good afternoon my name is nate cosmic I am the deputy director of the federal society's article one initiative the 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 Federal 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 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 short-handed this afternoon professor Julian ku from Hofstra University's School of Law not sure what that was professor ku had a last minute conflict which precluded him from flying down this morning but even without his valuable presence I think you will agree that we have a great panel and the topic of executive and legislative powers seems particularly appropriate given that we just celebrated our Nash 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 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 plot to bomb New York City Landmarks he has also contributed to the prosecution's of terrorists who bombed u.s. embassies in Kenya and Tanzania he writes regular regularly for pg a 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 Rodell fellowships in public leadership at I'm sorry he's the vice president and program director for the Rodell fellowships and 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 a 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 thank you to the Federalist Society for the kind invitation I have about 15 minutes of opening remarks that in light of Julian's absence I'll try to squeeze in 220 if if I can but 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 terror 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 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 networks 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 counterterrorism ally and that was because for all its many flaws the Qadhafi 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 counterterrorism 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 executives 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 my friends and colleagues here at the 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 memorably 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 judicial eyes 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 and 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 be weighty standards approved to search to obtain a wiretap to make an arrest to convict a 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 prevailed yes our troops are the world's best trained and most discipline 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 Wars 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 cheap we test 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 phase four 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 war powers have seemed not to be too much of a hindrance on the executive nor this power of 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 advocates its responsibilities content to wave the pom-poms when things go well and to excoriated company 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 were 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 sow Western democracy principles and institutions in an islamic shariah 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 Western own 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 they're 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 experiment 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 and meshing 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 I'm very high tech I had to learn how to push to turn turn on the microphone well I'm delighted to be here have a chance to give some different views I think that right I agree with an awful lot of what you've said I want to you know maybe come at it from a little different angle and to try to wrestle with some things in my mind you mentioned you know my background is the head of the policy committee for the Republicans in the in the house I actually was also the national chairman of the American Conservative Union founder of the Heritage Foundation and chairman of CPAC and so 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 I'm somebody who has not gone to see Hamilton but I would spend a lot of money to go see a play on Madison so that give you some sense of where I'm coming from I I would disagree a little bit on one on one area and that I think it's important the Declaration of Independence which we just celebrated is aspirational and it's political it's a political document it lays out a case for an action it 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 last part attitude the Bill of Rights and I think it's too easy to look at the Constitution and dismiss it as something that well it was a bunch of old white guys a long time ago and you know we don't have to follow their lead so I would disagree on that point I think and I start from that because I'm a constitutionalist and I'm 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 well now I would suggest that reading it is actually a good exercise to start with one of the things that I've observed you know watching my former colleagues on the hill is the gate 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 and you know enforced it is the way we have we mix the democratic process with our Republican form of government and I have watched appalled this is aimed at both parties to at the extent to which members of Congress House and Senate both parties I ignore in the name of tribal solidarity the mandates of the Constitution so that what Barack Obama did for a Republican is automatically wrong when if the Republican President does it was just fine and we understand why 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 fun and you know I went to Republican conventions and I waved the banners and I did all that stuff you know but you know it's a game they're they're clubs they're private clubs and what matters is our diligence in being true to the Constitution so I want to talk about that in terms of the war power I also want to make a point and this of course goes a little bit toward what you said in terms of the the role of law and other factors this is not theoretical that this is not to have a discussion about the role of the Constitution in this and that this is not theoretical we are now looking at a real threat possibly potentially from Korea there's been talked about pushing for regime change in in Iran and and we have a president at who you may support or you may not that's irrelevant to me but who I think even his supporters would agree tends to be impulsive that is a that's a dangerous proposition and one that the founders had in mind when they considered where to place the power to send America's men and women into combat and possibly be killed so you know one of the interesting people I don't know I'm sure all of you British but when facilites wrote about the Peloponnesian War one of the major parts of that was the discussion between the Athenians and the millions here's Athens the great power of the time Melo's a small island that the Athenians were trying to take over and what happened was at the people at the top the people at the top which we would call the executive branch in Melo's 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 public wanted they had their own causes they had their own reasons and they decided that the biggest Athens was you know nonetheless the millions 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 millions were slaughtered or slaughtered and enslaved we have a constitution that ensures that the will of the people is considered through their representatives in Congress who make decisions hopefully through a deliberative process that considers the options the ramifications and so forth and if the father 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 one of the things that has happened 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 and starting with a very poor decision by Justice George Sutherland would 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 not related to the case at all you know that in foreign policy the president has plenary powers the presidents 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 Zipit ops key case in 2013 the Congress does not surrender its power just because the issue on the table is foreign policy and we seem to have forgot that I know a lot of reporters from the New York Times I forgotten that I talked to them all all the time about it so a few years ago I was co-chair of a task force by the Constitution project on looking into the war power we had a pretty good group of people on that task force who was bipartisan but we had Jim Woolsey and Judge Pat Wald and Susan Rice Mike Glennon and judge and Harold Koh who is indeed of the Yale Law School and we looked at this and and I just want to very quickly summarize three key points that we came up with just because this is something we all agreed on number one this is the summary and I'm just not even going to read much of number one Congress must perform its constitutional duty to reach a deliberate and transparent collective judgment about initiating use of force except when force is used for a limited range of defensive purposes to the President must see advance authorization from Congress for initiating the use of force abroad except one force is used for a limited range of defensive purposes and three the Congress should authorize initiating use of force abroad only by declaration of war or a specific statute or appropriation you made the point directly you know that the authorization for 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 the P AUMF was passed so let me just I want to get to the questions here so I want to make just one more point couple one is that we have been seeing a consistent abdication over the years you go back to Harry Truman and deciding that it was okay for the United Nations to decide where we were when we were going to go to war in Korea and there has been a fundamental abandonment of both our democratic processes and our Republican structure of government and one of the ways in which we did this one and I will say it was not when I was in Congress it happened just two years before I got there was the passage of War Powers Act which is clearly unconstitutional now presidents think it's unconstitutional because it infringes on their powers it's in it's unconstitutional because it infringes on constitutional powers by giving a single person to the 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 when our troops are under fire so we essentially surrendered that power to the president so plating closing today we have as I mentioned we've got the threat potentially from Korea we have the potential claims by this administration that we need to pursue regime change in Iran we have 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 like mr. McCarthy would you like to respond just a couple of points and some of it is sort of off the track of the War Powers 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 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 it's virtually what we have today is almost unrecognizable there's a fourth branch of government which the administrative state of which could engulf a lot of the powers so has engulfed a lot of the powers of the other three and in a way that is completely antithetical to the idea behind the Constitution which was to have political accountability for political decisions the way that happened was political it wasn't legal it happened because people took steps that were beyond the power and contemplation of the Constitution and the system accepted it and the remedy for it the ultimate remedy in the Constitution for that 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 can say this as a as a prosecutor even though high crimes and misdemeanors are not necessarily indictable offences but you can have a thousand provable 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 really doesn't matter as a legal matter whether the president has committed high crimes and misdemeanors it's it's the question is a political will under the procedures that the Constitution has laid out to enforce the Constitution standards and I think while there are extremely important legal arrangements in the Constitution to the extent they are breached the remedy for that is largely political in political will I mean you can't if the president decides to haul off and invade a country when there's no American interest at stake it's not like you're going to be able to march into federal court and and get a judge to order him not to because then you quickly find out what the framers recognized which is that the courts have judgment they don't have the sword and they don't have the first they don't have any means without the cooperation of the executive to to correct the executive so I guess that's one point the other the other point just briefly about curtiss-wright I think going back to Jefferson Madison the framers their position was that the executive was supreme in foreign affairs except except to the extent that the Constitution created exceptions and that the exceptions were to be strictly construed so I don't 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 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 net that necessarily cuts against the idea that the president is essentially supreme in conducting foreign policy yeah well I agree with a lot of what you said part of the problem here is enforcement and political will and I'll come back to there a second 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 trees are nothing but scraps of paper unless the Congress decides you know the president can decide who will be our ambassadors to other countries but that's only something like 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 the Senate you know so the the powers I read it differently the Constitution actually is very limiting in term in article one is in the Congress Article two 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 we disagree about that I would say though and I think maybe we both agree on this a lot of the concern rests on those of you in this room it rests on you because one of the fundamental problems have is that so many members of Congress House and Senate simply have no clue what their obligation is so that if we have very very important national security concerns and the administration decides to 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 the executive branch tells members of the Senate and the house who can come here that information and you know who they can share it with and whether they can bring staff the Congress United States which has the authority to decide whether we're going to go to war and to set foreign policy it's told by another branch of government you know who you can tell you can share it with you can't bring your staff you can't tell other members of the Senate and Congress just accept it I'm on the board of a group called Pogo the Project on Government Oversight and I gave a talk to a group of Senate staffers Senate and House staffers one time and was shocked because somebody got up maybe one of you I hope not totally angry because they kept filing for on behalf of their member of Congress Freedom of Information Act request and dam administration will not respond and I just said well you know John Dingell never would have filed a 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 belong to the Republican Party I love to the Kiwanis Club I was on the bowling team you know 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 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 when we're going to run somebody against you or we're going to we're going to primary you you know Tom if you know 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 you know we're not that far apart now I I feel impelled or compelled to say that I belong to the Federalist Society but so far Dean hasn't made me taken out so I do I'll take those off of a federal private right but I just to echo the the what you say I think it's critically important that that Congress as an institution protect itself and its prerogatives and the government doesn't work unless it does and I 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 but less usually in disagreement was what 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 wherever 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 of Congress and the staff that have to support them 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 all say that we would like to see it operate in the way that it was intended to operate those of us who take that position it requires not only accountability the original understanding was that the branches were going it can compete and keep each other in check and part of the reason that we end up in a crisis environment I think is that 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 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 think it's it's absolutely essential if this framework of government is going to work the way it was supposed to work in the way it is supposed to work that this institution defend its prerogatives and be accountable yeah just one sentence of our baby it's to 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 is what jazz much as the executive branches both branches yeah so just remember that okay very very good we're now moving to the QA portion of our session here we actually have a standing mic right here in the hallway next to the door please line up and we will get to as many 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 both of you would consider yourselves in the congressional War Powers camp but and with with some obvious noted differences and distinctions but 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 just want to make sure that they're out there in order to balance our discussion the first of course is the track record regarding formal declarations more than a hundred times the United States has been involved in military skirmishes we've only declared war five five times in our history is this Congress really needed or even desirable in this space another one is of course and Congressman Edwards did touch on it the War Powers Act of 1973 we've been involved in several military actions of varying skills and the without any real effect on that resolution another objection from the pro executive camp would be the idea that Congress is really unmanageable it's it's too large and unwieldy and it can't make the swift action that's required in wartime and the last one that I think I often hear is you know what is the congressional incentive how can you convince Congress to really be more involved in wartime policy so maybe you could comment quickly on that and then we'll we'll go to our questions well I I think as far as the track record is concerned the first point and the third point that you made I think part of the reason that we haven't had as many declarations of war is to the extent that we're dealing with emergent situations I think even people who are staunch congressional War Powers 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 Supreme Court resolved it during the Civil War or just after the Civil War so I I don't I don't take I think even Rand Paul who was probably as a staunch a a pro Congress War Powers guy would accept the idea that when the United States is under threat that the president doesn't need to wait for congressional authorization the president can move I don't see that at all as detracting from 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 the other political branch either lended support or you know perhaps persuade the president that that he's about to embark on folly well very quickly I've already addressed the War Powers Act actually in the Civil War the the power that Lincoln had was very specifically spelled out of the Constitution which was an insurrection to put down its direction as to Congress being unmanageable because not Swift you know most of the cases including right now with Korea you know what you need is deliberation you don't need impulsivity you need there are times you know when the fleet is right off the shore or whatever 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 and the benefit of having a legislative branch with power is that you have thoughtful deliberation you get input you talk about it you consider the ramifications you know it would 320 million people potentially a risk you know saying let's let's see how we can move quickly quickly 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 on congressional Congress being unmanageable I mentioned Congress what are the incentives Jesus Christ that are 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 when would their incentive to do it right you know maybe you know maybe maybe if this is a question that bear 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 I 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 and we could have had it in a day on the other hand you know the next step on the trajectory perhaps Iraq Congress ultimately wanted to vote to authorize that because there was a least of persuasion on the facts that were known what 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 about whether we have real vital interests there that nobody even wants to discuss it the Congress would just assume it went away I think sometimes our presidents have wanted to assume that those problems would go away as well but 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 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 and give you a question my name is Devin Watkins my question is hypothetical to mr. McCarthy 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 would depend on the intelligence that you mean if if we didn't know anything more than we know now yes I don't think I would be in favor of impeaching him but I I wouldn't I would think that it would be a be a colorable argument okay thank you oh just sent that back but you know hips it would be yes it would be an impeachable offense does that mean you know the decision should be made to impeach him oh yeah I don't know theirs but if yeah definitely be an impeachable offense next question please I got no my name is Whaley and I'm from William Murray 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 today we have a lot of warfare involving different like June strike cyber attack is information camping commercial conflict special operations that do not involve a large converge converge of troops and materials my question to the panel is when how should Congress to have more clothes weighing on those untraditional form of warfare and where should the limits to be set to limit executive power because a lot of those decisions in those areas require very immediate and versatile response they can probably have still have the very disastrous consequences conventional warfare and they can last a very long time thank you my own view of it is that what matters is the degree of threat to the United States and I don't understand for example the military 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 threat to the United States is profound enough it's it's the job of Congress working together with the executive branch to arrive at an appropriate response and if it's a profound enough threat I don't think it's a route 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 would say that you know it's up to Congress to authorize the development of the program to to resist and to fund it and perhaps it's on it and outside of that you know up to the executive branch to figure out the flesh you know how did how to make it work all right Chris London Eve lowing Indian Niki and he talked about will of the people pardon me you talked about the will of the people as a big factor as it should be for members of Congress to consider in and what they do I'm particularly concerned about that one I think that something like a quarter of those who voted in the last election on both sides voted for socialists someone who to my mind along with Sharia believes in ad ology more or less that our that is one of the two 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 I think it's important I like to hear both here in McKees class what can we do so that in the place that especially our young people first hear about history for sure about economics that they're hearing the full story they're not called Islamophobes if they look at what Sharia is they're they're not called someone who's an elitist or focused on their on their own goodwill when they want to talk about on my sis or Hayek what can we do what can we do with school boards what can we do with wealthy donors what can we do with legislation here in Congress even though I don't necessarily believe in the Department of Education getting mixed up locally but if that's what we have how can we use money so that our young people understand the reality of the world and we don't end up having the will the people not forcing members of Congress to do the right thing well I think a lot of what you mentioned is upstream of of Congress and and and the law I mean what you're talking about are cultural factors and I always think that if you 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 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 fight and to persuade 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 this is after a lot of hard years of thinking about this and and maybe seeing things differently when I was younger than I then 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 that's right I would just add one thing to it and that is we have this little off-topic though but we basically have turned our high schools colleges and universities into boat tech schools where they're basically focused on how we help our young people learn how to get a job which is important part of it but we don't teach them critical thinking where they can look at various options and think critically about what their benefits are what the dangers are and so forth so 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 evaluating the arguments they hear with confidence that when everybody thinks about it they'll come out thinking just like I do so I mean I do think education is an important part of it but I do want to say because I did hear you know the example she used I don't think that it serves our country's purpose for us to try to have education systems that propagandize you know into you know to support of our particular point of view I think socialism is a great policy for people going broke and starving and you know but I don't know that we should you know preclude people being exposed to the idea I'm able to you know evaluate it I you know it's 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 our trip my question is does the president have authority under the Constitution to refuel Saudi warplanes bombing Yemen without congressional authority have the authority under the Constitution uh discs I don't I don't mean to go a lawyer here but I always when I hear these questions always think of the distinction between power and authority so 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 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 and I think he needs authorization from Congress and just putting my prosecutor head back on for a second if you aid and abet a principal in committing an act you are treated under the law at least the domestic criminal law as if you were the principal so I don't really see a big difference between aiding and abetting the saudis and carrying out attacks or directly attacking that other country ourselves to me 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 our commander in chief and you know that if you think he's abused his power in a in an unacceptable way then you're talking about impeachment really does not there's not a lot you can start by trying to cut off money and 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's ultimate way to rein in a president is to is to impeach him which obviously is not something we've ever done so yeah it's also what we've impeached them we haven't convicted them but I button but you know it's always we have other ways on some power flow we have other ways on other things and then just to cut off funding for what presidents want to do and to do it in a threatening way I mean you can simply 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 no nobody nobody I mean Congress has a lot of power you know if it exercises it that would require kind of an extreme case but the power of the purse is not a small thing but 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 I think when you're thinking about making these kinds of decisions you ought to remember that you're making them regarde on principle regardless of who's in the White House what power what party is in power so one of the issues when I was in Congress this was funny my party Republican Party fell in love with two concepts they I think they they preferred these to even cure for cancer it was everything one was line-item veto and one was term limits and I said well Wow hey those would be cool right does it bother you that they're unconstitutional well no you know so the thing is when I was in Congress we had overwhelming Democratic majorities in the House and the Senate and we had a Republican president so we want to say what young line-item veto give more power to the Republican President and would why and turn limits would wipe out all these Democrats like here's what what if not not much chance of it but what if some day a Democrat was elected president then what and of course then came Bill Clinton but so 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 on one of the thing that may be causing problems today in applying the framers war clauses and this is not my own idea the framers had read their Brocius and their poof and or 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 1 the lawmaking section and once the once that that once the relationship between states is defined between two states its find is one of war all kinds of Cosmos it's all of that the president can get kinetic with them their ships are subject to seizure as prize all kinds of things we don't make more with States so much anymore in 1941 we had that declaration were at war with the German Empire of Japan where war with the German Reich and there should have been one for Korea but since then it's been what the Vietcong the al-qaeda we don't live so much in an era of of wars wars against States and Iraq but that Congress opted in a case where had in its hands the power to define a relationship of war between us and a state to instead give a very broad authorization use military force to covered a lot more than just a rock I hate to think that the War Powers book the way Congress to find them aren't applicable today I always want to apply the Constitution has 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 we discussed before where some of the combatants that's being used against didn't exist at the time that the AUMF was enacted and in fact 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 the with factions that we're supporting so to my mind that's a classic example that if Congress doesn't assert itself and use its Article one one of the most important parts of this power that Congress has exactly as you're describing to set these legal arrangements is Congress gets to say who the combatants are and who the laws and customs of war apply to and if that if that's something that's not done and you then decide that you you know you start out from the premise you're at war on terror which is not an enemy it's a method right you're you're asking for you know confusion and conflict and a lot of the problems that we've had the last 15 16 years yet militarily I think that's I mean I'm aware that the war of the word war originally would impute all kinds of other things that flow from it but I think if that's a distinction without a difference you know the the war power includes engagement with an enemy you know a conflict and and that whether we are going to do that whether we're going to engage an enemy militarily is as a congressional power and so the fact that the the word war includes several other things attended to at a lot of which including seizing property is all in the Constitution and just and those are all you know management of the military who decides to who can be an admiral or a general who decides what to do with confiscated property 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 you wanted to wear a uniform because he's commander in chief you know you can wear uniform like they do in some other countries and have stars on the shoulder and he'd have five he'd had six stars no because without rancor five star general that outside of that I mean that what do you call it a war or authorization to use military force you know that's a legislative power clearly hello my name is Avram Reisman I work for an organization called just foreign policy I was originally going to ask about the Saudi refueling but given that that was asked I have an additional question which is should the Congress have to authorize offensive use of nuclear weapons you know should the president have the ability to use effectively should there be a no first use policy as a law I I believe in under the Constitution I believe that I believe in congressional War Powers and I believe in presidential War Powers 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 don't favor any inhibitions in that regard yeah it becomes a difficult question if for example if this limitation had been in place in World War two and would have not allowed Harry Truman to use atomic bomb an atomic bomb – 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 you know I'm inclined to think that when when the Congress has declared that yes we're go we're in conflict and we're fighting mr. Witte unless they specifically put a limitation no we will not have that 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 hi I'm calcium iron thank you for speaking with us today 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 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 bill allowed any expenditures outside of day-to-day of the day-to-day defense budget for a new Wars 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 current wars were exempted from it so that the operations would not be disrupted and the idea of this though is 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 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 conduct conduct of wars in the United States so my question is what type of impact 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 support for Wars which you discussed was so important to their success 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 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 but I do think to the extent that you have that you propose legislation that makes it clear what it's costing us to fight in these conflicts it makes it much more likely or at least more likely depending on how effective the the measure is that military force is going to be used only for vital American interests and my own personal view is that that's what it's what it should only be used for I eat oh gosh I I hate to have any disagreement with Al Franken because use the giant of a southern as I well I think there are several factors 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 now because of what it's going to cost if it is something that that is a matter of you should not go to war unless that's something that's really important you know and non-debatable almost national interests you to go to war willy-nilly and if it's a war that you would not go to if it costs too much that you shouldn't be going to that 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 should not have any bearing or whether you decide to go to war or not see I don't know that I'd agree with that I think that how much it cost is part of the equation of what your interests are I'm not saying it's the dispositive one 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 I'm Luis LeBron I'm an attorney with the financial integrity Network I wanted to revisit two examples that have come up a couple of times of course this discussion the entering of the Korean War and the War Powers Resolution to try to use those tie together sort of an underlying question we haven't directly addressed yet which is 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 so using those two examples could you briefly explain what exactly a declaration of war actually has to contain or cannot contain for example why were those two examples unconstitutional even though there was a with the War Powers Resolution that sort of a blanket authorization limited by time to use use the Armed Forces and in the case the Korean War the UN participation Act contains a section that does authorize the President to carry out UN Security Council resolutions I'll leave it at that to my mind a an authorization for military force the declaration of war there's no you know talismanic formula mission authorization of military force is fine and to me it's like other congressional legislation which is to say you cannot buy legislation a 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 the commander-in-chief powers but short of something like that I don't I don't know that I don't believe there are any limitations on what Congress can do I agree on both points one is that the Congress has the authority to decide whether or not we're going to engage in conflict I think AUMF whether it was a perfectly fine way to do it I don't think it means that you have to use these specific words it's a power it's an honor you know that it's not a it's not an English test you know the other and but then on the Korean War a treaty that violates the Constitution that provision of it is unconstitutional the United Nations and no no treaty no president you know no can sign and no Senate can approve a treaty that is in violation of provisions of the Constitution can violate statute but the Constitution is our supreme law so if there's absolutely no grounds that you can think of in my mind that would say that a UN treaty you know gives the president the authority so so we've had a something to the Swiss and the French and the Belgians and everybody all come together and say yes you can go to war and so 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 I think very much okay hopefully it's a yes or no question but you've waited very patiently so huh please go ahead counter wave from congressman Warren Davidson's office what role to the courts plan all this would turn in terms of both power and authority to get involved and just they seem to have more political capital than we've seem to have knowledge tonight per se and and also if you would maybe offer your concluding thoughts that would be great sure well let me is the I'm glad to get the question about the courts because if you would ask a question a little over a decade ago the answer would be probably very different than it is today you know justice Jackson wrote a decision in a case called Chicago in southern in around 1944 1946 it escapes me but it's one of the best articulations of what the framers had in mind in distribute the distribution of power in different areas of the Constitution and what he pointed out was that 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 he pointed out not just because there's nothing about being a lawyer even a judge that gives you institutional confidence in 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 and for that for that reason I think for a very long time and wisely so there was no real judicial role things are different now because we're involved in a different kind of conflict so that even though we have 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 at least the Continental homeland I think it's kind of an admirable thing about the Amer American people that even the logic says terrorists who attack civilian population should have less rights 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 we've layered on to 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 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 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 dis 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 Congress actually does that at the course behest and then the court comes back and says it's not good enough I think it's gone way too far I just had the thought that you know habeas corpus is is a fundamental constitutional principle and it is something that our government does it does not do and under the Constitution the right to habeas corpus you know is fundamental in the United States you know may I don't know how many of you believe in American exceptionalism but I do I think we are different we don't we don't lock people up and hold them forever without knowing that they're guilty we just don't do that and one of the things that's happened to this so-called war on terror is that we have been become very good at capturing and locking up and punishing people who have committed war against us and also locking up and holding people that we don't know we're committing war against us you know because we you know it was they were there and we have to be really careful it's too easy it is too tempting to say that our constitutional principles are they're kind of inconvenient at times and I know 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 and and I'm bothered by that I grew up believing this country is different in its rules are different these principles are different its values are different and I'm just really reluctant I I would much rather let one guilty person go free that have somebody who did not get a crime commit a crime be punished and I just think you know some of those fundamental principles 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 you know to ensure that whatever they were trying to ensure you know could just simply set aside the rules and we can't do that okay very good I think we'll have to leave it there thank you gentlemen for a wonderful discussion if you'd like lastly if you'd like to learn more about the article and initiative please visit our website Fed sock org slash article I 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 Play and iTunes thank you all for coming