Episode Overview

Theme:
This episode from the Lawfare Archive, dated November 9, 2025, revisits a January 2024 conversation between Matthew Waxman (Columbia Law), Michael Ramsey (University of San Diego Law), and interviewer Matt Gluck, focusing on the constitutional dynamics of delegating Congressional war powers to the U.S. President. At a time of renewed debate over war powers—exacerbated by recent U.S. strikes against drug cartels—the hosts probe the historical, legal, and policy frameworks that govern how and when Congress can (or should) delegate its war initiation authority to the Executive.

Key Discussion Points and Insights

1. Motivation for the Project

• Delegation and War Initiation: Waxman and Ramsey set out to explore how Congress's authority to initiate war has been transformed into a system where broad discretion is given to the President via open-ended authorizations, rather than formal declarations.
  • Quote: "Since World War II, Congress doesn't formally declare war anymore. Instead, in all major US ground wars since Korea, Congress sometimes enacts an AUMF...resolutions delegating vast policy discretion to the President as to whether and when to use force or go to war..." (Matthew Waxman, 04:00)
• Current Relevance: The discussion is particularly timely given the Supreme Court’s increased skepticism about broad delegations of Congressional power.

2. Is Congress’s War Power Delegable? (06:57)

• Two Competing Views:
  • War power is broadly delegable, as with other foreign affairs functions.
  • War power is unique and thus potentially non-delegable due to its gravity.
• Historical Finding: The record doesn’t firmly support either position. The practice of broad delegation, as seen today, only consolidates in the mid-20th century.
  • Quote: "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." (Matthew Waxman, 06:57)
• Why it Matters:
  1. War powers remain fiercely contested and arguments for/against delegation can gain traction in varying political climates.
  2. The notion that all foreign affairs powers should be treated as a single, delegable category is questionable; war powers may need to be considered distinctly.
  3. Advocates for Congress reclaiming war powers must confront the complexities of delegation, not just the allocation question.

3. Historical Origins and the Founding Era

• Constitutional Convention:
  • Delegates debated whether war powers should be held by the President or Congress, ultimately assigning the power to "declare war" to Congress (12:22).
  • Delegation itself was not directly discussed or resolved at the Convention.
  • Quote: "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 would be only done through direct declarations of war, but perhaps they thought Congress could delegate that power back." (Michael Ramsey, 12:22)

4. Early Congressional Authorizations versus Modern Practice (16:49)

• Specificity and Context: Most early authorizations were narrow, situational reactions (e.g., Quasi-War with France), not broad delegations.
  • Quote: "They're relatively few incidents... and they tend to be very caught up in the specifics of particular episodes and are not...comparable to the broader authorizations that you see today." (Michael Ramsey, 17:21)
• Minority View: There was a persistent, if minority, strand of Congressional skepticism toward delegating war powers to the President (21:42).

5. Curtiss-Wright and the ‘Foreign Affairs Exception’ (25:32)

• Seminal Case: The 1936 Curtiss-Wright decision is often cited for the principle that Congress can delegate foreign affairs powers—including war power—more freely to the Executive.
  • Quote: "Curtiss Wright is seen today as...the proposition that legislative delegation of policymaking to the President is especially appropriate...when we're talking about foreign affairs rather than domestic affairs." (Matthew Waxman, 25:32)
• The Problem: Waxman and Ramsey argue that war powers are not like other foreign affairs powers (e.g., trade) and have historically been treated as more sensitive and less obviously delegable.

6. Post-WWII and the Cold War Shift (35:30)

• New Era of Delegations:
  • The Eisenhower era (Formosa and Middle East Resolutions) institutionalized broad, open-ended authorizations—a key shift from earlier practice.
  • Quote: "This Force Resolution authorizes in advance whatever force the President deemed necessary to protect a far flung ally...Its duration was open ended. Congress only repeals this force authorization 20 years later." (Matthew Waxman, 39:00)
• Significance: These delegations were as much about signaling and deterrence as about triggering actual military operations.

7. Post-Cold War to Present: The AUMF Era (43:19)

• Practice Continues: Congress’s 1991 and 2002 Iraq authorizations—and especially the 2001 AUMF—offer Presidents sweeping, durable discretion to use force not strictly limited to the original target (e.g., groups not in existence in 2001).
  • Quote: "The 2001 AUMF...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." (Matthew Waxman, 44:20)

8. Implications and Future Directions (46:20)

• Caution Against Over-Broad Delegations: The lack of deep historical precedent for open-ended delegations should give policymakers pause. Congress may need to exercise more supervision and restraint.
  • Quote: "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." (Michael Ramsey, 46:20)
• Theoretical Tension: With the judicial revival of the nondelegation doctrine, originalists may find themselves in a bind—there’s little originalist grounding for exempting war powers from nondelegation limits.
  • Quote: "If...originalists...want to have a carve out for war powers, that's what is going to be a tough argument...because...the argument for an original argument for a particular war powers carve out is a challenge." (Michael Ramsey, 50:48)

9. Political, Not Judicial, Questions (52:23)

• Court Reluctance: Courts continue to treat these matters as nonjusticiable, leaving it up to the political branches.
• Historical Pattern: Arguments about unconstitutional delegations tend to resurface when Congressional sentiment shifts against military intervention (e.g., Vietnam, potential future scenarios).
  • Quote: "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 coming back into the fore..." (Matthew Waxman, 52:23)

Notable Quotes & Memorable Moments (By Timestamp)

• On why the question matters today:
  • "Many basic legal questions remain hotly contested. And partisans in strategic debates...tend to wield constitutional arguments for political effect." (Matthew Waxman, 06:57)
• On the Constitutional Convention:
  • "It seems to me...that sets a significant amount of war initiation power...to the President. But they don't go at all into the question of how Congress was going to exercise that war initiation power." (Michael Ramsey, 12:22)
• On AUMFs as delegation:
  • "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." (Matthew Waxman, 04:00)
• On Eisenhower’s authorizations:
  • "This is an example of a war that seemed quite possible, but it never actually occurred...This Force Resolution authorizes in advance whatever force the President deemed necessary to protect a far flung ally." (Matthew Waxman, 39:00)
• On originalist tensions:
  • "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...a lot of the strongest advocates of...the non delegation doctrine tend to be themselves originalists." (Matthew Waxman, 48:27)

Key Timestamps

• 03:53 – Project motivation and framing of questions
• 06:57 – Summary of findings and their implications
• 12:22 – Founding era debates on war powers
• 16:49 – Early Congressional authorizations and practice
• 25:32 – Curtiss-Wright and the 'foreign affairs' carveout
• 35:30 – The Cold War shift and Eisenhower-era precedents
• 43:19 – Post-Cold War AUMFs and their breadth
• 46:20 – Policy and scholarly implications for delegation 'blank checks'
• 52:23 – Political branches as the main arena for war powers debates

Conclusion

This episode gives an in-depth, historically grounded view of how Congress has gradually ceded its war initiation prerogative not so much by design but through increasingly broad and open-ended delegations, especially since the mid-20th century. Waxman and Ramsey caution against treating war power delegations as an uncontroversial tool, particularly at a time of growing judicial pushback against broad delegations of Congressional power. As U.S. military engagements and war powers debates remain salient, the question of “how—and how much—Congress can delegate” remains as urgent as ever.