Season 1, Episode 8 | Starting Wars or Just Finishing Them? POTUS as Commander in Chief

When bombs drop and troops mobilize, who pulls the strings—Congress or the President? Can we afford to leave the fate of nations in the hands of one person, or does the voice of the people demand more say? The Founding Fathers designed checks and balances for a reason, but when it comes to war powers, does the balance still hold?

In this episode of This Constitution, Savannah Eccles Johnston and Matthew Brogdon delve into the war powers outlined in the U.S. Constitution, focusing on the balance of authority between Congress and the President. They discuss Article I, Section 8, which grants Congress the power to declare war, and Article II, Section 2, which designates the President as Commander in Chief. The conversation covers historical precedents, the evolution of military authorizations, and modern implications, including the use of Authorizations for the Use of Military Force (AUMF). They emphasize the importance of understanding and navigating the constitutional framework governing war powers.

Curious about who truly holds the reins of military power? Tune in to learn more and challenge your understanding of war powers in America.

In This Episode

• (00:27) Introduction to war powers
• (01:06) Congress's powers
• (01:18) President's powers
• (02:10) Competition between branches
• (02:22) Authorization for military force
• (03:06) Historical context of war declarations
• (03:53) Ambiguity in military actions
• (04:26) Historical examples of military authorizations
• (06:54) Technological warfare
• (08:07) Political implications of war powers
• (08:30) Defensive warfare
• (08:43) Distinguishing offensive and defensive actions
• (09:24) Lincoln's actions during the Civil War
• (10:38) State of war and presidential powers
• (11:42) Treaty obligations and war
• (13:22) Preemptive strikes vs. defensive actions
• (14:11) The President's war powers
• (14:39) Congress's role in war declarations
• (15:15) Historical context of war powers
• (15:36) Executing congressional declarations
• (16:03) Presidential discretion in war
• (17:23) Congress's powers against the President
• (18:24) Congress's institutional strength
• (19:13) Impeachment as a weapon
• (20:11) Power of the purse
• (21:25) Defense appropriations cycle
• (23:38) Presidential actions without war
• (25:23) War Powers Resolution Overview
• (26:21) Constitutionality of the War Powers Resolution
• (26:46) The War Powers Resolution
• (27:17) Presidential authority
• (28:14) Congress's role in military regulation
• (29:25) Tactical command limitations
• (30:31) Overlapping powers discussion
• (31:25) Public dissatisfaction with military engagement
• (32:04) Alternative solutions for Congressional action
• (33:29) General public knowledge and engagement
• (34:53) Need for decisive leadership
• (35:28) Educating voters on war powers

Transcript

Savannah Eccles Johnston [00:00:27]:

Welcome to this Constitution. I'm Savannah Eccles Johnston.

Matthew Brogdon [00:00:40]:

And I'm Matthew Brogdon.

Savannah Eccles Johnston [00:00:41]:

Today we're going to talk about war powers. And in particular, can Congress compete with the president in 2024 on war? So in order to talk about this, we need to go back to the Constitution and there are really two super relevant clauses. First is Article 1, Section 8, and the second is Article 2, Section 2. So explain the different war powers in the Constitution.

Matthew Brogdon [00:01:06]:

Article 1, Section 8 is a list of things Congress is allowed to do, an enumeration of powers. And one of the more prominent, one of the ones that people remember from that list is that they have the power to declare war. And then there are a number of other powers listed there that involve the military. If they have the power to make regulations for the armed forces and things of that kind to provide for an army and navy, it says. And then Article 2, if we jump over, doesn't have quite a list of executive powers. There's nothing quite like Article 1, Section 8, that lists all the things the President's expected to do. But there are at least some indications, and one of them has to do with the power to be commander in chief. So the commander in chief clause. So whatever that means, the President is the commander in chief of the armed forces of the United States and of the militias of the respective states when they're called into national service. So those are our two corresponding. The way the Constitution distributes power to the presidency and the Congress over war.

Savannah Eccles Johnston [00:02:10]:

Right. So it creates this kind of a competition on war between the two branches. There are at least three broad categories during which a President can exercise war powers. And the first is the really obvious one. It's when Congress authorizes a war. But does that have to be a declaration of war? Does Congress have to say we declare war on Romania in order for us to go to war with Romania? Or can the authorization be something short of a full declaration?

Matthew Brogdon [00:02:40]:

Yeah, I mean, we felt like the declaration of war was too elegant, it's too simple. It's a very straightforward, clear declaration that we're out to destroy you, whoever the enemy is. So instead we've done this very namby pamby thing of saying we're going to have an authorization for the use of military force, an aumf. If you've ever seen in the news, aumf, this is what Congress does now. We haven't declared. When was the last time we declared war?

Savannah Eccles Johnston [00:03:06]:

1945. Against Romania.

Matthew Brogdon [00:03:08]:

It was Romania. Really?

Savannah Eccles Johnston [00:03:09]:

Yeah.

Matthew Brogdon [00:03:10]:

We declared war against Romania.

Savannah Eccles Johnston [00:03:11]:

We did. Poor Romania.

Matthew Brogdon [00:03:12]:

I didn't know that. But not Korea.

Savannah Eccles Johnston [00:03:15]:

No.

Matthew Brogdon [00:03:15]:

Not Vietnam or any of the dozen and a half places that we've gone and waged war since 1945. Yeah. So now we just authorize the use of military force. And I'm not sure if there's a clear distinction. I mean, to me, if there is one, it's sort of like you declare war, you're waging war, you're trying to destroy an enemy. Right. There's a zero sum contest and we need to win. It's imperative that we win. Military force suggests we're doing something less than trying to win a fight. We're just sort of like achieving some lesser goal.

Savannah Eccles Johnston [00:03:52]:

And we have a long history of doing this. 1800, we have a quasi war with France and you have authorization for the use of naval force, but it's very specific. You can use the navy, but it's not total war, so it doesn't warrant a full declaration of war. So we've been doing this kind of middling thing for a long time and usually it's very specific. You may use troops for this thing in this place and that's it. Which makes the AUMF so unique in that it's just terrorism and it's a non state actor. So how do you declare war? So maybe that's another reason.

Matthew Brogdon [00:04:29]:

Yeah, it looks more like a Police Act. I mean, we tend to, theoretically, we would like in a healthy constitutional order to have a clear distinction between a police power and a military power. Right. A law enforcement and military force, they have different purposes. Military force you use to win, to destroy the enemy. Law enforcement in the community is supposed to address those few isolated incidents where someone is disobeying the law, creating a disturbance or violating the rights of others. And then law enforcement detains that person. And according to a whole due process, we go through the process of holding them accountable. We hold those are quite distinct purposes. The problem is quite often in foreign affairs and sometimes even with domestic insurrections, the line between those two things becomes blurry. So what we might be doing abroad looks a bit more like law enforcement and not quite so much like defeating an enemy Right, Yeah. So that's where some of the ambiguity comes from, I think, in this. And that's fine. We don't have to like live in the gray area because there really is a distinction. But it's also okay that there's a gray area and we kind of have to adapt to it. So I don't know that AUMF is quite such a horrible thing.

Savannah Eccles Johnston [00:05:42]:

It follows a long tradition. It's not out of place in any way. It is unique though, that it's been 20 years using this very broad authority which presidents have pushed really to its uttermost limits without any kind of congressional pushback.

Matthew Brogdon [00:05:56]:

Because we have waged war. I mean, if war is anything, it's looking at another government and saying, we're going to come destroy your government.

Savannah Eccles Johnston [00:06:04]:

Which I think we did.

Matthew Brogdon [00:06:05]:

We've done that a number of times routinely, actually Afghanistan, we did that. Iraq twice, even Gaddafi in Libya. The Obama administration just sort of went over, sort of toppled the regime with some fighter jets and then flew away.

Savannah Eccles Johnston [00:06:22]:

Right.

Matthew Brogdon [00:06:22]:

And like, well, you did wage war on that country and you just toppled its regime, decimated it and then you left. So it is odd to call that a sort of police action.

Savannah Eccles Johnston [00:06:36]:

Yeah. Or maybe the difference is that a declaration of war means the entire mobilization of the American people. Whereas these kinds of AUMF or limited conflicts don't require mobilization, but they are. We're going to try and completely destroy your government.

Matthew Brogdon [00:06:54]:

Well, this is part of the problem of modern technological warfare is that you can actually employ it without much risk on the part of most of the nation.

Savannah Eccles Johnston [00:07:03]:

Right.

Matthew Brogdon [00:07:03]:

Very few people, sons and daughters, actually have to put themselves in harm's way. Very few Americans have to make any sort of sacrifice to provide the munitions of war or to maintain the arsenal of democracy while we're fighting abroad. That sort of World War II model of the home front. We can wage a fairly large scale conflict without most Americans ever really feeling the pinch.

Savannah Eccles Johnston [00:07:28]:

But also we can do that because we haven't had a direct confrontation with a great power. These have been, I mean, it's been Iraq, it's been Afghanistan. Yeah.

Matthew Brogdon [00:07:38]:

We only pick fights we can clearly win these days.

Savannah Eccles Johnston [00:07:40]:

Right. So regardless of technological advancements, if you're to have a major power conflict, it would require mobilization of the American people, which I think would require congressional authorization for war, total war. So that's what you're telling me is.

Matthew Brogdon [00:07:55]:

This is a political issue. I mean, we talk about the constitutional structure, but it's really a question of how much is it costing people and are they going to demand that Congress sort of step up and say what we're doing and authorize it?

Savannah Eccles Johnston [00:08:07]:

No, I do think that it's all political, isn't it? Yeah. Yeah. So when does Congress actually have to do something, and when do they not? That's always the big question. Okay, then there's the second category, and this is a little bit more gray than the first, which is that a president may commit troops in response to an attack. Now, the key here is to repel and not to commence a war. That's language used at the convention. Right. It's to repel, not commence. So what is the scope of this kind of defensive repelling warfare? Can it ever involve offensive actions? What's the history of this?

Matthew Brogdon [00:08:43]:

It's not easy, actually, to distinguish between offensive and defensive postures in warfare, because it's quite often necessary to take the fight to the enemy if you want to keep them from killing your own citizens. I mean, you don't wait until the army's at the gates to go meet the threat. And so that means even defensive warfare often looks like offensive, sometimes even preemptive action. Right. You're anticipating what the enemy's going to do. You're meeting it before they can start killing your citizens or destroying your infrastructure. That is true in the Civil War. I mean, Lincoln's blockade of Southern ports, his raising of a Northern army, is in some ways preemptive, but also responsive. It is responding. I mean, the south had called out its militias. It had declared that federal law was suspended in their states. It had taken these actions. They had not actually assembled an army and marched north to Washington, yet they.

Savannah Eccles Johnston [00:09:37]:

Had attacked Fort Sumter.

Matthew Brogdon [00:09:38]:

They had done that. They fire on a fort, and Lincoln starts blockading them. But he doesn't just blockade Charleston Harbor. Right? He goes, well, what's gonna happen in Richmond? What's gonna happen in the Chesapeake? So I'm not sure you can clearly distinguish. I think you have to look at the origin of the conflict. So I think the way the Supreme Court looks at this in the prize cases, for example, whenever they decide the constitutionality of Lincoln's use of the war powers, with no congressional declaration of war against the Confederacy, they said, well, does a state of war exist if the President wakes up and says, we didn't choose to be, but we are at war because someone's invaded us, someone has. There's an act of insurrection. It seems clear that the facts on the ground are we're at war with somebody whether we chose it or not. All the president's war powers become sort of activated. The President is the commander in chief and can respond to all of those threats in the same way he could if there was a congressional declaration of war. Because the state of war exists. It's the state of war that triggers the president's powers as commander in chief, not the declaration of war.

Savannah Eccles Johnston [00:10:45]:

Right.

Matthew Brogdon [00:10:46]:

Now, the flip side of that is, can Congress initiate. I mean, in that sense, is the declaration of war just to initiate an offensive war? Like Congress wants to go to war with somebody because they've done something horrible or, you know.

Savannah Eccles Johnston [00:11:00]:

Well, but that's not the case. Pearl Harbor. Right. Congress is declaring war against Japan in response to something, but again, maybe because.

Matthew Brogdon [00:11:07]:

It'Ll be a. I think a really complicated question with this is, do we treat treaty obligations, mutual defense pacts the same way we treat invasion and insurrection? That is, if we have a mutual defense pact. NATO is a clear example of this, and a NATO ally is invaded. Are the president's war powers treated the same way they would be if America was invaded? Because that preexisting treaty obligation means we're obligated to be at war with whoever has invaded our ally, and therefore we're at war the moment that someone else declares war on them.

Savannah Eccles Johnston [00:11:42]:

Well, since the treaty was ratified by the Senate, I think the answer to that is yes.

Matthew Brogdon [00:11:45]:

Well, I could see where people at Jeffersonians are very skeptical of this. Right. This is one of the reservations Jeffersonians have about only the Senate being involved in Senate and treaty ratification as they go. Well, what if a treaty obligates us to engage in war? It can't be the case that the president and the Senate alone have obligated the country to go to war. In a case where the country itself is not invaded, there's not rebellion or insurrection, because normally it would take the House and the Senate to declare war. So I actually think this is quite a constitutional gray area in some ways, the Constitution. It's clear that you can create a treaty obligation that has the force of law. Those treaty obligations might involve the use of offensive military force. In the case an Allies invaded, I don't think that clearly answers. It seems to imply that we are at war if an ally under a treaty is invaded. But it's merely an implication. And you do have to sort of weaken or set aside those provisions of the text that seem to really put some onus on Congress to declare war. If we're gonna go pick a fight.

Savannah Eccles Johnston [00:12:51]:

We need to go back to Lincoln and the prize cases, because you have been linking this to a president's right to preemptively strike. And that is. That's not the precedent set by the prize cases and by Lincoln. These are different things. This is in response to Charles. To the attack on Fort Sumter. And then, yes, it's blockading all the ports, etc. But this isn't the same thing as a president using his right to repel, not commence, a war for a preemptive strike. So how do we get to the idea of a preemptive strike?

Matthew Brogdon [00:13:22]:

I'm gonna turn the question around on you because I'm treating preemption as though there's a credible military threat, but it.

Savannah Eccles Johnston [00:13:30]:

Has not happened yet.

Matthew Brogdon [00:13:30]:

You're responding to it. Right. So maybe you could help. I'm not sure I've thought enough about what preemption is. So what do you think preemption is like? At what point do we cross the line from preemptive response to an. To a threat?

Savannah Eccles Johnston [00:13:44]:

Yeah.

Matthew Brogdon [00:13:45]:

And it becomes a merely offensive military.

Savannah Eccles Johnston [00:13:49]:

Action before an action has been committed. I think. I think. Well, look at the.

Matthew Brogdon [00:13:54]:

I mean, do you have to wait until something goes boom?

Savannah Eccles Johnston [00:13:57]:

Well, that was the case with Fort Sumter. Lincoln had to wait until there was an attack. Now, was an attack coming? It was coming for months on Fort Sumter, but he did not act until the action on Fort Sumter.

Matthew Brogdon [00:14:08]:

But was that an act of prudence or constitutional in the.

Savannah Eccles Johnston [00:14:11]:

I think it is required. He did not have the war powers to preemptively strike the South. It has to be reactive. Otherwise, a president has a power to commence a war and not simply to repel an actual attack. I think that that's. It was very clear, I think, at the Constitutional Convention that the weight of war, of commencing war and making war, is on Congress and not on the president, but that there is a space for repelling, and that has to follow action.

Matthew Brogdon [00:14:39]:

So the president can finish a fight, but he can never start one?

Savannah Eccles Johnston [00:14:42]:

I think that's true. Without congressional authorization. Now, if Congress says, go bomb the heck out of this country, well, then it doesn't matter if they've done anything.

Matthew Brogdon [00:14:50]:

Oh, that's an interesting question. What if Congress declares war and the president thinks it's a bad idea?

Savannah Eccles Johnston [00:14:54]:

Oh.

Matthew Brogdon [00:14:55]:

Is the president bound to faithfully execute the law and go start a war? I don't think so. No, I don't think so. Yeah. This always comes up at some point whenever you talk about this balance of power, because we usually think of the President dragging the country into armed conflict and Congress sort of coming along.

Savannah Eccles Johnston [00:15:15]:

Right.

Matthew Brogdon [00:15:16]:

But it is quite possible that you have a belligerent Congress trying to drag a President into a conflict, which actually sounds a lot more like The War of 1812, whenever Congress sort of drugged Madison into a conflict with the British, where Congress was much more hawkish and spoiling for a fight than the President was.

Savannah Eccles Johnston [00:15:36]:

Okay. I actually do think that Congress bears the weight here on war and that if they declare war, it's the President's job to execute that war. Now, he can direct it in a more limited fashion, but he can't refuse to execute it at all.

Matthew Brogdon [00:15:53]:

That's interesting. Now, I disagree on this. I actually think the President could just say, this is a terrible idea.

Savannah Eccles Johnston [00:15:59]:

Refuse to faithfully execute the law, just ignore a declaration of war from time to time.

Matthew Brogdon [00:16:03]:

Actually, this may be controversial, but I think the faithfully execute the law part does comprehend the ability of the Executive to decide that actually doing what the law directs would be detrimental to the public interests and declining to do it.

Savannah Eccles Johnston [00:16:22]:

This is such a moot point because this isn't going to happen today.

Matthew Brogdon [00:16:24]:

Probably not so unlikely, but it could. You could have a belligerent Congress and a dovish President. Could totally happen. But I do think I would make one distinction, which is I don't think the President can make up laws and enforce them in ways Congress hasn't. I think it's a much lesser power to say the President can decline to do something Congress directs, that is to decline to exercise his power. Actually, I think all institutions can usually say, no, we're not going to do that. They just refuse to act. It's sort of the one. Sort of. It's a bit of a veto. It's a bit of a natural veto. I think most institutions have a separation of power system. And I think that is different than the President saying, you know, there's no law providing for this, but I'm going to do it anyway, is a much more serious violation of separation of powers and much greater threat to liberty than the President saying Congress directed something. It's deeply unwise. Maybe they didn't understand the circumstances on the ground. And no, I am not going to go. I'm not going to pull the trigger.

Savannah Eccles Johnston [00:17:23]:

I still do think, in general, the President cannot refuse if Congress has declared war. He can direct the war in a limited capacity, but there are mechanisms that Congress can use to punish a recalcitrant President. For example, they could refuse to confirm any of his nominations until he follows through on their declaration of war. They could cut off all of his funds. They could really. They could impeach the guy. They could. Yeah, they could really give him some pain for this. And I think that's important to remember. I think closer to the end of this episode, Congress has substantial weapons to use against the President. Now, they don't use them very often anymore, but they really have them. And so it's not like we have a perpetually weak, constitutionally defunct Congress and a dictatorial president. No, we kind of have an impotent Congress sometimes. But that doesn't mean they don't have the capacity to stand up and compete.

Matthew Brogdon [00:18:23]:

They can't compete with this mistake. We think Congress is weak. The institution of Congress is not weak, not remotely. It has at times dominated national politics and Congress can take presidents to the woodshed. They have plenty of ammunition for taking presidents out to the woodshed over things and have done so. Where Congress is weak is whenever they have closely divided majorities. Contested elections where you have very, very thin majorities, that makes it hard to operate in Congress. But that's actually not a function of the institution of Congress. That's the electorate.

Savannah Eccles Johnston [00:18:56]:

Right.

Matthew Brogdon [00:18:56]:

The electorate's divided. It can't make up its mind. That leaves Congress wishy washy and weak.

Savannah Eccles Johnston [00:19:02]:

Yes.

Matthew Brogdon [00:19:02]:

Beholden to small factions in Congress who can then shift things one way or the other. And that's a function of electoral politics. I don't think it has anything to do with the structure of Congress at all.

Savannah Eccles Johnston [00:19:12]:

I couldn't agree more with that.

Matthew Brogdon [00:19:13]:

I'm curious about these powers. So you mentioned, of course, the nuclear option, which is impeachment. The President can always impeach. We talked about this in the episode a little bit on executive privilege. Washington said, if you really think I'm doing the wrong thing, impeach me and Congress. Good. You got impeached over anything. Right. Any mishandling of the public interest, I think you mentioned, is appointments. You can just stymie appointments. The Senate can punish the President, refuse to confirm appointees, although the President does.

Savannah Eccles Johnston [00:19:47]:

Have a right when they're out of session. Right. Yeah.

Matthew Brogdon [00:19:50]:

What's it called?

Savannah Eccles Johnston [00:19:52]:

Yeah, no, no, no, I know what you're talking about. The midnight justices is what they were called at one point. But recess appointments.

Matthew Brogdon [00:19:59]:

Recess appointments. So the President has a recess appointment power that's limited. So Congress can't totally disable the executive branc. The framers didn't want that to be possible, but they can certainly make it hard to do business. I think this is the most important. You mentioned money.

Savannah Eccles Johnston [00:20:11]:

Oh, yes. The power of the purse is an immense power over the President.

Matthew Brogdon [00:20:14]:

Okay. And is That, I mean, Congress always has the power of the purse. It says no money shall be issued from the treasury, but according to appropriation by law.

Savannah Eccles Johnston [00:20:22]:

Right, right.

Matthew Brogdon [00:20:22]:

That's in the Constitution. So that would seem to mean Congress can't. The President can't spend any money unless Congress has indicated what it's to be spent for. So what in the world is to keep Congress from just giving the President a massive defense budget and then the President just does whatever he wants with it in perpetuity?

Savannah Eccles Johnston [00:20:39]:

Well, appropriation cycles, you've got two years before you have to re-up the military. So that's a great check Congress has on the military.

Matthew Brogdon [00:20:48]:

I mean, this has been interesting. This creates frustration, actually. People sometimes wonder why it is. So much of the government can actually be funded with ongoing appropriations. And then we have these budget fights, these government shutdowns. And one of the things that frustrates people is it's actually members of the armed services that feel the pinch, first as federal employees. Because for almost any other federal employee, Congress can just sort of perpetually authorize funding, ongoing funding, and in fact, they even have ongoing funding for things like Social Security and so forth that kick in even if there is no appropriation.

Savannah Eccles Johnston [00:21:22]:

Right, right.

Matthew Brogdon [00:21:23]:

Sort of funded in perpetuity. But for the armed forces, they don't. Because there's this really interesting provision in the Constitution which specifically says that no appropriation for the armed forces of the United States shall be for a period of more than two years.

Savannah Eccles Johnston [00:21:39]:

Right, right.

Matthew Brogdon [00:21:40]:

And so at least every two years you have to have this thing called the Defense Reauthorization Act.

Savannah Eccles Johnston [00:21:46]:

Right. Or the National Defense Authorization Act.

Matthew Brogdon [00:21:49]:

Is that it?

Savannah Eccles Johnston [00:21:49]:

The ndaa.

Matthew Brogdon [00:21:50]:

That's the ndaa. Glad somebody around has command of these acronyms. So why is that? I mean, that seems to me to be pretty crucially important. The President's on a two year time clock.

Savannah Eccles Johnston [00:22:01]:

Yeah.

Matthew Brogdon [00:22:02]:

All of the defense appropriations run out every two years.

Savannah Eccles Johnston [00:22:05]:

And by the way, I think we should point out that the NDIA is kind of the last bipartisan appropriations bill passed by Congress. It is the. If that one fails to pass, Congress is broken. Kind of. Kind of a bill because it's taken so seriously. One, because there's a duty to the men and women in the armed services, but also two, because this is a significant check on the executive branch. So I actually worked for the Senator who was the chairman of the Armed Services Committee, and this was. You don't fail to pass this bill on time, ever. You don't be the guy who failed.

Matthew Brogdon [00:22:40]:

Because constitutionally, the Money's gotta stop.

Savannah Eccles Johnston [00:22:42]:

It has to stop.

Matthew Brogdon [00:22:42]:

And the treasury actually gets really creative with the rest of the government. You always have this dynamic where you go, well, technically appropriations run out.

Savannah Eccles Johnston [00:22:49]:

Yeah.

Matthew Brogdon [00:22:49]:

But then the Treasury Secretary says, well, actually, we can sort of jimmy with the books a little bit and make it so that we can keep spending money even though there's no appropriation. But they can't do this with the military.

Savannah Eccles Johnston [00:22:59]:

Right.

Matthew Brogdon [00:22:59]:

But once you hit 24 months from the date that Congress authorized defense spending, that faucet's got to cut off.

Savannah Eccles Johnston [00:23:08]:

Yes.

Matthew Brogdon [00:23:08]:

On the first day of month 25.

Savannah Eccles Johnston [00:23:11]:

Right. Talk about a superpower for Congress or a weapon for Congress to use against the President. We need to move into the third category now. And that third category is the president's capacity to use his commander in chief powers or authorities in situations that don't amount to war necessarily. And an example of this would be Libya. Obama and Libya. So this is really gray. When can a president take an action overseas, move troops around overseas, or just drop a bunch of bombs from planes when he hasn't received authorization from Congress? This isn't really covered under an aumf. And this is not a defensive action.

Matthew Brogdon [00:23:58]:

Well, for me, it's hard to say that it's not an act of war if you send a fighter jet in somebody's country and blow up their president. You know, maybe.

Savannah Eccles Johnston [00:24:08]:

Well, but this is what Obama will say when John Boehner will send him a letter saying, the War powers Resolution of 1973 says, you had six months. You've run out of your six months time to stop. Obama's kind of like, well, it's not boots on the ground.

Matthew Brogdon [00:24:21]:

It was just one bomb.

Savannah Eccles Johnston [00:24:22]:

It's just some bombs. Relax.

Matthew Brogdon [00:24:24]:

Yeah, I didn't send any troops. I mean, this is the problem with modern, modern technological warfare, again, is that it's. The costs are so low. Right. If you have enough money to provide the munitions, then it's just, you know, it's cheap. It's what's going on, what goes on in Israel, right. With the, you know, Hezbollah, Hamas, send rockets into Israel and then you got the defense shield and all this stuff. The fact that it's sort of so cheap you don't have to send thousands of people to die. You just sort of push the button. That creates a bit of a problem because it doesn't feel like war. Right. We didn't deploy a bunch of troops, so it doesn't feel like war. And I think that's a bit of a. That's a legal fiction because actually these are acts of. So maybe it's sort of a scope. You mentioned the War Powers Resolution. Congress tries to claw back some control over the war power. They recognize the President's gotta be able to respond to stuff. Not all of that rises to the level that Congress needs to pass a declaration of war for the President to go deal with some terrorist cell somewhere. Necessarily.

Savannah Eccles Johnston [00:25:25]:

And also it doesn't necessarily have to rise to number two category either. Simply repelling. It's kind of that third gray area category.

Matthew Brogdon [00:25:32]:

And so Congress tried to create this structure where they said, well, if the commits American troops or commits an act of war, utilizes the armed forces of the United States to perpetrate an act of war, in effect use military force, then he's got to let Congress know there's a notification requirement, 48 hours. And then there's a clock that starts ticking that they say within. What's the time period? 60 days.

Savannah Eccles Johnston [00:25:56]:

It's 60 days.

Matthew Brogdon [00:25:57]:

Within 60 days, Congress is supposed to approve this.

Savannah Eccles Johnston [00:26:01]:

You're right. And if they don't?

Matthew Brogdon [00:26:02]:

If they don't, what happens?

Savannah Eccles Johnston [00:26:03]:

You got to pull troops out or you have to stop the conflict. You have to stop the.

Matthew Brogdon [00:26:07]:

Or you can send a message to Congress letting them know that for some reason that's not really feasible. And then a new 30 day clock starts where you got, well, give me 30 days to get them out.

Savannah Eccles Johnston [00:26:20]:

Right. Presidents don't see this as constitutional, by the way. They think it's a violation of the Commander in Chief clause.

Matthew Brogdon [00:26:26]:

Yeah, Nixon vetoed it and then Congress had to pass it over as veto.

Savannah Eccles Johnston [00:26:30]:

Right.

Matthew Brogdon [00:26:30]:

He vetoed it for some interesting reasons. Can't get into right now. Probably it's a little too intricate.

Savannah Eccles Johnston [00:26:35]:

Yes.

Matthew Brogdon [00:26:36]:

But no President has never acknowledged the constitutionality of the War Powers Resolution.

Savannah Eccles Johnston [00:26:41]:

Yeah, simply that it may violate or come into tension with the Commander in.

Matthew Brogdon [00:26:46]:

Chief clause, which is actually kind of funny that we still actually call it the War Powers Resolution most often because it is an act. It was a law passed over the President's veto. But Nixon and subsequent presidents sort of scored a point by insisting on calling it the War Powers Resolution.

Savannah Eccles Johnston [00:27:01]:

Oh, I didn't know that. I like that.

Matthew Brogdon [00:27:02]:

Yeah, that's what the presidency has always wanted to call it. Presidents always call this the War Powers Resolution. And so people pick up on it, but it's a bit of a degradation of it because it acts like, oh, well, the fact is no President's ever acknowledged this, so it's not really the.

Savannah Eccles Johnston [00:27:16]:

Law, but they really kind of ignore this. For example, Obama with John Boehner and John Boehner, by the way, just kind of rolls over and is like, okay, Obama, I guess you're right, and doesn't punish him, doesn't use any of those congressional weapons to force Obama to stop the engagement with Libya. So this leads us directly to whether Congress can direct the conduct of military operations. How much can they step all over the commander in Chief clause? The Commander in Chief clause makes it very clear the President directs the conduct of the war. What can Congress do to direct or regulate or touch on that at all?

Matthew Brogdon [00:27:55]:

Well, Article one, Section eight says some pretty clear language about this. It says that they can provide for the training and discipline and regulation of the armed forces of the United States. They provide for an army and Navy. They can pass laws, very clearly pass laws in international waters to do with maritime crimes and jurisdiction. So it's up to Congress to decide what criminal conduct is, what appropriate and inappropriate conduct is for people who are fighting under the flag of the United States.

Savannah Eccles Johnston [00:28:26]:

Right.

Matthew Brogdon [00:28:26]:

So we have the Uniform Code of Military justice and these sorts of things. So Congress can provide regulation, they can make laws that say, this is appropriate conduct, this is inappropriate conduct for members of the armed forces. And the way that they go about.

Savannah Eccles Johnston [00:28:42]:

Example, doing their duties, you can't conduct torture. Right. They can have regulations on enhanced interrogation methods.

Matthew Brogdon [00:28:50]:

They can forbid certain types of weapons. Congress can set conditions on what kinds of weapons are permitted to be used by the armed forces of the United States and forbid certain weapons if they want to. And they do that by code. Now, that's different because the commander in chief has command of the armed forces.

Savannah Eccles Johnston [00:29:08]:

Right.

Matthew Brogdon [00:29:08]:

So in a way, this is the difference. It tracks the difference between the legislative and executive powers, more generally, the power to make a general law regulating future conduct. Saying this is appropriate, this is inappropriate, is different than telling a particular person at a particular moment in time, here's what you must do to perform your job. So I think that distinction tracks onto the congressional regulation versus commander in chief. So if it comes to any kind of tactical command of the military, telling a military unit what to do, sort of saying, push the button, fire. Deploy the troops. This carrier group moves there. Those are all tactical commands to military units. And I do not think it's the case that Congress could, by law, ever issue a particular tactical command to a military unit command, the Joint Chiefs of Staff, go around the President and say, you shall send fighter jets to Israel and perform these actions. I don't think Congress could ever do that. That would be assuming to themselves the commander in chief power.

Savannah Eccles Johnston [00:30:15]:

Right.

Matthew Brogdon [00:30:16]:

They could say, you shall never send fighter jets to a place unless these conditions obtain.

Savannah Eccles Johnston [00:30:23]:

Right.

Matthew Brogdon [00:30:24]:

But deciding whether those conditions are in place and whether it's appropriate to do this in a particular moment is always the commander in chief.

Savannah Eccles Johnston [00:30:30]:

Right. So why I think war powers is such a useful discussion for understanding not just the presidency, but executive congressional relations is because it's that prime example of overlapping powers, of that constitutional gray area in which you're supposed to have this institutional competition between Congress and the President. That's how our system works. And if there is any concern that the President is really winning this war right now over war powers, it's not because Congress is constitutionally incapable of stepping on the toes of the President or competing, it's that they simply choose not to right now. And so much of that comes down to the will of voters, what voters expect and want from Congress and from the President on war and on foreign policy creation more generally.

Matthew Brogdon [00:31:20]:

I mean, what's your take? Are Americans dissatisfied with that situation?

Savannah Eccles Johnston [00:31:24]:

Oh, yes. Oh, I think Americans are deeply unhappy with what they consider kind of forever war's constant engagement on behalf of the President. And I think a big chunk of it comes from their sense that the President has arrogated to himself more power than he constitutionally deserves, which is actually more just a function of Congress not doing their job. Because the American people don't support Congress in acting institutionally against the President.

Matthew Brogdon [00:31:51]:

I don't know. I'm curious about it. It seems to me that opposing the status quo means that you have some alternative. Alternative in mind. And I wonder, what is this alternative? I mean, the American people would be more satisfied if Congress had the initiative.

Savannah Eccles Johnston [00:32:04]:

No, I think they'd be more satisfied if Congress were more willing, or at least this is what my students tell me were more willing to step in and tell the President, no, you can't actually put troops there. There's no declaration aboard. There's no aumf. This isn't a defensive action. You actually. Or at least enforcing the War Powers Resolution, trying to limit just how free of a hand the President they perceive to have abroad.

Matthew Brogdon [00:32:27]:

Although I'm deeply skeptical of taking the prevailing opinions of college students as an indication of what Americans think.

Savannah Eccles Johnston [00:32:33]:

Okay, I should say, I get this from, should I say, like, grumpy uncles, too. But you shouldn't really take their opinions very seriously either.

Matthew Brogdon [00:32:39]:

Maybe, but on any particular conflict, I mean, I know that maybe there's an overall. Okay, so there's the overall sense that we don't like the way this works. We wish that the President weren't quite so unilateral in this regard. But what about if we go to the level of independence? How many independent particular presidential actions with respect to military force could we point to where we'd go? You know, really, that was very unpopular at the time and I'm not sure there are very many.

Savannah Eccles Johnston [00:33:04]:

Some stuff involved in the Middle east right now could rise to that level, though. We're not necessarily dropping bombs yourself, are we?

Matthew Brogdon [00:33:12]:

Sure. I mean, clearly there's not a clear partisan indicator on this. Right. We can't actually point clearly and go, Democrats want this and Republicans want this.

Savannah Eccles Johnston [00:33:21]:

Not saying I agree with it. I'm saying there's general dissatisfaction.

Matthew Brogdon [00:33:26]:

But is that a dissatisfaction with the state of things like we wish it were not so?

Savannah Eccles Johnston [00:33:30]:

Yeah, yeah. I think there's. I think we're moving away from war powers here just to just a general. Well, one, lack of knowledge on the part of Americans on both geography, history and foreign policy more generally. And two, a dissatisfaction with what they view as constant engagement in the world and lack of investment domestically. Now, I think that's a lot of misguided ideas, but I think there is a general sense out there and it fuels both. Kind of a return to home mentality that you get on the Trump side and also among RFK voters, but you also see some exhaustion among traditional Harris voters is just something I think we need to be wary of and have an answer for.

Matthew Brogdon [00:34:13]:

Sure. I wish I had a better sense of the actual divides on the current conflicts and things because I'm not.

Savannah Eccles Johnston [00:34:21]:

Ukraine, for example.

Matthew Brogdon [00:34:22]:

Yeah. I don't know if you're actually looking at what Americans think about any particular conflict. I'm not sure. It's hard to find a majority to go, we need to help out Ukraine and find a majority to say we need to vigorously assist Israel. Is there a majority that thinks both of those things are a great idea or is enthusiastic about doing both of these things? Maybe not. But that may also be a bit of a vindication of the framer's reliance on a unitary executive. That said, actually, somebody does actually have to make decisive choices about this. The public may be wishy washy, it may waffle, Congress may be uncertain. It may be locked up in all sorts of debate and gridlock. So maybe you need one person who's representative of the country to look after its interests and make these decisions. And it's precisely because of the indecisiveness and poverty of information that most people have that you need someone to be responsible for that and we just get to evaluate them on the whole. Right.

Savannah Eccles Johnston [00:35:28]:

But the job for us is to educate voters on war powers and how they actually function. And I think that's step one to solving this dilemma is how do war powers actually operate within a constitutional framework? What's that competition like? And if you have a real problem with it, your Congress member has all the tools at their disposal to wage that institutional battle.

Matthew Brogdon [00:35:52]:

Take that money.

Savannah Eccles Johnston [00:35:52]:

So don't check out politics. Get involved in Congress.

Matthew Brogdon [00:35:55]:

That's right. Congress can quit writing the checks.

Savannah Eccles Johnston [00:35:57]:

Yes, it can. Good. I think this was a useful conversation as well.

Matthew Brogdon [00:36:01]:

It always is.

Savannah Eccles Johnston [00:36:02]:

We're just beginning to explore the rich legacy of America's Constitution. If today's discussion deepened your understanding, share this episode with a friend or student and subscribe to continue learning with us. For more insights and exclusive content, visit uvu.edu cc, thank you for joining us and we look forward to exploring more with you on this Constitution. Brought to you by the UVU center for Constitutional Studies, home to Utah's Civic Thought and Leadership Initiative.