Mark GoldfederThe lead article in Thomas Massie’s impeachment of Pete Hegseth charges him with violating the War Powers Resolution, but the War Powers Resolution does not mention the Secretary of Defense. It names one officer, the president, in every clause that imposes a duty, and Massie’s own articles admit that the president gave the orders. The House should keep that in mind before it votes this week, along with something Senate Democrats said in April 2024: fights over policy are not what impeachment is meant for.
Massie lost his primary in May, one day after Hegseth flew to Kentucky to campaign against him, and he has spent the months since drafting perhaps the longest grudge in the Congressional Record. He has eight weeks left. Congress has a funding deadline on December 11, a Senate that changes hands in January, and a war to deal with, and on Monday afternoon he read all eight articles from the House floor as a question of privilege, which the chamber must drop everything to dispose of within two legislative days. The vote comes by Wednesday. Hakeem Jeffries called himself a “hard yes” on Sunday; Republican leaders are counting defections, and the votes may well be there by midweek.
The law, however, is not.
The resolution runs 34 pages, which is 34 more than the War Powers Resolution devotes to the Secretary of Defense. Article I charges Hegseth with waging war in contravention of section 2(c) of the Resolution; Article II with continuing it after both houses passed a concurrent resolution directing withdrawal; Article III with continuing it past the 60-day clock. All three quote the statute at length, but none quotes the clauses that say whom it binds.
They skip those because the statute binds only one officer. Section 2(c) describes “the constitutional powers of the President as Commander-in-Chief.” Section 3 says “the President in every possible instance shall consult with Congress.” Section 4 says “the President shall submit within 48 hours” a written report. Section 5(b) says “the President shall terminate” the use of force after sixty days. Section 5(c) says forces “shall be removed by the President if the Congress so directs by concurrent resolution.” Every duty the War Powers Resolution imposes outside Congress runs to the President. The word “Secretary” appears nowhere in it.
Massie’s own articles concede the point. Article I charges that Hegseth “executed unlawful orders.” Article III recites that “President Donald J. Trump transmitted” the required notification and that “President Donald J. Trump did not submit the written certification” needed to extend the clock. The resolution builds its case against the man who gave the orders, then, at the close of each article, swaps in the name of the man who answered the call.
High crimes and misdemeanors do not require a statute. But Massie oddly chose a statutory theory anyway, and pleaded it as his lead charge, so when the statute drops out, the article’s own theory of abuse, that Hegseth “executed unlawful orders,” has to carry the weight alone. It cannot. A subordinate who carries out an order the president says is lawful has not abused his office by obeying it, unless the order is unlawful on its face. This one was not. The only claim that it was unlawful is that it violated the War Powers Resolution: that the president sent forces into hostilities without a declaration or an authorization, and kept them there past the 60-day limit the statute sets. That statute is law; Congress passed it over Richard Nixon’s veto in 1973. But whether its 60-day clock is constitutional, whether Congress can end a Commander in Chief’s war by the passage of time rather than by a vote, is what the two branches have fought about ever since, and no court has ever settled it. An order does not become unlawful on its face because it collides with a law whose reach has been in dispute for 50 years.
Nor does this mean that the House should aim higher. Massie has pleaded himself out of impeachment altogether: a president who claims his conduct is lawful, and a Congress that disputes it is a war-powers argument between the political branches, and the Senate has already said what impeachment does with those. The precedent is Alejandro Mayorkas.
In February 2024, the House impeached Mayorkas for refusing to enforce the immigration laws. On April 17, 2024, Chuck Schumer rose in the Senate and raised a point of order “that impeachment article I does not allege conduct that rises to the level of a high crime or misdemeanor, as required under article II, section 4 of the U.S. Constitution and is, therefore, unconstitutional.” The Senate sustained it, and disposed of the second article the same way, without hearing a witness. Schumer’s speech that morning left nothing to interpretation: “The Framers were clear: Impeachment should never be used to settle policy disagreements.” The question this week is whether that standard was a principle or a convenience.
Article II of the resolution has its own problem. It charges Hegseth with ignoring a concurrent resolution, a measure both houses pass, and the president never signs. In 1983, in INS v. Chadha, the Supreme Court held that Congress cannot change anyone’s legal obligations that way: if it wants to bind the executive branch, it has to pass a bill and send it to the president, who can sign it or veto it. So the clause of the War Powers Resolution that lets Congress order troops home by concurrent resolution has sat under a constitutional cloud for 43 years, and Article II now asks the House to impeach a cabinet officer for disobeying it. An impeachment vote is a strange place to decide, for the first time, whether that clause is even law.
To be clear, Articles IV through VIII are a different animal. They charge Hegseth with his own decisions: dismantling civilian-harm safeguards before the strike on a school in Minab, the campaign of lethal strikes on suspected drug boats, the censure of Senator Mark Kelly, the seizure of Nicolás Maduro, the Yemen campaign. But Massie, in his careless hurry, has made it impossible to vote on them alone, which makes them useless. A privileged resolution comes to the floor as one question unless the House divides it, so eight articles ride on one button. Article V, for example, treats an entire campaign of strikes and 221 deaths as a single count, and in a Senate trial each article gets one vote with no way to separate the acts inside it. That is the same defect that dogged the Clinton trial, where one obstruction article bundled seven distinct acts, and the first Trump trial, where a single count of abuse of power covered the whole Ukraine affair.
The remedies for an unauthorized war already exist, and the Framers put them where Congress could not miss them. Article I forbids any appropriation for the army “for a longer Term than two Years.” The current funding law expires December 11, and nothing stops the House from writing a rider that forbids spending another dollar on offensive operations in Iran after that date. A rider needs both chambers and either the president’s signature or a two-thirds override, which is how the Constitution meant it.
If the House wants the war to end, the Constitution handed it the checkbook. If the voters want to punish the president who oversaw it, the Constitution handed them an election. It never handed Congress an impeachment for a disputed deadline, whatever name appears in the article.
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Dr. Mark Goldfeder, Esq., is Director of the National Jewish Advocacy Center.
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