Podcast Summary: "What Is a War?" – What Trump Can Teach Us About Con Law

Host: Roman Mars
Guest: Professor Elizabeth Joh
Release Date: November 28, 2025

Episode Overview

This episode probes the fundamental constitutional question, “What is a war?” through historical precedent and the current actions of the U.S. government. Professor Elizabeth Joh and Roman Mars examine how the concept of war has been defined and stretched by American presidents from Lincoln to Trump, especially focusing on Trump's controversial strikes on Venezuelan fishing boats, their legality, and the slippery boundaries of presidential war powers.

Key Discussion Points & Insights

1. Was the Civil War a "War"? (00:36–06:08)

• Main Question: Whether the Civil War qualified as a war under U.S. and international law.
• Details:
  • Lincoln’s response after Fort Sumter included calling up volunteers and imposing a naval blockade.
    • Blockade Significance: Under international law, blockades only occur during wartime between sovereigns. Lincoln, however, called the Confederacy an insurrection, not a nation.
    • Legal Precedent: The “Prize Cases” (1863) tested whether Lincoln had the authority to act as though the U.S. was at war without congressional approval.
      • SCOTUS Ruling: By a single vote, the Court sided with Lincoln—yes, it was war, and yes, he could order a blockade even without a formal congressional declaration ([05:15]).
      • Key Quote (Joh, 05:23): “If war was brought to the United States by invasion or rebellion... the President was not just authorized, but required by the Constitution to resist what it called ‘force by force.’”

2. Modern Presidential War Powers (07:03–11:44)

• Current Parallel: Trump’s strikes on boats in the Caribbean linked to Venezuelan gang TDA.

  • Details:
    • Trump labeled TDA a foreign terrorist organization and targeted boats allegedly running drugs ([07:53]).
    • At least 21 strikes, 83 deaths, minimal survivors—all in international waters, mainly by drone.

• Are These Strikes Legal?

  • Joh: "Simple answer is no. Yeah." ([08:44])
  • The Constitution divides war powers—Congress declares war, President commands military.
  • Since WWII, Congress hasn't formally declared war; instead, it has often authorized use of military force.
  • The 2001 Authorization for Use of Military Force (AUMF) serves as a perpetual license for conflict.

3. The War Powers Resolution and Its (Lack of) Teeth (11:45–16:12)

• What is it? Passed post-Vietnam over Nixon’s veto (1973), meant to constrain unilateral presidential military action.

• Key Provisions: ([13:57])

  • President must notify Congress within 48 hours of deploying forces.
  • Operations must stop within 60 days unless Congress approves or a national emergency exists.
  • 90-day extension for unavoidable military necessity.

• Presidential Pushback:

  • Every President since Nixon has questioned the resolution’s constitutionality, but all have at least partially complied.

4. Trump’s Use of War Powers in the Boat Strikes (16:33–22:02)

• Formal Notification: Trump did notify Congress within 48 hours of the first strike ([16:41–17:12]).
  • Claimed constitutional authority as Commander in Chief.
• Is this a War?
  • No evidence TDA boats were combatants.
  • These events bypass regular law enforcement procedures, instead treating civilians as wartime enemies.
    • Joh: “They simply blew up the boats. These were executions without any process at all.” ([19:11])
  • Administration frames drug smuggling as grounds for wartime action, stretching definitions.

5. Legal Stretching: "Important National Interests" & Defining Hostilities (22:03–29:10)

• OLC Memo Precedent: Obama-era Office of Legal Counsel (OLC) said the President can act militarily for "important national interests" if it’s not “war” in the constitutional sense ([22:29–24:02]).
  • Trump’s DOJ used this very logic for the boat strikes ([24:13]).
    • Roman Mars (sarcastic, 24:02): “Oh my God, it’s like, I want to murder these people. No, that’s illegal, but it’s important. Well, if it’s important, I mean, then I guess so."
• Hostilities Not Defined:
  • War Powers Resolution doesn’t define “hostilities.”
  • Obama argued drone strikes on Libya weren’t hostilities because U.S. troops weren’t in sustained combat or at risk of return fire ([27:35]).
  • Trump uses similar reasoning: if boat occupants can’t fight back, it's not “hostilities;” thus, War Powers controls don’t apply ([28:17]).

6. The Endless Expansion of Presidential War Power (29:11–35:41)

• Old Authorizations, New Wars: The 2001 AUMF is still used for operations against modern groups unconnected to 9/11 ([30:53]).
• Congressional Abdication:
  • Regular attempts to rescind or revise AUMF have failed ([32:03]).
  • As Mars notes, the U.S. system was designed for branch rivalry, not party loyalty.
    • Notable Quote (Mars, 32:44): “It still leads us back to this foundational part of the Constitution, which is that it wasn’t built around parties, it was built around opposing branches.”
• Supreme Court Reluctance:
  • SCOTUS avoids deciding “what is a war?”—leaving each branch to claim authority ([33:38]).
  • Congress could defund operations but is unlikely to do so.

7. The Dangers of Vague Definitions and "Emergencies" (35:12–36:05)

• Unchecked Power: When every situation is an emergency, presidential authority becomes limitless.
  • Joh: “When everything is an emergency, as the Trump administration keeps asserting, then this expansive power is never going to end.” ([35:12])
  • Mars (sarcastic, 35:41): “I ran out of milk. Emergency. Like, everything is an emergency and no one anticipated that. We maybe need a new, stronger word than emergency.”

Notable Quotes & Memorable Moments

• Joh, on Lincoln’s Dilemma: “If the confederacy was engaged in a war with the United States, well, then other nations might recognize the south as a sovereign nation. But if this was not a true war, then the blockade was illegal.” ([03:30])
• On Legal Stretching:
  • Mars: “Again, we're running into this thing where language fails us because it can't stop a bad actor interpreting these as broadly as possible to sort of just to do whatever they want.” ([25:26])
• On OLC’s "Important Interests" Standard:
  • Mars, exasperated: “That’s not enough. That's not a strong enough word. Okay, continue on.” ([22:58])
• On Unchecked Emergency Powers:
  • Mars: “As soon as you read some part of the law that says emergency, I'm like, oh, well, this is the end. This is like, this is a huge problem for us because is he just emergency here, emergency there…” ([35:41])

Timestamps for Significant Segments

• Was the Civil War a War? – [00:36–06:08]
• Prize Cases and Presidential War Power – [04:30–06:08]
• Trump’s Caribbean Boat Strikes – [07:03–08:42]
• Legality of Strikes & War Powers Split – [08:44–11:44]
• War Powers Resolution Explained – [13:54–16:12]
• Trump’s Notification to Congress – [16:33–18:29]
• Expansion of “Combatant” Definition – [18:29–20:42]
• Defining "Important National Interests" – [22:23–24:13]
• Hostilities Loophole (Libya and Boats) – [26:27–29:10]
• The Problems with Endless Emergencies – [35:12–36:05]

Tone & Language

The conversation is insightful, frequently laced with wit and exasperation—especially from Roman Mars in response to constitutional loopholes and linguistic hair-splitting. Professor Joh is measured, clear, and deeply knowledgeable, but shares in Mars’s frustration at the limits of legal language and institutional will.

Concluding Thought

This episode exposes how ambiguous constitutional definitions and political evasions have allowed the expansion of unilateral presidential war-making authority—culminating in the disturbing use of military force against civilians labeled as enemy combatants, with little real oversight or constraint. The conversation leaves listeners questioning what checks, if any, remain.