← The Lawfare Podcast
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- [00:01]
Jess
Hey, I'm Jess, your guide researcher and your resident overthinker on Messy Minded, the podcast for curious weirdos who love true stories with an unexpected side quest. Each episode I deep dive into whatever's hijacked my brain that scams liars, secret societies, Icelandic settlers, folklore, vague identities. It's educational chaos with just enough research to make you sound clever at parties. Think of me as your cartoon brain friend who does the research so you don't have to join me on Messy Minded. Available wherever you listen to podcasts, you've.
- [00:31]
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- [01:12]
Isabella Royo
I'm Isabella Royo, intern at Lawfare, with an episode from the Lawfare archive for November 9, 2025 as of November 5, the US military has carried out a series of strikes on alleged drug vessels in the Caribbean and the Pacific, killing 67 individuals whom the administration alleges were gang members trafficking narcotics to the United States. The Trump administration has informed Congress that the US Is now engaged in a armed conflict against drug cartels and that those killed in the strikes were unlawful combatants. The strikes have triggered intense discussions of the scope of presidential war powers. For today's archive, I chose an episode from January 22, 2024, in which Matt Gluck, Matthew Waxman, and Michael Ramsey discussed the scope of Congress's authority to delegate its war initiation power to the President, the evolution of war power delegation as a regular practice, the extent to which war powers may be uniquely delegable versus uniquely non delegable, and more.
- [02:20]
Interviewer
I'm Matt.
- [02:20]
Matt Gluck
Gluck, Research Fellow at Lawfair, and this is the Lawfair Podcast January 22, 202024 There is much debate among academics and policy experts over the power the Constitution affords to the President and Congress to initiate military conflicts. But as Michael Ramsey and Matthew Waxman, law professors at the University of San Diego and Columbia, respectively, point out in a recent Law Review article, this focus misses the mark. In fact, the most salient constitutional war powers question in our current era, dominated by authorizations for the use of military force, is not whether the President has the unilateral authority to start large scale conflicts. Rather, it is the scope of Congress's authority to delegate its war initiation power to the President. This question is particularly timely as the Supreme Court appears growingly skeptical of significant delegations of congressional power to the executive branch. I spoke with Waxman and Ramsey about their article. We discussed their findings about the history of war power delegations from the founding era to the present, what these findings might mean if Congress takes a more assertive role in the war powers context, and why these constitutional questions matter if courts are likely to be hesitant to rule on war powers delegation questions. It's The Lawfare Podcast, January 22nd. Waxman and Ramsey on delegating war power.
- [03:53]
Interviewer
Matt, to begin, what drew you to this project? And which questions did you set out to answer?
- [04:00]
Matthew Waxman
Thanks, Matt. So war powers reform is a hotly debated topic these days, and so are the constitutional limits of legislative delegation. So Mike and I were curious about how those two topics fit together. Right. Since World War II, Congress doesn't formally declare war anymore, but instead, in the case of all major US Ground wars since Korea, Congress sometimes enacts an aumf, an Authorization for the Use of Military force. So Mike and I were thinking, what can we learn by considering force resolutions not just as legislative authorizations, but as legislative delegations, that is resolutions delegating vast policy discretion to the President as to whether and when to use force or go to war, or perhaps not to use any force at all? And I should make clear that by war powers here, we're talking only about the power to use military force or initiate military conflict. We're not talking about the separate, very interesting constitutional issues of how war is conducted. We're talking here about going to war. And today, even most critics of presidential unilateralism see delegation of war power as a constitutionally satisfactory way for Congress to exercise its Article 1 powers. It's one that to many critics, is fully restorative of Congress's prerogatives to control whether we go to war or not. And so, among other issues, we were interested in when and how did this practice become so well accepted?
- [05:49]
Interviewer
And Matt, why did you think it was important to focus on war initiation in particular? As you mentioned, war powers delegation is broader than war initiation. So what drew you to war initiation?
- [06:03]
Matthew Waxman
Yeah, we were drawn to it because it's such a contentious issue. You know, 230 plus years into American history, the issue of Congress's exclusive power to take the nation to war versus the President's power To do so remains hotly, hotly contested. And today there's an ongoing debate in academia and in Congress about whether, whether that issue needs to be reformed, whether Congress needs to reassert what are often regarded as its original war power.
- [06:47]
Interviewer
Matt, before we get into the specifics broadly, what did you find in your examination of this question, and why do those findings matter to us today?
- [06:58]
Matthew Waxman
Sure. So, you know, we begin by noting that there are really two intuitions that we found about whether Congress's war power is delegable. There's one very common one, which is that of course it's delegable, and that's because foreign affairs powers are are broadly delegable. See U.S. v. Curtis Wright. And so the power to go to war is exceptionally, delegable. There's another intuition that takes the view that there are special grave and particular stakes and risks associated with war. And for that reason, Congress's war power is exceptionally, maybe even uniquely, non delegable. And so one thing we were surprised to learn early on is that this second view, that Congress's war power is non delegable, actually has quite a long and persistent pedigree throughout American history. But overall, we found that the historical record really doesn't support alone either of those two intuitions. It's really in the we find in the mid 20th century, especially in the early Cold War, that the modern practice of, of congressional delegation of its war power really comes into being and really becomes well accepted. So why should we care about that? First, let me just say what we're not doing is making a strong originalist doctrinal argument. We're not saying, we're not taking a position that on originalism grounds alone, war power is non delegable. There are plenty of other reasons to think that it is delegable. I personally think those arguments are quite strong that for functional reasons and for reasons of recent historical practice, congressional delegation of its war power is constitutionally permissible. I think it's a quite adaptive and pragmatic approach to the way Congress exercises its is its war power. But here are three reasons why we think this constitutional history is important. One, A defining feature of American constitutional war powers is the extent to which, even centuries after the Founding, many basic legal questions remained hotly contested. And partisans in strategic debates over the use of military force tend to wield constitutional arguments for political effect. So I predict that in the near future, in an era when we hear loud voices on the right and the left calling for a retrenchment of US Military commitments abroad, I think These kinds of non delegation arguments are going to make a bit of a comeback in debates about war powers. Second, and here again I'm invoking the Curtis Wright case. It's often argued that broad delegation is especially permissible when it comes to foreign affairs. And our findings about the history of war power delegation, I think, calls into question whether foreign affairs is really a coherent category. Certainly, if you're looking at historical practice, I don't think it makes sense to look at the history of foreign affairs delegation as one single coherent category. I think you have to look at specific foreign affairs powers. And that's why we wanted to examine specifically the war power and then third, and finally the history of constitutional objections to war power delegation is relevant to contemporary debates about war powers reform. You know, reformists often pitch their calls for Congress playing a stronger role here as restoring or reclaiming Congress's original constitutional role in war initiation. But we find that early and recurring congressional debates about how Congress was permitted to exercise its war power were at least as important as debates about whether or not Congress's power was exclusive. And this means that for those reformists, war powers reformists, who say we need to return to, to the original meaning, to the original allocation of powers, we think those reformists, if that's their argument, need to at least wrestle with this delegation issue that's lurking beneath the question of which branch gets to decide whether we go to war.
- [11:58]
Interviewer
Thank you for laying that out. That's very helpful. Mike, your historical chronology starts at the Founding. And although the founding era record on war power delegation is relatively sparse, you write that delegates to the Philadelphia Convention discussed war powers twice in a substantive way. Could you describe those discussions?
- [12:22]
Michael Ramsey
Sure. The first one was right at the beginning of the convention when they proposed the Virginia plan. One thing that the Virginia plan did was it said that the President, the executive, would have the executive powers of the Continental Congress. And this was met with objection from a number of leading delegates who said that that could be read to give war power to the President. And they thought that war power was not properly something that was lodged in the President. So they objected to that. That clause was struck from, from the convention draft. And then the whole idea of what they were going to do about presidential power was put off and event to the really spectacularly misnamed Committee of Detail, which was really the committee that fleshed out the President's power. When the Committee of Detail report came back much later in the convention, it gave Congress the power to, quote, make war. And then there's a famous exchange on the convention floor, where Madison moves to change that, to declare war, to give us the language that he currently has and that. And the convention adopts that. And in the course of that, several people say that the President ought not to have the power to take the nation to war. And that's all that is said at the convention, it seems to me anyway, that sets a significant amount of war initiation power, of exclusive war initiation power to the President. The exact contours are debated and we don't take that up in the paper. But that seems to be what they were doing with that assignment of power to Congress. But they don't go at all into the question of how Congress was going to exercise that war initiation power. Perhaps they thought that it was would be only done through direct declarations of war, but perhaps they thought the Congress could delegate that power back. They really don't take up the question of delegation at all.
- [14:24]
Interviewer
So is this historical record sufficiently robust to draw any meaningful conclusions about original meaning or is it insufficient?
- [14:34]
Michael Ramsey
Well, in the paper, as Matt said, we're not trying to make an argument about what the original meaning is. And probably a definitive statement about the original meaning would require getting into the broader debates about what the original meaning of delegation and non delegation of legislative powers generally might be. And that's a point that's been debated extensively in recent times and earlier. But there's been a sort of upsurge of it in recent times, originalist accounts on both sides. And we really stay out of that. All we're asking is whether there's anything in the convention that seems to bear on the question of war powers delegation specifically. And we think expressly, we say there really isn't anything that you can draw and any conclusions you could draw from the express things were said in the convention. And I guess I would carry it forward into the ratification debates as well to sort of make that all part of the same picture. We do think there is a one could see a suggestion, an implication that might cut against at least very broad delegations, because you have a number of people saying that, a number of framers and leading voices in the ratification debate saying that one of the attributes of the Constitution is that it does give war initiation power to Congress. And so, for example, James Wilson said at the Pennsylvania Convention that it would something the effect of it would not be within the power of a single man to take us to war. And he's referring to the declare war clause and setting that power to Congress. I think you could read an invocation of that that he would be sort of surprised if Congress then turned around and delegated all of its war power straight back to the president. So, in fact, it turned out it was within the power of a single person to take us to war. But again, they don't address the delegation question directly, and I think it would take some work to get a crisp originalist argument out of that, either for or against delegation. And we don't try to make that. We just, again, as Matt said, our account is more descriptive and just sort of saying, well, this is what happened and make of it what you will.
- [16:50]
Interviewer
Mike, you distinguish late 18th century and early 19th century War authorizations from modern ones on the basis that the early authorizations did not delegate war initiation authority, while the modern ones do. So could you describe some of those early authorizations and why does the fact that they did not delegate war initiation authority undermine their value as precedent for understanding modern authorizations?
- [17:21]
Michael Ramsey
Sure. I think I should maybe clarify to begin is, I don't think we say anything as definitive as there were no war powers delegations at all in the early period, but there weren't that many. And each of the ones that we describe in the paper and we go through in one substantial part of the paper, we talk about, we try to be systematic and talk about every delegation of everything that could be plausibly considered a delegation of war power in the late 18th and 19th century. We try to go through each one and see if it seems like it's a good precedent for modern practice. Some of them, we think, have at least some commonality with modern practice and some don't. But what I think is most striking about what we found, really not what I expected to find when I started going into this, is that the practice is really very thin. They're relatively few incidents, only really a handful of incidents through that whole period in which there's some kind of a arguable war powers delegation. And they tend to be very caught up in the specifics of particular episodes and are not in that sense sort of comparable to the broader authorizations that you see today.
- [18:48]
Interviewer
So you discuss in the Article 2, 1798 statutes authorizing the president to attack French ships, which seem to me like delegations that allow for the initiation of the use of force similar to those that we have today. But are you do you argue that those are not solid precedents for modern authorizations primarily because of the specificity of those authorizations?
- [19:15]
Michael Ramsey
It's not just the specificity of those authorizations. It's also the surrounding circumstances, which were that the French attacked our shipping first is that this is the Quasi War in 1798, the French attacked our shipping first. The Congress's first response was to authorize the President to use the Navy to defend our shipping. I don't see that as a particularly meaningful delegation. I think quite arguably the President had that authority in any event, but it was authorizing, at most, authorizing a response to an attack against us. And then the second and somewhat more broad delegation, which came later in the year, allowed the President to not just take a defensive position, but also use the Navy and US Privateers to attack French shipping and French Navy ships on the high seas. So that is a somewhat more meaningful delegation, but it still comes in the context of an ongoing conflict. And in some respects, you could see it as limiting in the sense that it allows the President to attack French ships, but does not authorize the President to, for example, attack French land installations. So it is both narrow and coming in the context of what's already an ongoing conflict. So I think, based on those circumstances, really to not like what you see in some of the modern authorizations that we'll talk about later. The other thing that I think is striking about the Quasi War authorizations, which are often used by people who say that war powers delegation has a long pedigree, is that they were really. They're quite unusual. There weren't any uses of force by the President pursuant to delegations after the Quasi War until all the way up into the 20th century. And I think that's something that is. I had not really focused on that point going into the paper. And as I started looking for. As we started looking through the history of it, we were surprised to find that the uses of force after the Quasi War were either pursuant to express statements by Congress that there was a war in progress, or they were presidential unilateralism.
- [21:43]
Matthew Waxman
You know, in addition to the kinds of textual analysis and kind of context analysis that Mike was just talking about, we also found that there was a quite an active debate, often within Congress about the constitutional propriety of. Of delegating war powers or Congress's war power, that this was a serious argument. It was often not the only argument or the decisive one. And it was often kind of a minority view, but it was a serious minority view that the war power was uniquely non delegable. And we see that voice, that argument, kind of echoing throughout American history.
- [22:36]
Michael Ramsey
That's absolutely right. And quite interesting. I think there were several incidents that we think some of the most interesting part of this paper, there were several incidents which are really lost to modern knowledge, at least modern common knowledge where Congress did authorize some sort of use of force, but then the President didn't actually end up using the force. So we've sort of forgotten about these incidents. But these are maybe the most interesting ones because as Matt said, in the context of debating whether to give the President these authorizations, there was commonly an argument from some people, not broad based, but from some people in Congress, that this was delegating war power, which was impermissible. And then typically the response to was not, oh, war power is delegable, so don't worry. In contrast, the argument was typically, well, this is not really delegating the power to declare war. This is something less than war. It's a use of hostilities less than war. And so it's okay.
- [23:43]
Interviewer
Just following up on that, could you explain why it matters so much that when the President decided to use force based on the delegation or not, it seems to me that the more important precedent would be whether Congress delegated the authority or not, and then whether the President decided to use force wouldn't seem to set such a precedent just for the congressional delegation. But could you explain why maybe I'm wrong.
- [24:12]
Michael Ramsey
I don't think you're wrong about that. I do actually think that the situation in which Congress authorized a use of force, but then the President decided not to use force, we think those are important and that's why we spend a good bit of time talking about them. What I think is significant about them is, first off, there aren't very many. Secondly, they tend to come in fairly specific circumstances. They're not broad based authorizations of the use of force. And third, as I just mentioned, typically the argument in favor of the President to the extent that there's an objection on delegation of war powers grounds, the argument, the counter argument is that, well, this is not really akin to delegating the power to declare war because this is a use of force that's lesser than a full scale war.
- [25:04]
Interviewer
Okay, let's fast forward to the 20th century. One case, and it's probably the most important case on this issue that you've mentioned, Matt, is Curtis Wright. It's probably the most central Supreme Court decision we have on war power delegation. And I want to talk about the importance of the case for war power delegation. But before we do that, could you just briefly describe, Matt, what happened in Curtiss Wright and its general relevance for your article?
- [25:33]
Matthew Waxman
Yeah. So Curtiss Wright is seen today as sort of the seminal case for the proposition that legislative delegation of policymaking to The President is especially appropriate or those sort of non delegation principles are more loosely applied when we're talking about foreign affairs rather than domestic affairs. And Curtis Wright was not really, was not at all about war powers. It had to do with a conflict going on in South America. And basically Congress passes a resolution saying that if the President deems it helpful to resolving this ongoing conflict in South America, then the President can proclaim an arms embargo. So it was basically delegating to the President the decision making about whether the US policy was going to be arms embargo or not. And Justice Sutherland produces, I think, a pretty incoherent opinion that tries to explain why in the foreign affairs realm, broad delegations of policymaking to the President is especially appropriate or especially permissible as a constitutional matter. And although, you know, one could interpret that case to apply very narrowly to certain kinds of delegations, it's been interpreted very, very broadly, in part because Justice Sutherland uses very, very sweeping language in that opinion. It's been interpreted as basically a broad statement, very wide statement applicable to all foreign affairs delegations. And one of our points is that Congress's war power is often lumped into that foreign affairs category. There's good reasons for that. Right. What could be more foreign affairs ish than whether or not the United States goes to war? And we want to argue that actually that kind of reasoning is a bit more complicated. And if you take history seriously, because there's a very, very long, deep history in which Congress's war power was treated as a special, even unique power that didn't. That ought not be treated just like any other foreign affairs power.
- [28:19]
Interviewer
So what are the other foreign affairs powers that, that you would say fall into a separate category from Congress's war powers?
- [28:27]
Matthew Waxman
Yeah, I'd say the biggest one is trade. Right. Congress has the power in Article 1 to regulate foreign trade, foreign commerce. And there, I think there is quite a lot of early American history in which Congress delegates very broad policymaking discretion to the President to basically how to implement trade policy within some very, very broad legislative guidance.
- [28:57]
Michael Ramsey
I think another category of powers where you see broad delegation is powers where the President already has substantial independent power. And so, for example, we were talking about war initiation, but if you talk about war fighting power, it was very common when Congress declared war or recognized the state of war, that Congress would then say after that, and the President is authorized to use the armed forces as he thinks appropriate to pursue the war. And so you see that kind of language in the War of 1812, in the. When Congress recognizes state of war with the North African states, Tripoli and Algeria. When Congress recognizes state of war with Mexico and then the Spanish American War, you have the same thing where the president gets a very broad authorization in terms of the war fighting. But that's something the president already has considerable power over through the commander in chief clause. So I think that's another example where you have already a lot of presidential power independently, then Congress just delegates very broadly, in contrast to what it often did with the with war initiation.
- [30:19]
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- [33:22]
Matthew Waxman
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- [34:23]
Interviewer
And Matt, just to make sure I understand. So when you say that some of the early history cuts against lumping Congress's war power into the foreign affairs bucket that Justice Sutherland outlines, you mean the history that that you and Mike detail in your article, right?
- [34:40]
Matthew Waxman
Yeah, that's right. And in particular this, like I said, sort of persistent argument that there's something special about war power that makes it particularly non delegable. Again, that's not always the winning argument in early American history, but it certainly is a very persistent one. And that at least complicates this idea that, hey, you know, all along it's sort of been understood that foreign affairs is this big category. Lots of things fall into it. Issues of war, issues of trade, and they all ought to be treated basically the same when it comes to the permissibility of delegating them.
- [35:31]
Interviewer
That makes sense. Matt, you describe in the article a post World War II shift on views regarding executive war power and how that shift set the stage for modern war initiation authorizations. Could you describe that change in thinking and how it precipitated contemporary authorizations.
- [35:52]
Matthew Waxman
Yeah. So we really locate the early Cold War as a key period for our story, or sort of the watershed mom at which delegation of war power becomes a well accepted practice. We think the most important examples of that occur in the Eisenhower administration. The Eisenhower administration isn't. It's often sort of skipped over in the history of war power because the Korean War looms very large and the Vietnam War looms very large. But Eisenhower didn't wage any big wars, at least if we sort of put aside covert ones. And so the Eisenhower administration often gets kind of skipped over in the standard story of war powers. But we think it's especially important. It's really where this modern practice of congressional delegation, broad delegation of war power, kind of comes into accepted practice. But it's also a period when a lot of lawyers, a lot of executive branch lawyers, a lot of members of Congress regarded the President's power to use force as very broad. The President was thought to, or the President exercised a lot of unilateral power to use force. And so controversies over that latter issue, the President's unilateral power to use force, tended to overshadow concerns about war power delegation. You know, if the President has a lot of independent unilateral power to use force, then it's not so clear whether a force authorization, you know, what today we might call an aumf, is really delegating much of anything. Maybe the President already has that power on, on. On his own. And we conclude the paper, though, by noting that. All right, if you want to reverse that, if you want to go back to a world in which the President doesn't have a lot of unilateral power to take the country to war, that Congress holds that power, well, then you're kind of peeling back this layer that's been laid over the delegation issue. We think once you go back to a world, or you try to go back to a world in which Congress really is the key decision maker about whether or not the nation goes to war or not. You kind of have to confront the delegation question at that point, and I.
- [38:34]
Interviewer
Want to get into some of those implications. But before we do so, I want to discuss one fascinating episode you mentioned in the paper that illuminates the shift you're referencing, which is the Formosa aumf. Could you describe the circumstances that led Congress to pass that AUMF or AUMF style authorization and what it represented about post World War II war power delegation?
- [39:00]
Matthew Waxman
Yeah. So it's a super interesting episode. And One reason why it's super interesting, I'll get into this in a moment, is it doesn't actually result in a war. Right. I think it's a super important episode in the history of constitutional war powers, but it's one that lawyers tend to skip over. Lawyers like to look at cases. Right. They like to look at, you know, if you're studying war powers, let's look at the wars that happened. But here's an example of a war that seemed quite possible, but it never actually occurred. So this is. We're talking here about late 1954, early 1955, when communist China was shelling some tiny coastal islands that were under the control of US Allied Nationalist China based in what we now call Taiwan, then Formosa. And the United States had at this point signed but not yet ratified a defense pact with Nationalist China in Formosa and to help deter Communist China and to reassure the Nationalist Chinese leadership. In January 1955, Eisenhower goes to Congress and asks for what we today would call an aumf, an Authorization to use force. And he argues that the situation had become so dire that a Congressional authorization would help deter attacks on Formosa. It was critical to US national security. And days later, Congress obliged by nearly unanimous votes in both houses. And the resulting Force resolution delegates vast, vast discretion to the President to use force. And we think this episode more than any is sort of a watershed moment. And it's significant for a few reasons. First is just the sheer breadth of this delegation of power. Right. This Force Resolution authorizes in advance whatever force the President deemed necessary to protect a far flung ally. It was understood at the time that this might include nuclear weapons, especially under Eisenhower's massive retaliation doctrine. Multiple times in the resolution, it emphasizes the President's role as the sole judge of necessity. And its duration was open ended. Right. Congress only repeals this force authorization 20 years later. It's on the books for 20 years. So one reason why it's important is its sheer breadth. The other important aspect of it, though, is its purpose. This is something I just alluded to moments ago. You know, usually Presidents have requested force authorizations because the President either has already initiated force or the President plans to. The President is almost certainly going to. But one thing that's interesting about the Eisenhower Resolution, the Formosa Resolution, is that it was never invoked, it was never activated. Right. Eisenhower held the resolution in his pocket, but he didn't actually launch strikes. And that's because this resolution was more about signaling than about war fighting. Two years later, by the way, Congress passes again At Eisenhower's urging, an even broader force resolution, this time delegating power to use military force over the entire Middle east to deter communist aggression. There, that one's still actually on the books. And then this pair of resolutions, Formosa and Middle east, becomes the model for the infamous Gulf of Tonkin Resolution, which delegates vast power to the President and is ultimately used to massively escalate the Vietnam War.
- [43:05]
Interviewer
Yeah, I was really struck by those Eisenhower administration AUMFs. I wasn't, I wasn't aware of how broad they were. Okay, so that's the, the Cold War history. And Matt, how about the post Cold War era? What do we learn there?
- [43:20]
Matthew Waxman
So the post Cold War world inherits the Cold War practice of congressional delegations. Right? You had the two Eisenhower delegations, the Gulf of Tonkin Resolution. Now it's pretty well established that this is a constitutionally permissive device. And so we start to see it used again in the post Cold War era. We use as examples that Congress enacts force authorizations against Iraq in 1991 and 2002, both delegating discretion to the President to initiate war or not to. Right. It doesn't direct the President to do so. It puts in the President's hands a decision whether when or perhaps not to use any force at all. And actually I found interesting a statement on the floor by then Senator Joe Biden, who thought it was necessary though to address this non delegation argument in the Congressional debates about the 2002 Iraq AUMF. And he says, I'm quoting here, I'm confused by the argument that constitutionally we're unable to delegate that authority historically. The way in which the delegation of the authority under the constitutional separations of power doctrine functions is there have to be some parameters to the delegation. But as I read this grant of authority, it is not so broad as to make it unconstitutional for us under the war clause of the Constitution to delegate to the President the power to use force if certain conditions exist. He's basically thinking, this is a serious enough argument that I'm going to address it on the floor. And then the 2001 AUMF we also regard as a form of delegation too. I mean, you can accept that the President. I do accept that the President has quite a lot of unilateral power to repel the 911 attacks. But the 2001 AUMF goes well beyond repelling the Al Qaeda attacks. It gives the President quite a lot of discretion to decide who else, what other nations, groups, individuals to use force against. And that's why more than 20 years later we see the President using that delegation to go after terrorist groups that didn't even exist in 2001.
- [45:58]
Interviewer
Yeah. Speaking of the 2001 and 2002 AUMFs, Mike, how should your findings and your argument lead scholars and policymakers to potentially rethink those AUMFs, both in terms of how they square with other authorizations and their meaning for current US Military operations?
- [46:20]
Michael Ramsey
Well, one thing I think that our discussion suggests, although again we don't come to a lot of conclusions on this, it's more a question of what's suggested by it. But one thing I think it does suggest is that we ought to think carefully about the idea of very broad delegations of war power, both in terms of ones that are open ended and in terms of ones that carry quite a bit of risk of a very substantial conflict arising from them. And that we shouldn't take from or we should hesitate to take from the Cold War authorizations that Matt was describing a blank check for Congress to hand over its war power to the President because that doesn't have the long historical pedigree and it raises some substantial structural questions about what branch of government ought to be in charge of significant war power decisions. So I think it gives us something to think about with respect to those authorizations. And while we don't go so far as to say that would make them unconstitutional, I think it might lead both Congress to think about is this the right way to be pursuing this or should Congress take a more close supervisory role? And also to the extent that any of this gets into court, perhaps court should not read these authorizations as broadly as sometimes Presidents ask them to. Again, the 2001 authorization is an example of the President has quite been quite Presidents have been quite aggressive about stretching that to apply to all sorts of things that seem perhaps not within the original contemplation. And perhaps we should be cautious about both giving Presidents open ended authorizations like this, but also reading authorizations. The President does get to have these very long term open ended effects.
- [48:28]
Matthew Waxman
I'd add to that and put it a bit differently, but a similar point. You know, especially if the non delegation doctrine kind of makes a comeback or some more teeth are put back into the non delegation doctrine, one question then arises, well, what about war power delegation? Is that different? How do you justify war power delegation? I happen to think, you know, my personal view is that war power delegation can be should be justified on a number of grounds. I think there are good functional or policy reasons for it. Why you Know, I think it's actually a pretty necessary foreign policy tool. Why it overcomes some overly cumbersome aspects of exclusive congressional control of whether or not we go to war. I think one can also justify it based perhaps on an argument that Recent, let's say 20th century historical gloss gives some constitutional legitimacy to the practice of war power delegation. I don't think, however, there is very strong evidence to suggest an originalist justification for it. I don't think you can justify, or at least we didn't find a lot of evidence that would support an originalist argument in favor of very broad war power delegation. And that to me is interesting because a lot of the strongest advocates of sort of revitalizing the non delegation doctrine tend to be themselves originalists. So I'll be interested to see how do they reconcile those two things? How would they. If there is a sort of a comeback for the non delegation doctrine or tightening of the non delegation doctrine, but those same jurists want to preserve war power delegation, on what grounds are they going to do that? I have my own grounds, like I said, functional grounds or more recent historical gloss. I just don't think the originalist argument is very strong here.
- [50:48]
Michael Ramsey
Yeah, if I could step in on that too because I think that's a really excellent point and I want to amplify it by saying that I think one way an originalist might justify war powers delegation is to say that just general, there's not a strong constitutional originalist rule against general against delegation generally. And some people take that view. But to the extent that originalists and particularly originalists on the court want to say there is a strong non delegation rule that comes out of the Constitution, but we want to have a carve out for war powers, that's what is going to be a tough argument and that's what we're interested to see what they come up with because we didn't. We think the argument for an original argument for a particular war powers carve.
- [51:36]
Interviewer
Out is a challenge that, that makes sense. And just, just one final question, Matt. You talk about in the article how the courts may believe and based on precedent, it seems that courts might deem these questions non justicable. So how do you view your argument concretely figuring into the actions of, of the executive branch and Congress? Or do you view it as these actors wanting to. Wanting to ensure that their actions are constitutional and so kind of taking up these constitutional principles themselves? How do you view the concrete implications of. Of your argument if people were to. To take it seriously, as I think as I think they should.
- [52:24]
Matthew Waxman
Yeah. So you're right in referencing our observation that war power questions the issue of whether Congress's war power is exclusive. To what extent does the President have his own unilateral power to use force? These issues tend to be regarded as non justiciable political questions or they're kicked out of court for any number of kind of jurisdictional justiciability reasons before courts tend to reach the merits. And I don't foresee any change to that approach. So we're talking really here about arguments that would be used and deployed by the political branches, by other political actors. And the one that interests me the most is how Congress wrestles with this issue. So let's say that especially in a world in which both the far right and the far left politically are advocating something of a retrenchment of American overseas military commitments, they're arguing for a stronger role of Congress and in deciding whether or not the United States is going to use force. Right. We see both members of the political right and the political left even just this week criticizing on constitutional grounds the President's use of force against the Houthis in Yemen. So I think we're likely to see a lot of those kinds of arguments. And to me, one of the interesting things will be, are to what extent do you do those critics of presidential unilateralism also go a step further and say not just war power is an exclusive congressional power, but it's one that can't be delegated with very broad force authorizations. Right. So imagine Congress debating a new 2024 AUMF that's worded very broadly. To what extent do members of Congress object the text to the sweep of those force authorizations on the grounds that they go too far in delegating discretion to the President? And one of the lessons that I draw from the historical record is that it's in moments when congressional opinion leans towards great hesitation in the use of military force that we see these kinds of non delegation arguments kind of coming back into the fore, coming, becoming more popular and pronounced in congressional debates. You know, just as an example, the Gulf of Tonkin Resolution, very, very broad delegation, the non delegation issue was barely mentioned, barely mentioned in debates about the, in 1964 about the Gulf of Tonkin Resolution. But when the war goes badly, when it becomes a quagmire, you know, five years later, then we start to see non delegation arguments in congressional hearings among members of Congress calling into question the constitutionality, sort of after the fact of the Gulf of Tonkin Resolution, saying Actually this was, this was an unconstitutional delegation of war power discretion to the President. Why did those arguments resurface? Because Congress's mood turns very dramatically against the use of force. So my own speculation, my own prediction is that if that is where Congressional opinion moves in 2024 and onwards, I expect to see this non delegation argument kind of coming back into wider circulation.
- [56:34]
Interviewer
Okay, we will have to leave it there. Mike Matt, thank you for joining us on the Lawfare podcast.
- [56:40]
Michael Ramsey
Thanks Matt. Yeah, thanks for having us.
- [56:45]
Matt Gluck
The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work@lawfairmedia.org the podcast is edited by Jen Patihai Powell and your audio engineer. This episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thanks for listening.
- [57:36]
Adam Grant
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