99% Invisible – Constitution Breakdown #3: Sen. Elizabeth Warren

Date: October 31, 2025
Host: Roman Mars | Guest Host: Elizabeth Cho | Guest: Senator Elizabeth Warren (D-MA)

Episode Overview

This episode continues 99% Invisible’s deep dive into the design and structure of the U.S. Constitution, focusing on Article 1, which lays out the legislative branch’s powers and limitations. Roman Mars and constitutional law expert Elizabeth Cho unpack the often overlooked but essential ways design and compromise shaped congressional authority. The episode features a substantial interview with Senator Elizabeth Warren, who reflects on the modern Congress's waning separation of powers and what’s at stake when Congress fails to defend its constitutional authority.

Key Discussion Points & Insights

1. The Powers of Congress – Article 1, Section 8

• Specific Powers Granted: Section 8 explicitly grants Congress powers such as declaring war, coining money, setting up post offices, regulating intellectual property, and—most importantly—regulating interstate commerce.
  • “Section 8 gives Congress the power to regulate interstate commerce… The power as described doesn't say too much… but today, unlike in 1787, say, everything is touched by interstate commerce.”
    — Elizabeth Cho [05:17]
• Expansion of Commerce Power: Supreme Court interpretations, especially post-FDR, greatly broadened what qualifies under the “commerce clause.”
  • Applications range from the Endangered Species Act to federal criminal law, civil rights, and terrorism.
• Example: Congress can regulate guns within states under the guise of interstate commerce, since guns or their parts almost always cross state lines.
  • “In today's world, that's so easy, because almost everything is in some way related to interstate commerce. There are very few things that are entirely originated in one state and then never leave the state.”
    — Elizabeth Cho [08:02]

2. Spending & Taxing Powers

• Conditional Spending: Congress uses federal funds as leverage to influence state policies, e.g., “No Child Left Behind,” carpool lane rules for EVs.
• Tax as Regulation: The Supreme Court upheld the Affordable Care Act (Obamacare), not as a regulation of commerce, but as a constitutional use of Congress’s taxing power.
  • “The ACA is still alive after all these years, thanks in part to the taxing power.”
    — Elizabeth Cho [13:22]

3. Necessary and Proper Clause

• Flexibility in Lawmaking: This clause supports Congress’s authority to create federal agencies and use “all laws necessary and proper” for executing its powers.
  • “The necessary and proper power is almost like an extension of the listed powers in the remainder of Section 8.”
    — Elizabeth Cho [14:36]
• Creation and removal of agencies is a Congressional, not Presidential, power.

4. Limits on Congress – Article 1, Section 9

• Appropriations Clause: Only Congress can direct federal spending; the President cannot spend money not appropriated by law.
  • “Congress alone can determine how federal money can be spent, not the President. The executive branch is simply there to disperse those funds…”
    — Elizabeth Cho [17:53]
• Habeas Corpus: Congress alone can suspend habeas corpus during rebellion or invasion—not the President.
  • “The location of the suspension clause provides an answer to Mr. Miller. It's in Article 1, as part of a directive to Congress. The President…doesn't have the constitutional authority all by himself to suspend the availability of habeas corpus.”
    — Elizabeth Cho [21:46]
• Emoluments and Nobility: The Constitution bans granting titles of nobility and federal officers from accepting gifts or titles from foreign powers without Congressional consent.
• Fun Fact: There was a proposed “missing 13th Amendment” (1810) to strip citizenship from anyone accepting a foreign title—never fully ratified but the subject of conspiracy theories.

5. The Shadow of Slavery

• Compromises Embedded: The original Constitution includes obscure language designed to delay addressing slavery for 30 years to secure ratification, never directly naming “slavery.” It’s an inseparable part of constitutional design and American history.
  • “It's like a ramshackle building built with things that absolutely don't make any sense anymore and things that vitally regulate everything we do today.”
    — Elizabeth Cho [30:38]
  • “There's some merit in keeping even that ugly history in there to remind us… It is a historical document as well as a governing document.”
    — Elizabeth Cho [32:02]

6. Congressional Limitations on States – Article 1, Section 10

• What States Cannot Do: States cannot coin money, grant titles, or pass ex post facto laws. Some limitations (like imposing tariffs) can be overridden with Congressional consent.
• Interstate Compacts: States can form agreements (e.g., on resources or health) but require Congressional approval if those compacts challenge federal authority.
  • Contemporary examples may include agreements on health or climate policy as responses to federal inaction.

7. Odd and Obsolete Congressional Powers

• Letters of Marque and Reprisal: An almost-forgotten power where Congress can authorize private citizens (“privateers”) to capture enemy ships, discussed in light of Senator Mike Lee’s (2025) suggestion to use the power against drug cartels (which guests found absurd).

8. Congressional Power Over Immigration – Or Lack Thereof

• No Constitutional Basis: Remarkably, the Constitution does not specifically grant Congress the power to regulate immigration, only naturalization.
  • “This enormous amount of national power, the one that is being used by President Trump for his mass deportation agenda, isn't mentioned in the Constitution at all.”
    — Elizabeth Cho [44:22]
• The Supreme Court justifies this as an inherent sovereign power, which can be problematic for setting clear legal limits.

9. Emergencies & the Constitution’s Loopholes

• The Constitution includes many “emergency” escape hatches, but provides little guidance as to what constitutes an emergency or who “pulls the cord.”
  • “There’s lots of things in here that allow for evildoing… you can’t really depend on the Constitution for that. You have to really depend on the ethics and goodness of humans, really.”
    — Roman Mars [46:44]

Senator Elizabeth Warren Interview (50:31 – 72:28)

Congress’s Article 1 Responsibilities and Modern Challenges

Congress’s Lawmaking and Power of the Purse

• “I go around all day doing Article 1 stuff… we’re the branch that’s supposed to do the kind of nuts and bolts. Not very sexy, but wow, is it important.”
  — Elizabeth Warren [50:49]
• She highlights the central role of Congress in passing laws and funding government actions, emphasizing the crucial separation from presidential powers.

Executive Overreach and Congressional Abdication

• Warren warns of an unprecedented level of executive power under President Trump, who (often with Congressional acquiescence) disregards Congressional appropriations:
  • “Donald Trump comes in with Elon Musk and the Golden Chainsaw and just says, nope, not going to spend it. We’re going to padlock this agency…”
    — Elizabeth Warren [55:30]
  • Details include foreign aid and security funds being withheld or redirected by executive order, despite explicit Congressional intent.
• “If he can do that, then that whole notion that Congress decides… how to spend money… is gone. And we have a President who looks a whole lot more like a king.”
  — Elizabeth Warren [57:01]

Why Separation of Powers Is Failing

• Warren asserts the Framers depended on Congress to jealously defend its power. The current problem is not just executive overreach but Congressional “spinelessness.”
  • “It’s both halves. We have a President…saying, gimme, gimme, gimme… and that only works because he has a compliant Congress saying, yes, dear leader, whatever you want to do. And that’s, for me, the horror of this moment. It’s that you’ve got a wannabe king with a spineless Congress.”
    — Elizabeth Warren [58:54]
• She notes that even a small group of Senators standing up could drastically limit executive overreach.

The Supreme Court & Unitari​an Executive Theory

• Warren discusses the danger of the Supreme Court embracing “unitary executive” theory, which would grant the President near-monarchical powers—contrary to everything Article 1 was meant to establish.
  • “They made up this new word, the unitary executive… I cannot think of an idea that is more the opposite of what the Constitution says and what the history of the Constitution was all about.”
    — Elizabeth Warren [65:36]
• She connects today’s power struggles to the roots of the Revolution: “No King” is the foundational American principle, realized in Congress’s power of the purse.

The Budget Standoff and Government Shutdown

• Warren describes current negotiations as fundamentally broken: Congressional intent is ignored when funds are redirected or withheld by the President, undermining trust between branches—and between parties—in budget-making.

Notable Quotes & Memorable Moments

• On the Role of Congress:
  “The President of the United States does not get the magic wand, which he can then wave over the rest of the country and say, okay, here’s the deal… So to me, that’s the heart of the game.”
  — Elizabeth Warren [51:17]

• On Executive Power:
  “If four senators would say to the President of the United States, cut this out… then this moment of attack on the Constitution would shrink way down.”
  — Elizabeth Warren [61:42]

• On the Constitution’s Design:
  “The Constitution itself…was to revise the Articles of Confederation. So they actually didn’t even do what they were supposed to do. Right. So they were like, forget that project. We’ll just create a new one from scratch.”
  — Elizabeth Cho [33:30]

• On Missing Immigration Powers:
  “The Constitution doesn’t mention the word immigration at all... That’s a kind of surprising observation, I think, for a lot of people.”
  — Elizabeth Cho [42:53]

• On Limits of Constitutional Protection:
  “There’s lots of things in here that allow for evildoing… you can’t really depend on the Constitution for that. You have to really depend on the ethics and goodness of humans.”
  — Roman Mars [46:44]

Timestamps for Major Segments

• Key History and Theory of Article 1 – [02:32 – 15:07]
• Power of the Purse/Appropriations – [15:07 – 19:10]
• Limits on Congress (Section 9: Habeas Corpus, Emoluments, etc.) – [19:11 – 26:58]
• Slavery Compromises and Constitutional “Design” – [29:15 – 33:43]
• Limits on States (Section 10 and Interstate Compacts) – [34:16 – 38:40]
• Obsolete Powers and Oddities (Letters of Marque, War Powers) – [39:22 – 41:59]
• Immigration Authority and Its Absence from Article 1 – [42:00 – 46:44]
• Senator Warren Interview – [50:31 – 72:28]

Final Notes

The episode highlights how the design of Article 1 reflects both historical compromise and enduring struggle over the balance of power, particularly as the executive branch asserts unprecedented authority and Congress hesitates to exercise its constitutional role as a check. Senator Warren’s segment is a call to action—emphasizing that the true potency of the Constitution depends not just on the structure and text, but on the willingness of humans to defend and execute its design.

Original Tone: In-depth, accessible, wry, and occasionally urgent. The conversation balances legal scholarship with relevant, compelling contemporary examples, culminating in Senator Warren’s passionate and pointed defense of Article 1’s enduring importance.