identified associated material weaknesses." The same testimony records progress, and an analysis that quoted only the first half would be doing the thing this page criticises: "In recent years, DOD and its components have made some progress in their remediation efforts by achieving important milestones. For example, the Marine Corps first achieved a clean audit opinion for fiscal year (FY) 2023 and has achieved a clean opinion each subsequent year," with benefits including "cost savings and avoidances, improvements to systems, and enhanced visibility over assets and inventory."
The most recent departmental audit, Report No. DODIG-2026-032 of December 18, 2025, records in the auditor's own formal language that "we could not obtain sufficient, appropriate evidence to provide a basis for an audit opinion on the financial statements," that the auditors "do not express an opinion on the accompanying financial statements," and that "the financial statements may contain undetected misstatements that are both material and pervasive." That report describes "26 material weaknesses and 2 significant deficiencies related to the DoD's internal controls over financial reporting," and records that the reporting entities that received disclaimers "account for at least 43 percent of the DoD's total assets and at least 64 percent of the DoD's total budgetary resources."
A disclaimer is not a finding that money was stolen. It is a statement that the auditor could not obtain enough evidence to form any opinion at all. We say so plainly because the opposite inference is the most common misuse of this record.
But the constitutional point does not depend on the misuse. The appropriations power is a power to decide, and a decision requires knowing what the last decision produced. Article I gives Congress the power of the purse and section 1547(a)(1) of title 50 says that funding a war does not authorize it. Our position, stated as a position: when the branch holding that power cannot obtain an audit opinion covering the majority of the budgetary resources it appropriates, the check is weaker than the constitutional design assumes, and that is true regardless of anyone's intentions.
THE ARMS-SALE REVIEW, AND WHAT IT HAS ACTUALLY STOPPED
Transfers of United States defense articles to foreign governments run through section 36 of the Arms Export Control Act, at section 2776 of title 22. The statute fixes notification thresholds in dollars: advance certification to Congress is required for a government-to-government letter of offer of 50,000,000 dollars or more in defense articles or services, 200,000,000 dollars or more in design and construction services, or 14,000,000 dollars or more in major defense equipment. Higher thresholds of 100,000,000, 300,000,000 and 25,000,000 dollars apply where the recipient is a member country of the North Atlantic Treaty Organization or Australia, Japan, the Republic of Korea, Israel or New Zealand and the offer does not authorize a new sales territory including other countries. Subsection (c) applies a parallel review to export licences, which is the direct commercial sale route.
The review mechanism is a clock with an inverted default. The letter of offer "shall not be issued" if Congress, within fifteen calendar days for that favoured group or thirty calendar days for anyone else, "enacts a joint resolution prohibiting the proposed sale, unless the President states in his certification that an emergency exists which requires such sale in the national security interests of the United States." A President who invokes that emergency must "set forth in the certification a detailed justification for his determination," but the justification goes to Congress, not to a court.
Three features of that sentence decide everything. The sale proceeds unless Congress affirmatively stops it inside a two-to-four week window. The instrument must be a joint resolution that Congress "enacts," which means presentment and therefore a presidential signature or a two-thirds vote of those present and voting in both chambers. The 1986 amendment made by Public Law 99-247 substituted "enacts a joint resolution prohibiting" for the earlier "adopts a concurrent resolution stating that it objects to," which is Congress reacting to Chadha in this statute exactly as it reacted in section 1546a. And an emergency certification waives the review period entirely.
The record of this Congress is roll calls. In the 119th Congress, through August 8, 2026, the Senate voted on eight motions to discharge joint resolutions of disapproval of proposed arms transfers, and rejected all eight. Seven concerned government-to-government foreign military sales: two on April 3, 2025 by 15 to 83 and 15 to 82; two on June 11, 2025 by 39 to 56 and 39 to 56; one on July 30, 2025 by 24 to 73; and two on April 15, 2026 by 36 to 63 and 40 to 59. The eighth, on July 30, 2025, concerned a proposed export of certain defense articles rather than a government-to-government sale, and was rejected 27 to 70. Not one reached the floor for a vote on passage, which is the step a joint resolution of disapproval has to clear before the presentment problem even arises.
What this analysis does not establish, and a reviewer was right to press on it: whether a joint resolution of disapproval under section 2776 has ever been enacted, whether Congress has ever passed one through both chambers only to have it vetoed, and how often the emergency certification has been used. No Congressional Record entry, Congressional Research Service product or State Department report documenting that practice was retrieved in this pass or in the one that built this issue's explainer. An earlier version of this section was headed as though the mechanism had never produced a congressional majority. We do not know that, we did not check it, and the heading has been changed.
Our position, stated as a position: a review period of fifteen or thirty days, an instrument that requires presentment, and an emergency certification the President writes for himself together make congressional disapproval very difficult to complete. What we can show from the record is the narrower half: in this Congress, no disapproval resolution has reached a vote on passage.
The human rights conditions sit on the same architecture. Section 502B of the Foreign Assistance Act, at section 2304 of title 22, provides that "no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights," subject to a presidential certification that "extraordinary circumstances exist warranting provision of such assistance." The Leahy Law, at section 2378d of title 22, operates on units rather than countries: "No assistance shall be furnished under this chapter or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights," with the prohibition lifting where the Secretary reports that the government is taking effective steps to bring the responsible members to justice. Section 502B also gives Congress a mechanism to demand the underlying information. On June 17, 2026 the Senate rejected, 44 to 50, a motion to discharge S. Res. 616, a resolution requesting information on Honduras's human rights practices pursuant to section 502B(c) of the Foreign Assistance Act of 1961. A conditions regime whose factual predicate is supplied by the same executive branch that decides whether to certify around it depends on the willingness of a legislative majority to ask.
INDEFINITE DETENTION, SUSTAINED BY ANNUAL RESTRICTION
Boumediene held that detainees at Guantanamo have a constitutional habeas right. It did not decide how long anyone may be held, and Congress has spent the years since addressing that question by extending funding restrictions in the annual defense authorization act rather than by legislating the substance.
Get the instrument right, because an earlier version of this page called these appropriations riders and they are not. They sit in the National Defense Authorization Act, which authorizes rather than appropriates, and they restrict the use of funds. The Fiscal Year 2026 Act, Public Law 119-60, contains four consecutive sections doing nothing but pushing dates forward. Section 1032 extends the prohibition on using funds to transfer or release Guantanamo detainees to the United States by striking "December 31, 2025" and inserting "December 31, 2026" in the Fiscal Year 2019 act. Section 1033 does the same for the prohibition on constructing or modifying facilities in the United States to house them. Section 1034 does the same for transfers to certain countries. Section 1035 extends the prohibition on closing or relinquishing control of the naval station itself, by striking "fiscal years 2018 through 2025" and inserting "fiscal years 2018 through 2026" in the Fiscal Year 2018 act.
Read that against section 4001(a) of title 18: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." And against Hamdi, where a plurality found congressional authorization for detention in the 2001 force authorization because detention is "a fundamental incident of waging war," and treated that authorization as the Act of Congress section 4001(a) requires, while insisting that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
Our position, stated as a position: a detention regime that Congress sustains by moving a date forward each December, without ever legislating its substance, is the weakest form of the congressional authorization Hamdi accepted, and it is being asked to carry heavy constitutional weight. No court has held that. Nor do we claim these restrictions are beyond Congress's power: the power to attach conditions to the use of funds it authorizes is broad, and whether restrictions of this particular kind intrude on the executive's Article II authority is a contested question that this analysis did not research and does not decide. What we say is narrower. Using a funding restriction to prevent an executive branch decision, year after year, and never legislating the substantive question, is a way of deciding while retaining the ability to say nothing was decided.
The leading appellate authority on the reach of the 2001 authorization that Hamdi construes is Al-Bihani v. Obama, 590 F. 3d 866 (D.C. Cir. 2010), and it runs against the reading this page favours. The panel wrote, at 590 F. 3d at 871: "all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken." And it adopted for AUMF cases the "part of or supporting" and "part of or substantially supported" formulations, either of which was sufficient in that case: at 590 F. 3d at 871-72 the panel said Al-Bihani was detainable "whether the definition of a detainable person is, as the district court articulated it, 'an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners,' or the modified definition offered by the government that requires that an individual 'substantially support' enemy forces." That formulation is the one three administrations have used and that Congress codified in section 1021 of the National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81. The authority of the panel's international-law-of-war holding is more limited than it first reads, and this page will not overstate it. On denial of rehearing en banc at Al-Bihani v. Obama, 619 F. 3d 1 (D.C. Cir. 2010), seven of the D.C. Circuit's judges — Chief Judge Sentelle joined by Ginsburg, Henderson, Rogers, Tatel, Garland, and Griffith, JJ. — wrote that "the panel's discussion of that question is not necessary to the disposition of the merits," which they identified as the panel's discussion of "the role of international law-of-war principles in interpreting the AUMF." 619 F. 3d at 1. That is the D.C. Circuit's own bench telling later readers the panel's international-law-of-war rule is dictum, and neither the Supreme Court nor any other circuit has adopted or rejected it. The lean of this edit runs against the page: it puts on the record the leading circuit authority sustaining a broad reading of the AUMF that is at the heart of the detention regime this page questions. The lean of what remains runs the other way, because the same panel's international-law-of-war reasoning is the piece seven of the ten judges of its own court have said was unnecessary, so the reader sees the strongest authority and also sees what its court thought of the part of it that runs furthest.
AN AUTHORIZATION REPEALED TWENTY-THREE YEARS AFTER ENACTMENT
Public Law 107-243, enacted October 16, 2002, authorized the President to use the armed forces "as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." Its operative section carried no expiration date.
Section 8370 of the National Defense Authorization Act for Fiscal Year 2026, Public Law 119-60, enacted December 18, 2025, at 139 Stat. 1906 to 1907, provides in its entirety: "The following are hereby repealed: (1) Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1; 105 Stat. 3; 50 U.S.C. 1541 note) is hereby repealed. (2) The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243; 116 Stat. 1498; 50 U.S.C. 1541 note) is hereby repealed." The redundant drafting is in the enacted text and we quote it as it is.
The government the 2002 resolution was aimed at did not survive the following spring. The Fourth Circuit recorded the sequence in its 2026 Al Shimari opinion: the United States deposed the existing Iraqi government in May 2003 and created a temporary authority to replace it, the Coalition Provisional Authority, which "had plenary authority until June 2004, when the CPA began to transition power to the Iraqi Interim Government." The authorization outlived that by more than two decades. It was repealed twenty-three years and two months after enactment, alongside the 1991 Iraq authorization enacted at 105 Stat. 3, which had been on the books longer still. Neither expired on its own; both had to be affirmatively killed, and the vehicle was a single section deep inside an annual defense bill rather than a stand-alone act.
What the episode establishes is a drafting default rather than anyone's conduct, which is why this section sits here rather than under Hidden Agendas. An authorization written without a sunset does not lapse when its premise does; it survives until a later Congress can assemble a majority to end it. Repealing a dormant authorization is not urgent and floor time is scarce, and attaching a repeal to a must-pass bill is ordinary legislative practice. This pass did not obtain any executive branch statement about whether either authorization was being relied on in the intervening years, and we make no claim about that.
A NECESSARY CORRECTION TO THIS PAGE'S OWN EXPLAINER. The issue explainer published on this site describes the 2002 authorization in the present tense, as a live grant whose operative section contains no expiration date on its face. That description was accurate when written and is no longer accurate; the authorization was repealed on December 18, 2025. We record the correction here rather than quietly editing it away.
WHAT WAS NOT REPEALED. Public Law 107-40, the 2001 authorization, was not touched. We searched the full enacted text of Public Law 119-60 for references to it and found none, while the 2002 authorization is referenced once, in section 8370. The 2001 authorization remains in force.
WHAT THIS SECTION IS, AND WHAT IT IS NOT
This section records documented gaps between what an institution says a mechanism does and what a primary document shows it does. In the one item that survives review, the primary document is one government body's published account of another's conduct. Where that is so, the document establishes what that body stated, not the underlying fact, and the item says so.
Each item is built the same way: the duty or the description, quoted with its source; the record, quoted from a primary document; the divergence, described plainly; and the innocent explanation, stated honestly, with whether the record rules it out. Where the innocent explanation survives, the item is labelled unresolved and left that way. The single item here is unresolved. A second item was withdrawn from this section in the revision that produced this version, and the withdrawal is recorded below rather than performed silently.
This section does not impute motive. It makes no claim about intent, plan or bad faith, and it names no official and no party. A statute is evidence of what Congress required, never of what happened. An agency's own report is evidence of what the agency found. The reader draws the inference.
THE AGREEMENTS CONGRESS IS SUPPOSED TO SEE
THE DUTY. Section 112b of title 1, the Case-Zablocki Act as amended, requires the Secretary of State, "Not less frequently than once each month," to provide to congressional leadership and the appropriate committees "A list of all international agreements and qualifying non-binding instruments signed, concluded, or otherwise finalized during the prior month," "The text of all international agreements and qualifying non-binding instruments described in clause (i)," and "A detailed description of the legal authority that, in the view of the Secretary, provides authorization for each international agreement." Where the authority relied upon "is or includes article II of the Constitution of the United States, the Secretary or appropriate department or agency shall explain the basis for that reliance." The Comptroller General is directed to audit compliance. This is the mechanism by which Congress learns about the commitments that do not take the treaty route of two-thirds of Senators present.
THE RECORD. The Comptroller General reported in June 2026, in GAO-26-108186, that "State reported 311 agreements and instruments to Congress between October 2023 and March 2025, but nearly one-third were reported late at one or both points. Late-reported agreements and instruments were on average 2.3 reporting cycles late." GAO gave an example in which "Congress was notified about the agreement about 5 months after its conclusion." On publication, GAO found that the Department "generally published text and legal authority information for agreements and instruments on its website but missed the 120-day statutorily mandated deadline about half of the time," and that the website "does not enable Congress or the public to find information efficiently, when compared to best practices," with information "fragmented" across four webpages "without a way to search across the universe of agreements and instruments, such as by country, agency, or subject." GAO made seven recommendations. The Department concurred with five and did not concur with two.
THE DIVERGENCE. Reporting exists so that Congress can evaluate a commitment while it can still act on it. A notification arriving five months after the agreement was concluded, and a text published outside the statutory window about half the time, is a duty performed after the moment it exists to serve.
WHAT WOULD EXPLAIN IT INNOCENTLY. The 2022 amendments substantially expanded the requirement, extending it for the first time to qualifying non-binding instruments, and took effect two weeks before the start of the period GAO examined. Implementation lag in the first eighteen months of a materially broader statutory duty is ordinary, and GAO itself found that the Department reported and published, rather than failing to. UNRESOLVED, though it is worth stating that Congress has amended this act repeatedly over five decades in an effort to improve compliance, and that the object of the duty is the class of commitments that never faces a Senate vote.
WHAT THIS SECTION DOES NOT ESTABLISH
It does not establish that anyone acted in bad faith, and nothing here should be read that way. Every item above rests on a statute, an enacted public law, a court opinion, a roll call, or a published report of the Government Accountability Office. None of it rests on a press account, and where a document could not be retrieved in this pass the item says so or the item was removed.
It does not establish what any administration decided or why. This pass did not obtain a single report submitted under section 1543, section 1549 or section 1550 of title 50, and makes no claim about their contents, their timeliness or their completeness. It obtained and read two opinions of the Office of Legal Counsel, the memorandum for the Attorney General of February 12, 1980 and the opinion of October 26, 1983 published as its appendix, and it obtained no others; the executive branch positions described on this page after 1983 rest on the published Statement of Administration Policy of April 16, 2026 and on nothing else. It did not obtain any presidential certification under section 2776 of title 22, so the frequency with which the emergency waiver has been used is unknown to us. It did not examine the underlying operations behind any of the 2026 roll calls, and takes no position on any of them.
It does not measure any individual official's statements against any record. That is a different exercise from the one performed here, and it is the exercise this heading normally names. This issue's page carries positions attributed to individual officials; nothing in this section is an assessment of any of them.
And it does not rest on public opinion at any point. This issue carries no polling on StumpWatch, and nothing in this analysis is derived from any.
WHAT THIS ANALYSIS WITHDREW, AND WHY
A page that quietly drops a claim is worse than one that explains why it went. Two adversarial reviews were run against the previous draft of this analysis, and a later pass checked it against the primary documents themselves; the following material did not survive either. It is recorded here rather than deleted silently.
AN ITEM ON ARMS END-USE MONITORING WAS REMOVED IN FULL. The previous draft carried a Hidden Agendas item contrasting the stated purpose of the Golden Sentry end-use monitoring program with what officials told the Government Accountability Office about it, quoting four passages from GAO-23-105856 of November 2022 and GAO-24-106289 of March 2024. Those quotations were carried from this issue page's existing citation record rather than re-extracted, because the host refused automated retrieval in the pass that wrote the draft. It refused again in this pass, from two separate paths. Under this project's rule that a quotation must come from a document the writer has actually opened, the item was withdrawn in full rather than published with a disclaimer. The two GAO reports remain in this page's citation record, and a reader who can retrieve them can judge for themselves.
A CLAIM THAT NO ADMINISTRATION HAS EVER CONCEDED THE SIXTY-DAY CLOCK WAS WITHDRAWN AS WRONG. The 1980 Office of Legal Counsel opinion concedes it, in terms, and the concession is now quoted in the contested section above.
A CLAIM THAT BOUMEDIENE WAS THE CLOSEST ANY COURT HAD COME TO THIS PAGE'S REASONING WAS WITHDRAWN AS WRONG. West v. Atkins and Skinner are closer, and both are now set out in their own section.
A HEADING ASSERTING THAT THE ARMS-SALE REVIEW MECHANISM HAS NEVER WORKED WAS WITHDRAWN AS UNSUPPORTED, and the section that carried it now says what was and was not checked.
SEVERAL SPECIFIC FIGURES AND CHARACTERISATIONS WERE REMOVED FOR WANT OF VERIFICATION IN THIS PASS: the Senate vote tallies on the declarations of war of June 4, 1942 and the count of declarations, which appeared in the opening sentence and the first summary point; a quotation attributed to the Congressional Research Service about what a defense authorization act does; and a quotation of the enacting clause of the Consolidated Appropriations Act, 2026. The substance each supported is either stated without the quotation or is gone.
AN EMPTY SECTION HEADING WAS DELETED. The previous draft carried a Hidden Agendas heading with no text beneath it, which would have rendered as a bare heading on the published page.
A HIDDEN AGENDAS ITEM ON THE ANNUAL TARGETING LIST WAS WITHDRAWN AS UNBUILT. The previous version carried an item headed A LIST CONGRESS HAD TO DEMAND, AND THEN DEMAND AGAIN, which set the 2001 authorization beside the 2017 and 2019 reporting statutes. Every statute quoted in it was quoted correctly. The item still failed this section's own stated test: no institutional statement was contradicted by any primary document, and the divergence it described was a comparison of how two statutes read. Its own closing paragraph conceded that away. The accurate statutory description has been moved into the War Powers section as an observation, and the item is gone from this one, because a section with nothing behind it is not padded to look complete.
A HOLDING ATTRIBUTED TO THE ZIVOTOFSKY COURT WAS WITHDRAWN AS A MISATTRIBUTION. This page reported the Court as holding that a President acting against the expressed will of Congress must show a power that is conclusive and preclusive. That phrase is the Chief Justice's, in dissent, and the Court's own sentence says exclusive and conclusive and is a restatement of Justice Jackson rather than a holding of its own. The bound volume settled it and the correction is made where the case is discussed.
A CATEGORICAL STATEMENT ABOUT THE ALIEN TORT STATUTE WAS NARROWED. This page said judicially created causes of action under the statute are now foreclosed, full stop. Cisco expressly declined to revisit causes of action for the three torts Blackstone named, and said so in the sentence before the one this page was quoting. Torture is not one of the three, so the conclusion this page draws for a torture plaintiff survives; the unqualified form of the statement did not.
A DATE WAS REMOVED FOR WANT OF A SOURCE. The previous version said a jury found the contractor liable in Al Shimari on November 12, 2024. The Fourth Circuit's opinion is the only source this analysis has opened for the trial history and it gives the month without the day, so the day is gone rather than carried unsourced.
WHERE WE BELIEVE THE LAW SHOULD GO
This section, like the position section above it, is our editorial view rather than a description of existing law. It sets out what we think would actually work, and it is deliberately weighted toward mechanisms that do not depend on a court agreeing with us, because the record on this page is that courts mostly have not.
Repeal section 1544(c) and legislate the replacement. The concurrent resolution provision is the single most damaging thing in the War Powers Resolution, because it offers Congress an instrument that feels like enforcement and that the executive branch has said since 1980 has no legal effect. Congress built the alternative in 1983, in section 1546a, and then left the original in the Code for forty-three years, where it was used twice in 2026. Striking it would cost Congress nothing it actually has and would remove the option of appearing to act instead of acting.
Close the contractor hole the Senate left open in 1973. The Eagleton amendment would have deemed any person employed by, under contract to, or under the direction of any federal department or agency, who is actively engaged in hostilities abroad or advising forces engaged in hostilities abroad, to be a member of the Armed Forces for the purposes of the War Powers Resolution. It was defeated, and the executive branch has relied on its defeat ever since. Enacting it now would make the statute's clock count the people actually doing the fighting.
Make the funding cutoff self-executing rather than the withdrawal order. Article I's appropriations power is the one war power that does not depend on the executive obeying anything, because money that has not been appropriated cannot be spent. A statute that terminates the availability of appropriations for a particular use of force after a fixed period unless Congress affirmatively extends it, rather than one that orders the President to withdraw, converts the default from continuation to cessation and does so through the branch's least contestable authority. Section 1547(a)(1) already establishes the converse rule, that an appropriation does not authorize hostilities, so the two would sit together coherently. We acknowledge this raises its own hard questions about forces already deployed, and we do not pretend otherwise.
Put a sunset in every authorization for the use of military force. Both Iraq authorizations outlived their premises by decades because neither expired on its own. A sunset does not weaken an authorization; it requires the body that granted it to grant it again, which is exactly the recurring decision the two-year army appropriation clause was designed to force.
Give the arms-sale review a default Congress can actually operate. A review period long enough to hold hearings, and an emergency certification that expires and must be renewed with a stated basis, would preserve genuine urgency while removing the permanent escape hatch.
And create the cause of action the Supreme Court says only Congress can create. This is the recommendation the 2026 decisions make unavoidable. In Cisco the Court held that courts may not create causes of action for violations of international law, and it grounded that holding partly in the constitutional assignment to Congress of the power to "define and punish . . . Offences against the Law of Nations." The express statutory remedy Congress has enacted in this field, the Torture Victim Protection Act, by its terms reaches only individuals acting under colour of law of a foreign nation. The gap is not hidden and it is not a matter of interpretation: for a person injured by torture carried out under the authority of the United States, by a contractor or by an official, the statute Congress passed does not apply, and the judicial route is now closed. Congress could close that gap in a paragraph, and if it wanted the defence in section 2000dd-1 of title 42 to survive alongside it, it could say so. Until it does, the constitutional prohibition Congress itself wrote into section 2000dd, defined by reference to the Fifth, Eighth and Fourteenth Amendments and applying to anyone in United States custody or control "regardless of nationality or physical location," is a rule with no civil remedy attached to it.
That is the shape of our position on this issue. The Constitution assigns the decision to fight to the branch that must stand for election, and it attaches its restraints to the exercise of government power rather than to the identity of the person exercising it. The first is not currently enforced by any court against the decision. The second is enforced in some domains and not in this one. We think both should be, and we will keep saying so while the question is open.