The 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.
asserted
Resolution → charge → 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.
asserted
president → name → 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.
asserted
impeachment → keep → what
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.
uncertain
he → lose → Record
He has eight weeks left.
asserted
He → have → weeks
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.
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chamber → have → days
The vote comes by Wednesday.
asserted
vote → come → Wednesday
Hakeem Jeffries called himself a “hard yes” on Sunday; Republican leaders are counting defections, and the votes may well be there by midweek.
uncertain
votes → call → midweek
The resolution runs 34 pages, which is 34 more than the War Powers Resolution devotes to the Secretary of Defense.
asserted
Resolution → run → 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.
asserted
houses → charge → clock
All three quote the statute at length, but none quotes the clauses that say whom it binds.
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it → quote → whom
They skip those because the statute binds only one officer.
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statute → skip → officer
Section 2(c) describes “the constitutional powers of the President as Commander-in-Chief.”
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Section → describe → Chief
Section 3 says “the President in every possible instance shall consult with Congress.”
asserted
President → say → Congress
Section 4 says “the President shall submit within 48 hours” a written report.
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President → say → report
Section 5(b) says “the President shall terminate” the use of force after sixty days.
asserted
President → say → days
Section 5(c) says forces “shall be removed by the President if the Congress so directs by concurrent resolution.”
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Congress → say → resolution
Every duty the War Powers Resolution imposes outside Congress runs to the President.
asserted
Resolution → impose → President
The word “Secretary” appears nowhere in it.
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Secretary → appear → it
Massie’s own articles concede the point.
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articles → concede → point
Article I charges that Hegseth “executed unlawful orders.”
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Hegseth → charge → 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.
asserted
Trump → recite → 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.
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who → build → call
High crimes and misdemeanors do not require a statute.
asserted
crimes → require → 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.
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Hegseth → choose → weight
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.
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order → carry → face
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.
uncertain
statute → violate → limit
That statute is law; Congress passed it over Richard Nixon’s veto in 1973.
asserted
Congress → pass → 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.
asserted
court → end → 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.
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reach → become → years
Nor does this mean that the House should aim higher.
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House → mean → ?
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.
uncertain
impeachment → plead → those
In February 2024, the House impeached Mayorkas for refusing to enforce the immigration laws.
asserted
House → impeach → 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.”
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that → rise → Constitution
The Senate sustained it, and disposed of the second article the same way, without hearing a witness.
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Senate → sustain → witness
Schumer’s speech that morning left nothing to interpretation: “The Framers were clear: Impeachment should never be used to settle policy disagreements.”
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Impeachment → leave → disagreements
Article II of the resolution has its own problem.
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Article → have → problem
It charges Hegseth with ignoring a concurrent resolution, a measure both houses pass, and the president never signs.
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president → charge → resolution
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.
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who → hold → 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.
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Article → let → it
…and 13 more, not listed.
The Aporia
