Episode 224 The bogus arguments for presidential war powers

Every revolution starts in the minds of the people.

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Tom Mullin talks freedom.

Hello everyone and welcome back to Tom Mullin talks freedom.

Today is Friday March 6, 2026.

And we're now on day 7 of the Iran War.

I guess that's what we should call it.

I'm sure that the Trump administration they have their operation epic fury.

And I think they're denying that we're at war.

At least that speaker Mike Johnson has tried to say that Iran is at war with us.

But that we're not at war with them and we can get into that a little bit later.

But I wanted to talk today a little bit about the whole idea of the president having these prerogatives to take the country to war.

And the war powers resolution which Secretary of State Marco Rubio has reminded us no president has ever considered constitutional for whatever that matters.

And also for the idea that the Declaration of War power which is exclusively delegated to Congress still leaves the president open to initiate a war because initiating and declaring might be something different.

I think I'm going to be able to show you today that all of this is completely complete nonsense.

And I, you know, it's not like the framers didn't talk about what they meant with delegating some of these powers.

Okay, they met in a long convention in secret behind closed doors, of course, with everyone sworn to secrecy.

You know, what could go wrong there when you're reconstructing the entire government.

But two different people took notes.

James Madison took notes throughout the convention.

And Robert Yates, a strong anti-federalist took notes until early July.

Now, unfortunately, the main discussion around the Declaration of War power happened in August, on August 17th of 1787.

So Yates was in there for that.

His notes do not provide more light. We get James Madison's and just to give you a little background.

The reason Yates left, by the way, was that being an anti-federalist, he got the impression that the convention seemed to be doing more than what they were charged with doing, which was just to revise the articles of confederation.

Make a few tweaks. That's what they were there's supposedly to do, not construct an entirely different government with branches that didn't exist in the articles, like the executive branch and the judicial branch.

So he just said, well, we're not going to play ball anymore. We're leaving. We're not going to be party to this.

Of course, you know, some of you may have known that Patrick Henry didn't go at all refused to go to the convention because, quote, he smelled a rat in Philadelphia.

And how right he turned out to be. But in any case, Madison, of course, was a federalist, meaning he didn't want federalism.

One of those things I think I've talked to about before on the show is that throughout American history, you know, whatever the party calls itself, it's like the opposite.

So the federalists wanted a more national government. In other words, more power concentrated in the central government.

And the anti federalist wanted federalism, a federation where the states are largely independent.

And they only give a few powers to the central government.

Okay, so it's already confusing with the names.

But Madison was definitely a federalist. In other words, wanted, he was a nationalist. He wanted more power in the central government.

And in fact, we've had Kevin Goodsman on discussing his incredible book, James Madison, the making of America, which among other things basically says that it's really inaccurate to call James Madison the father of the Constitution.

He actually wrote out the document, but the document he wrote out did not describe the kind of government he wanted.

He asleep, you know, brought up a dozen or more times during that convention, the idea that Congress would have a veto power over state laws.

And it was voted down every time the last time unanimously. In fact, his own state voted against it because they didn't want the federal government to be able to overturn state laws, which you know is a sideline.

That's why the whole idea that the Supreme Court can overturn state laws because the run constitutional is completely against what the Constitution that the framers approved.

Because at that convention, you had federalists like Hamilton and Madison, who wanted this much stronger federal government, even suggested abolishing the states and making them just subdivisions.

And they were overruled. They were outvoted by all the any federalists there who wanted no such thing.

Now, although Madison was closer to Hamilton in the idea of what he wanted to do with the convention, it was Hamilton that wanted the much stronger executive.

He wanted a stronger central government like Madison, but even more than Madison, he wanted a strong executive, basically an elected king.

And we know this because because of the notes taken at the convention and they weren't released till I think after Madison's death or 50 years after the convention wanted one of those, you know, we're not going to tell you until it's too late.

But we know what Madison said. He stood up and spoke and he was largely ignored because his ideas were even beyond most of those of the federalists.

Now, of course, he got into the government as the Treasury Secretary and tried to implement his ideas, even though that they were rejected at the convention through all sorts of surreptitious means.

But as far as the executive goes, the executive was supposed to be limited. So let's first deal with the war power.

So the claim by all of these presidents who decide to just bomb some country and they all do it. Of course, Trump is by no means the first.

If anything, you know, telling Trump he can't do it would be just another reason for him to say, you don't treat me the same as Obama or Bush or Clinton or just go on back down the line in our lifetimes.

You know, George W. Bush actually did get permission from Congress to go into Afghanistan sort of and definitely the Iraq war.

He got way too open ended a authorization from Congress as far as the Afghanistan project was concerned.

And of course, that's used to this day. Like people still cite that. Here's my authority to go bomb Libya for Serbia. I mean, that's Serbia, Syria.

So, you know, Rand Paul has several times tried to get that authorization rescinded at this point 26 years later. It basically said you can go get the terrorists who were behind 9-11.

And, you know, they've gone look, they've gone bombing away supposedly at those terrorists for 26 years or 25 years, you know, in every country in the Middle East.

Even when there was no the no honest person could could agree that that they were that authorization would really apply.

So, in any case, what the Hamiltonians, let's call them that say in regard to the president being able to bomb Iran, let's say, without an authorization from Congress or declaration of war, is that he is the commander in chief of the armed forces, which the Constitution says he is.

Okay. So, well, I can just command them to do whatever I want. Well, then that begs the question, why did they bother to delegate the declaration of war power to Congress? Well, again, we know why they did that. They didn't want the president using the military for anything other than defense against an attack in the present.

Unless he got permission from Congress.

And again, let me say it's permission from Congress that the president is required to get not just inform them, okay, I'm going to bomb or I've started bombing just want to let you know, no, he has to get their permission.

That's the whole idea behind this. And I think you've heard some surrogates for the president or some cabinet officials were Johnson or all of the above say while the president has the power to make war, but not declare war.

Okay. But, okay, so let's go to James Madison's notes on this subject. And let's see what they actually said about this very topic, you know, during the convention.

So they're discussing other things when Madison makes the note to make war. And I'll let you see this if I can do this correctly.

All right. So you should be saying here, yes, where my cursor is to make war. And I'm just going to read this, especially for the people who are just listening on the podcast who are a legion, although we're starting to get some, we're starting to get some engagement on the video as well.

But it says, this is on August 17th of 1787 to make war. And he usually will put the name of the speaker, and then he'll just summarize what they said. So he says Mr. Pink Pigny opposed the vesting of this power in the legislature.

It's proceedings were too slow. It would meet, but once a year, the House of Representatives would be too numerous for such deliberations. The Senate would be the best depository being more acquainted with foreign affairs and most capable of proper resolutions.

If the states are equally represented in Senate, so as to give no advantage to large states, the power will notwithstanding be safe as the small have their all at stake in such cases, as well as the large states, it would be singular for one authority to make war and another piece.

So notice he wants to narrow it down to the Senate gets to do this, but in no way, as he's saying, the executive should have the power to make war.

And they're going to get into the difference between make and declare in a minute. But for right now, the idea of making war comes up and one guy says, look, we should just give this to the Senate rather than the whole Congress.

Mr. Butler, the objection against the legislature lie in great degree against the Senate. He was for vesting the power in the president who will have all the requisite qualities and will not make war, but when nations will support it, but when the nation will support it.

Mr. Madison and Mr. Jerry move to insert declare striking out make war, leaving it to the executive, the power to repel sudden attacks. So that's very important.

What they're Mr. Butler says, I'm sorry, Mr. Madison and Mr. Jerry, so Madison's writing his own name say, well, let's change it to declare to take out make and that'll allow the executive, the president to repel sudden attacks.

So what they're doing here is they're recognizing that you can't, if the British just sail into New York harbor and start shilling the city, you can't wait for a vote in Congress, especially since it took weeks to get there for a lot of these guys before somebody fires back.

Okay, so even a defensive action for a live attack in the present would be making war as far as they were concerned. So they wanted to change what they're delegating to the legislature to make war, but they're only allowing the president to repel a sudden attack.

They're not allowing them to initiate a war against somebody who is not at that moment attacking the United States, but we'll go on. Mr. Sharman thought it stood very well, the executive should be able to repel and not to commence war, make better than declare the latter narrowing the power too much.

Okay, so again, here's another member of the convention saying that the executive should be able to repel an attack, but not to commence war, so not to initiate it.

And then Mr. Ellsworth, there is a, and I'm down here for those watching, there is a material difference between the cases of making war and making peace. It should be more easy to get out of war than into it.

War is also a simple and overt declaration, peace attended with intricate and secret negotiations. So now he's getting more into the difference between the start of a war in the end of one.

Mr. Mason was against giving the power of war to the executive because not safely to be trusted with it or to the Senate because not so constructed as to be entitled to it, he was for clogging rather than facilitating war, but for facilitating peace, he preferred declare to make.

So again, you have to follow that what they're talking about, you know, what is the power and who's going to get it? So he's saying declare war for the Congress on the motion to insert declare and pay place of make it was agreed to, a New Hampshire, no Massachusetts abstaining, who is this Connecticut, no, they go on with the other role called the vote.

And then you can go on and read the rest of this because they get into who could make a peace treaty. And of course they want the president to be able to negotiate a peace treaty, which then will have to be approved eventually approved by the Senate, okay, ratified by the Senate, but they want that to be easy.

They want to be getting into war to be hard and they don't want the president to have it. Now remember, this is the discussion at the convention and nobody's writing a constitution yet.

Madison would do that afterwards based on his notes and then it would be debated in all the state assemblies and ratified by the states.

So, you know, they were definitely, this is no mystery as to what they intended here. They wanted the president, of course, to be able to respond to an attack.

And the modern day, if missiles or shells or airstrike occurred on the United States, the president doesn't have to wait for Congress to give him permission to responding and just order the military to defend the country.

But as soon as that live attack is over, as soon as even if we've been attacked and the attack stops, the president is not authorized to go initiate war against that country that attacked us without a declaration of war from Congress.

Okay, and I know I covered in a previous podcast, the war powers resolution and what it actually says, but I'll just reiterate again that there's all these reporting requirements like the president has to tell Congress that he's initiated this military action within 48 hours of doing so.

But the same restraint, all that reporting happens only if the president has met the requirements of the resolution. So before they get into the reporting, it says at the very beginning of the resolution that the president can only use the military under three circumstances.

One, that Congress has declared war, of course, then that's what they're telling him to do. Two, they've given him an authorization to use military force. Three, he's responding to an attack on the United States or its territories or its military.

Okay, that's what it says. So if he's not doing that, if that that hasn't occurred, then none of the rest of the resolution, it's all.

And again, for those watching, I'll show you that there isn't any real debate about this. We can look at this in black and white.

And what it says, and this is the section that I'm reading right now, it says the concept section C of the very first section of the war powers resolution 50 US code 1541 purpose and policy.

The constitutional powers of the president as commander in chief to introduce United States armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances are exercised only in pursuant to one, a declaration of war.

Two, specific statutory authorization, i.e. permission from Congress, three, a national emergency created by attack upon the United States, its territories or possessions or its armed forces.

So this is very clear and it very clearly is patterned after the intentions expressed in 1787 by the people at the convention when they delegated the Declaration of War power to Congress.

I mean, the fact that the president is named as commander in chief doesn't give him any power to do anything.

Okay, it just says who's in charge of the military does not give him power to do fight a war at all. That's not there.

Okay, it is given to Congress to declare one and I talked again about how the declare declaration of war power has always been used and it's always been used in an even more limited way than what we're talking about right now that it's only been used to respond to an act of war by another country.

That has to go first and then the declaration. So again, go back and listen to that episode. I'll post a link to it on the show notes page.

If you want to have the more detailed explanation of that, but yeah, the president's the president can only respond to an attack in the present and one of the things I think I use the Mexican American war as an example that.

When Polk went to Congress, he said, hey, look, they have crossed into our territory. Now it was disputed territory and there's a long story about that, but his words to Congress where they've crossed into our territory.

They've shed American blood on American soil and therefore ask you to declare war.

So we've already had Americans killed by the Mexican army and he's still asking for permission. Why? Why doesn't he just go start shelling Mexico City because he feels he doesn't have the constitutional power to do that until Congress gives him permission declares war.

Even though there's already been bloodshed. It's not, you know, his troops fired back during the altercation. Some Americans were killed and then that skirmish ended.

And even though an aggression and an act of war been committed according to Polk, he still needed permission from Congress.

All of the, I mean, after Pearl Harbor, Roosevelt didn't just go start the war with Japan. He came and asked permission, right? That's after they bombed Pearl Harbor.

All of them, go look at all of the declarations of war, look at all the presidential requests and congressional declarations and they all follow the same pattern. The other country did something and because of that, there's this state of war that I'm asking Congress to declare.

Congress says yes, because they bombed our, you know, our Navy or because they shot our soldiers, a state of war to exist between, you know, country acts in the United States were declaring that and we're directing the president to use the armed forces to end the war.

They all read that way. Don't take my word for it. Go look them up. Okay. So this idea that the president, you know, and they've made the case. This is how ridiculous it is. They said, well, I ran has already been at war with us. Well, how do we know that? Well, they, you know, did this thing in 1983 or I think it was 83.

Where Hasbola blew up, you know, some of our Marines in Lebanon. Now, of course, this wasn't even Iran. Iran supposedly funded that and maybe they did, you know, no one's ever proven that.

But let's just say for the sake of argument they did that was, you know, 43 years ago, they talk about taking our hot, our State Department of Personnel hostage in 1979 for a little over a year.

They did that. I mean, they never talk about why they did that. What they were so upset about why they didn't take hostages at like the Canadian embassy or the Spanish embassy.

They took them from the United States Embassy because the United States was the one that that overthrew their government and imposed the shop on them and kept them in power for 27 years or however long it was.

That's why they were so pissed off at the United States, but whatever. So again, the president is very clearly set.

That doesn't mean the president can just start a war with a he the president could have gone to Congress and said, look at they've been doing this they did that over all these years.

I feel they're about to attack us now because you remember that news report the president had a feeling that's the press secretary actually said that they were going to attack us.

So he could have gone and said because of all these reasons, I believe a state of war exists between the United States and Iran. I want you to declare it and give me permission to fight them.

Go, you know, use the military to end the war. So he didn't do that. And again, his actions are in violation of the war powers resolution and secretary of state.

Rubio doesn't even deny that. He just says that the no president has ever considered that constitutional while it's still the law.

And you should know that the way it became a law.

This was during the Nixon administration part of the Vietnam War. Okay. So after he's in and he starts expanding the war to Laos and Cambodia.

They passed this resolution to try to rein him in and he vetoes it.

And then Congress overrides his veto.

They had the supermajorities in both houses. They override his veto. And when they do that, the constitution says it's now a law.

Now, we got to be intellectually consistent and honest here at Tom Molintox Freedom.

We've always denied that, you know, the Supreme Court is the last word on what federal law is constitutional. What isn't?

You know, of course, from the 1930s after the Supreme Court struck down most of FDR's new deal.

And he threatened to pack the court and, you know, one, one member flipped and they rammed it through from that time until sometime in the 1990s, like 60 years.

The Supreme Court never found a single federal law and constitutional. So really useless as a check on federal power.

But this one hasn't been tested in court because no Congress has had the stones to number one and pitch a president for violating it.

And then, of course, he'd have to be prosecuted in order for this to make it to a court.

And then, of course, a bunch of appeals would get it to a Supreme Court. It could take into a federal court.

It could be ruled on immediately, but this would all be after the president's removed from office.

So they passed this law and every president just breaks it. They say, well, we don't think it's a constitutional.

And it's our usual way of determining that, although I don't agree with it, is to go, you know, get it into a federal court, get a ruling, and that's never happened.

So, you know, Obama, well, I mean, every president, I'm not sure I think Reagan broke it. Maybe not with Grenada.

But, you know, Clinton broke it, Bush broke it, both Bush's, Bush to Obama, Trump, Biden.

They've all bombed countries that were not at present attacking us with no declaration of war from Congress and no congressional authorization to use military force.

So they've all broken the law. It's, it now might as well be a dead letter, like the Constitution itself.

And, I mean, comically, if it weren't so tragic, Thomas Massey just tried to get another war powers resolution passed that to enforce the war powers resolution, which is only there to enforce what the Constitution already says.

So, and that one did not pass. So that one was voted down. So it all comes back to the fact that, look, the Constitution is just a damn piece of paper is George W. Bush.

Said, so infamously, if nobody cares, if people just keep on allowing presidents to do this.

So you might as well not have a declaration of war power until somebody enforces the law. The law is still on the books.

We didn't need this law from Massey to, to restrain the president here. We already have one, and we have the Constitution itself.

All of which are very clear that the president can't do what every president in our lifetime is done, which is initiate military action against a country that is not in the present attacking us.

And then, I think the last thing I wanted to talk about is this idea of you'll hear this put forth too, and not just on the war issue, but on other issues that all the Constitution creates three separate and co-equal branches.

Well, that's half right. They are separate. They're not co-equal and no one ever said they were supposed to be at all.

It was very clear that the framers intended the legislative branch to be the supreme branch. They didn't say the word supreme.

They said that the branches would coordinate with each other. The word checks and balances is another thing that people made up later, but I think that what is in the spirit of the way that the Constitution was constructed.

And they did intend the executive to be a check on the legislature with the veto power, but not an absolute check.

If the legislature wanted to override the veto, which they did on the war powers resolution, they intended that that's it. It's the law, whether the president likes it or not.

So he's not co-equal there. The Supreme Court certainly not supposed to be co-equal.

Everything is supposed to flow from the laws the legislature makes, and the legislature is supposed to be limited by the enumerated powers given to them in the Constitution.

So, and I'll just give you a Madison quote to substantiate this. So when the Constitution was being debated, you know that there were the Federalist papers and ostensibly to convince the people of New York that they should support the Constitution because believe it or not, even Hamilton state was somewhat reluctant.

And of course, the later governor, the governor Clinton was a staunch anti Federalist.

So here's what Madison said. I'll get this again up on the screen for those watching. If you're not watching, you know, there is a link on the show notes page to the video version of all of these.

So, or at least since I started making videos and that's been a long time now. So, you know, do check out the video.

Still getting way more engagement on the audio only. Hey, I may not be Mel Gibson, but geez, is it that bad? All right. So Federalist number 48. And again, I'll put this on the show notes page.

Madison is writing and telling people you don't have to worry about this executive. It's really Congress you have to worry about. And here's what he says.

In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger.

And watched with all the jealousy, which is zeal for liberty ought to inspire in a democracy or a multitude of people exercise in person, the legislative functions and are continually exposed by their incapacity for regular deliberation and concerted measures to the ambitious intrigues of their executive magistrates.

Tyranny may well be apprehended on some favorable emergency to start up in the same quarter in the executive. That's in a democracy.

But in a representative republic.

I want to stop here and just say notice that he's distinguishing what kind of government the Constitution creates. It's not a democracy.

So why do it? Why does everyone keep calling it a democracy? Right. He says of the democracy. The president might be able to stir up the people because they don't know what they're doing in an emergency and the executive might be a danger to liberty.

And of course, he said previously that that in a hereditary monarchy, the executive is a course of danger to liberty. But we don't have an hereditary monarchy or a democracy is what he's saying. So I'll continue.

But in a representative republic where the executive magistrate is carefully limited, both in the extent in the duration of its power and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength, which is sufficiently numerous to feel all the passions which actuate a multitude.

Yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes.

It is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.

So we set a mouthful there. Okay, so to review that whole paragraph, executive is very dangerous in a monarchy to liberty.

It's dangerous in democracy too because a democracy means that all the people are voting on the bills.

And, you know, the executive can manipulate them. They're a mob, right? And then he says, but in a representative republic, which is what we have, not a democracy.

Hey, this legislative power, he's saying in a representative republic, we've limited the executive quite a bit. You don't have to worry about the executive.

Giving more credence to the idea that, you know, this executive doesn't have much power to start a war, but in other things as well.

And he's saying that the legislature is big enough where they can, you know, the passions that which actuate a multitude.

In some of the words, they can become a mob too. And, but they're not so numerous that they're all just going to argue with each other forever.

They could, they can get a bad idea in their head and they can get her done, right?

So you've got to watch the legislature. That's what Madison is saying in the Federalist and he's responding to people who are concerned that the executive is going to be too much like the king.

They just fought the war against. So that was the concern. Madison saying, no, so the co-equal branch thing is just something they came up with.

I think this goes back to Nixon to where he was trying to fight the Democratic Party Congress on them trying to rein him in.

And then they started coming up with this co-equal branches. They're not co-equal.

Okay. The legislative power is the ultimate power here. It can, you know, abolish most of the judiciary.

It can make any law it wants about restraining the president. The president is supposed to execute the laws that the legislature makes.

That's what they call executive. He's an air and boy. That was the idea.

And when you listen to the inaugural addresses and addresses to Congress early on, especially like Jefferson, he very much makes clear, you know, Congress.

All of the work is really for you. I'm just here to execute your will.

So, you know, we don't have a government that at all resembles the one in the Constitution.

Of course, the legislative power has been largely delegated away to the executive from the new deal, you know.

They still meet. They still have, they still vote on the funding, but all the rules basically are made by unelected bureaucrats, all the important ones.

So, you know, the most important one, though, and the most dangerous to us is the war power.

And that was definitely delegated to Congress. They were very clear when they debated this in the constitutional convention, the only explicit war power given in the Constitution is given to Congress, not to the president.

And he's made commander in chief of the military, but okay, you can march him around and they can salute you, but you can't initiate a war that can only be done by Congress.

And at the very most, the president can respond to an attack in the present. That was the intention.

When it was becoming clear that was getting away from them, they passed the war powers resolution. President didn't like it. No, I want to be able to do it. They override his veto. It's the law.

Okay. And somebody has to stand up and enforce it. Of course, it's politically a lot easier for Congress to just let the president do what he wants, because they don't have to take the blame then.

And that's another big problem too.

So I'll stop sharing this for a minute.

So it really begs the question that if the Congress isn't going to make any of the laws, they did that away to the executive.

And they're not going to exercise the war power that's exclusively delegated to them.

Then what do we still have him for?

I mean, if what they, if they're going to pass laws that are going to be ignored.

And they're just going to let the president, you know, start a war without asking them.

In fact, Obama went into Syria after Congress voted that he's not allowed to do that.

So if all that's true, why bother with this? Why have, you know, the Congress and the constant, it's a dead letter.

So, you know, certainly Trump is not the first one to abuse the Constitution in this way.

It's been done by every president and it's been done for basically all of my life.

And I got a six handle in front of my age now.

So I don't know.

Is there a republic left or do we just have an elected monarch?

That's really the question.

And I think you know what my answer would be.

What's yours? Leave it in the comments.

And again, I wait till the end to remind you to subscribe to the podcast if you already haven't subscribed to the YouTube broadcast.

If you want to watch the video instead.

And please do share it with a friend and leave your comments on the show notes page.

So that'll do it for today.

Thanks again for listening everybody.

And we'll see you next time on Tom Mullin Talks Freedom.

The solution starts in the minds of the people.