On January 20, 2025, President Trump issued an executive order (EO) called Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States. This order is aimed at closing borders and repelling a nonspecific invasion. The President directs the military to add specific requirements to the Unified Command Plan and to deliver to the President a revised plan within 10 days.

Although any president has limited power to use armed forces, this EO does not rely on any specific legal sources. If the President does not rescind this EO, Congress and the Courts should act swiftly to correct this presidential overreach.

The Constitution Divides and Balances War Powers

The framers intentionally divided and balanced power so that no one person could take over the government. The Constitution divides military power between Congress and the president. In Article I, Section 8, Congress has power:

• To raise and support armies;
• To provide and maintain a navy;
• To make rules for the government and regulation of the land and naval forces;
• To provide for calling forth the militia to execute laws, suppress insurrections, and repel invasions; and
• To provide for organizing, arming, and disciplining the militia.

To balance congressional power, Article II, Section 2, names the president as Commander in Chief. The president has certain powers inherent to that role, but those powers are limited.

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.

James Madison

The President has limited war power

The Supreme Court has said that the president has limited defensive power. The power is limited by Congress’ exclusive power to declare war. But the Court said the president may use force to repel a sudden attack by a foreign nation or States organized in rebellion, when there is not time to obtain Congress’ authority. See the Prize Cases. Neither is the case in 2025.

President Trump does not Cite the War Powers Resolution

In 1973, Congress passed the War Powers Resolution (WPR), 87 Stat. 555 (1973), gaining enough support to beat President Nixon’s veto. The WPR addressed the growing sense of imbalance of war powers between Congress and the president. Under the WPR, the president can only introduce U.S. armed forces into hostilities or where hostilities are imminent if:

• Congress has passed a declaration of war or
• Congress has passed a specific statutory authorization or
• There is a “national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

When a president introduces armed forces into hostile environments or certain combat-ready deployments, the president must submit a report in writing to Congress within 48 hours. The report must detail the circumstances necessitating the use of armed forces, the constitutional and legislative authority for the use, and the estimated scope and duration of the use. Congress has the power and responsibility to terminate any use of force that occurs without legal authority.

In the 2025 EO, President Trump does state a “National Emergency currently exists along the southern border of the United States,” but he does not say the emergency is created by attack on the country, its territories, or its armed forces.

The 2025 EO doesn’t cite the WPR, because the actions in the EO do not conform to its requirements.

President Trump Does not Cite the national interests test

Apparently, the Justice Department’s Office of Legal Counsel (OLC) developed the national interests test through opinions issued periodically since 1941, and culminating in a 1992 OLC memo, Authority to Use United States Military Forces in Somalia.

To determine when it’s appropriate for the president to use Article II war powers, the two-prong tests asks:

• Whether the President could reasonably determine that the action serves important national interests and
• Whether the contemplated military action would bring the Nation into a war.

Since the term “national interest” is not defined, this test cannot be clearly and meaningfully used to justify armed military action. And Congress has never explicitly authorized the national interests test.

The 2025 EO does not cite the national interests test to justify the President’s use of armed forces. The term “national interests” does not appear.

The 2025 EO Does not justify the president’s use of armed forces

The U.S. President is not a monarch or dictator but one pillar among three in our republican democracy. The president, alone, has very limited authority to use armed forces. That’s intentional and purposeful. The intent is to prevent a consolidation of power into a single individual or branch of government. The purpose is to prevent the fall of democracy.

“It is important. . . that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.”

George Washington

To uphold the Constitution, President Trump should rescind this EO. If he does not, Congress should immediately act to stop the EO. If neither protects the Constitution, we are left to hope the matter finds a judiciary willing and ready to correct the imbalance of power and uphold the Constitution.

Presidential Quotes

The Founders’ Constitution, Vol. 3, Art. 1, Sec. 8, Clause 11, Document 8 (Madison), The Univ. of Chicago Press (accessed 1/23/2025) https://press-pubs.uchicago.edu/founders/documents/a1_8_11s8.html

George Washington, “Farewell Address” (9/19/1796) https://archives.nypl.org/mss/3230

Interesting reading includes:

Memorandum, “Legal Assessment of the War Powers Resolution,” U.S. Dept. of Justice, Ofc. of Legal Counsel (1993) https://www.justice.gov/d9/pages/attachments/2022/09/02/la_19930609_legal_assessment_of_the_war_powers_resolution.pdf

Curtis Bradley and Jack Goldsmith, “OLC’s Meaningless ‘National Interests’ Test for the Legality of Presidential Uses of Force,” LawFare (6/5/2018, accessed 1/24/2025) https://www.lawfaremedia.org/article/olcs-meaningless-national-interests-test-legality-presidential-uses-force