The Constitutional War Powers of the Executive and Legislative Branches
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The Constitutional War Powers of the Executive and Legislative Branches

September 21, 2019


Good afternoon. My name is Nate Kaczmarek. I’m the Deputy Director of The Federalist
Society’s Article I Initiative. Initiative is dedicated to the development
of a theory of the role and practical goals of Congress that stem directly from core constitutional
principles. Today’s luncheon is just one of the many events
The Federalist Society has planned here on Capitol Hill and across the country. On behalf of the Initiative, I want to thank
you all for joining us. At the outset, I’d also like to thank, uh,
Senator Ron Johnson and his staff for sponsoring the room for today’s event. As you may have noticed from your program
and from our panel up here, we are playing shorthanded this afternoon. Uh, Professor Julian Ku from Hofstra University
School of Law… (Laughter)
Boy, he’s really excellent. I’m not sure what that was. Uh, Professor Ku had a last-minute conflict,
uh, which precluded him from flying down this morning. But even without his valuable presence, um,
I think you’ll agree that we have a great panel. And the topic of executive and legislative
pow- War Powers seems particularly appropriate given that we just celebrated our nat- uh,
nation’s Independence Day. After more than 200 years, our government
has developed a track record regarding starting wars and the use of military force, which
can be measured against the Founders’ views and the Constitution. It’s good to ask, “How has the Framers understanding
been followed and in what ways has it been ignored? And do the founding principles regarding these
topics still have application to our modern era?” To help us navigate these and other important
questions, we’re pleased to have with us Andrew McCarthy, who is a senior fellow at the National
Review Institute and a contributing editor at National Review. He’s a former, uh, assistant US attorney for
the Southern District of New York. He led the 1995 terrorism prosecution against
Sheikh Omar Abdel-Rahman and 11 others for waging a terrorist war against the United
States, including the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. He has also contributed to the prosecutions
of terrorists who bombed US embassies in Kenya and Tanzania. He writes regular- regularly for PJ Media
and The New Criterion and is a New York Times bestselling author of many books. And we’re also pleased to have with us former
Congressman Mickey Edwards, who is the Vice President and Program Director for the Rodel
Fellowships in Public Leadership at… I’m sorry. He’s the Vice President and Program Director
for the Rodel Fellowships in the Public Leadership at the Aspen Institute. He was a member of Congress for 16 years representing
Oklahoma’s fifth congressional district. He served on the House Budget and Appropriations
committees and as chairman of the House Republican Policy Committee. After Congress, he taught at Harvard’s Kennedy
School of Government and Princeton’s Woodrow Wilson School of Public and International
Affairs. He’s on the board of directors for the Constitution
Project where he has chaired Task Force on, uh, Judicial Independence, Government Oversight
and the War Power. He is the author of numerous articles and
books, and his most recent book was published in 2013 titled, “The Parties Versus the People:
How to Turn Republicans and Democrats into Americans.” Before I turn it over to our panel, I wanted
to note that following the panelists’ remarks, we will have Q&A. So, please think about questions you’d like
to ask our panelists. With that, Mr. McCarthy, the floor is yours. Well, thank you so much, Nate, and, and thank
you to The, uh, Federalist Society for the kind invitation. Um, I have about, uh, 15 minutes of opening
remarks that, uh, in, in light of Julian’s absence, I’ll, I’ll try to squeeze into 20
if, uh, if I can. Um, but, uh, as we gather on Capitol Hill
today, the United States Armed Forces are engaged in combat operations in several global
hotspots. In Syria we have not only conducted attacks
against the regime without any congressional authorization, we are now occupying territory
as well. Ostensibly, we’re there to fight not the regime
or its Russian and Iranian allies, but the Islamic State jihadist organization, also
known as ISIS. But to the extent that is a legally authorized
conflict, it is against an enemy that arguably did not exist at the time that the relevant
authorizations of military force were adopted about, uh, 15 years ago. Now, you could say, as we have been saying,
that ISIS is merely a breakaway faction of Al-Qaeda. It began as the terror network’s Iraqi franchise
and consequently it is covered under the existing AUMF. This, however, ignores the inconvenience that
Al-Qaeda along with its allied Islamist factions is also fighting ISIS and the Assad regime
in Syria. Essentially the enemy that we started out
fighting after it attacked America in 2001, and that still regards the United States as
its mortal enemy, is nevertheless fighting in Syria alongside the rebel elements that
we support. In that sense, the situation mirrors our misadventure
in Libya. That was another recent conflict in which
a president, without congressional authorization, launched an aggressive war against a foreign
sovereign that not only posed no threat to the United States but what, which was actually
regarded as an important counter-terrorism ally. And that was because for all its many flaws
the Gaddafi regime was providing us with intelligence about militants in places like Benghazi and
Derna, which were the Libyan support hubs for the anti-American jihad in Iraq and Afghanistan. That is to say in Libya we initiated an unnecessary
war without any debate among the people’s representatives, much less any congressional
authorization. The result was a catastrophe, the undoing
of a counter-terrorism ally in a dangerous neighborhood, the empowerment of our jihadist
enemies, a failed state and an administration reduced to absurd rationalizations about how
its bombardments against regime targets were somehow not acts of war. It is tempting on this record to draw the
conclusion that modern practice has superseded the Constitution’s division of war-making
powers between the executive and the Congress. But when we get down to brass tacks, this
simply is not true, and it’s not true for a reason that is often forgotten in our war
powers debates which are dominated by lawyers. The debates tend to take place under the auspices
of legal academic institutions or organizations like, uh, my, my friends and colleagues here
at The, uh, Federalist Society who are hosting us today. The reason is, we are a body politic, not
a legal community, at least, in the main. For any free society to flourish it must,
of course, be undergirded by the rule of law, but the Constitution is basically a political
document, not a legal one. It is the assignment and division of political
authority among actors who compete and collude, depending on the attendant circumstances. This is critical because war is a political
exercise, “politics by other means,” as Carl von Clausewitz memorally- uh, memorably put
it. There are legal elements to it, but it is
basically a political endeavor. The use of government power, in this instance,
force against a foreign enemy in order to break the enemy’s will. Though you wouldn’t know it to listen to most
war powers discussions there is a limit to how much war can be “judicialized” or how
much it can be subjected to antecedent legal rules and procedures. A state of war, after all, is the antithesis
of our domestic peacetime footing. It is the proud boast of our domestic legal
system that we would prefer to see the guilty go free than have a single person wrongfully
convicted. Thus, we presume against the government. The accused is presumed to be innocent and
has no burden to prove anything. The government must meet weighty standards
of proof to conduct a search to obtain a wiretap, to make an arrest, to convict the defendant. Our bottom line is, we would rather see the
government lose. That is, justice is not conviction of the
guilty. It is forcing the government to meet its strict
burden of proof before liberty is removed from one of our fellow citizens. War is entirely different. In war, we don’t and we can’t want the government
to lose, and we cannot give the enemy the presumption of innocence. In war, it is always in the national interest
that the government prevail. Yes, our troops are the world’s best trained
and most disciplined, and we demand of them adherence to the laws and customs of civilized
warfare. But the highest national interest is to defeat
the enemy and to achieve whatever objective was so vital that it was worth going to war
over in the first place. War is thus a very different paradigm. Far from legal niceties, it is driven by the
public’s perception of threats to the homeland and to vital American interests. Our division of war powers is a reflection
of this political reality. As we discovered painfully in Vietnam and
to a lesser extent in Iraq, a war effort needs strong political support to be successful
in a democracy. If there is not public consensus that our
security is at risk or that high order American interests are at stake, support for war at
home and in Congress will flag. At that point, we can debate until the end
of time whether the use of force was lawful and authorized. The only salient point will be that the public
does not regard the war effort as a necessary sacrifice of blood and treasure. That will be the practical and dispositive
test of a war’s legitimacy. Our Constitution’s war powers are geared in
just that way and for just that reality. The Constitution vests in Congress the power
to declare war. The executive, however, is chiefly tasked
with our national defense against foreign threats and it is for the commander-in-chief
to prosecute war. This means that when the United States is
under attack, or a real threat of attack, no authorization from Congress is needed. The president may take whatever military actions
are necessary in order to quell the threat. Even under these circumstances, however, congressional
authorization is desirable. And it becomes not only desirable but increasingly
essential as the immediacy of a threat fades, for congressional endorsement of combat operations
not only reflects public support for the war, it further defines the parameters of the conflict,
including critically who the enemy is. This is necessary because it delineates the
operations of the laws of war, determining who may be regarded as an enemy combatant
subject to lethal force, detention without trial after capture, and potentially even
trial by military commission if provable war crimes have been committed. A congressional authorization controls where
and against whom military operations may be conducted as wars go forward. Here is the main point. The further removed the use of forces from
an identifiable threat to vital American interests, the more imperative it is that Congress weigh
in and either endorse or withhold authorization for combat operations. The less obvious the peril, the more important
it is that Congress use its other constitutional authorities, particularly the power of the
purse, to ensure that military force is employed only for political ends that are worth fighting
for and, critically, that the public will perceive as worth fighting for. Now, it’s fair enough to say that our contemporary
practice has not conformed to the constitutional guidelines I’ve just outlined. As a practical matter, we have permanent military
forces and there is no stopping a president from ordering them into battle. As we’ve noted, President Obama did not seek
congressional authorization for the Libya campaign, just as President Clinton did not
seek it for the bombings in the Bolton- Balkans and President Reagan did not seek it before
invading Grenada. After insisting as candidate Trump that Obama
needed congressional assent to attack regime targets in Syria, President Trump has attacked
regime targets in Syria without congressional authorization. Congress’s warm, uh, war powers have seemed
not to be too much, uh, of a hindrance on the executive, nor this power, uh, Congress’s
power of the purse seem to have much bite. It is simply a political reality. It is common sense that the American people
have a deep attachment to their sons and daughters in harm’s way regardless of their commitment
or lack of commitment to a war and its objectives. Congress may disapprove of a unilateral presidential
use of force, but unless the public is merely… is not merely indifferent, but actually deeply
opposed to American participation in a conflict, lawmakers will be very leery of being seen
as cutting off support with the troops. So, here is the dynamic: the president has
a relatively free hand and Congress abdicates its responsibilities, content to wave the
pom-poms when things go well, and to excoriate the incumbent administration, but not cut
off funding when the going gets tough. Still, we can see the Constitution at work
as a political document even if the resulting legal arrangements are untidy. The lack of political support that induces
presidents to refrain from seeking congressional authorization also operates as a severe political
impediment to presidential war-making. The perception that war-making is of dubious
legitimacy serves to rein in executive ambitions, and over time Congress does assert itself. We saw how this worked in Iraq. There was very strong public support for the
mission of removing Saddam Hussein on the grounds, grounds that were very powerful in
the post 9/11 environment that he had weapons of mass destruction and might be inclined
to share them with jihadists. The mission was sufficiently popular that
congressional Democrats with the 2004 election on the horizon sought out the opportunity
to vote in favor of authorizing force. But after a swift and successful toppling
of the regime, it became increasingly evident that there was another very different and
very ambitious war aim. It was more a Washington enterprise than a
mission the American people believed in. It became prioritized when weapons of mass
destruction were not found in the quantities advertised. This was the effort to sell Western democracy,
principles, and institutions in an Islamic Sharia society that was hostile to them, hostility
that grew more intense as the joy of liberation from Saddam transitioned into American occupation
and a savage civil war between Sunni and Shiite factions. Alas, we did not learn and apply the lesson
of this folly in Libya and I fear we are well on the way toward making the same mistakes
in Syria, where the consequences of folly could be disastrous given the players involved
in this complex, multi-layered conflict: Russia, Iran, Turkey, and so forth. President Trump gave a very interesting speech
in Poland yesterday about preserving Western society, except he didn’t call it Western
society. He referred to it instead as Western civilization. He was right just as Samuel Huntington was
right. Our conflict with radical Islam with what
I call Sharia supremacism is a clash of civilizations. To prevail, the West has to decide that the
West is worth defending and we have a lot of work to do to repair that self-perception. But we also have to realize that the enemy
is a product of a rival civilization with starkly different principles. It is not enough to say fundamentalist Islam,
which is the mainstream Islam of the Middle East, does not wish to be Westernized. It considers the intrusion of Western armies
and institutions to be a deep provocation, even if we see ourselves as do-gooders who
are just trying to improve people’s lives. This is a product of spending a generation
in willful blindness of our enemies animating ideology and that could be the subject by
itself for another symposium. The point that is relevant to constitutional
war powers is the political imperative of public support for military operations. If there are a vital American security interest
at stake, the American people will be on board. Congressional authorization and endorsement
will then make it possible to achieve crucial military victories. Americans, however, are simply not interested
in trying to democratize Islamic societies through military force. On this score it is essential that Congress
do its job, demand that any president who lurches into these conflicts seek congressional
authorization for clearly stated objectives and satisfy the people’s representatives that
we are pursuing real security needs, not conducting a sociology ex- uh, experiment, uh, at the
expense of the lives of our best and bravest young people. As a practical matter, the Constitution may
not be able to prevent an overly ambitious and adventurous president from enmeshing us
into conflicts against our interests. But congressional war powers can still have
a very important say about both the legitimacy of the use of force and, therefore, about
its extent and its duration. Moreover, where the use of force is clearly
in America’s vital interests, congressional war powers used to issue a powerful endorsement
of a clear necessary mission can help us achieve something that’s actually eluded us since
1945: victory, which is a word that’s barely even spoken when we speak of American war
powers. Thank you very much for your attention and
I look forward to our dialogue. So, uh, I’m very high tech. I had to learn how to push to turn, turn on
the microphone. Uh, well, I’m, I’m delighted to be here have
a chance to, uh, uh, give some different views. I, I think that, right, I agree with an awful
lot, uh, of what you’ve said. I want to, you know, maybe come at it from
a little different angle and to, uh, uh, you know, try to wrestle with some things in my
mind. Uh, you, you mentioned, you know, my background
is, uh, the head of the policy committee for the Republicans in the, uh, in the House. Uh, I actually, uh, was also the national
chairman of the American Conservative Union, founder of, uh, the Heritage Foundation, uh,
and, uh, chairman of CPAC. And so, uh, I am finding myself constantly
looking at some of the positions that our movement takes today and trying to figure
out how they square, you know, with, with what our movement once was. So, uh, I’m somebody who, uh, has not gone
to see Hamilton, but I would spend a lot of money to go see a play on Madison. And so, that give you some sense of, of where
I’m coming from. Uh, I, I, I would disagree a little bit on
one, uh, on one area and, and that I think is important. Uh, the Declaration of Independence, which
we just celebrated, uh, is aspirational, and it’s political. It’s a political document. It lays out a case for an action. Uh, it, uh, lays out the grievances that impelled
us to that action, but the Constitution is law. Constitution is the supreme law. Constitution is not a political document. It lays out not only the structure, but it
puts limits on what government can do, very specific limits not only in the body of the
Constitution but in the- the- the last part added to the Bill of Rights. Uh, and I think it’s too easy to look at the
Constitution, uh, and dismiss it as something that, “Well, it was a bunch of old white guys
a long time ago and, you know, we, we don’t have to follow their lead.” Uh, so, I would disagree on that point. I, I think, uh, and, and I start from that,
because I’m a constitutionalist and I, and I am quite often surprised at the number of
people I see in Congress or writing in publications who are strong staunch defenders of the Constitution
who seem never to have read it. Uh, well, now, you know, I suggest that reading
it is actually a good exercise to, to start with. Um, one of the things that I’ve observed,
you know, watching my former colleagues on the Hill, is the date- the constitutional
mandates about what Congress is supposed to do, which are not in giving power to Congress. It’s putting obligations on Congress. Congress is the way in which the people’s
will is to be considered, deliberated, uh, and, you know, enforced. Uh, it is the way we have, we mix the democratic
process with our republican form of government. Uh, and I have watched, uh, appalled. Uh, this is aimed at both parties to, at the
extent to which members of Congress, uh, House and Senate, both parties, uh, ignore in the
name of tribal solidarity the mandates of the Constitution. So that what, uh, Barack Obama, uh, did for
a Republican is automatically wrong, when, and if the Republican president does it, well,
it’s just fine and we understand why, uh, and vice versa. And we are really not going to be able to
live up to our constitutional mandates until we decide that party loyalty, which is all
very nice, and it’s fun, and, you know, I went to Republican conventions and I waved
the banners and I did all that stuff, you know, but, uh, uh, you know, uh, uh, it’s
a game. They’re, they’re clubs, they’re private clubs. Uh, and what matters is, uh, our diligence
in being true to the Constitution. So, I want to talk about that, uh, in terms
of the war power. Uh, I also want to make a point. Uh, and, and this, of course, goes a little
bit toward what you said in terms of the, uh, the role of law and other factors. This is not theoretical. Uh, thi- this is not to have a discussion
about the role of the Constitution in this or in that. Uh, this is not theoretical. Uh, we are now, uh, looking at a real threat,
possibly, potentially from Korea. Uh, there’s been talked about, uh, pushing
for regime change in, uh, uh, in Iran. Uh, and, and we have a president at who you
may support or you may not, that’s irrelevant to me, uh, but who I think even his supporters
would agree tends to be impulsive. Uh, that is a, that’s a dangerous proposition,
uh, and one that the founders had in mind when they considered where to place the power
to send America’s men and women, uh, into combat and possibly be killed. So, you know, one of the, um, interesting
thing, I don’t know, I’m sure all of you have read this, about when Thucydides wrote about
the Peloponnesian War. One of the major parts of that, uh, was the
discussion between the Athenians and the Melians. Uh, here’s Athens, the great, uh, power of
the time. Melos is a small island, uh, that the Athenians
were trying to take over. Uh, and what happened was at, the people at
the top, the people at the top which we would call, uh, the executive branch, uh, in Melos,
uh, decided they weren’t going to consider what the public, which would now in our country
be represented by the Congress, that we weren’t really going to consider what the, uh, public
wanted. Uh, they had their own causes, they had their
own reasons, uh, and they decided that the, you know, as big as Athens was, you know,
nonetheless the Melians were not going to surrender. They were going to stand up and they were
going to fight and they were going to go to war. And the Melians were slaughtered, or, uh,
slaughtered and enslaved. Uh, we have a Constitution that ensures that
the will of the people, uh, is considered through their representatives in Congress
who make decisions, hopefully, through a deliberative process that considers the options, the ramifications,
uh, and so forth. And if the Fou- if the Founders believed in
anything, in anything, it was that you are not going to give the power of life and death
for a country, as well as its citizens, to a single or small group of individuals. That is the founding principle of the constitutional
system that we have. Uh, one of the things that has happened, uh,
unfortunately, is over a period of time, we have come to believe that presidents, not
only have primacy in deciding what to do about war, that their commander-in-chief means that
when the proper authority, Congress decides that we’re going to go to war that the commander-in-chief
doesn’t have to fight with 23 other generals to decide, you know, what strategies to pursue,
what the tactics are going to be, you know. The commander-in-chief is in charge of conducting
the military operations when some other body has decided we’re going to go to war. So, we have over the years, uh, and starting
with, uh, a very poor decision by Justice George Sutherland, who had been in the Senate
from Utah, went to the Supreme Court, the Supreme Court, and in the Curtiss-Wright case
declared out of nowhere as dicta, you know, uh, not related to the case at all, you know,
that in foreign policy, the president has plenary powers, the president is in charge
of foreign policy. That decision has been overturned by the Supreme
Court repeatedly starting with Justice Jackson’s decision in the Youngstown case, most recently
in the Zivotofsky case in 2013. The Congress does not surrender its power
just because the issue, uh, on the table is foreign policy. Uh, and we seem to have forgotten that. I know a lot of reporters from the New York
Times have forgotten that. I talked to them all- all the time about it. So, um, I, a few years ago I was co-chair
of a task force, uh, by the Constitution Project on looking into the war power. We had a pretty good group of people on that,
uh, task force. It was bipartisan. But we had, uh, Jim Woolsey and Judge Pat
Wald, and Susan Rice, and Mike Glennon, and Judge- and, and Harold Koh, who is dean of
the Yale Law School, and we looked at this. And, and I just want to very quickly summarize
three key points that, that we, uh, came up with. Just, uh, because this is something we all
agreed on. Uh, number one, this is the summary and I’m
just not even going to read much of it. Number one, (clears throat) Congress must
perform its constitutional duty to reach a deliberate and transparent collective judgment
about initiating the use of force, except when force is used for a limited range of
defensive purposes. (coughs) Two, the president must seek advanced
authorization from Congress for initiating the use of force abroad, except when force
is used for a limited range of defensive purposes. And, three, that Congress should authorize
initiating use of force abroad only by declaration of war (coughs) or a specific statute or appropriation. You made the point correctly, you know, that
the authorization, through the use of military force that we now have did not envision going
to, into military combat against forces that did not even exist at the time that the AUMF,
uh. was passed. So, um, let, let me just, uh, I, I want to
get to the questions here. So, um, I, I want to make just one more point,
a couple. Uh, what is that, we have been seeing a consistent,
uh, abdication, uh, over the years. You can go back to Harry Truman and, and,
uh, deciding that it was okay for the United Nations to decide where we were going, when
we were going to go to war, uh, uh, in Korea. And there’s has been a fundamental abandonment
of both our democratic processes and our republican structure of government. And, uh, uh, one of the ways in which we did
this when I, um, and, uh, I will say it was not when I was in Congress, it happened just
two years before I got there, was the passage of the War Powers Act, which is clearly unconstitutional. Now, presidents think it’s unconstitutional
because it infringes on their powers. Uh, it’s in- it’s unconstitutional because
it infringes on constitutional powers by giving a single person as top of the chain the ability
to send us to war for a limited period of time after which, you are absolutely correct,
there is no way those of us in Congress, we’re going to cut off the funds, you know, uh,
when our troops are under fire. So, we essentially surrendered, uh, that power
to the president. So, plain closing, today, we have, as I mentioned,
we’ve got the threat potentially from Korea, we have a potential claims by this administration,
uh, that we need to pursue regime change in Iran, uh, we have, uh, strikes going on, military
action that’s outside the scope of the AUMF. So that’s why I close with just, this is not
a theoretical classroom discussion, you know. Re-establishing the authority of the Congress
of the United States to decide whether we’re going to go to war is absolutely fundamental. Thank you. Mr. McCarthy, would you like to respond? Just a couple of points and some of it is,
uh, sort of off the track of the- the war powers. Um, I don’t deny that the Constitution lays
out in an exacting way a lot of legal arrangements. But when I say it’s a political document,
what I mean is, uh, if you look at the Constitution as it is written and as it was originally
understood, and then you compare it to American governance today, uh, it’s virtually, what
we have today is almost unrecognizable. Um, there’s a fourth branch of, of government
which the administrative state, uh, which could engulf, uh, a lot of the powers, or
has engulfed a lot of the powers, uh, uh, of the other three, um, and in a way that
is completely antithetical to the idea behind the Constitution, which was to have political
accountability for, uh, political decisions. The way that happened was political. It wasn’t legal. Um, it, it happened because people took steps
that were beyond the power and contemplation of the Constitution, uh, and the system accepted
it. And the remedy for it, the ultimate remedy
in the Constitution for that, uh, sort of behavior is impeachment, which is wholly a
political remedy, not a legal one, in the sense that you can, you can be, and I, I can
say this as a, as a prosecutor, even though high crimes and misdemeanors are not necessarily
indictable offenses. But you can have a thousand provable, uh,
high crimes and misdemeanors. The way the Constitution is structured, if
there’s not political will to remove the president in the public such that you could get two-thirds
of the Senate to vote for removal it, it, it really doesn’t matter as a legal matter,
whether the president has committed high crimes and misdemeanors. It’s, it’s, uh, the question is a political
will under the procedures that the Constitution has, uh, laid out, uh, to enforce the Constitution
standards. And I think, um, while there are extremely
important legal arrangements in the Constitution, to the extent they are breached, the remedy
for that is largely political and political will. I mean, you can’t, if the president decides,
uh, to haul off and invade a country when there’s no American interest at stake. Uh, it’s not like you’re going to be able
to march into federal court, uh, and, and get a judge to order him not to, because then
you quickly find out, uh, what the Framers recognized, which is that the courts have
judgment. They don’t have the sword and they don’t have
the purse. They don’t have any means without the cooperation
of the executive, uh, to, to correct the executive. Um, so, I guess, uh, that’s one point. The other, the other point, just briefly about
Curtiss-Wright. Um, I, I think, going back to Jefferson, Madison,
the Framers, their position was that the executive was supreme in foreign affairs exte- except
to the extent that the Constitution created exceptions and that the exceptions were to
be strictly construed. So, I don’t, uh, I’ve never understood it
to be a situation where the Congress didn’t have War Powers, and in fact robust war powers. But in the main, the president conducts foreign
policy. And I, I agree with you. I think it’s vitally important that the Congress
assert itself with respect to the war powers that it does have in the Constitution. But I don’t think that ne- that necessarily
cuts against the idea that the president is essentially supreme in conducting foreign
policy. Yeah. Well, I, I agree with a lot of what you said. Part of the problem here is, uh, enforcement
and political will, and I’ll come back to that in a second. Uh, le- but the founders did give the president
some powers in foreign policy. The president can negotiate treaties and only
the president can negotiate treaties. Those treaties are nothing but scraps of paper
unless the Congress decides, you know, uh, the president can, can decide who will be
our ambassadors to other countries. But that’s only something they, they could
put on their wall and say that, you know, I was once nominated to be ambassador because
it has no force unless the Congress decides and the Senate, you know. So, the, the powers, uh, so, I, I read it
differently. The Constitution actually, uh, is very limiting
in term, and Article I, uh, is in the Congress. Article II is a really brief, you know, article,
and most of, until recent years, fairly recent years, you know, it was understood that these
were not presidential decisions. So, uh, uh, we, we disagree with our thought
about that. Uh, I would say, though, and I, we, maybe
we both agree on this, um, a lot of the concern rests on those of you in this room. Uh, and it rests on you because one of the
fundamental problems we have is that so many members of Congress, House and Senate, simply
have no clue what their obligation is. So that if you have very, very important,
uh, uh, national security concerns, uh, and the, uh, administration decides to, uh, come
and share that information with members of the Intelligence Committee, I don’t know if
any of you are staff for the Intelligence Committee, uh, the executive branch tells
members of the, of the Senate, uh, and the House, who can come, hear that information,
and, you know, who they can share it with, and whether they can bring staff. The Congress of the United States which has
the authority to decide whether we’re going to go to war and to set foreign policy is
told by another branch of government, you know, who you can tell, who you can share
it with. You can’t bring your staff. You can’t tell other members of the Senate,
and Congress just accepts it. Uh, I’m on the board of a group called POGO,
the Project on Government Oversight. Uh, and I gave a talk to a group of, uh, Senate
staffers, the Senate and House, uh, staffers one time, and was shocked because somebody
got up, maybe one of you, I hope not, uh, totally, uh, angry, because they kept filing
for, on behalf of their, their member of Congress, uh, Freedom of Information requests, and the
damn administration would not respond. And, and I just said, “Well, you know, John
Dingle never would have filed the Freedom of Information request.” He would have said, “Get your ass down here.” And, and so, you know, there is an obligation
here for members of the Senate and the House to decide it’s nice to belong to a political
club. I belonged to the Republican Party. I lo- I belonged to the Kiwanis Club. I was on the bowling team. You know, I, I belong to things too, but my
oath, I took an oath, and my oath was to defend the Constitution of the United States, not
to defend my political club. And, and so, you’re right. It, it has a lot to do with public pressure
and it’s how the Congress responds doing its job even, even if the majority of your constituents
say, well, well, we’re going to run somebody against you or we’re going to, we’re going
to primary you. You know, tough. If you don’t, if you can’t stand that, don’t
take the oath of office. Don’t promise you’re going to obey the Constitution
if you’re not. So, uh, you know, we’re, we’re not that far
apart. No, I, uh, I feel impelled or compelled to
say that, um, I, I belong to The Federalist Society, but so far, Dean hasn’t made me take
an oath. So, I do, uh, I’ll take that …
I wi- I’ll take an oath, uh, with The Federalist Society. Right. (Laughter)
Um, but, uh, uh, I, uh, uh, just to, to echo the, the, uh, what you say, uh, I think it’s
critically important that, that Congress as an institution protect itself and it, and
its prerogatives, and the government doesn’t work unless it does. And, uh, I, uh, as I said during the last
eight years when I was usually in disagreement with what the government was doing and in
the eight years before that when I was often, uh, but less usually in, in disagreement with
what, uh, the government was doing, as a journalist I get to rant and rave and get peeled off
the ceiling in my attic or the office of National Review or, or, or wherever, um, but you don’t
have that luxury on Capitol Hill. You don’t get to be a spectator, you know. And that’s part of the gig, I think, of being
elected members, uh, of Congress and the, and the staff that have to support them. Um, if you don’t protect the prerogatives
of this institution, then the Constitution doesn’t work. As much as we all admire it and as much as
we, we all say that we would like to see it, uh, operate in the way that it was, uh, intended
to operate, those of us who take that position, it requires not only accountability. The original understanding was that the branches
were going to com- compete and keep each other in check. And part of the reason that we end up in a
crisis environment, I think, is that, uh, if you let other branches get on for a long
period of time with getting away with this and that, you eventually get to a point where
they’re so convinced that they’re, they’re not being checked, uh, that you end up with
very weighty decisions being made outside the parameters of the Constitution. And that’s when we have crisis. So, I, I, I think it’s, it’s absolutely essential
if this framework of government is going to work the way it was supposed to work and the
way it is supposed to work, uh, that this institution, uh, defend its prerogatives and
be accountable. Yeah. Uh, well, just one sentence, uh, or maybe
it’s two. Uh, re- remember that this is not Great Britain. In Great Britain, the executive is the government. Not in the United States. The government is not the executive branch. You’re the government as what, uh, just matches
the executive branches, both branches, you know. So, just remember that. Okay. Very, very good. Um, we’re now moving to the Q&A portion of,
uh, our session here. We actually have a standing mic right here
in the hallway, next to the door. Uh, please line up and we will, uh, get to
as many, uh, questions as we can. Um, just one quick, before we get to the questions,
I just have one, one sort of broad question for both of you. It’s obvious that, uh, both of you would consider
yourselves in the congressional war powers camp, um, but, and with, with some obvious
noted, uh, differences and distinctions. But, uh, you know, what I often gather from
the other side, the executive war powers camp, if you could call it that, the sort of objections
on four levels. And some of them have been touched and we
don’t have to go over them, but I, I just want to make sure that they’re out there in
order to, to balance our discussion. The first of course is the- the track record
regarding formal declarations. Uh, more than a hundred times, uh, the United
States has been involved in military, uh, skirmishes. We’ve only declared war five, five times in
our history. Uh, is, is Congress really needed or even
desirable in this space? Um, another one is of course, and Congressman
Edwards did touch on it, uh, the War Powers Act of 1973. Uh, we’ve been involved in several military
actions of varying skills, and, um, the, without any real effect from that resolution. Uh, another objection from the pro-executive
camp would be the- the idea that Congress is really unmanageable. It’s, it’s too large and unwieldy, and it
can’t make the swift, uh, action that’s required in wartime. And the last one that I think I often hear
is, uh, you know, what is the congressional incentive, how can you convince Congress to
really be more involved, uh, in wartime policy. Um, so, maybe you could comment quickly on
that, and then we’ll, we’ll go to our questions. Well, uh, (clears throat) I, I, I think as
far as the track record, uh, uh, is concerned, um, the, the first point and the, and the
third point that you made, I think part of the reason that we haven’t had as many declarations
of war, uh, is to the extent that we’re dealing with emergent situations. I think even, um, people who are staunch congressional
war powers, um, advocates accept the idea that if the United States is under attack
or under the threat of attack, that the president has the power to respond. And to the extent there was any dispute over
that, I think the- the Supreme Court resolved it during the Civil War or just after the
Civil War. Um, so, I, I don’t, uh, I don’t take, uh,
I think even Rand Paul who was probably, as a, as a staunch, a, a pro-Congress, uh, war
powers guy, uh, would accept the idea that, um, when the United States is under threat
that the president doesn’t need to wait for congressional authorization. The president can move. I s- I don’t see that at all as detracting
from, uh, the importance of congressional war powers in situations, in particular, where
we get remote from a real threat to the United States, where I think it’s really important
that the, that the other political branch, uh, either lend its support or, you know,
per- perhaps persuade the president that, uh, that he’s about to embark on folly. Uh, well, very quickly, I’ve already addressed
the War Powers Act. Uh, actually, in the Civil War, the- the-
the power that Lincoln had was, uh, very specifically spelled out of the Constitution, which was,
uh, insurrection, to put down insurrection. Uh, as to Congress being unmanageable because
it’s not swift, you know, most of the cases, including right now with Korea, you know,
what you need is deliberation. You don’t need imp- impulsivity. Uh, uh, you need, uh, there are times, you
know, when the fleet is right off the shore, or whatever, uh, when you have to act very,
very quickly. But most of the time, what we’re dealing with
is not that kind of a situation. Uh, and the, uh, benefit of having a legislative
branch with power, uh, is that you have thoughtful deliberation. You get input. You talk about it. You consider the ramifications, you know. Wi- with 320 million people potentially a
risk, you know, saying let’s, let’s see how we can move quickly, quickly, uh, is, is a
recipe for disaster. And I think there are circumstances when you
have to move quickly, but not most of the time. Finally, in terms of, oh my, well, congressional,
Congress being unmanageable, I, I mentioned, Congre- what, what are the incentives? Jesus Christ, they’re Americans, you know,
they care about the country. They ran for office. They took an oath of office. They said it’s our country, we’re going to
keep it safe. Well, that’s their incentive, to do it right. Uh, you know, may- you know, maybe, maybe
if, if this is, uh, a question that, that everyone is asking because we’re not seeing
signs of incentives, then maybe those people ought to go back home, and, you know, run
a bakery or drive truck, or whatever, you know, and get out of Congress. And just, just along those lines, when we
were attacked on 9/11 we had an authorization for military force in about a week. Yeah. And we could have had it in a day. Um… It could have been. On the other hand, uh, you know, uh, the next
step on the trajectory perhaps Iraq, um, Congress ultimately wanted to vote to authorize that
because there was, uh, at least, a persuasion on the- the facts that were known, what’s
thought to be known at the time that it was important for the country to do at that, at
that juncture. When you get to Syria and Libya now, there’s
enough disagreement, uh, about whether we have real vital interests there that nobody
even wants to discuss it. The Congress would just assume it, it went
away. Uh, I think sometimes our presidents have-
have wanted to assume that those problems would go away as well. But my, my, my point is, it may seem that
Congress is unmanageable, but the fact of the matter is, when there is an obvious threat
to the United States, Congress can get its act together real quick. Right. And to the extent that Congress seems to be
unmanageable, maybe the problem isn’t the unmanageability of Congress, but the fact
that it’s not clear that there’s a vital American interest that’s at stake. Okay. Very good. Let’s go to our first question. If you could just announce your name and,
uh, and give your question. My name is Devin Watkins. Uh, my, uh, question is hypothetical to Mr.
McCarthy. Uh, if later today President Trump were to
go and attack North Korea without any kind of congressional authorization in advance,
would it be appropriate to impeach him for that? I guess it wou- it would depend on the intelligence
that… You mean if, if we didn’t know anything more
than we know now? Yes. Um, I, I don’t think I would be in favor of
impeaching him, but I, uh, I wouldn’t, I would think that it would be a, uh, be a colorable
argument. Okay. Thank you. Oh. Congressman Edwards, do you… Oh, he, he just asked. Oh, I’m sorry. Uh- but- but- yeah, uh- it’s- uh- it would
be, yes, it would be an impeachable offense. Uh, does that mean, you know, that the decision
should be made to impeach him? Uh, yeah, I don’t know. Uh, there’s, but, uh, if, yeah, it would definitely
be an impeachable offense. Next question, please. Um, hi, good afternoon. My name is Waley and I’m from William & Mary
Law School. I would like to ask about unconventional warfare,
that we know the form of warfare have been changed drastically over the past century. Um, today, we have a lot of warfare involving
different, like, drone strike, cyber-attack, disinformation campaign, uh, commercial conflict,
special operations that do not involve a large converge, converge of troop and the materials. Uh, my question to the panel is, when, how
should Congress to, uh, have more close weighing on those untraditional form of warfare and,
uh, where should the limits to be set to limit, uh, executive power, because a lot of those
decisions in those areas require very immediate and versatile response. And they can, they still, probably have, still
have the very disastrous consequences as conventional warfare and they can last a very long time. Thank you. Yes. Uh, my, m- my own view of it is that what
matters is the degree of threat to the United States. And I don’t understand, um, for example, uh,
the military con- concept of proportionality. I don’t, I don’t understand that to mean that
if you’re attacked in a cyber-attack that that means that your response has to be a
cyber response. I think if the, if the threat to the United
States is profound enough, um, it’s, it’s the job of Congress working together with
the executive branch, uh, to arrive at an appropriate response. And if it’s a profound-enough threat, I don’t
think it’s a rou- uh, that military force of any kind, proportionate or at least enough
to quell the threat, is something that should ever be off the table. Yeah, I, I would say that, you know, it’s
up to Congress to authorize, uh, the development of the program to, uh, to resist and to fund
it, uh, and perha- and to put limits on it. And outside of that, you know, up to the executive
branch to figure out the flesh, you know, how, how to, how to make it work. Hi, Chris Anthony. Um, hello, Andy and Mickey. Um, Andy, you talked about will of the people. Pardon me. You talked about the will of the people as
a, uh, a big, uh, factor as it should be for members of Congress to consider in and what
they do. Um, I’m particularly concerned about that
one. I think that, um, something like a quarter
of, uh, uh, those who voted in the last election on both sides voted for a socialist, someone
who, to my mind, along with Sharia, uh, believes in an, uh, ideology, more or less, that are,
uh, uh, that is one of the two, it is the greatest threat to Liberty everywhere. So, my question is a little broad and maybe
it isn’t exactly the focus of the talk, but I think it’s important. I, I, uh, like to hear both of your and Mickey’s
thoughts. What can we do so that, uh, in the place that
especially our young people first hear about history first year about economics that they’re
hearing the full story? They’re not called Islamophobes. If they look at, uh, what Sharia is, they’re,
they’re not called, uh, someone who’s, um, uh, uh, uh, an elitist who are focused on
their, on their own goodwill when they, when they talk about, uh, on my Mises or Hayek. What can we do? What can we do with school boards? What can we do with, uh, wealthy donors? What can we do with legislation here in Congress? Even though I, I don’t necessarily believe
in the Department of Education getting mixed up, but if that’s what we have, how can we
use money so that our young people understand the reality of the world that we don’t end
up having the will of the people not forcing members of Congress to do the right thing? Well, I, I think a lot of what you mentioned
is, uh, uh, upstream of, uh, of Congress and, and, uh, and the law. I mean, what, what you’re talking about are-
are cultural factors, and I always think that if you… Uh, the- the- the thing that we have the privilege
of in this country is to live in a country where we’re supposed to have full robust exchange
of ideas. And if you’re living in a society where the
law is dragging the culture along rather than vice-versa, you have a enormous problem. And what that ends up meaning is that, until
I can persuade people to my, to, to see things my way as a member of this political community,
I have to accept the fact that a lot of things will go on that I don’t like, and I have to
continue to try to, to fight and to persuade. Uh, but I also have to be realistic about
what it’s possible to achieve, and particularly what it’s possible to achieve through law. I don’t think that the culture can be changed
by laws that get enacted in Congress. And I think, you know, uh, this is after a
lot of (laughs) hard years with, uh, of, uh, thinking about this and, and maybe seeing
things differently when I was younger than I, than I do now. But I think the more people look to this city
to solve what’s wrong with the country, the more they’re looking in the wrong place, because
it’s the sort of thing that has to come from the, from the ground up. It’s not going to come from here. Yeah, uh, that’s right. I- and I would just add one thing to it. And that is, uh, uh, we have this little off-topic,
but, but we basically have turned our, uh, high schools, and colleges, and universities
into, uh, vo-tech schools, where, where they’re basically focused on how we, uh, uh, help
our young people learn how to get a job, which is an important part of it. Uh, but we, we don’t teach them critical thinking,
where they can, uh, look at various options and think critically about what their benefits
are, what the dangers are, and, and so forth. So, um, uh, if you believe your position is
right and we all think, each of us think our positions are right, you know, we should all
want a well-educated society capable of thinking critically and, and evaluating, uh, the arguments
they hear, uh, with confidence that when everybody thinks about it, they’ll come out thinking
just like I do. So, uh, I mean, I, I do think education is
an important part of it. But I do want to say, because I did hear,
you know, the example you used, I don’t think that, uh, it serves our country’s purpose,
uh, for us to try to have education systems that, um, propagandize, you know, into, you
know, to support, uh, of our particular point of view. Um, uh, I, I think socialism is a great policy
for people going broke and, and starving and, you know, uh, but, uh, I don’t know that we
should, you know, preclude people being exposed to the idea and able to, you know, evaluate
it. Uh, you know, it’s, uh, uh, important that
we maintain the essence of freedom, freedom of thought, you know, basic liberties that
are part of who, what distinguishes us from other countries. Hi. My name is April Artrip. My question is, uh, does the president have
authority under the Constitution to refuel Saudi warplanes bombing Yemen without congressional
author- uh, authorization? Doe- does he have the what? Um, authority under the Constitution? Uh, this go- I don’t, I don’t mean to go,
uh, lawyer here, but I, I always, when I hear these questions, I always think of the- the
distinction between power and authority. Yeah. Um, so, I, I would say he has the power but
not the authority. And the way I would look at it is as follows. I believe that if there is not a threat to
the United States, forget about imminent or, or, if there is not a threat to the United
States and the president wants to take military action because he believes it’s in American
interest, which implicitly you would think he would, that would be his thought process
if he’s president of the United States, then I think he needs authorization from Congress. And just putting my prosecutor hat back on,
um, for a second, if you aid and abet a principal in committing an act, you are treated under
the law, at least the, uh, uh, domestic criminal law, as if you were the principal. So, I don’t really see a big difference between,
um, aiding and abetting the Saudis and carrying out attacks or directly attacking that other
country ourselves. To me it, to me it’s the same thing and since
it’s removed from obvious American interest, it would require congressional authorization
to be authorized. But I wouldn’t argue that the president doesn’t
have the power to do with. He’s the commander-in-chief and, you know,
that if you, if you think he’s abused his power in a, in an unacceptable way, then you’re
talking about impeachment, really. There’s not, there’s not a lot, uh, you can
start by trying to cut off money and, uh, uh, you know, politically try to put pressure
on him to stop doing something that’s outside the Constitution. But if the president is hell-bent on doing
something that’s harmful and outside the Constitution, Congress’ ultimate way to rein in a president
is to, is to impeach him, which obviously is not something we’ve ever done. So …
Yeah. Uh, it’s also, well, we’ve impeached them. We haven’t convicted them. But I, but, but …
Mm-hmm. Um, yeah, we met with-
The same [crosstalk]… We, we have other ways on some-
(Laughs) Well, I have. But we, we have other ways on other things,
and then just to cut off funding for what presidents want to do, uh, and to do it in
a, in a threatening way. I mean, you, you can simply, uh, it doesn’t
have to be related to the issue. If you don’t have a way to interfere directly
with what the president is trying to do, you say fine, but we just cut off all the funds
for the executive office, you know. Have fun, you won’t have a salary, you’re
nobody or nobody. I mean, Congress has a lot of power, you know,
if it exercises it, you know. That would require kind of an extreme case,
uh, but the power of the purse is not, uh, a small thing. But, uh, there’s something in your question,
I don’t know what it was, that prompted this thought, which is probably unrelated to everything
else. But, but, but I think when, when you’re thinking
about making these kinds of decisions, you ought to remember that you’re making them
regard- on, on principle regardless of who’s in the White House, what power, what party
is in power. So, one of the issues, when, when I was in
Congress, this was funny, my party, Republican Party, fell in love with two concepts. The- the- they, I think that they preferred
these to even cure for cancer. I mean, it was everything. One was line-item veto and one was term limits. Uh, and, and I said, “Well, wow. Hey, those would be cool, right? Uh, does it bother you that they’re unconstitutional? Well, no.” Uh, you know, so the- the thing is, when I
was in Congress, we, we had overwhelming Democratic majorities in the House and the Senate and
we had a, a Republican president. So, we want to say, you know, line-item veto
give more power to the Republican president and would wi- and term limits would wipe out
all these Democrats. I said, here’s, what, what if, not, not much
of it, but what if someday a Democrat was elected president, then what? Uh, and of course, then came Bill Clinton. But, uh, so, I, I think we have to be really
careful when we think about these things, what’s the long-term principle and how will
it apply if it’s being used against us. Thank you. Okay. We’ve got a couple more questions and running
a little short on time, but we’ll try to get, get to all of them if we can. David Wagner. Um, one thing that may be causing problems
today in, in applying the Framers’ war clauses, and this is not my own idea, um, uh, uh, the
Framers had read their Grotius and their Pufendorf, and so on. And they may have thought of war as not so
much kinetic operations on the field, but rather as a legal status between states. And that’s why it’s in Article I, the law
making section. And once the, uh, once that path, once the
relationship between states is defined, between two states is defined as one of war, all kinds
of consequences follow from that. The president can get kinetic with them. Uh, their ships are subject to seizure as
prize, all kinds of things. Uh, we don’t make more with states so much,
uh, anymore. In 1941, we had that declaration where with
war with the Germ- with the Jap, Empire of Japan, or war with the German Reich, um, and
there should have been one for Korea. But since then, it’s been what, the Vietcong,
the, uh, Al-Qaeda. Uh, we don’t live s- so much in an era of,
um, of, uh, wars, of wars against states. And, uh, Iraq, but that, you know, Congress
opted, uh, in a case where it had in its hands the power to define a relationship of war
between us and the state to instead give a very broad authorization, use military force
that covered a lot more than just Iraq. Um, uh, I hate to think that if war powers,
the, uh, the way Congress defined them aren’t applicable today. I always want to apply the Constitution as
written, come what may, but is this a problem? Well, you know, look, you have a situation
where you have an authorization for military force in 2001 that’s still being used as a,
as a rationale for, for carrying out military operations under circumstances as, as we discussed
before where some of the combatants that’s being used against didn’t exist at the time
that the- the AUMF was enacted. And in fact, uh, even though I don’t think
we regard Al-Qaeda as an ally, it’s a fact of life that they are allied with, with, uh,
uh, with factions that we’re supporting. So, to my mind, tha- that’s, uh, a classic
example that if Congress doesn’t assert itself and use its Article I. One of the most important parts of this power
that Congress has exactly as you’re describing to, to set these legal arrangements is, Congress
gets to say who the combatants are and who the laws and customs of war apply to. Uh, and if that, uh, if that’s something that’s
not done and you then decide that you, you know, you, you, you start out from the premise
that you’re at war on terror, which is not an enemy, it’s a method, right, um, uh, you’re,
you’re asking for, you know, confusion and, and conflict and, uh, a lot of the problems
that we’ve had the last 15, 16 years. Yeah. Militarily, I, I think that’s, I mean, I’m
aware that the, uh, uh, war, the word ‘war’, uh, originally, would impute, uh, all kinds
of other things that flow from it. But I think that that’s a distinction without
a difference. Uh, you know, the, uh, uh, the war power includes
engagement with an enemy, you know, uh, uh, a conflict. And, and that whether we are going to do that,
whether we’re going to engage an enemy, uh, militarily is, uh, is a congressional power. And, uh, so the fact that the, the word ‘war’
includes several other things attended to, uh, a lot of which including seizing property,
uh, is all in the Constitution and just, and those are all, you know, management of the
military, uh, who decides to who, who can be an admiral or a general, who decides what
to do with confiscated property in, in a military conflict. All of those are congressional powers. A president really has to scour hard to find
something, except that, you know, if he wants to wear a uniform because he’s commander-in-chief,
you know, he can wear a uniform like they do in some other countries and have stars
on the shoulder. And he’d have five, he’d have six stars, you
know, because without rank, a five-star general. But outside of that, I mean, uh, that, whether
you call it a war or, uh, authorization to use military force, you know, that, that’s
a legislative power, clearly. Hello. Um, my name is Avram Reisman. Uh, I work for an organization called Just
Foreign Policy. Um, I was originally going to ask about the
Saudi refueling, but given that that was asked, I have an additional question, which is, uh,
should the Congress have to authorize offensive use of nuclear weapons? Um, you know, should the president have the
ability to use, uh, effectively, should there be a no first-use policy as a law? I, I believe in, uh, under the Constitution,
I believe that, uh, I believe in congressional war powers and I believe in presidential war
powers. Uh, congressional war powers are to declare
war and set the parameters for the conflict. I think it’s up to the president to prosecute
the war once Congress has declared war. And I, I don’t favor any inhibitions in that
regard. Yeah. Uh, it becomes a difficult question if, for
example, if, uh, this, uh, limitation had been in place in World War II, uh, and would
have, um, uh, not allowed Harry Truman to use atomic bomb, an atomic bomb, two. Um, and that’s a very debatable point about
that, but there, there would have been, you know, many, tens of thousands of Americans
killed on the landing beaches in Japan. So, um, you know, I, I’m, I’m inclined to
think that when, when the Congress has declared that yes, we’re go- we’re in conflict and
we’re, we’re fighting this way. Unless they specifically put a limitation,
no, we will not have that, uh, then it is the president’s job to decide the tactics,
strategies and, and weaponry. Thank you. Hi. This microphone thinks I’m taller than I am. (Laughs)
Um, hi. I’m Kelsey Matters. Thank you for speaking with us today. Um, I wanted to ask you what your thoughts
were on Senator Franken’s 2011 Pay for War bill. At the time it was introduced, it was a real
problem and still is that. Um, though Congress has the power of the purse
strings, many wars are what some people would say put on a credit card through emergency
spending bills and international loans. This, um, bill allowed any expenditures outside
of day to day, of the day-to-day defense budget for a new war to be paid for, and they couldn’t
be paid for without increasing the on-budget deficit. And it allowed for a waiver in case of emergencies,
and, um, current wars were exempted from it so that the operations would not be disrupted. Um, and the idea of this bill was to encourage
the American people to feel further incentivized to speak with their elected officials on their
feelings about wars, by making them both more financially responsible for wars, in addition
to personally responsible through their, through their connections with veterans. Um, and then, the idea was that they’d become
more involved in the congressional deliberation process, and furthermore that this congressional
deliberation process would therefore then have to be more transparent and open so that
the power of the purse strings would once again become something a little more meaningful
to the overall, um, conduct, conduct of wars in the United States. So, my question is, what type of impacts do
you feel that legislation like this would have on the executive and legislative war
powers, and do you think it would significantly impact Americans’, um, support for wars, which
you discussed, was so important to their success? Uh, I’m in favor of anything that is reflective
of Congress using its power of the purse in the military context and doing it in a way
that’s transparent. Um, I’m not smart enough to figure out like
what all the unintended consequences that, you know, if we do this, then someone will
think this, and then they’ll be more responsible in this way. Um, but I do think to the extent that you
have, that you propose legislation that makes it clear what it’s costing us to, to fight
in these conflicts, it makes it much more likely, or at least more likely, depending
on how effective the- the measure is, um, that military force is going to be used only
for vital American interest. And my own personal view is that that’s what
it’s, what it should only be used for. Uh, I, you know, gosh, I, I hate to have any
disagreement with Al Franken because he’s the giant of the Senate, uh, as I… (Laughter)
Um, well, I think there are several factors. Uh, one is, I think war is one of those circumstances
where real people get killed. And I don’t think we should be making our
decisions about whether to go to war or not because of what it’s going to cost. Uh, if, if it is something that, that is a
matter of you, you should not go to war unless that’s something that’s really important,
you know, uh, un- and non-debatable almost, uh, national interest. You don’t go to war willy-nilly. And if it’s a war that you would not go to,
if it cost too much, then you shouldn’t be going to that, into, in a war at all. I also don’t like the idea of one Congress,
you know, tying the hands of a future Congress. The whole idea is that you are able to sit
down, deliberate with the circumstances that you have at the moment. So, I mean, I have no problem with saying,
we want to know, as we do this, what it costs, what do we anticipate the cost would be. But that, that should not have any bearing
on whether you decide to go to war or not. You see, I don’t, I don’t know that I’d, uh,
uh, agree with that. I think that how much it costs is part of
the equation of what your interests are. Uh, I’m not saying it’s the dispositive one,
but I, but I do think it’s a factor. And, you know, we are in the business of weighing
whether a particular interest is important enough to go to war over. And since there are a number of considerations
that go into that, I don’t, I don’t see that the financial one shouldn’t be one of them. Okay. We are running real short on time, but let’s
try to squeeze it in if we can, please. Please go ahead quickly. Uh, hi. I’m Louis Laverone. I’m an attorney with the Financial Integrity
Network. Um, I want to do a revisit, two examples that
have come up a couple of times over the course of this discussion with the, uh, entering
of the Korean War and the War Powers Resolution, uh, to try to use those, we tie together,
sort of an underlying question we haven’t directly addressed yet, which is, uh, while
Congress has a power under Article 1 to declare war, we haven’t really discussed whether there
are any limitations or requirements on the form and content of a declaration of war. Um, so, using those two examples, could you
briefly explain what exactly, uh, a declaration of war actually has to contain or cannot contain? For example, uh, why were those two examples
unconstitutional as- even though there was, um, uh, with the War Powers Resolution, that
sort of blanket authorization limited by time to use, um, use the Armed Forces? And in the case of the Korean War, uh, the
UN Participation Act contains a section that does authorize the president to carry out,
uh, UN Security Council resolutions. Uh, and I’ll leave it at that. Um, to my mind, uh- a- an authorization for
military force, the- the declaration of war, there’s no, you know, talismanic, uh, formulation. Authorization of military force is fine. And to me, it’s like other congressional legislation,
which is to say, you cannot, by legislation, uh, trip the president’s powers. So, I don’t think you could have, for example,
a declaration of war that told the president how to prosecute the war, because that would
be a usurpation of the, of the commander-in-chief powers. Um, but short of something like that, um,
I don’t, I don’t know that, uh, I don’t believe there are any limitations on what Congress
can do. Uh, I, I agree on both points. One, one is that, uh, uh, that Congress has
the authority to decide whether or not we’re going to engage in conflict. Uh, I think AUMF wa- it was a perfectly fine
way to do it. I, I don’t think it means that you have to
use these specific words. Uh, it’s a power. It’s an on- you know, it’s not a, it’s not
an English test, you know, the, and then the other. And, but then on, uh, uh, the, the Korean
War, um, a treaty that violates the Constitution, that provision of it is unconstitutional. The United Nations, and no, no treaty, no
president, you know, no one can sign and no, uh, Senate can approve a treaty that is in
violation of provisions of the Constitution. It could violate statutes, but, but the Constitution
is our supreme law. So, if, uh, the, there’s absolutely no grounds
that you can think of, uh, in my mind, uh, that would say that a UN treaty, you know,
gives the president the authority. So, so, we’ve had, uh, something, the- the
Swiss and the French and the- the Belgians and everybody all come together and say yes,
you can go to war. And so, uh, we’re going to send our people
to go get killed. I mean, let’s not forget, war ain’t a game. Those are body bags and we don’t leave that
to other people to decide whether we’re going to do that. Thank you very much. Okay. Hopefully, it’s a yes or no question, (laughter)
but you’ve waited very patiently. So… Yeah. Please go ahead. Uh, uh, Connor White from Congressman Warren
Davidson’s office. Uh, what role do the courts play in all this
with term- in terms of, uh, both power and authority to get involved? Uh, and just, they seem to have more political
capital than we seem to have acknowledged tonight, er today. And, and also, if you would maybe offer your
concluding thoughts, that would be great. Oh, sure. Um, well, let me, uh, the, um, I’m glad to
get the question about the courts, because, um, if you would ask the question a little
over a decade ago, the answer would be probably very different than it is today. Um, you know, Justice Jackson wrote a decision,
uh, in a case called, I think, Chicago and Southern, I thi- in, uh, around 1944-1946,
uh, it escapes me. But it’s one of the best articulations of
what the Framers had in mind in, uh, distrib- the distribution of, of power in different
areas of, of the Constitution. And what he pointed out was that- the- um,
the most important decisions that a body politic makes are decisions about its national security. So that in our system, those decisions are
supposed to be made by the political actors who are accountable to the people whose lives
are at stake. So, for that reason, they’re not judicial
decisions, as, as he pointed out, not just because there’s nothing about being a lawyer,
even a judge, that gives you institutional competence in, uh, areas that are relevant
to, to war-making, but also because our basic system is supposed to be that, that these
decisions get made by Congress and the president because they answer to the people whose lives
are at stake. Uh, and for that, uh, for that reason, I think,
for a very long time, and wisely so, uh, there was no real judicial role. Um, things are different now because we’re
involved in a different kind of conflict, um, so that even though we have an e- an enemy
in Al-Qaeda, for example, that attacked us in a way that foreign sovereigns were never
able to attack us on the homeland, um, at least, the continental homeland, um, uh, I,
I think it’s kind of an admirable thing about the American people that even the logic says
terrorists who attack civilian population should have less rights. Um, we always want to make sure that we got
the right people, and because terrorists, unless you catch them in the act, present
as if they were ordinary civilians and not combatants, um, we’ve layered onto this war
an unprecedented amount of due process for enemy combatants. To my mind, it’s gone way too far. I mean, when you get to the point where in
the Boumediene case, they say that enemy combatants have constitutional habeas corpus rights. So that what you’re essentially saying is
that the Constitution is a weapon that the enemy can use against the United States, that
you can bring the people who prosecute war in our system, the enemy can bring those,
those people into our courts. Um, uh, to me that’s, that’s gone way too
far. I’m okay. I wasn’t at the beginning, but I’m okay with
the idea because it’s a, uh, it’s a political reality. The public wants to make sure that we’re holding
the right people. So, I’m okay with the idea of, you know, there’s
a modicum of due process that, that’s allowed in order to make an evaluation about whether
somebody actually qualifies as an enemy combatant. But if it gets to courts like ordering the
president to release people or it gets the courts telling Congress after, after the court
has invited Congress to come in and make a system for detention and trial, uh, Congress
actually does that at the court’s behest, and then the court comes back and says not
good enough, I think it’s gone way too far. I just had the thought that, uh, you know,
habeas corpus, uh, is, uh, is a fundamental constitutional principle, uh, and it is something
that our government does and does not do. And then, under the Constitution, the- the
right to habeas corpus, you know, uh, is fundamental. Uh, uh, the United States, you know, may,
I don’t know how many of you believe in American exceptionalism, but I do. Uh, I think we are different. Uh, we don’t, we don’t lock people up and
hold them forever without knowing that they’re guilty. We, we just don’t do that. Uh, and one of the things that’s happened
in this so-called war on terror is that we have been- become very good at, at capturing
and locking up and punishing, uh, people who have committed war against us, and also locking
up and holding people that we don’t know were committing war against us, you know, because
we, you know, it was, they were there. Uh, and we, we have to be really careful. You know, it’s too easy, it is too tempting
to say that our constitutional principles are, they’re kind of inconvenient at times. And, uh, we just have to be real careful that
we don’t just say, well, we, well, let’s give them up, let’s become, you know, any other
country, you know, do it. You know, we, we’ve seen them do it, why don’t
we do it. Uh, and, and I’m bothered by that. I, I grew up believing this country is different,
it- and its rules are different, its principles are different, its values are different. Uh, and, uh, uh, I, I’m just really reluctant. Uh, I, I would much rather let, uh, one guilty
person go free than have somebody who did not get a crime, commit a crime be punished. Uh, and I just think, you know, some of those
fundamental principles are, are important to remember, you know. It would be too easy to follow the path of
all these other countries and we could start naming them, and I won’t, but I mean other
countries that, that, you know, to ensure that whatever they were trying to ensure,
you know, could just simply set aside the rules. And, and, uh, we can’t do that. Okay. Very good. I think we’ll have to leave it there. Thank you, gentlemen, for a wonderful discussion. Uh, if you’d like …
(Applause) Uh, lastly, if you’d like to learn more about
the Article 1 Initiative, please visit our website, FedSoc.org/articlei. We’ve got new papers out in the Harvard Journal
of Law and Public Policy and we’ve also launched a podcast called Necessary and Proper, available
on Google, uh, Play and iTunes. Thank you all for coming.

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