Does the President Have the Power to Start a War? (41:44)

War has long been the subject of vigorous debate. The United States Constitution gives Congress the power to declare war and appoints the president as commander-in-chief of the military. When it comes to war, who holds the power to ultimately decide the actions of the United States? Gene Healy, vice president at the Cato Institute; David B. Rivkin Jr., partner at BakerHostetler; and Margaret L. Taylor, governance studies fellow at the Brookings Institution will discuss in this episode: does the president have the power to start a war?

Join the conversation across social media with #Sphere.


Caleb O. Brown: War has long been the subject of vigorous debate. The U.S. Constitution gives Congress the power to declare war and appoints the president as Commander in Chief of the military. So, when it comes to war, who holds the power to ultimately decide the actions of the United States?

President Trump: At my direction, the United States military launched a flawless precision strike that killed the world’s number one terrorist.

News Anchor: It is becoming clear as the night has gone on is that the senior leadership of Congress was not notified in advance of this killing.

Elizabeth Warren: Why does he pick now to take this highly inflammatory, highly dangerous action that moves us closer to war?

Fox News Interviewee: The killing of Soleimani seems so eminently in the national security interest of the United States.

Caleb O. Brown: If Americans can agree on nothing else, we should be able to agree that the tone driving much of our political discussion is unhealthy for our country. In order to debate contentious public policy issues in a respectful and engaging manner, the Cato Institute, in collaboration with the Brookings Institution, present Sphere. In this episode: Does the president have the power to start a war? George Washington famously wrote of war: “My first wish, is to see this plague to mankind banished from the Earth.” General Sherman put it more simply: “War is hell.” Joining us today: Gene Healy, a vice president at the Cato Institute, constitutional lawyer David Rivkin, and Margaret Taylor, governance studies fellow at the Brookings Institution. We’re going to go in depth into each of your views, but I want to start with an answer to the general question: Does the president have the power to start a war? Gene.

Gene Healy: Well, if the question is in terms of raw power, does the president have the power to start a war, can he get away with it, then I think clearly the answer is yes, unfortunately. If Donald Trump were to wake up in a bad mood tomorrow morning and order up some air strikes on North Korea or Iran, the military would obey those orders and no doubt the missiles would fly and we’d have to deal with the consequences. But I think of the debate resolution more in terms of does the Constitution give the president a right to start a war? And there I think the answer is clearly no. Where would he derive that power? He clearly doesn’t get it from the Commander in Chief role. As Hamilton explained in The Federalist, that meant no more than that the president was the first general and admiral of U.S. military forces. And generals and admirals are important, but they don’t have the legal right to start wars. The framers spoke of the president’s independent war powers absent an authorization from Congress in terms of repelling sudden attacks, not launching them. And they viewed the declare war clause as a serious limit, not a formality, not simply a formal proclamation of the existence of war, but as a genuine limit. As James Wilson told the Pennsylvania ratifying convention, that clause meant that this system would not hurry us into war. It wasn’t going to be in the power of a single man to do that because of this – the important power of declaring war was vested in the Legislature. And we’ve drifted dangerously far from that system, particularly in recent years. We are – we now live in a regime where we’re bombing half a dozen countries on a regular basis, we are embroiled in a couple of generation, nearly generation-long wars, and we have a situation where the president, on his own recognizance, can decide to take out a hit on senior figures of other foreign governments. It seems to me that’s a very dangerous situation, and this system, unlike the system the framers described, will not hurry us into peace.

David B. Rivkin Jr.: I disagree. The Constitution actually provides for a very different division of powers between the two political branches. I don’t like the word start because it implies that the president is somehow using force in an offensive mode. I would stipulate that for a variety of reasons we can discuss a bit later on, the president was to initiate an offensive war that may well require declaration of war from Congress. But in any situation where the president feels that American interests are in danger – does not have to be in imminent danger – in fact, he is using the force either in the preventive or preemptive mode, he can do so. That stems from his power as a Commander in Chief and chief executive. The framers, by the way, contemplating giving the power to make war to the Legislature. They rejected it pretty quickly, and not surprisingly, given the utterly disastrous experience they had during the Revolutionary War. Wars do not get run well by the committee. So, what does Congress have? Congress of course has the power to declare war. The power to declare war is not a formality. It’s a very consequential power. But is all the power to change legal relationships, to change legal relationships at the international level, in terms of the rights of neutrals, the rights of belligerents, and in terms of relationship between the government and the people domestically. So, it’s a formidable power, but has nothing to do with the use of force. The framers believed is that the way in which Congress can limit the president’s ability to use force, perhaps not wisely, perhaps not judiciously, but legally, is by controlling the size of the military establishment. The framers never expected that we would have a standing army or a standing navy. That did not hold, and we so do have a standing army and a standing navy. That does not mean that Congress is incapable of restraining the president from using force, but it has to do that in an affirmative fashion, which is the way old checks and balances work from a standpoint of accountability, which means paying a political price when you flex your constitutional muscle. So, what Congress can do, and has done from time to time, that’s how the Vietnam War was brought to an end, or should say the war ended in China because it didn’t just entail Vietnam, you need to pass an appropriations rider, which says no penny, no dollar shall be spent for a particular type of a military engagement. Failing to do that, if Congress does not do that, it cannot do anything to restrain the president. That is clearly demonstrated again by their experience in the Constitutional Convention then ratification, the constitutional language that distinguishes again between the power to declare war and make war. And let me just mention one thing. It’s very important to distinguish between framers’ aspirations and hopes, what they actually created. And the framers certainly hoped, had a different attitude towards warfare as a young republic. That’s not how things evolved in the international arena and domestically, but it does not mean we get to rewrite the Constitution.

Margaret L. Taylor: So, I think I share Gene’s view that really the real answer to the question at this particular moment in time is yes, the president does have the power. I think a more useful way to frame it is how both of you have framed it, which is what – how does the Constitution separate out the war powers as between the executive branch and the legislative branch? What did the Founding Fathers intend when they were putting us together? What were they concerned with at the time? And also, how is practice, the practical practice of what our presidents have done over time inform where we are now? I think the real question is, are we as Americans okay with where we are now? Or do we want to change that balance of power? Because I agree right now that power is very much vested in the president as a practical matter. And I just would say, you know, of course we talk a lot about the Founding Fathers, just to give a little bit more of a history, this, of course, was an extremely important issue to the founders. And as you I think said, David, initially, the idea that the founders debated was putting all of the war – the power to make war into the legislative branch. And there was one delegate from South Carolina who stepped forward and said I have a problem with that. I think that doesn’t give the executive branch enough flexibility to respond to the type of attack that could be upon the United States. And it was Madison, actually, who, with some other delegates, came up with a compromise. Instead of giving the Legislature the power to make war, they changed it to the power to declare war. And my understanding of the reading of history is what they had in mind there is it was very hard for members of Congress to come and meet, and so there could be an instance where the country was attacked, the president would need to respond, and there wouldn’t be enough time for all of the members of Congress to come discuss the issue, debate it, and make a decision to declare or make war. So that was the type of situation that the founders, in my understanding, had in mind when they made that last-minute change to the Article I, Section 8 of the Constitution, which gives the Congress the power to declare war. Now, in the post-World War II era, what we have seen is presidents really taking a lot of that, of the executive power, war power, and really flexing it and the Legislature really ceding its power to the president. And that’s something that, you know, it’s been a contested issue for many, many decades. The question now is, you know, how do we want to approach it going forward? I share Gene’s view that I would like to see the Congress, the Legislature be held accountable for when the country does use force and go to war. I think as representatives of the people, their best position to weigh in on what their constituents want, and so I do think that this power should be shared as among the executive branch and the legislative branch. That is what the founders intended and that is the best – that’s how we get the best outcome for the United States in a constitutional democracy.

Gene Healy: I would just also say that no framer, no prominent figure from the founding generation, when they talked about what the power to declare war meant used it in the narrow sense of changing relationships and international and domestic law, they talked about it in terms of a genuine restraint on presidential power. So, Madison says, you know, in no part of the Constitution is more wisdom to be found than in the clause that gives Congress the power to declare war. Jefferson spoke about it as not just a means of changing legal relationships, but a means of chaining the dog of war because it had given the legislative body the power to let that onslaught loose. So, you also will find no early president, even in situations where the United States has had acts of war committed against it, claiming the right to take the war to the enemy and to wage full-scale war without Congress. So, it seems clear to me that it goes far beyond, the original understanding of the declare war clause goes beyond the formal proclamation of war under international law.

David B. Rivkin Jr.: It’s not true. What declare war means was well elucidated by the contemporary writers. The framers clearly believed that A, United States would not have a permanent military establishment, A, and B, that United States separated from Europe by a large ocean, aside from rare episodes of some unpleasantness with Canada, which there were British dominion would not experience attacks. Therefore, if you wanted to use force in an offensive fashion, of course you need congressional blessing. That’s not how the international environment has turned out. But I would suggest to you, respectfully, the way you construe constitutional terms is not directly shaped by the change in external environment. For example, we now have lots and lots of new means of surveillance, including thermo-imagery. It does not mean that it’s not subject to the same Fourth Amendment that the old-fashioned searches are. So, just because we now live in a world where American interests are challenged daily, weekly, monthly, where acts of war are committed against our interests, that the constitutional language does not apply. And my last point is I agree with Margaret. Congress can stop the president from using force in almost all circumstances, pass the appropriations rider, and pay a price for it. What Congress cannot do is sit on its hands and incapacitate the president.

Caleb O. Brown: Margaret, do you want to jump in on this?

Margaret L. Taylor: Well, I just would say, you know, of course it’s important to discuss what we think the founder’s intentions were. I think it’s also important, as David says, you know, let’s go be more fundamental about it. What is the proper separation of these powers? And what is the proper sharing of these powers? What do we want to see today? I personally find it valuable to be informed by how our Founding Fathers spoke about these things. Abraham Lincoln, also early on in his career, said, you know, he thought what the declaration of war clause meant in the Constitution, why the founders did it, he said, you know, they had in their minds the monarch who could take their subjects to war and impoverish their subjects, and were eager to go to war, and would tell the people it was for the common good when in reality it wasn’t. And so, Abraham Lincoln said that’s why the founders split up these powers. So, I think it’s important that these powers are split up. And again, you know, the question is yes, we have a whole history here in our country of how these powers have been treated by presidents, different presidents doing different things, but most of them accreting power to themselves. And the question is how do we want to structure it going forward?

Caleb O. Brown: Margaret, how have you seen these authorizations for the use of military force from Congress? How have they been executed? How do they work in real life?

Margaret L. Taylor: So, as you both know, the last authorization for use of military force that passed as an authorization was in 2002 when George W. Bush prosecuted the war in Iraq. And I want to just pause on this for a minute because I think we are living with the legacy of that process that was undergone in getting, obtaining that authorization for use of military force from the Congress, and the problem that – what happened was the information that was given to the Congress about there being weapons of mass destruction in Iraq was not accurate information. It was false information. And so, what, you know, it’s problematic, I think, because it will now be more and more difficult to get authorizations for use of military force, to get congressmen and women to agree to authorizations for use of military force, because they were burned by – everyone who voted for that authorization in Iraq got burned by it. There were no weapons of mass destruction. It ended up being an incredibly expensive war, we are arguably still in it. So, we are living with the legacy of the 2002 AUMF now. I personally worked on two AUMFs to try to get them through the Congress, through the Senate. I did manage to get two of them through committee, the Senate Foreign Relations Committee in 2013 and 2014, however, neither of those resolutions were taken up by the full Senate for various reasons. The first one, the Syria AUMF because there was consensus that it actually would not have passed the Senate. And that was an authorization for use of military force that would have responded to Assad’s use of chemical weapons in Syria. So, there actually wasn’t sufficient support in Congress to pass an authorization for use of military force for the president to retaliate basically against Assad for the use of chemical weapons, and at the time – I actually favor the use of force for those purposes. In looking back on it now, what I see it as is the Congress was essentially on a bipartisan basis saying no, we’re not going to give the president the authority to do this. So, I see in that instance the separation of powers actually kind of working and sending a signal about what the Congress really wanted.

Caleb O. Brown: Your thoughts, David?

David B. Rivkin Jr.: I actually agree with Margaret’s recitation of history, but you perhaps inadvertently made an argument of why Congress is not a very good partner here. Let me defend George W. Bush for a second. It was not fake news. It was a genuine mistake, shared by all intelligence services about operational WMDs. But in general, the way things work is the Congress that passes legislation that consists of detailed or generic instructions about how you tackle things, is utterly ill-suited for exigencies of foreign policy, particularly warfare. That’s why, not to get into political history here, that’s why people like Machiavelli, and Leo Strauss, and Harvey Mansfield have written about the need for executive power being able to deal with evolving and changing threats. So, I feel congressional pain. I’m not being, you know, snarky about it, but Congress is just not very good at it. That’s why you need to delegate to the executive. That’s why – now, it doesn’t mean that Congress cannot provide some additional political validation like authorization to use force. Congress runs for cover often, as it had done with Vietnam. But don’t you think that Congress is ill-suited to participate in operational uses of force?

Margaret L. Taylor: Operationally, I think there’s a big discussion to be had there, but the decision to use force, the decision to go to war absolutely should be, there should be congressional voice in there. Like it or not, you know, members of Congress do represent their constituents, and they were designed in the Constitution to come together and help manage this government, including on foreign policy and particularly on the use of force. So, I just disagree.

David B. Rivkin Jr.: But you just made an argument that Congress was lied to, and therefore they felt kind of burned, and my point to you this is the realities of warfare. This is the realities of intelligence gathering in the modern world.

Margaret L. Taylor: Well, my point is that the executive branch and the president need to be very transparent and very honest whenever there is a question, and very clear, so that the American people can actually have a conversation among themselves and with their representatives in Congress about whether to go to war or not. This question, you know, the question of sending sons and daughters into war is the most important question. Every representative of our government needs to be open, honest, thorough, and really debate the question as opposed to sort of deferring to one person, the president.

Caleb O. Brown: All right, Gene, let me add something to this conversation. With respect to the Soleimani strike specifically, Margaret, you alluded to how open, relatively transparent our officials ought to be when it comes to many of these decisions. With specific respect to the Soleimani strike, we don’t know the legal rationale and, apparently, we are not allowed to know. Is that a fair characterization?

Gene Healy: Well, no. We do now. The administration took its time about making an actual formal legal argument. The original war powers notification, including that legal argument, was classified. Now we have an open legal argument. They actually – it was strange they went to – they gave their rationale to the UN before they gave it publicly to the American people, which is sort of strange for a self-styled America first president. Maybe a more contemporary example of what Margaret’s talking about I think is this very episode where the Trump administration spent several weeks, I would say clearly lying about whether the strike was carried out in order to avert an imminent attack. They went from Pompeo saying that dozens if not hundreds of Americans would be killed, but we don’t know where, we don’t know when. Donald Trump told Laura Ingraham that four U.S. embassies were under threat and his, you know, his defense secretaries on the Sunday shows and says he didn’t get the intel memo. And it turns out when we finally do get the rationale, it relies on imminence not at all. So, I think there certainly is a lot of reason to distrust this administration as well as past administrations on rationales for war, and it wouldn’t be surprising in a situation where an AUMF might be needed, Congress wouldn’t be particularly forthcoming.

Caleb O. Brown: Alright, David, you’re shaking your head.

David B. Rivkin Jr.: Because I think it proves again the reverse. Look, sausage making is – it looks tame in comparison with intelligence policy development, threat assessment, development, et cetera, et cetera. I would say, and I’m glad, Gene, again not to be snarky, I’m glad you speak with such competence at how strong intelligence stream was about imminent attacks. I don’t have classified information anymore. I don’t know how it is. It is possible there are disputes about it. But the problem is – but you don’t need to have an imminent threat. So, what we have now, unfortunately, is politicians who over-egg the pudding a little bit to try to carry favor the public, shouldn’t have, but everybody does it. Members of Congress do it, too. And you are using this as an example as to why what the executive says cannot be trusted. I equally distrust what is being said by the politicians in Congress. The bottom line is precisely because of variability in the threats, all the uncertainties. If you have a strong enough case, they have a person who has attacked American targets, there is no expiration date on that under either international or constitutional law. He was a perfectly legitimate target. He waged war against the United States. The fact it was a government official of another country, so what? I’ve been criticized for years when I talked about waging war against unlawful enemy combatants, saying we should not wage war, they are private people, or they are criminals. Here is an official of Iran who waged war against the United States, and we cannot take him out? That is absurd. As a legal matter, as a practical matter, all of the horrible scenarios that have been painted by the critics have not materialized. The Iranians have pulled their tail in. They are scared. Because they are weak.

Gene Healy: Donald Trump tweeted out so far, so good. But I would be shocked if you were willing to apply this principle, extend this principle to any other country. For example, we heard a lot during the impeachment debate about Javelin missiles that we are providing to the Ukraine. They are Russian tank killers. They will kill Russians. Okay, if they kill a lot of Russians, does Vladimir Putin get to slip a nerve agent to Gina Haspel, our top NATO general? And if he did, would we say, well, he had a lot of Russian blood on his hands, so you know, you kind of see we had it coming, or would we consider it a declaration of war?

David B. Rivkin Jr.: Look we’ve been at war with Iran for years. We just finally stepped up to the plate. They’ve been at war with us. If you ask me as a lawyer, both international law wise and constitutional law wise, is killing Soleimani an act of war, yes. But they have been at war with us. So, what’s the big deal?

Caleb O. Brown: Margaret.

Margaret L. Taylor: So, the big deal is that, you know, I think Americans do not want to be embroiled in a war with Iran in the Middle East as a general matter. The problem with the Soleimani strike, in my opinion, is that the consequences of that was unknown. And what I think people in Congress and Americans that I talked to were concerned about is does this action take us into a broader war with Iran? And, you know, my sense is that Americans do not want that. And I think that is what motivated these resolutions coming out of Congress, was people saying we don’t want this to escalate. We don’t want to be in another war in the Middle East.

David B. Rivkin Jr.: But, Margaret, you remember this old expression often you don’t find war, war finds you. Did we attack somebody on 9/11? War came to us. We live in a world where the reason you strike overseas is to make it less likely that the war would come to us and kill thousands and dozens of thousands of Americans. I don’t want to sound modelling, but the judgments involved are pragmatic judgments, which are utterly ill-suited for congressional discernment.

Caleb O. Brown: David, to you. Is there a distinction to be drawn here between Congress appropriating money to fund U.S. defense and Congress appropriating money to fund the president’s prerogative to start war?

David B. Rivkin Jr.: No. I think the reason Congress appropriates money for our defense forces, for armed forces, is because they realize that in today’s world, we need strong military. Congress, again, can on a sort of a – not on a whole – not to fund the military would deprive us ability to defend ourselves on a wholesale basis. Nobody would do it, even the biggest passivist in the book. They can do it on a retail basis. Look, if Congress wants to pass a statute which says, subject of president’s veto, no money shall be spent on any use of military force against Iran, I will probably support it as being constitutional, but they will never do it because they’re too cowardly for that. Because if we do that and there is another 9/11 with Iranian fingerprints on it, they are going to lose their jobs. And that underscores my point. You have to take the institutions as you find them.

Gene Healy: That does show you how upside down the original allocation of war powers has been turned, however. The president has the first mover advantage now, particularly under a theory that says if Congress funds an army, he can use that army as he chooses. The president, and it’s up to Congress to you know, muster a veto proof majority with all the obstacles that stand in – that were supposed to stand in the way of hasty action now being placed in the way of an effort to stop a war. I would also say that it doesn’t seem to me that, you know, you can say this is a dangerous world, but the executive having a free hand tends to generate its own threats.

Margaret L. Taylor: And I also would say it’s a different proposition to say is this the right circumstance to go to war before you’ve gone to war? Because once the president has gone to war, that’s when it is much more difficult for the Congress to say, oh, no, no, no, no. Stop that, once it has already started. So, I agree with Gene. I think this has been turned on its head largely, and that the right structure should be that the president should be consulting with the Congress, getting an authorization for the use of force, and just sharing the power. Sharing the power as it was, in my opinion, originally intended to be shared.

Caleb O. Brown: All right, we’re going to take a question from our audience.

Audience Member 1: So, my question is how much can executive power and privilege play into non-militaristic warfare such as cyber or economic warfare?

David B. Rivkin Jr.: Well, I happen to think that there is nothing unique about cyberwarfare. It can be deployed by the president. The same congressionally driven appropriation riders could be useful. As far as economic warfare, it’s kind of a poetic term, but Congress actually has far greater ability to regulate economic intercourse of foreign countries on their commerce power, so this is one area where Congress holds the upper sway.

Margaret L. Taylor: Although I would say, you know, with respect to economic sanctions, typically the power under which presidents use economic sanctions is the International Emergency Economic Powers Act, which actually has delegated quite a bit and vast powers actually to the president. And so I think there is a question there of, you know, Congress saying, okay we, you know, we gave the president this really broad authorization, relooking at that and saying okay, you know what are the types of powers we’d like to get back here in the Congress? Do we think this power is being abused by the president? And really giving that a good look. And actually, there is sort of a movement right now, a small movement, in Congress to look at some of those delegations of emergency powers to the president to see, you know, does it make sense to give the president this much power?

Caleb O. Brown: All right, we’re going to have another question from a member of our audience.

Audience Member 2: Should preemptive strikes count as repelling an attack?

David B. Rivkin Jr.: Of course. Under international law, both customary international law and proper interpretation of Article 51 of the UN charter, preemptive defense is defense. Preventive defense, well, preventive defense as enough of a defense gives room for some serious debates. But I wanted to emphasize the problem because to sort of marry together the threat assessment and the institutional capacities, I guess, the framers didn’t just divide the power for the sake of dividing power. They divided power in a way that plays well to particular strengths of a given institution. Let’s say that there are members of Congress that felt that a 9/11 style attack was not enough to war, in unleashing the dogs of war. So, what, are we going to have foreign forces coming killing Americans by the thousands? What’s the threshold?

Gene Healy: Given that there was one no vote for the 2001 AUMF, which seemed kind of prescient, I think there’s very little worry that that would be the congressional reaction.

David B. Rivkin Jr.: I can assure you, Gene, that in today’s atmosphere we are far more polarized on Donald Trump. Sadly, regrettably, in my opinion. If there’s another attack that killed – by Iranians that killed a few hundred Americans, I would bet you that at least a large chunk of the House Democratic Caucus would not support an authorization for use of force because they are going to say it doesn’t matter, that Trump is so bad, so corrupt, so incompetent, we cannot allow him to unleash the dogs of war underscores why Congress is not a proper institutional and constitutional entity to authorize force.

Gene Healy: And if Donald Trump were to shoot somebody in the middle of Fifth Avenue and be impeached for it, there would probably be a minority of the Republican Caucus that would not vote to impeach or convict, but I don’t think we’re so far gone that there wouldn’t be consensus over major issues.

David B. Rivkin Jr.: With respect, the fact that Soleimani…

Margaret L. Taylor: I agree with Gene. I don’t think we’re so far off that we couldn’t come together on something that was really egregious. I mean the 9/11 attack was completely egregious, and members of Congress came together to authorize the use of military force, and they thought it was the right thing to do. So, I don’t think there’s going to be, you know, I don’t think we couldn’t recreate that if we had to. I think what would happen, though, is that members of Congress, having lived through the experience of how the 2001 and 2002 AUMS have been used by presidents over time as a justification for doing more than what was authorized, they would likely be much more careful, take a little bit more time to get it right to make sure that a president couldn’t then take that authorization and use it in the future indefinitely, over and over in ways that were not originally intended by the Congress.

David B. Rivkin Jr.: I hear and there’s truth to what you are saying. Let me ask you about a different truth. How is it possible that killing Soleimani provoked, who had blood of thousands of Americans, he was largely responsible for the death and maiming of thousands of American troops in Iraq, provoke such a reaction, where killing bin Laden, who had blood of thousands of Americans on his hands was lauded? Is there any rational way of explaining that other than rampant partisanship?

Gene Healy: I think I would have been very concerned had Obama turned the target, the machinery of targeted killing against state actors. So, I don’t think it’s a question of Trump versus Obama versus Bush. I think it’s – look, it’s a big deal. We have had targeted killings in American history. We had the, you know, the Yamamoto killing in World War II, which was a legitimate military target in a congressionally authorized war. We’ve had – we had the experience of, in secret, the CIA and the Kennedys trying to kill Castro with poison cigars, something that we thought of as an embarrassment and a scandal and incredibly reckless when it was revealed. This is the first time that we have had the president of the United States publicly order the killing of a senior government official for a country that we’re not in a congressionally authorized war with. It seems to me that’s a rubicon. That is a big deal. And it is something that people should be concerned with. I don’t think the people who are in favor of it can give you a good reason. I’d be interested in your take on this. If that one was justified, could President Trump take out a hit on the ayatollah, the supreme leader of Iran, who is a…

David B. Rivkin Jr.: Yes, he can. Yes, he can, but he should not, because in my opinion, I’m not the president, it would be too escalatory. The bottom-line view, frankly, that you’re proposing is this: That if you are a member or leader of a transnational terrorist organization, you can be taken out if you wage war against the United States. But if you are a foreign government official who wages war or equivalent of war against United States, you cannot do it. The irony is, during the war on terror, people like me were pilloried for even supporting the notion laws of war apply to non-state actors. So, what, somebody from another country can launch a drone strike and kill a hundred Americans in New York and we cannot touch them because Congress has not authorized it? That cannot be true. That’s absurd.

Margaret L. Taylor: I guess I would look to the generation of people who are closest to war here in this country and what they thought of it, and as our moderator said at the beginning, you know, war was hell and that was their view. So, they were looking to strike a type of balance specifically, our founders, which I think that they did in the text of the Constitution. I hear you, David, though. If you can’t defend the country, it doesn’t matter what your constitution says because you don’t have a country anymore. So, for me, the president of course should have power to defend the country such that the country doesn’t go away. But if the question is, you know something has happened, the question is whether or not to go to war, that should be a shared question, a shared notion of power. But yes, absolutely. You know, again, you have to – the president has to defend the country when it is attacked. But beyond that, this should be a question of what do Americans want to do here? Americans themselves need to be involved in this process. And the way that our founders set that up is doing it through the Congress. And that’s just what we have in our system, and we have to deal with it. My desire is we make this process better.

Caleb O. Brown: Okay, in as brief a time as you can, some takeaways that you hope the audience understands about your position. Gene, you start.

Gene Healy: To get a sense of how radically different this, the contemporary war powers regime is from what the framers, what James Wilson described as a system that wouldn’t hurry us into a war, there’s an episode that happened over Labor Day weekend in 2016 in the run-up to the last election. The Obama administration launched over 70 air strikes on six different countries over that long weekend. And it wasn’t national news. You know, we barely looked up from the grill. And I think that is – that underscores the fact that while there had been slippage in the constitutional allocation of war powers prior to 9/11, since 9/11 we’ve gone to a system where war is so ubiquitous, so much in the backdrop, it has become America’s default setting that we barely even notice it anymore until it comes back to haunt us. James Madison said that no nation, no nation’s liberty could survive in the midst of continual warfare. This is some – this is an experiment we happen to be running now. I think that’s something that should concern us. I think that the idea that the framers, with their deep distrust of human nature, were willing to invest this much power, the power to make war, despite what the Constitution says, in one man I think is asking us to believe the impossible, and I think it’s ahistorical, and wrong, and dangerous.

David B. Rivkin Jr.: I happen to think we need to separate, and I made this point before, the policy concerns from constitutional concerns. The framers created a constitutional structure that clearly gives the president the power to use force whenever he or she feels that doing so is necessary for defense of vital American interests. That judgment can be abused. The judgment can be wrong. But the problem with entrusting the judgment to Congress and letting them exercise their judgment or exert their judgment by doing nothing would create a worse situation. Now, that’s the constitutional answer. That’s the Constitution we have. As far as the practical problems are concerned, I actually agree with Gene, we do live in this age of near-constant warfare. Whose fault is that? That’s not what – the world we wish to live in, that’s the world we happen to live in. We are under attack in varying degrees by many adversaries around the world and frankly we don’t have many friends and allies that help us carry those burdens. Now, they answer to those policy concerns, and apropos of Gene’s point about one man, is if American people really dislike the style of presidential leadership that is conducive to that use of force, that’s like somebody’s a total passivist, a total patsy – I know I am making a judgment by using that word – who is not going to use force no matter what, and I would stipulate to you that a number of people running for president in 2020 are more or less in that category. Ironically enough, much maligned Donald J. Trump is not nearly as interested in using force as his Republican predecessors. So, you can come up with a political solution if you want to end an era and perfect wars. My fear, and call me a hawk, is that by underusing force, what you consider, not your word but mine, promiscuous fashion in launching 70 airstrikes, we are going to sit tight just like we said in the years leading to 9/11 and we are going to hit hard. So hard that it would make 9/11 look like a picnic. And then we’re going to use force hugely and massively. Unfortunately, I repeat myself, if we do not go to find war, war often goes and finds us.

Margaret L. Taylor: So, I guess I would end by saying, you know, this government of ours belongs to us, to us as Americans. I think it is incumbent upon Americans to understand these issues and to raise their voices, and the person to raise your voice with is your representative in Congress. Look up who represents you in the House of Representatives, figure out who your senators are, call their offices, email them. I worked on Capitol Hill for six years. Members of Congress listen to those calls. They keep track of how many people call and what side of the issue that they are on. So, in this question of how are we going to make our union more perfect in particular when it comes to war powers, the most important, in my opinion, and most crucial voice, is the voice of Americans speaking through their congressional representatives.

Caleb O. Brown: I want to thank David, and Gene, and Margaret for joining us for this edition of Sphere. And you, of course, can find other episodes at ProjectSphere.org and we’ll talk to you again next time.