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Current time:0:00Total duration:10:37

Video transcript

so I'm here with Jeffrey Rosen head of the National Constitution Center in Philadelphia and we're continuing to talk about article two of the US Constitution which talks about the powers of the President and now we're gonna focus a little bit on the first part of section 2 which talks about among other things the that the President shall be the commander-in-chief of the army and navy of the United States essentially the military of the United States and you know this seems like there's a bit of a balance here because an article 1 which describes the powers of the Congress in the section 8 it says the Congress shall have power and it starts listing a bunch of stuffs but what a bunch of things but one of the things that it lists is the power to declare war grant letters of marque of marque and reprisal and make rules concerning captures on land and water so how do those two things fit together Jeffrey well they've led to the most dramatic constitutional controversies in American history as Justice Robert Jackson put it in the steel seizure case these cryptic words of the commander-in-chief Clause have given rise to some of the most persistent controversies in our constitutional history everyone agrees that Congress has the power to declare war and once war is declared the president has total control over the conduct of the war their civilian control of the military there's a single leader once the war starts but how the president can act to deploy the troops in the face of emergencies when Congress is silent and how much Congress can constrain his power has led to rise to some huge constitutional controversies and this steel seizure case that you talk about this was in 1952 this was arguably talking about the Korean War what was the context there why why did this need to be ruled on well it's an amazing case and the steel companies are gonna go on strike and President Truman decides this is a threat to national security because the army needs steel to conduct the Korean War so he decides on his own without congressional authorization to seize the steel mills as part of his authority his military authority as commander-in-chief and this goes up to the Supreme Court and the Supreme Court strikes him down they say he can't seize the steel mills on his lawn Truman is shocked he's appointed many of the justices but the most influential opinion in the steel seizure case is the concurring opinion by Justice Robert Jackson I want our listeners to go check it out on the web because it's so important and justice Jackson identified three categories of executive power the every law student learns in there they're easy to remember basically when the president acts with congressional approval his authority is at its height when he acts in the face of congressional disapproval his authority is at its lowest ebb and when Congress has neither approved or disapproved the president acts in a zone of Twilight as justice Jackson said it sounds like the twilight zone and I was think of that music doo doo doo doo doo doo but it means that in the steel seizure case although the Congress had not authorized the seizure and the President had no civilian authority to seize the steel mills so he had no independent authority to rely on in this zone of Twilight and therefore the court held he acted unconstitutionally and Truman's argument might have been hey look the Constitution makes me the commander in chief if I read that broadly I should be able to do whatever I need to execute in times of war Steel is a very important input into making other things that you need to execute your war with and so if they're gonna go on strike that's gonna keep me from being able to conduct our war that's exactly right that's just what he argued and although some justices bought it including justice Chief Justice Fred Vincent Truman had appointed a majority of the Supreme Court said that civilian power over the military doesn't authorize the President to use his power in the United States in ways that might be helpful to the war effort he needs explicit congressional approval for that it really upset President Truman he invited the whole Supreme Court they actually invited him for drinks at justice Hugo black house after the decision came down and crewman salt for a while and he said Hugo I don't think much of your law but by golly this bourbon is good and another I guess relevant this isn't a case but a resolution is war powers resolution 1973 historical context were nearing the end of the Vietnam War what was the background there well Congress was very upset that President Nixon had sent bombers into Cambodia without congressional approval and there'd been others disputes about the president's power in Vietnam so Congress decided to try to codify exactly when the president could act to repeal sudden attacks which everyone agrees that he has the right to do so Congress said President you've got to notify us within 48 hours of the time that you send troops on your own and you can only keep those troops on the ground for 30 days except under extraordinary circumstances otherwise you need congressional approval so despite this effort to kind of set out congressional approval for these extraordinary situations some presidents have argued that the War Powers Resolution itself is unconstitutional as a violation of the president's commander-in-chief power others on the other side is that Congress is seating too much power to the president but so far the Supreme Court has not struck down the War Powers Resolution and presidents are supposed to abide by it although sometimes they haven't President Bill Clinton sent troops into Kosovo without following the work Powers Resolution and notifying Congress what's the argument that a president would make that the war prop that the War Powers or any one could make that the War Powers Resolution is unconstitutional that somehow conflicts with section 2 the argument is that the president's unitary authority under Article 2 gives him complete power as commander-in-chief to conduct military operations as he thinks best and that includes the ability to send troops into the field despite the explicit provision in article 1 section 8 of the Constitution that says that Congress has the power to declare war so the unitary executive people and and president george w bush's administration claimed this explicitly say that the president basically can do whatever he thinks is necessary to preserve national security that led after the terrorist attacks of of 9/11 other presidents including President Obama said that because of the commander-in-chief clause various attempts by Congress to limit the president's unitary authority were unconstitutional and the Bush administration said the forbidding of torture of detainees warrantless surveillance the detention of US citizens as enemy combatants all of these were unconstitutional the supreme Court rejected many of those claims including most famously in the Honda and roms Rumsfeld case in 2006 where the court said that the president could not set up military tribunals without congressional authorization so the big lesson from all these cases is that when the president acts side by side with Congress then the Supreme Court tends to hold executive power but when this president acts unilaterally on his own especially in the face of congressional disapproval the Supreme Court is likely to slap them down but across all of this there is a even though these cases especially the ones we cite seem to limit presidential authority to some degree there's this general notion even our founding fathers thought of which is yes you the Congress has the power to declare war but as the commander in chief what if we're suddenly attacked by someone obviously you don't want to go through the process of getting all the congressmen together in a vote you need to be able to act quickly so it has always been understood that as commander in chief the president could engage in conflict quite quickly no question about it and presidents have done so from the beginning the response to 9/11 is a famous example as well but many of the framers thought that Congress's approval was necessary for serious Wars the war of 1812 there was a former declaration but there were lesser uses of force like the war with France in 1798 conflict of the Barbary States in Tripoli in Algeria conflict with Native American tribes all of these are approved by Congress although without formal declarations in the modern era though things have really changed and presidents have used military force without express consent from Congress on lots of occasions the Korean War Libya granade Grenada Lebanon Panama Noriega on all of these in our cases where the president has uses force without congressional authorization and we haven't had a formal declaration of war since World War two I mean that statement I think is worth writing down that's why since since World War two I mean when I when you say that to me it's like well what's it kind of feels like well we've clearly had what you and I would consider wars since World War two Korea via more obviously post-911 what happened in Afghanistan we have the Iraq war after we have both the Iraq Wars and you've had all sorts of military action about you know whether we're talking about drone strikes or kind of kind of very surgical interventions and all of those were done without a formal declaration of war by Congress so to what degree does this even matter anymore it seems like in modern times presidents are able to do what they they need to do militarily well that seems right now that's not to say Congress has enacted many of the wars we've talked about have had informal statutory authorization including most famously recently the authorization of the use of military force after 9/11 which was said to authorize a lot of what happened after 9/11 and it's now contested whether that continues to authorize the war not against al-qaeda which it was originally passed for but also against Isis but it certainly seems to be a case that formal declarations of war have now been replaced with these more informal authorizations or even with presidential unilateral action and I guess maybe one argument there is that in some of these wars it gives more flexibility to the president to be flexible and there might not even be a state to declare war against that's true although there have been a bunch of these Wars where there are clear states Korea Libya Grenada Lebanon more literalist conceptions of the president say the president could happen should have asked for formal declarations of war but that's not the way that the modern executive has evolved fascinating well well thanks so much Jeffrey this this is really informative thanks it's a pleasure to talk