What is the Constitutional Balance of War Powers Between Congress and the President?

From the National Constitution Center in Philadelphia, this is We The People. I'm Julie Silverbrook, Chief Content and Learning Officer. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On February 28, President Trump announced major combat operations in Iran. The operation known as Epic Fury has renewed a long standing debate about the scope of presidential war powers and who has the constitutional authority to decide when the nation uses military force. In this episode, we explored the constitutional foundations of war powers as well as the war powers resolution of 1973, examining how they inform today's debates over the respective roles of Congress and the President. To help us explore this history and the current debates, we are joined by two leading scholars of constitutional and international law. Harold Coe is the sterling professor of international law and former dean at Yale Law School. He is a leading expert in public and private international law, national security law and human rights. He is the author of many books including the National Security Constitution, which traces the evolution of the constitutional struggle and balance of institutional powers in foreign affairs and national security policy across American history. Harold, welcome to We the People. And Michael D. Ramsey is the Warren Distinguished Professor of Law at San Diego Law School. His scholarship focuses on the constitutional and international law aspects of US foreign relations, particularly in the areas of war powers, treaties and presidential authority, as well as on the litigation of transnational claims in US courts. Michael was a contributor to the NCC's interactive constitution on the clauses that we'll discuss today. Michael, welcome back to We the People. Well, thank you for having me. All right, Professor Coe, I want to start with you. We are in week two of US military operations in the Middle East. And last week, Congress rejected legislation that sought to require President Trump to obtain congressional approval for military actions against Iran. Could you help set the stage for us? What are the actions the President announced and tell us about Congress's response so far? Well, the President launched an attack on Iran in conjunction with the Israelis and that ended up killing the leader, a long time leader, Ayatollah Ha-Maini. He has now been replaced by his son Ayatollah Ha-Maini Jr. But meanwhile, the responses led to the conflict spreading to seven other different countries. At this point, we're several almost two weeks in. We don't know how long it's going to go. Congress said it won't stop it, but it doesn't say anything about how long it ought to last, or even what the goals of it are. We're in a peculiar situation because the President is saying it's not a war. Because if it was a war, Congress would have to declare it. But at the same time, he says that the objective is regime change that he will not stop until there's unconditional surrender that if the Iranians resist, he'll use massive force, which raises the question, then what does it mean for Congress to have a power to declare war if they won't exercise it? So this in the book that you mentioned, the National Security Constitution, the 21st century is really a three-branch problem. American presidents have, and particularly in the last 25 years, seized more and more power to use force unilaterally. Congress, whose power it is, over war-making has simply let it happen. And the courts, who were supposed to be a check and were a check early in the republic, have largely absentee themselves from this landscape. And so we're now ironically in a situation where it's much easier for the President to use force abroad on his own whim than it is to make a treaty or to engage in negotiations. And so it's become an instrument of first resort and not an instrument of last resort. The war power's resolution, which we will get to, I think, did play a significant role, but it's now more than 50 years old and it's clearly not serving its purpose anymore. So this is a problematic state of affairs. What I, for our listeners, explain the state of affairs. So President Trump did submit within that 48-hour time period under the the war power's resolution. A report to Congress, Congress doesn't take action. Can you walk our listeners through the legislative activity or nonactivity that happened last week? Yeah, under the war power's resolution, the President is supposed to notify Congress ahead of time. He did give a notice to the so-called gang of eight congressional leaders, which is frankly more than he's done in other kinds of operations, more, for example, than he did with Venezuela. That's supposed to give them time to respond and decide whether they approve of the operation, whether they want to set limits on it, etc. It also allows them to consider any resolution disapproving the action, which is supposed to be put on a fast track and come up for a quick vote. Such resolutions of disapproval were in fact then introduced and those are the ones that were voted down again with the Republicans on the Senate side providing the key votes. So at this moment, the President is able to conduct this war largely un-un-un-un-peated by Congress. Congress does have one more shot at this, which is when it comes to the question of whether to fund the operation and keep it going. And they have the ultimate power of the purse, but they have not enforced that power either, which is remarkable. The President has done all kinds of things in this administration to not spend money to Congress as appropriated to get rid of agencies that Congress created. So if Congress doesn't stand up for its own core constitutional responsibilities to who spend money and to declare war, there's not much that others can do about it. Well, let's get into that a little bit on the constitutional. He says, and anchor our conversation in the text of the Constitution itself. Michael, I'd like to start with you. Article one of the Constitution gives Congress the power to declare war. Well, article two names the President Commander-in-Chief. How did the framers understand the division of authority between Congress and the President when it comes to military force? Well, thanks, Julian. The short answer in my view is that the Constitution's original meaning through the declared war clause gives Congress and not the President the power to decide whether to use military force or whether to initiate military force against the foreign nation. The Commander-in-Chief Power gives the President some residual power over military actions that are not wars because Congress has war power, but the war power lies entirely with Congress. And to elaborate a lot in that a little bit, it's a little confusing, I think, to modern leaders of the Constitution because Congress has the power to declare war. And we think of declaring wars being an official pronouncement like we did back in World War II, but we don't really do anymore. But I think the meaning in the founders' era was broader than that, going all the way back to John Locke, who said that you could declare war by quote word or action. And there's many instances of this usage in the 18th century where they would say that a war was declared simply by launching an attack. That predated the Constitution. He's picked up, I think, in the declared war clause. And then if you look at the way the founders described the declared war clause, they clearly saw it as giving the power of war initiation to Congress. So you had, for example, James Wilson in the Pennsylvania ratifying convention, explaining the Constitution, saying that under the Constitution, it would not be in the power of one man to bring us into war. And you pointed to the declared war clause as accomplishing that. And later Alexander Hamilton, who was, of course, an advocate of strong presidential power, but even Hamilton acknowledged and pointed to the declared war clause as a limitation on the present, that the present will prevent the present from starting military conflicts with foreign nations. So I think that the original understanding of the Constitution on this point is quite clear. There is some gray area, there's this gray area about the present's ability to respond to an attack on the United States on his own authority. There's gray area about the ability to use military force in situations that are not the use of military force against foreign nations, but against non-state actors, for example. So there are some gray areas, but I think there are some very clear areas. And one very clear area is that the Constitution assigns to Congress and not the president, the power to decide whether to initiate the use of military force against the foreign nation. Harold, do you read the constitutional structure in the same way? And if you do, or don't, how should we understand the relationship between Congress's power to declare war and the president? and authority as commander in chief. - Yeah, so Mike reads it correctly. We have a, the originalist Supreme Court as your podcast points out repeatedly. So this Supreme Court ought to be very skeptical about this perversion of the original design, which is sharing power. The problem is that the courts too often remove themselves from this by saying that nobody has a capacity to challenge an action that on a standing or it's not right because it's too early, challenge comes too early, or it's a moot because the challenge comes too late, or that it's not something that the courts have relief to grant. So in other words, an illegal action can persist and be replicated over and over again without the courts taking a stand. And I think that's extremely problematic. I really do think that the key issue is how can Congress let its core powers be invaded and do absolutely nothing and then claim still to be doing their job. We have only recently read the Supreme Court's decision in the terrorist case where six justices said very definitively that the power to impose tariffs is Congress is not the president's. Nevertheless, for 14 months, the president exercised this tariff power unilaterally and Congress did absolutely nothing to protect its own power. That opinion should mean that they were tolerating illegal behavior by the executive branch that invaded their core priorities and did absolutely nothing. And that's just basically a disgrace. - So a recurrent theme for a cross constitutional discussion which is basically Congress, where are you? Maybe we'll do a whole podcast episode across the many areas in which congressional action may be warranted across American policy areas. I do wanna come back to a key question in these debates about what counts as war in the constitutional sense. Michael, you've written about this including for our interactive constitution. How did the framers understand that term war and what kinds of military actions did they believe required congressional authorization? - Yeah, that's a great and important question because I think these active branch doesn't seriously challenge. I don't think the interpretation of the declared war clause that I gave and that Harold agrees with and that Congress has the power over war. But I think the principal executive branch argument is that these uses of military force is not just Iran but the wrong standing for the past 30, 40 years. The president using military force without congressional authorization is that, oh, these aren't war. They're low level conflict. But they're not war. And this was justification has been given for all the back to the Reagan administration, Grenada Bush administration, Panama, the Clinton administration in Yugoslavia, in Gozovo, the Obama administration in Libya, all of these presidents says, oh, this is not a war. So it doesn't trigger the need for congressional authorization. So in my assessment under the Reagan on Understanding the Constitution, this is not a valid argument because as I see it, the founding generation red war very broadly. If you look at dictionary definition from the time, it's very broad. It's just the use of sovereign force against opposition doesn't talk about the level of resistance or the level of categories of the duration or anything like that, that these day to branch sites and attempts to say that things are not war. And then if you look at the practice right after the Constitution, there were two significant uses of military force, the 1798, the naval war with France and the Adams administration, and then the similar naval campaign against Tripoli, as modern Libya, under the Jefferson administration in 1901. And these were understood to be conflicts with the end Congress's war power, even though they were relatively low level, we used the military force. They were not full scale engagements by the United States either time. There was some debate on both of them about the extent to which the president might have the authority to respond to attacks. And as I mentioned, that's a gray area in war powers. But nobody argued, nobody to my knowledge at all argued that Congress's war powers were implicated because these were not wars in the constitutional sense. And yet, I think by the standard the executive branch is used to justify its various unilateral uses of the military that I mentioned, including running right up through Venezuela and Iran, then these wouldn't have been considered wars either. So I think that to counter any executive branch understanding, the original understanding of the constitution was that war was quite broad and it meant the use of military force against the foreign nation. It may have meant some other things beyond that, but it meant the use of military force against the foreign nation. And so I think that is the original understanding. I do want to say quickly that everything I've been saying is just about the original understanding. And if you want to take an originalist approach to it, that should be quite important to you. But the originalism is not the only way that people have approached constitutional interpretation. In fact, it was quite a minority view until fairly recently. It remains quite a minority view within legal academics. And if you look at this as a evolving constitution or living constitution approach, as opposed to originalist approach, you have to have a very different set of arguments. And the president is, in my opinion, I'm much stronger around them. So I'm just saying in response to your questions and echoing my principal scholarship, because that's what I do as the scholars. Look at the original understanding. Whether that's the binding law today or not, is a different question. That's a perfect teapot. Before we get into modern practice, Harold, you, of course, have the unique background of having been in a presidential administration during action in Libya under the Obama administration. And I did want to get perspectives from you on how flexible the constitutional framework should be when we're applying it to modern conflicts, where the military actions often fall short of formal declarations of war, either because it's a limited duration or because Congress doesn't actually formally declare war. Well, two points at the start. First, I am not unlike a, an originalist. I am a living constitutionalist. But even so, there's a limit to how much the president can reshape the Constitution to eliminate checks and balances. And even if he does so with the acquiescence of the other branches, that doesn't legitimate such a departure from the original design. Now, after all, one of the objections at the Declaration of Independence, which is 200 50 years old, made was that the king could take us into wars that impoverished the people on a whim. And the president was not supposed to have that power. That's why those checks and balances were introduced. A second thing is we have to read these things in light of current events. These things didn't just happen. The president just lost the tariffs case. His popularity is on all time low. And in that moment, the Israelis are pushing to act, and he decides that this is something he can do that can push this out of the headlines. And that certainly has happened. This is now the subject of debate. And it's very clear that they have absolutely no agreed upon rationale for the reason for entry or the exit strategy going out. For example, if they originally were arguing that this was not war, it was self-defense. But previously, they had argued that use of bunker buster bomb had obliterated the Iranian nuclear threat. So how could it then be self-defense? Now, I served in four administrations in five different decades. So there have been many, many episodes that I've been in the government for. And the president certainly does have some interpretive power. But it's also clear two other things. One that major wars, for example, the Iraq War of George H. W. Bush was approved by an authorization for the use of military force. Mike is correct. The declarations of war have pretty much-- much stop, but there are authorizations for the use of military force by which Congress is forced to vote and put itself on the line. Secondly, because the war power's resolution applies to the commitment of armed forces for more than 60 days in the air, sea, or air space of another country. That has driven presidential activity into unregulated zones. So increasingly, we see actions by people who are not US forces, we see actions by drones, which are not forces, we see actions by special ops teams that take less than 60 days. These are things that are in the interstices of the law. And with artificial intelligence and cyber commands going forward, more and more will be put into these quick hit spaces, which is exactly where this administration likes to be able to act quickly. They're only using air power. Nevertheless, they suffered seven fatalities so far of our troops, plus hundreds of Iranian civilians in a school that was hit on the first day, which the president was now denying was hit by a US Tomahawk. So in Libya, you brought that example up. It's a good counter example. Number one, that was approved by unanimous UN Security Council resolution. There's nothing here. Secondly, the initial entry wasn't objected to third by Congress or our allies. Third, the US initially used force to set up a no fly zone. And then through the agreement of President Obama and our NATO allies switched to a supporting role, where it was essentially flying support missions. So there were virtually no bombing by the United States after the day 15. And so there was a decent question as to whether we were in active hostilities at that point. And then finally, obviously, the operation succeeded. So you can't just say as the Trump people like to do, well, others did it too. They didn't do it on this scale. They didn't do it with this kind of twisting of language or history. And they didn't do it with this kind of contempt for the law and the constitutional design. Let's get back into the statutory framework in the modern year because we've mentioned the war powers resolution. We've talked a little bit about these other congressional authorizations called authorizations of use of military force or AUMF. Harold, can you walk us through what the war powers resolution is, what prompted Congress to pass it. They actually passed it over President Nixon's veto. And what responsibilities it places on presidents who introduce US forces into hostilities. And you started to get to this a little bit, which is, you know, there's sort of areas that are veger and therefore the facts really matter. And I want to get into that too. But I want to take a step back for our listeners who are maybe less familiar with what the war powers resolution actually is and how it functions. Yeah. So the war powers resolution is the major existing statutory framework convention in the area. In other words, in the law that makes up what I call the national security constitution is not just the few provisions of the constitution that declare war clause, the commander in chief clause, but it's also the way that Congress has mapped out the space with a resolution. And after Vietnam to prevent future Vietnam, Congress enacted this resolution, which said that notification and consultation were required before troops were committed. And then in 60 days, which could be extended, the president needed to withdraw the troops or get approval from Congress in the form of a statute, namely an AUMF. And it also provided for a legislative veto where Congress could, you know, demand that the troops leave. And it also set up various processes for expedited legislation. Even at the beginning, there were weaknesses in the way the legislation was adopted. And as you say, it was adopted over presidential veto, so by two thirds of both houses. The major and obvious defect was that it did not specify when the president could not put troops somewhere for even 10 minutes, which means the president has the freedom to put troops or military forces into play for up to 60 days before Congress is acting on the resolution. And obviously, once you get in, you change the status quo and this makes it huge difference. Secondly, the Supreme Court in 1983 struck down the legislative video provision, which was one of Congress's main checks. And then third, and I think most important, we have to acknowledge that the war power's resolution operated based on deadline. The real goal was inter-branch discussion between Congress and the president about why troops and military force are necessary and what the end state goal is. But the way that they were trying to promote that discussion was by a 60-day deadline. The problem, as you know, is that deadlines only work if people treat them as real deadlines. And what's happened over time is the president ignores the deadline. Congress agrees to then on care about the deadline. And then the courts are claimed to be disempowered from enforcing the deadline. So there's no deadline. And if there's no deadline, there's no discussion. And so it has not succeeded in what was a noble goal. And then finally, the point that I made earlier, the regulation has had the effect of driving military activity into the unregulated areas. So instead of useful armed forces, you have covert action or non-human actors like drones. Instead of 60-day or more Vietnam-like interventions, you have short hits like special ops, like you saw in Venezuela with Maduro. You have use of cyber war, which obviously is no physical presence of anybody in the land, sea, or airspace of another country. So increasingly, the war power's resolution is just technologically obsolete. It's not going to achieve its goal. It does have a moment yet to come in Iran, which is if and when we're there for more than 60 days. And right now we've been there for about, I don't know, 14 days. I want to bring Michael back in to get your perspectives on the war powers resolution, which was an attempt to try to actually sort of bring back the way that the Constitution had intended to allocate war powers in some way to give Congress a role even for some more limited military operations. I want to ask you if you think it successfully enforces the Constitution's allocation of war powers or does it actually raise some constitutional concerns of it? It's own. I think Harold has done a good job of pointing out the practical challenges that the war powers resolution has introduced into this murky area with the president and Congress. Yeah, thanks. I largely agree with what Harold said. And though I would say that the war power's resolution was misconceived from the beginning in a couple of respects, I think it's both too restrictive and too permissive as to the president's use of force. So in the first place, it purports the president's use of force, I think more broadly than Congress probably can because it doesn't limit itself to actual war situations, notwithstanding its title, but it purports the limit of the president's ability to introduce military forces into quote hostilities, a term that it doesn't define and which could go considerably broader than what I see as the core constitutional limit on the president, which is that the Congress has to authorize the initiation of military force against the foreign nation. This isn't relevant to the discussion of Iran or the other situations that we've mentioned, but it's important because it's allowed presidents to claim that the war power's resolution is unconstitutional in the respect in which it limits the president's power. And I think that's true to some extent. And I think that the Congress should have been more careful in defining the situations in which the president's ability to use force is subject congressional limitation. But at the same time, I think the war power's resolution is too permissive, largely for the reasons that it have already stated that it's only operative section really is to say that after 60 days or actually it's 90 days if the president certifies that it's a national emergency which president always will, then Congress has to approve. But this appears to give the president a window in which to use military force for 60 or 90 days and without limitation from Congress and presidents have aggressively used that. And with some plausible argument that they have Congress's acquiescence to use military force in that window provided by the War of Powers Resolution. And there's nothing in the constitution that suggests that a short duration use of force is within the president's independent power if it's a war. But the War of Powers Resolution seems to suggest that. And then as a practical matter, and as Harold said, and I'm entirely on board for this, that in the modern day, the president can do a lot of damage in 60 or 90 days. And that's giving them a latitude that they shouldn't have under the original understanding of the constitution. But again, just to go back to the point about living constitutions, the problem of living constitutions or evolving constitutions is it's hard to know what counts as an evolution. The War of Powers Resolution, we, as the apparent authorizations of the president to use force for 60 days, is part of that evolution. Perhaps, and presidents will argue that that gives them the authority. This is what happens when you get away from the baseline of the original understanding and start talking about how modern events may change our understanding. And it gives the president quite a bit more latitude. And that's, I'm not a modern constitutionalist, so I don't have a worry. >> We'll come back to how this is all played out in practice. I know folks have a lot of questions about the War of Powers Resolution and how it works in reality. So we have this 60, probably 90 day clock, right, for congressional authorization. What happens if Congress doesn't pass legislation either approving or blocking the use of force within that 60 to 90 day time period? What does the statute actually require? >> Well, the statute requires if Congress doesn't approve it, approve the action that the president sees the hostilities and withdraw the forces. But the question is what actually happens once the deadline's passed. The first thing that may happen is that the president may try to take advantage of ambiguities in the language and say that he's going to have to scale back a lot in Iran before he can say this. The president may say, well, this doesn't really count as hostilities. Remember, that's the critical word in the statute that's not defined. And so that happened with Libya, that the, well, I was going to say the hostilities, but the events outran the War of Powers Resolution clock. And the president said, well, it's not really hostilities and therefore I'm not in violation. So the president may take advantage of these awards like that. And perhaps the president may just straight up define it. We don't know what will happen if the Iran operations go beyond 90 days. But again, as Harold says, and I entirely agree, both descriptively and with an army implication, that the problem is that the courts are not going to enforce this statute because courts are extremely reluctant to get involved and disputes over Warp powers. And so I don't think we can expect anything from the courts. And if there were an extension of the Iran situation beyond 90 days, I think, again, as Harold says, it would be tally up to Congress to enforce. And I would assume that if there were to be an enforcement, it would come through a cutoff of funding because that's the thing that Congress really has most effectively at its control. >> I want to shift from the constitutional and statutory frameworks to looking at how this has played out in practice. And Harold, you've already started talking a little bit about this. Since 1973, presidents of both parties have engaged in military operations without prior congressional authorization. Can you walk us through some episodes from the sort of post 1973 War Powers Resolution era where presidents have engaged in those military operations when you think they are sort of within the limited military operation, not requiring congressional authorization or either through the War Powers Resolution or AUMF. And those that are of limited duration or limited scope and scale that they would fall outside the need to have that. >> Well, there are so many incidents, but hundreds. But I think the basic rule is that under the current framework for 60 days, if it's not a war in the constitutional sense, then the Congress is tolerating the action. If it goes past 60 or 90 days, then Congress is supposed to authorize it. But if they don't authorize it, then it's an unauthorized action. So it goes from being tolerated to unauthorized. But the president is increasingly saying, I am authorizing it under my constitutional power and asserting more constitutional power to engage in war. So it doesn't matter whether it's unauthorized or not. And because of that, and because Congress and the courts have not objected to that reinterpretation of war-making power, the legal lines have been largely erased. And which has one reason why we've been in the state of virtually perpetual conflicts in 9/11. And that's a longer period than World War II within the Civil War. It's the longest war in American history. And ironically, you have Trump who, in his first term, was out of it about ending forever wars. In fact, Obama, Biden, and Trump won, where, against forever wars, Trump too finds that wars are a convenient way to show strength and exercise performative militarism. So what we're at now, Julie, is there are two political red lines. And those are the ones that are actually controlling the way these are being conducted. Number one, use of American air power, no boots on the ground. Because if you put boots on the ground, there's a risk that American soldiers will come home to dover air base. And that makes wars extremely unpopular. And what Trump has signaled is, like, the seven people have died already. That's just part of it. We're ready to take more. And apart from those seven families, there is going to be more controversy. So he's resolutely kept troops off shore, both in Venezuela and Iran. The other political red line is that Congress never wants to have to vote. They don't want to put themselves on the record. As voting for a war, as we saw in 2003 in Iraq, is one of the things that can get you voted out of lawsuits. And Congress's priority is no longer enforcing its constitutional prerogatives or effecturing the constitution, but getting reelected. And when you put those two political red lines together, that suggests that the president can conduct massive bombing with air power, as long as these systems relatively few American casualties. And Congress will let the war powers deadlines go by and not vote. And then the president conducts wars of increasingly large magnitude for longer and longer periods of time without restraint. And for a first term president, the restraint is loss of popularity and loss of capacity to get reelected. But for a second term president, you don't have that political constraint. So I think that that's where we're at. And I think we have to deal with the political realities that have been created and how to change those political incentives going forward. We've lightly touched and perhaps it's because they haven't said much in this area. But what role have the courts played in the election? and the inter-branch tension between the executive and Congress on the issue of war powers. Michael, I'll pose that one to you. - Well, I think the answer is the courts have not said much. And they really haven't had a war powers case since the prize cases in 1863 about President Lincoln's ability to initiate a blockade during the Civil War. And so that has not left us with a lot of guidance from the court. There were some cases relating to the war on terrorism during the W Bush administration, but those mostly didn't go directly to the question of the authorization of the use of military force because in the post-911 situation there was an authorization from Congress for the president to use military force against the perpetrators in 911 and pursuant to that the president, among other things, used force in Afghanistan. And so the courts have really not been helpful on this point, or at least they haven't been active on this point. And that has left it largely to the resolution of the political branches, which has worked out largely in the way that Harold describes. And I guess I would just add though that what I think you see there is an example of the living constitution that we have an originalist rule that has been undermined by successive actions by the president, by president, not the current president, not just the current president, but successive actions by presidents, where the courts have not done anything and Congress has largely not done anything. And this has become part of the constitutional evolution that's brought us to the stage that Harold describes. And again, that's why I would prefer to see more recurrence to the original meaning of the constitution rather than appeal to what's happened in modern times. But the president has, in my opinion, relatively strong argument based on prior presidential practices, if that's the kind of thing that you think matters for constitutional meaning. - So let's start closing our conversation, I'm gonna ask two questions. The first is stepping back just from the current moment, right the current military hostilities in Iran. How does Congress take some authority back in this space and then what should the American people keep in mind? Michael, we'll start with you. - Sure, well, those are difficult questions and the problem is that any prescription here is going to require a certain amount of fortitude from Congress that may actually not exist, but assuming there were such an interest in Congress and assuming that Congress doesn't want to vote down the Iran intervention, I think an interesting first step would be for Congress actually to approve the Iran intervention. I think the Congress would have bases for doing this, citing the long history of Iran-sponsored terrorism against the United States and other countries and say yes, we approve this because it is our authority to approve it and our approval is necessary for it to go forward. So I think if Congress doesn't want to disapprove, at least I'd like to see Congress do something affirmative. And this is a way of asserting a power that isn't going to bring Congress directly into conflict with the President right now, but it puts something on the record to say, we understand, we Congress understand that this is our responsibility and we are going to take it. So a big swing by Congress would be to disapprove but I think a more modest but somewhat effective first step would be actually to approve. The other thing I think is that when he is assuming that the actions go forward for some time and funding becomes significant, then Congress is going to have to decide how to use its funding, whether to use the funding in support or to use the funding to limit the operation. And regardless of what Congress decides there, the most important thing is a Congress for Congress to be forthright and say, we are funding this affirmatively because we endorse it or in the alternative, we are affirmatively cutting off funding because we don't. In other words, it makes less difference what they say than if they were which way they take a stand, it's just take some kind of a stand. - Carol, what are your perspectives on that? - Well, the key point is this is a tale of three branches and all three branches have to be reformed. Mike makes the point I was making earlier. If Congress wants to approve the Iran mission, then every member of Congress has to vote on how many people American soldiers they would like to see die in Iran. And then the question is how many of Trump's strongest supporters voted for him so that their children could go to Venezuela or Iran and die? And my guess would be almost none. That's exactly why they're not having that vote because they don't want to be responsible. They would let Trump be responsible, which is an application of their constitutional responsibilities. In my book, I have a long section on reform, but they're basically four ideas. One, get a group of foreign policy experts in Congress who form a core consultative group. It would be like the joint committee on taxation. Second, have a congressional legal advisor who could counter illegal opinions of the executive branch by giving a more balanced perspective. Third, to link with expedited legislative procedures, votes to cut off of funding. And finally, to involve the courts more in these decisions by giving them a role to play more akin to what they played in the early days of American history. There are two decisions worth citing that are more recent than the prize cases. In 1990, when George H.W. Bush threatened to attack Iraq, there was a lawsuit by Congressman Ron Dellum, it's called "Vellum vs. Bush." And the district judge there said, it's not ripe, I'm not ready to rule, but in principle, I could enjoy an illegal war. And that really threw the ball back to George H.W. Bush, which is you better get congressional approval. And after that ruling, he did go into congressional approval. So it proceeded, but at least it proceeded without constitutional, without not under a constitutional cloud. Secondly, there was a case called "Anger vs. Bush," where they essentially said that if an American soldier is under orders to report to the war's zone, they have standing to challenge an illegal order. And so they think they're being asked to fight in an illegal war. The Congress can, I'm sorry, the court can hear that case and say whether the war is legal or illegal. These interpretive questions, isn't a war, is it not a war? Is not any more difficult than many of the constitutional questions in Supreme Court decides. So their unilateral abdication and removal of themselves from this area is also unjustified. A final point goes to the responsibilities of the executive branch. Until now, we always had a president who had some sense of law and some sense of self-restraint. And that president, Richard Nixon, obviously was not a good president resigned after the Nixon tapes case. Here we have a president who has said to the New York Times, I am only constrained by my own sense of morality. And if you have a president who's not interested in carrying out his oath to faithfully execute the Constitution laws of the United States of America, it's all the more incumbent on the other branches to impose those restrictions on him. Virtually any other president, if they had lost the tariffs case on the ground that they had invaded congressional authority, would have responded by saying, okay, so if I'm going to invade Congress' authority on war, I better be careful. I think this president's reaction was the opposite. I need to show my strengths by doing the thing I know that Congress will never respond to, which is a start bombing. And that leads us to a very, very dangerous place in our 250 years since the Declaration of Independence. - Let's end with the role of the American people. I think you suggested this earlier, that this ultimately the checks here because of how things have evolved with the constitutional practice are political checks, right, which ultimately have to do with election. So what is the important role of the American people here? Well, I think we have to remember that the Constitution was structured to prevent kings from taking us to war. War was supposed to be hard to enter into. It was supposed to be hard to enter and hard to sustain. And through this evolution we've discussed in the last hour, it slipped and it's become easy to enter on the say so of one person and it's become easier to sustain it as long as you use air power and keep US casualties to a minimum. And with no clear objective on the other side, you know, in Venezuela we have the leader who is the vice president to the person who we took out. And in Iran we have a leader who's the son of the guy who we took out. So what exactly is the goal? There is no objective and they haven't agreed upon it. So I think the job of the American people is to say three presidents Biden, Trump won and Obama said we were going to end forever wars. Trump too campaigned on that and went the other way. And the question is that actually is something that we consider to be an important priority for our leader is Iran is costing a billion dollars a day and we're less than 14 days in. So 14 billion dollars is being used for that that's not being used for a million other domestic needs. And the question is, is that what people voted for? And if not they have occasion in November to in the the by elections and also all the other elections coming along to send that message. Michael closing thoughts from you. Well, I think first one difference I have with Harold perhaps is that I would not make this debate or discussion principally about President Trump. I think that presidents necessarily try to enhance their powers. And we hope that the other branches and the Constitution will limit that and that's our constitutional structure. So when you ask what can the American people do here? The first thing I would say is to try to abstract this from the debates over the Trump administration because that just puts this back into the very sharp parts and divide that we have in the American people. And you make this about President Trump. And President Trump supporters will rally to him and President Trump's opponents will find lots of ways to disagree with him. And so I would ask the American people to take a step back from the Trump administration and go back to our founding principles and think about what the rules the Constitution sets forth. And then that's just my I guess my final pitch then is one for an originalist approach to the Constitution that provides some clear constitutional lines and try to go back to that which I think is a very wise allocation of power and division of power between Congress and the president. I think it's true here in War Powers but true and money other areas away as well. The problem is we've gotten away from that and the result is that having gotten away from that we find ourselves in a situation that we don't like and we don't know how to get back. And so that's I guess where I would end is a call to go back to founding principles not because we hate President Trump but because the founding principles are the ones that ensure our liberty. Quick response which is I think this is not about Trump. It's just a Trump each president facilitates the next person who comes and we are now getting to the point where we have someone who is almost the when you consider the endpoint you know Dick Cheney who is an extreme executive power advocate is how it was horrified by where Trump had led us. And secondly this isn't not about polarizing between supporters and opponents. The question that's being directed to Trump's supporters is is this what America first means namely invading Iran invading Venezuela. Is this what you voted for? And the question is if it's not then is this the the administration that deserves your support going forward because what exactly is it standing for. So I do think the message is an important one in interpreting the Constitution the issue is not America first is are we Americans first and our founding fathers wisely framed this as let's make it hard to go to war and let's have there be dialogue and discussion before we are committed to wars which jeopardize everything else that are going on and in particular let's make it extremely hard to have perpetual wars. And if those are the core values at the beginning they should be the values now. Harold Michael thank you for a really interesting conversation. I think we ended in an insightful place for our listeners to think about the original understanding of the allocation of power between Congress and the president how that's evolved over time. Harold to your point. Each successive president has I push the outer bounds of their executive authority in this area and the president set today I will impact whomever comes next and it's something for each of us to think about as we consider each successive military operation. I thank you both for joining us for the we the people today. Thank you. Thank you. Thanks very much. This episode was produced and mixed by Bill Pollock with production support from Charles Som. Research was provided by Anna Salvatore, Tray Sullivan and Tristan Warsham. In celebration of America's 250th we have many exciting programs planned throughout this year. I want to tell you about two events that will take place later this month. On March 19th pull its surprise winning historian and National Constitution Center, semi-quince Centennial scholar John Meijum joins to discuss his new book, American Struggle, Democracy, Descent and the pursuit of a more perfect union. And on March 23rd I'll be joined at the National Constitution Center by acclaimed historians Mary Beth Norton and Rosie Zagari to discuss how women's experiences and contributions deepen and expand our understanding of America's founding. This is the center's first in-person town hall of the year hosted as part of our special America at 250 programming in Philadelphia. I hope you'll check out the full lineup and register to join us at constitutioncenter.org/calendar. Please recommend we the people to friends, colleagues or anyone anywhere who's eager for a weekly dose of constitutional education and debate. And as always remember that the National Constitution Center is a private non-partisan nonprofit and we rely on your generosity, passion and engagement for all of our programming, including this podcast. Please consider donating today at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Julie Silverbrook.