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

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.

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."

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."

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.

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.

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