John Yoo & Charles C. W. Cooke: Who Decides When America Goes to War?

Summary

Future of Freedom: Who Decides When America Goes to War? Hosted by Scot Bertram | Released on July 3, 2025

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Introduction

In this compelling episode of Future of Freedom, hosted by Scot Bertram, the conversation delves into the intricate balance of war powers between the Executive and Legislative branches of the United States government. The episode features two esteemed guests: John Yoo, Emanuel Heller Professor of Law at the University of California at Berkeley, and Charles C.W. Cooke, Senior Editor at National Review and host of his own podcast. Together, they explore the constitutional nuances and practical implications surrounding presidential authority to engage in military actions without explicit congressional approval.

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Discussion with John Yoo

Understanding Presidential War Powers

Timestamp: [00:52] - [01:43]

John Yoo begins by addressing a common misconception regarding the President's need for congressional permission to declare war. He states, "I don't think that's ever been the case. We've had five declarations of war in our history and we have had at least 150 uses of force by the president abroad." Yoo emphasizes that while the Constitution grants Congress the power to declare war, presidents have historically engaged in military actions without formal declarations.

Constitutional Interpretation of War Powers

Timestamp: [02:02] - [04:45]

Yoo adopts an originalist and textualist perspective, advocating for a historical interpretation of the Constitution. He references the Declaration of Independence as the first declaration of war in American history, underscoring that it "formalizes legally the state of relations between the United States and another country" rather than serving as a precondition for engaging in hostilities. He further cites Alexander Hamilton from the Federalist Papers, highlighting the foresight of the Founders in creating an independent executive branch capable of swift and decisive action in matters of national security.

John Yoo [03:11]: "Alexander Hamilton expresses it well... we create an independent executive branch... to protect the nation in its security from foreign threats."

Congressional Checks: The Purse and Impeachment

Timestamp: [04:45] - [07:32]

Yoo argues that Congress exerts its authority primarily through the power of the purse and impeachment. He points out that historical instances, such as the Vietnam War, were effectively curtailed by Congress cutting off funding. Yoo notes that impeachment serves as a critical check, referencing how the British employed similar measures to hold cabinet members accountable for mismanaged wars.

John Yoo [05:09]: "Modern war has become so expensive that Congress's funding support has to be there."

Limitations on Executive Action

Timestamp: [07:53] - [10:21]

In contrast to Charles C.W. Cooke's later viewpoints, Yoo maintains that courts should not intervene in limiting presidential war powers. Instead, he asserts that Congress is the appropriate branch to constrain executive overreach, not the judiciary.

John Yoo [06:28]: "The branch that's responsible for constraining the President is Congress... [not] the court."

War Powers Resolution: A Symbolic Gesture

Timestamp: [10:21] - [12:03]

Yoo criticizes the War Powers Resolution of 1973, labeling it as "dead letter" because presidents have routinely bypassed its mandates without facing significant repercussions.

John Yoo [10:21]: "Presidents haven't obeyed it. No president has ever conceded it's constitutional."

Efficiency vs. Legislative Deliberation

Timestamp: [12:03] - [14:13]

Yoo underscores the Founders' intent to ensure national security could be addressed swiftly without waiting for the often slow and deliberative processes of Congress. He references the Articles of Confederation as a historical lesson on the pitfalls of an ineffective legislature in matters of foreign policy.

John Yoo [13:50]: "National security... requires quick, decisive action... [which] the executive branch is designed to provide."

Recent Context: Iran Strikes and AUMFs

Timestamp: [14:13] - [16:15]

Addressing contemporary issues, Yoo discusses the applicability of the Authorization for Use of Military Force (AUMF) from 2001-2002 to recent actions against Iran. He suggests that while not constitutionally necessary, AUMFs serve as congressional endorsements that provide political backing for military operations, even if their scope may not explicitly cover specific modern threats.

John Yoo [14:45]: "The Iranian strikes are better justified as the use of force and self-defense to prevent a hostile regime from obtaining nuclear weapons."

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Discussion with Charles C.W. Cooke

Defining the Standard for Congressional Approval

Timestamp: [16:37] - [17:11]

Charles C.W. Cooke presents a constitutional argument that emphasizes the necessity of congressional authorization for significant foreign policy decisions. He acknowledges exceptions, such as immediate defensive actions where time constraints preclude congressional consultation.

Charles C.W. Cooke [16:53]: "Congress should be asked when there are changes in policy. The 'what' and the 'if' are not solely executive decisions."

Challenging the Status Quo and Historical Precedents

Timestamp: [17:12] - [19:20]

Cooke disputes the notion that the executive's expanded war powers have been implicitly accepted over the past 75 years. He argues that historical actions taken without explicit congressional approval, such as those by Presidents Obama and Clinton, should not normalize the bypassing of constitutional protocols.

Charles C.W. Cooke [19:42]: "It's a frontal assault on the idea of law. The Constitution is the Constitution for a reason... precedent does not justify constitutional overreach."

Congressional Inaction and Its Risks

Timestamp: [22:05] - [25:12]

Addressing concerns about congressional reluctance, Cooke explains that in foreign policy, inaction by Congress can lead to unchecked executive power, potentially threatening national security. He criticizes the War Powers Act for being ineffective and argues for clearer, more specific authorizations.

Charles C.W. Cooke [24:35]: "If Congress doesn't act, power flows down to the states or the people. In foreign policy, this inaction can be fatal."

Major Questions Doctrine and Application to Iran Strikes

Timestamp: [25:12] - [34:42]

Cooke invokes the Major Questions Doctrine, emphasizing that significant policy decisions require explicit congressional authorization. He contends that using the broad 2001-2002 AUMF to justify actions against Iran is legally flawed and could set dangerous precedents, such as justifying unrelated military actions based on loosely connected criteria.

Charles C.W. Cooke [32:07]: "Using the AUMF to justify actions against Iran is an overreach that makes a mockery of the law. Congress needs to repeal or amend these outdated authorizations."

Enforcement Mechanisms and Constitutional Integrity

Timestamp: [29:00] - [34:42]

Cooke discusses potential enforcement mechanisms should a president act without congressional approval, such as cutting off funding, blocking judicial appointments, or initiating impeachment proceedings. He underscores the importance of upholding constitutional norms uniformly, regardless of the administration in power, to prevent selective adherence based on political convenience.

Charles C.W. Cooke [31:46]: "We can't allow the violation of norms only when it's politically inconvenient. Consistent enforcement is crucial for constitutional integrity."

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Conclusion

The episode provides a robust exploration of the enduring debate over war powers in the United States. John Yoo advocates for a historical and practical understanding that favors executive flexibility, emphasizing congressional oversight through funding mechanisms. In contrast, Charles C.W. Cooke champions the necessity of explicit congressional authorization, warning against the erosion of constitutional safeguards through vague and overextended authorizations like the AUMF.

Listeners are left with a nuanced perspective on how war powers have evolved, the constitutional intentions behind them, and the ongoing struggle to maintain the balance between swift executive action and legislative oversight in safeguarding national security.

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Hosts & Guests:

• Scot Bertram: Host of Future of Freedom
• John Yoo: Emanuel Heller Professor of Law at UC Berkeley, Senior Research Fellow at the Civitas Institute, and Non-Resident Senior Fellow at the American Enterprise Institute.
• Charles C.W. Cooke: Senior Editor at National Review and host of the Charles C.W. Cooke Podcast.

For more episodes and insightful discussions, subscribe to Future of Freedom on Apple Podcasts, Spotify, or your preferred audio platform.

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This summary captures the essence of the discussed topics, providing a structured and detailed overview for those who haven't listened to the episode.

Transcript

[John Yoo]

FOREIGN.

[Scott Bertram]

Welcome to FUTURE of Freedom. I'm your host, Scott Bertram. Future of Freedom is a production of Franklin News Foundation. To support this show, go to franklinnews.org donate we bring you interviews today from different sides of the debate concerning when a president needs congressional approval for military action. First, we talk with John Yoo. He is Emmanuel Heller professor of Law at the University of California at Berkeley, also senior research Fellow at the Civitas Institute at the University of Texas at Austin and non resident Senior Fellow at the American Enterprise Institute. AEI.org John, thanks so much for joining us.

[John Yoo]

Oh, it's my pleasure.

[Scott Bertram]

Thanks for having me talking today about war powers here in the United States. And I'll ask very directly as we start, when does the President of the United States need Congress's approval to engage in foreign conflicts?

[John Yoo]

I think that there's this misconception that the President needs the permission of Congress because of the declare war clause before he can use force abroad. I don't think that's ever been the case. We've had five declarations of war in our history and we have had at least 150 uses of force by the president abroad. But I do think that the way that Congress checks the President is through the raising of the military and funding of the Army, Navy, Air Force and current operations.

[Scott Bertram]

All right, let's walk through a little bit of that because as you mentioned, the Constitution gives Congress the power to declare war. Is there, I guess, almost an originalist or textualist reading of that phrase in the Constitution that helps us to better define its meaning?

[John Yoo]

Yes. I think the way you would do it is look back at the 18th century at the time of the Founding, and see what declarations of war were actually read the declarations of war. And it's we're taping this as we're approaching July 4th and the 250th anniversary of the Declaration of Independence. Guess what was the first declaration of war in American history? It's the Declaration of Independence. If you read it, it reads exactly like declarations of war that England, for example, would announce when it was in hostilities with another country. But guess what? The Declaration of Independence did not authorize hostilities. It came about a year after the fighting had broken out at Lexington and Concord and Bunker Hill. So what the Declaration of War does is that it formalizes legally the state of relations between the United States and another country. What it isn't is a key. Like, you know, the two officers on the nuclear submarine, the Congress and the President have to turn them simultaneously in agreement before you can have fighting abroad.

[Scott Bertram]

Congress is a place where things can can get bogged down. The Senate, we are told over and over again, is a deliberative body. It's part of a feature of the Senate, not a bug of the Senate. Is there reason to think or the writings that the framers wanted foreign policy not to be subject to that slow process in Congress?

[John Yoo]

Yes. This, in fact, was the innovation of the Constitution, was that it created an independent executive branch. The president, remember the Articles of confederation, had no executive branch. The state constitutions at the time really tried to handicap their governors, which is only natural after the revolution. But this was seen by the founders who came to Philadelphia and wrote the Constitution as a defect. Alexander Hamilton expresses it well in the Federalist Papers, which he wrote to explain the Constitution and urge people to vote for it, which was that, as you said, the assembly, the legislature, our Congress is large, it's deliberative, it represents the great diversity of interests in our country, but it's also slow. And so Hamilton said, there has to be in the government an executive, a single person, and we concentrate that power in that single person so that he can act with swiftness, decisiveness, secrecy. And he said the two things that ought to be in that executive are the execution of the laws domestically and the protection of the nation in its security from foreign threats.

[Scott Bertram]

John, is the real power of Congress in the power of the purse? As you mentioned, you've used force abroad more than 100 times, declared war by Congress only five times. Congress continues to fund these uses of force abroad without the official declaration. Is that power, the purse, the real power Congress has in foreign policy?

[John Yoo]

Yes, I agree that it's both practical and I think it's actually the originalist answer. Practically Congress can end wars anytime at once. It ended the Vietnam war by cutting off funds. In order for President Clinton to wage the Kosovo war, Congress had to vote funds even for an air war that only lasted 70 days. Modern war has become so expensive that Congress's funding support has to be there. And then I think if you look at the debates around the Constitution, you don't see. So the anti federalists attacked the Constitution for creating a president like this and said, you've created a president who might go on military ventures. You've created a president who might use the military to be dictatorial. And people like James Madison in these constitutional debates in their state ratifying conventions, they don't say, oh, don't worry, Congress has to declare war clause. They won't trigger the war. They always say the real Check on that is the power of the purse. And that's the way it worked in England. And they say that's the way it'll work in the United States.

[Scott Bertram]

When it comes to executive action, is there any real limiting principle here? Does the President and the Executive branch have wide latitude to act as they consider it to be necessary?

[John Yoo]

I think so. I mean, we also have this conception, which I think is wrong, that the court should step in and stop the President. I don't think that's right. I think the branch that's responsible for constraining the President is Congress. Congress not just has the funding power, it also has the power of impeachment. And that also, at the time of the founding, was a power that the British used to punish cabinet members for waging bad wars, for getting the country involved in Great Britain involved in mistakes. And so the founders, though, they understood that in order to. And this is again, Hamilton, because the threats to the nation can't be predicted because emergencies can happen. You can't write in the Constitution beforehand restrictions on the executive's power in foreign affairs and national security. So what you do is you try to pick good people for the office, but then you give the Congress the power of funding and impeachment to restrain the President after he's picked.

[Scott Bertram]

John, you've spoken before about Article 1, Section 10, Clause 3 in the Constitution, which deals with when states may enter war. When we compare the language in that clause with the language elsewhere in the Constitution, when it comes to war powers, how does that compare? Contrast?

[John Yoo]

I didn't realize you were going to do something as wild as quote the Constitution. So I'm getting my Constitution out right now. I got it right.

[Scott Bertram]

Me.

[Charles C.W. Cook]

I opened it up.

[John Yoo]

So this is an argument I've made about the constitutional meaning of declare war. If you were a textualist, because if you're textualist, you would think that when the Constitution uses the same words, they mean the same thing. And when they use different words, the Constitution means different things. So most people who are in favor of Congress think that the declare war clause gives Congress a power to authorize war first. And they always have to admit because of. I mean, it's just practical to admit that. But if there's an emergency or a sudden attack, you don't have to wait for Congress. So look at Article 1, Section 10. It says no state shall, without the consent of Congress, engage in war. Doesn't say declare. It says engage in war. And then it has the exception unless actually invaded or in such imminent danger as will not Admit of delay. So I ask if people think Congress's declare war clause means what they think it means, why didn't they write it this way? Why didn't they say the President, you know, the President shall not, without the consent of Congress engage in war unless actually invaded or in such imminent dangers, will not admit it? It's exactly the text and meaning that they think is all wrapped up. They declare war clause. So my argument is like is basically the Constitution does not create that kind of strict process for war making between the President and Congress. Instead it divided the war power between the two branches. And I think the founders thought that the President and Congress would fight over war policy. And they have. What we've lived through in the last 50 years actually is a Congress that has chosen not to use its powers of the purse, chosen not to use impeachment. Instead, it creates through the funding power an enormous offensive military, and then doesn't want to get involved at all when the President uses it.

[Scott Bertram]

John, the War powers Resolution of 1973, you've written that Congress has never even tried to enforce it. Is the War Powers Resolution essentially dead letter law when we have these debates or discussions about the use of force, should the War Powers Resolution even come into conversation?

[John Yoo]

I agree. I think it's a dead letter. I don't think even Congress believes in it. The War Powers Resolution says that the President must get approval from Congress before using force abroad. And then it says, but if the President goes ahead anyway, he must pull the troops out in 30 days and then he can renew it for another 30 days. So ultimately the President can use troops abroad for 60 days without Congress. But Presidents have done that for longer. President Bush in the first Persian Gulf War, you could President Clinton in Kosovo, I would say President Obama in his attacks on Libya and Syria. So I think Presidents haven't obeyed it. No president has ever conceded it's constitutional. And Congress doesn't believe in it because it goes ahead and funds these wars anyway that violate the War Powers Resolution. So the War Powers Resolution is just, it's again, it's Congress trying to make a symbolic stand like the arguments it makes about declare war. But when it really comes to it, when they really can cut off the funding, when they're asked to fund the war, they always affirmatively fund the fighting.

[Scott Bertram]

If Congress tried to say that they should have a larger say in these matters, say that we should need to declare war, we know that Congress, as I mentioned earlier, moves very slowly. Congress rarely wants to take votes on things it doesn't have to vote upon and can drag its feet in many areas, our national security. Would it be at risk if, in fact, congress decided to take a larger role in our foreign policy?

[John Yoo]

I think so. This is the problem that Hamilton and the writers of the constitution identified. This was the problem with the articles of confederation, which was a legislature that represented the states that failed miserably at foreign policy and national security. And what the founders saw was that national security in particular was an area where you needed to have quick, decisive action. Sometimes it's more important to act first than get it exactly right. Maybe if you had deliberation with congress over many months or years, you might get the exact perfect policy. But what the founders saw is that when the harm from foreign affairs can fall upon the country suddenly and have such devastating effects, our country can't wait to have a debate in congress about what to do. Here's another reason I think the founders thought this was in our domestic policy, we don't have a problem if Congress has long debates, doesn't do something, or doesn't do something for a long time, because there's always the states. There's always the states that have the police power, that regulate everything. In the absence of the federal government. That doesn't happen with national security. If the federal government fails, acts too slowly, or doesn't act at all in response to some great threat, the states don't have the power of national security to respond. The federal government is all there is. So that's another reason I think the founders want to design an executive branch that could act decisively and swiftly to respond to foreign threats When a legislature might take, you know, drag its feet or not want to take responsibility, as you said, for difficult decision.

[Scott Bertram]

One question specifically, on the recent activity in Iran, there's been discussion, debate about whether or not that action falls under the 2001-12-2002 Authorization of Military force. Would you. Would you say that it does, or would you say it just simply does not matter? Based on our conversation today and our understanding of the presidential war powers?

[John Yoo]

Well, you found the right guy to ask that because I helped draft both of those authorizations to use military force back when I was in the justice department at the. At the time and was involved with the negotiations between the Bush administration and mostly members of the senate, but some members of the House as well. So in the Bush administration, the way we viewed it was that the authorizations to use military force were not constitutionally necessary, that what was important for us was to have funding for the operations in Afghanistan and Iraq. But that what we wanted was a show of unity, that we wanted the Congress on the record backing up President Bush rather than, as we saw in the previous wars, not saying anything and letting presidents go out on a limb and then politically attacking him if things went south and saying, well, we were with them all the time by funding them if things were successful. So I don't think that AUMFs are constitutionally necessary, but if you're in Congress, I'm not sure. So if you look at the AUMFs, particularly the 2002 one, it does talk about threats to regional stability that involve Iraq, but I'm not sure the Iranian strikes would fall under that. I really think the Iranian strikes are better justified as the use of force and self defense to prevent a regime that's clearly hostile to the United States and says so all the time from obtaining nuclear weapons and then marrying them to ballistic missiles.

[Scott Bertram]

John Yoo is Emanuel hello professor of Law at the University of California at Berkeley, also senior research fellow at the Civitas Institute at University of Texas at Austin and non resident senior fellow at the American Enterprise Institute. AEI.org John, thanks so much for joining us here on Future of Freedom.

[John Yoo]

Thank you. It's a great pleasure to be with you.

[Scott Bertram]

Now to hear another side of the debate over when a president needs congressional approval for military action, we Talk with Charles C.W. cook, Senior Editor at National Review, host of the Charles C.W. cook podcast. Find him on X. Charles C.W.Cook Charles, thanks so much for joining us.

[Charles C.W. Cook]

Thanks for having me talking today about.

[Scott Bertram]

War powers, legislative and executive branches, and sort of big picture philosophy about that. So I asked to begin, what is your standard? When is congressional approval required for US Military action?

[Charles C.W. Cook]

I think that as with the manner in which the Constitution imbues Congress with the legislative power, there is clearly a requirement that Congress authorize American foreign policy.

[Scott Bertram]

Mm.

[Charles C.W. Cook]

Now that's a difficult line to draw, I accept, but there are obvious exceptions. For example, if an American vessel is in the middle of the Atlantic Ocean and it's attacked, it's not necessary for Congress to be consulted. There wouldn't be time anyway. There are also moments at which the president has a great deal of authority, having already been authorized. So if, as it did, Congress declared war on Japan after Pearl harbor, it can't say you have to start in this part of the island or these have to be your naval tactics. That's clearly within Article 2. But I do think that going back to the founding, Congress was consulted on foreign policy changes until Korea in 1950. In other words, the what, the if, the how is left to the President, but the what and the if are not. And my position is thus that while I accept that since 1950, Congress has taken less and less of a role in this, and while I accept that the line can sometimes be difficult to draw, I think most of the time it's not difficult to draw. And Congress should be asked when there are changes in policy. And perhaps the best way of analogizing this is with the Major questions doctrine. There's a line from Scalia. Congress does not hide elephants in mouse holes. The idea there is that, yeah, if you squint at certain legislation or you reinterpret words, you might well be able to find a clever, loyal justification for doing something enormous that was not, in fact, contemplated by Congress when the law was passed. But that is a separation of powers problem. And I think the same thing applies in foreign policy.

[Scott Bertram]

There is an argument you mentioned 1950. So it's been 75 years now, that there is an argument that because it has been 75 years, that this new arrangement in which the Executive Branch and the President has expanded power has essentially been codified or ratified by all sides involved. Do you buy that argument?

[Charles C.W. Cook]

Well, I don't buy that argument. It's a general matter of constitutional law. Certainly you can argue that it is better that the public is happy with this violation than it would be if the public were upset if we had a tyrannical government that was violating all parts of the Constitution all the time. And the public spent itself days complaining about this in silence behind closed doors, that would be worse than the status quo. But we have a Constitution for a reason. We write our laws down for a reason, and those laws obtain until they're amended. And I think, especially from a conservative point of view, that's usually obvious to us, isn't it? There are a number of precedents, some going all the way back to the New Deal, that we think are flat out violations of how the Constitution is supposed to work. The Trump administration at the moment is trying to overturn one of them, Humphrey's executor. The fact that that precedent is 90 years old does not have any bearing on the case that's being made. Very often you'll find conservatives saying, well, the Constitution is the Constitution now. Yeah, there is a range of opinion within that with, say, Clarence Thomas on one side who just thinks the law is the law, and then you have more practical originalists like Justice Scalia or Alito on the other. This idea, while we've done this since 1950, therefore, I think is a frontal assault on the idea of law. Now, I may be wrong, Scott, if I'm wrong on this and it doesn't matter, but if the argument is, look, we've been doing this for a long time, the public doesn't seem to care, it's been ratified by time, then all conservative objections to violations of separations of power, the Constitution in general have to go. And if I may be a little provocative, if that is the case, then what will be doing for 50 years trying to overturn Roe? Because Roe was actually quite popular. The problem with Roe was that it was wrong and the conservative argument was, look, all right, it may be the case, having overturned Roe, that the people will at the state or federal level pass laws that enshrine some sort of statutory right to abortion. But it doesn't matter. It is a problem intrinsically that the Constitution has been misinterpreted for so long. So I think it is here as well.

[Scott Bertram]

We know that Congress is loathe to do almost anything these days to assert its power among the three branches of government. Is there a concern or should there be changes that prompt Congress to act when it comes to American foreign policy? If we do accept that this is the way things should go, the legislative branch has to, has to approve changes in American foreign policy. What if they simply don't act?

[Charles C.W. Cook]

This is a case that is made persuasively by my colleague Dan McLaughlin, that the problem here if Congress does not act is much greater than in the legislative realm. And in a sense, what Dan would say is this. Look, if Congress doesn't pass a law, nothing happens. I know sometimes presidents do things anyway and say if Congress won't act, I will, or I have a pen and a phone or what? You will. But under our design, if Congress doesn't act, nothing happens and therefore power flows down to the states or to the people. And that's not a problem, it's an absence of action that leads to action elsewhere or the maintenance of the status quo. Whereas in foreign policy, where there may be genuine threats to the United States, if Congress doesn't act, that could be fatal. And so he says the President has to have some degree of leeway. And I accept that. I think that as a practical matter this is, I think, far fetched. But suppose that we were genuinely being threatened by a foreign power in the way that we were in the 1940s by Japan. And the President went to Congress and said I want the declaration of war. And Congress said no, we just don't want to give you one. Well, at that point, what do you think should happen? I mean, I think that Roosevelt would have been absolutely within his rights after Pearl harbor to have gone after Japan defensively and offensively. And I think we would have had a constitutional crisis, but it would have been one that differed in nature to say, Congress not passing a law that people might want. So I do accept that. The reason that I don't get too hung up on that hypothetical is I don't think there are too many instances in which Congress is likely to risk the survival of the nation. So what you're actually talking about with the example here that we're discussing, which is Iran is policy. Is this a good idea or not? And the downsides to Congress saying it's not a good idea may exist, but they're not existential. Also, the congressional argument that I've seen seems to be either we need this to have gone through Congress or Congress has already passed it under one of the AUMFs from 2001 or 2002. Neither of those things strikes at the very heart of the republic. But I do take Dan's point. I do accept that sometimes Congress declining to act can be seen as an.

[Scott Bertram]

Endorsement of sorts, the War Powers Act. How much latitude in your mind does that give the President to act? And I think it even says, specifically, this is a secondary question about funding operations without authorization. I think it even says in the War Powers act that the funding of military operation does not imply approval or authorization of that military act. Is that strange in your mind?

[Charles C.W. Cook]

I think the whole thing is strange. I think it's strange in that respect. Certainly, if you look at the Barbary Wars. Although Congress did not give either Jefferson or Madison a declaration of war which they both requested. Jefferson said without one, he only had defensive capability. And Madison, who wrote the Constitution, said he needed one. Flat out. Congress gave funding and named the enemy. I think it's odd to do that and then say, but don't consider yourself authorized. The other two elements of it that I find peculiar are. First off, although it was passed at a time in which the American public, and Congress in particular, was worried about presidents going in to parts of the world and escalating conflicts into wars, namely with Vietnam, the way that this War Powers act is now discussed and seen seems to be the opposite of the intended effect, which is to say, I am told over and over again, don't worry, the President only needs to ask Congress for permission after the 60 days and then 30 days within the War Powers Act. In other words, it's regarded as a sort of carte blanche, providing he tells Congress and providing that the action takes no longer than two or three months. I'm not sure that's really how the Constitution works. Imagine if Congress passed a law that said, well, you can do whatever you want legislatively, providing you tell us, and the legislation only lasts 60 or 90 days. We would certainly not consider that a limitation on the president. And then the other way in which it's problematic is it, as I said it the outset, the president has all manner of powers to prosecute war. Congress is not allowed to micromanage that. And so by requiring notification and then the secession of hostilities and by imposing restrictions on the president's actions, you're also striking at Article 2, which is the president's role within the setup. So I find that really peculiar. I totally understand why they did it. If you look at the history of the Vietnam War metastasized from small actions taken in the early 1960s until it was, in effect, a massive war in which the United States had taken part and for which there was no authorization. But that doesn't seem to me to be the way to fix it.

[Scott Bertram]

Charles C. W Cook with us senior editor at National Review. You wrote at National Review recently about the Iran strike, or actually at that point it was the potential Iran strike. And your argument, you say, is not that President Trump has done something no other president has done or that he's a dictator or that he ought to be impeached. It's that last line I want to ask about, because I completely understand the point. But if Congress gets serious about taking its role seriously in these matters, what would be the enforcement mechanism if a president were to act without approval? What should happen?

[Charles C.W. Cook]

Well, the first thing to do would be to prevent other priorities of the president from taking effect. That's where you'd want them to start, is to say, look, you're acting without our authorization, so we're going to take away funding for this program, we're going to block your judges, we're gonna block any appointments that you need to your cabinet or other federal agencies, and then eventually you would impeach. The reason that I say I don't think that it's an impeachable offense is to underscore that Trump is behaving in a manner that is common, yes. Among modern presidents, since 1950. Now, I think it is unconstitutional, but I do think we ought to draw a distinction between behavior that is unprecedented and behavior that has, as you said, been the norm, not ratified in a constitutional sense, but ratified as the norm for 75 years. It would be deeply unfair, I think, to allow President Obama to have got away with this in Syria and Libya, to allow George W. Bush to have said that he could go into Iraq without congressional approval, though he didn't do it, to allow Bill Clinton to have gone into Kosovo without Congress, and so on and so forth, but to make an example of Trump and remove him from office. This is one of the big problems in politics, in my view, is that people get upset about the violation of norms only when they don't like the person doing it. So we quite rightly heard an enormous amount in the first Trump administration about his what I considered to be stealing money from the treasury without congressional approval to build his wall. I spent six weeks arguing that that was illegal. But the same people said nothing when Joe Biden tried to spend half a trillion dollars for giving student loans. Now, neither of those things is okay, but it's really irritating when one person says, oh, how awful Trump is, but Obama or Biden are fine, and another person says the opposite. And we saw this this week with Nancy Pelosi. He's a major figure in Democratic politics for the last 20, 30 years, who is on the record as saying that Barack Obama did not need approval to go into Libya, who is on the record as saying that Barack Obama did not need approval to go into Syria, and who took the opportunity, even though she wasn't prominent at the time, to say that Bill Clinton was justified in going into Kosovo without Congress, but then stood up three days, four days ago and said that Donald Trump was a tyrant violating the Constitution. You just can't have that as a setup. That can't be the rule. So I don't want to see Trump impeached over this. I want to see the rule change.

[Scott Bertram]

For everyone on the Iran strikes. The authorization of military force from 2001 or 2002, which stated that those responsible for 911 are those that harbored such organizations or persons, was approved. Does Iran not fall under that umbrella? As as far as your interpretation goes.

[Charles C.W. Cook]

I think if you take my major questions doctrine analogy, the answer is obviously no. I think if you squint at it, you can make a case. I don't like the case because I think it is so loyally. The argument is that the first aumf passed after 911 contains authorization for the executive branch to take military action in any country that harbored terrorists who are responsible for 911 and that Iran may, in an ancillary way, have done that therefore we can take out their nuclear facilities. Okay. The problem I have with that, Scott, without sounding, I hope, too absurd, is that if you take that view, you could actually justify the federal government bombing Florida because the hijackers trained here and were protected, aided about it by others in Florida. So, yeah, okay, that I suppose ends up as an indictment of an overbroad AUMF. And it's Annie McCarthy who I debated on this recently, pointed out in my favor we have used that AUMF to go after organizations that did not exist at the time of 9 11. And to me that makes a mockery of the law. That's an enabling act. But I can see the argument and the ultimate way of avoiding this is to ask Congress to repeal or at least amend the AUMF so it's more specific. If Iran is now the problem we're facing, then pass one that covers Iran. Don't rely on this document that was passed for completely different reasons by completely different people at a completely different time, and that is now covering organizations and actions that simply were not a concern in 2001. Of course, in many areas of the law, they exist forever. You see this phrase in the press, they say, oh, look at this law.

[Scott Bertram]

It's obscure, it's long dormant.

[Charles C.W. Cook]

Yeah, but okay, that's the law, but then repeal it. Congress should have more pride. And we've got back to where we started, which is this is an application of congressional responsibility that's leading to absurd outcome.

[Scott Bertram]

Charles C.W. cook is senior editor at National Review, nationalreview.com, also host of the Charles C.W. cook Podcast and you can find him on X. Charles cwcook Charles, thanks so much for joining us on Future of Freedom.

[Charles C.W. Cook]

Thanks so much for having me.

[Scott Bertram]

We thank both of our guests for joining us today. John Yu Emanuel Heller, professor of Law at the University of California at Berkeley and non resident Senior Fellow at the American Enterprise institute. And Charles C.W. cook, senior editor at National Review and host of the Charles C.W. cook podcast. Find him on x@charles cwcook to find additional episodes of Future of Freedom, go to Apple Podcasts, Spotify or wherever you get your audio. Thank you for listening to Future of Freedom, a production of Freedom Franklin News Foundation.