Podcast Summary: Lawfare Archive – The Past, Present, and Future of War Powers

Podcast: The Lawfare Podcast
Host(s): Tyler McBrien (Managing Editor, Lawfare), Matt Gluck (Research Fellow, Lawfare)
Guests:

• Brian Finucane (Senior Advisor, U.S. Program, International Crisis Group)
• Matt Waxman (Professor of Law, Columbia University)
  Date: September 20, 2025 (original recorded September 12, 2024)
  Main Theme:
  A deep dive into the evolving landscape of U.S. war powers, with discussion centered on the International Crisis Group’s report “Bending the Guardrails: U.S. War Powers After October 7th”. The episode explores historical tensions between Congress and the presidency, recent conflicts and legal precedents, and the prospects—and challenges—of war powers reform.

1. Overview: Purpose and Framing

The episode offers a timely reflection on how U.S. military interventions are authorized and constrained—especially in light of the Middle East dynamics following October 7th, 2023. The hosts and their expert guests dissect the historical framework, detail legal and political maneuvers by recent administrations, and assess realistic paths forward for restoring or reforming the constitutional balance of war-making authority.

2. Key Discussion Points & Insights

A. Origins and Findings of the Crisis Group Report

• Brian Finucane explains the report's genesis
  “Our report examines both the factual developments... and the legal rationales that the White House, the Biden administration have deployed to justify these operations in lieu of obtaining fresh congressional authorization.”
  [04:29]
• The report scrutinizes U.S. military engagement in the Middle East since October 7, 2023, focusing on actual hostilities (not just deployment).
• The administration's legal justifications are described as opaque and creatively repurposed from earlier authorizations (e.g., AUMFs for ISIS now used for new conflicts).

B. Longstanding Tensions and What’s New Post-October 7th

• The basic tug of war between Congress and the President over military authority is longstanding.
• What's new:
  The resumption of hostilities with Iran-backed groups in Iraq/Syria and the direct conflict with Houthis—distinct in their immediate triggers but still justified under old frameworks.
• Political dynamics:
  Electoral risk keeps legislators from wanting to formally vote on war, a trend magnified since the 2008 Democratic primary (Obama v. Clinton over Iraq War positions).
  “Many members of Congress do not want to have to vote on these matters of war and peace, do not want to take political ownership of it.” —Finucane [13:59]

C. The 1973 War Powers Resolution: Purpose, Erosion, and Loopholes

• Matt Waxman outlines the law:
  “At the tail end of the Vietnam War in 1973, Congress passes the War Powers Resolution…” [16:16]
• Reporting to Congress required within 48 hours, with a 60-day deadline for withdrawal absent Congressional authorization.
• The law has been weakened:
  • Loopholes: Vague terms (“hostilities”), “salami slicing” actions into discrete events, restarting the 60-day clock.
  • Congress often dodges enforcement; courts avoid involvement.
  • Current moment: Should be ideal for reform, but Congressional dysfunction prevents movement.
    “Congress is also at its most fractious and disabled in generations… If it can't keep the lights on, it's not going to get reform done.” —Waxman [18:40]

D. How (and Why) Recent Administrations Have Avoided Full Authorization

• Obama-era example:
  Used old AUMFs for new ISIS operations to sidestep War Powers deadlines.
  “This is a prior practice by the executive branch of repurposing old war authorizations to enable a new conflict.” —Finucane [23:24]
• Biden administration:
  Avoided congressional votes to prevent perception of escalating or owning a “new war,” especially in an election year. Fearful of opening the door to a blank check or more aggressive authorization from hawks.
  “They’re frankly concerned about what would come out of it… they continue to hope there will be a ceasefire that calms us all down and renders this entire discussion moot.” —Finucane [25:25]

E. The Real Impact of Congressional Constraints

• Waxman’s empirical view:
  Even without formal votes, presidents are “quite constrained” by Congressional politics—actions often avoided if bipartisan support is lacking.
  “I think there’s quite a lot of empirical support for the idea that presidents shy away from using military force when they don’t have Congress’s backing.” [29:32]
• Informal checks: Public appeals, hearings, appropriations, inter-branch negotiations, and the threat of opposition.

F. Oversight & Reform: Where Do We Go From Here?

• Both guests agree: Congress must “up its oversight game.”
• Waxman:
  Argues against major legislative reform of the War Powers Resolution—too hard, potentially risky to alliances, unlikely to be effective across contexts.
  • Suggests focusing on strengthening existing oversight tools: more hearings (open/closed), sharper bipartisan scrutiny, better information demands.
  • Warns lawyers against over-fetishizing the “moment of intervention” rather than the slow build-up to war.
• Finucane:
  Called for an “all-of-the-above” approach—tightening definitions in the War Powers Resolution, repealing outdated AUMFs, energizing institutional congressional oversight muscles, and forcing more deliberation on war aims and endgames.
  • Noted contrast between robust 1980s oversight (the “Tanker War”) and today’s atrophy.
  • Cites American troops killed in ambiguous missions (Jordan/Syria border) as a result of inadequate oversight and lack of debate.
    “By leaving U.S. forces exposed in these locales without any clear purpose or without debating the purpose for their deployment there, you’re teeing up situations like we’ve seen in recent months.” —Finucane [47:35]

G. What Are We Optimizing For? Strategic Utility vs. Institutional Balance

• Waxman:
  “Even perfect process doesn’t lead to perfect outcomes.” [62:01]
  Argues for processes that encourage critical questioning, but cautions against idealizing congressional deliberation—history shows many declared wars were poorly planned.
• Finucane:
  Emphasizes democratic accountability—when troops are at risk, Congress and the President must be clear and jointly responsible.
  • “Political actors need to own the situation when U.S. forces are placed at risk.” [63:54]

3. Notable Quotes & Memorable Moments

• “There are both sort of long term chronic issues and shorter term acute issues that have resurfaced since October 7th.” – Brian Finucane [07:14]
• “I think I differ with the report in that I think the current state of affairs is more constitutionally defensible… especially in light of historical practice.” – Matt Waxman [09:52]
• “If U.S. service members are going to be placed in harm’s way… the White House and members of Congress need to own those decisions.” – Brian Finucane [63:53]
• “Wars rarely occur suddenly at one single decision point… if Congress is only really getting into the game at... the President is deciding whether or not to use force, it’s already too late.” – Matt Waxman [41:54]
• “Even perfect process doesn’t lead to perfect outcomes.” – Matt Waxman [62:01]
• “I think there is bipartisan support for different aspects of [reform]. I think the lowest hanging fruit, perhaps in the next Congress, would be repealing the 2002 AUMF.” – Brian Finucane [52:58]

4. Important Timestamps

| Timestamp | Segment/Discussion Topic | |-----------|-------------------------| | 03:37 | Rationale for reform opportunities, tightening NDAA | | 04:29 | Crisis Group report overview by Finucane | | 12:56 | History of moments of Congressional pushback | | 16:16 | War Powers Resolution explained by Waxman | | 20:33 | Evolution of war powers reporting, Obama & ISIS | | 24:48 | Political and strategic reasons for avoiding Congress | | 28:42 | Informal political constraints on presidential use of force | | 32:27 | Historical and empirical examples of Congressional constraints | | 37:39 | How legal maneuvering enables avoidance of debate/deliberation | | 41:54 | The need for Congress to act ahead of crises | | 46:15 | Example: Congressional atrophy and oversight failures | | 52:10 | Specific reform proposals and realistic prospects | | 54:45 | Waxman’s arguments against major legislative reform | | 57:46 | Should war powers be about balanced process or outcomes? | | 63:07 | Finucane on democratic accountability and owning decisions |

5. Conclusion

Summary:
The episode paints a nuanced, occasionally pessimistic yet hopeful picture of U.S. war powers in flux. Both guests lament Congressional atrophy but differ on the best paths to restore meaningful checks on presidential war-making. Ultimately, they agree that democratic accountability and deliberation are vital—both for the legitimacy of American force abroad and the health of the American constitutional system.

Tone:
Insightful, collegial, and pragmatic, with a clear-eyed view of political realities but a persistent call for more robust oversight, informed legal reform, and institutional humility.

For listeners seeking more:

• The International Crisis Group’s full report, “Bending the Guardrails: U.S. War Powers After October 7th”
• Matt Waxman’s article in the Yale Law Journal
• War Powers Reporting Project at NYU

**“If U.S. service members are going to be placed in harm’s way…the White House and members of Congress need to own those decisions.”_ – Brian Finucane [63:53]