S8 Ep546: ### Segment 3 Headline: The War Powers Resolution and the Modern Realities of Global Conflict Summary: Professor Richard Epstein explores the history and constitutionality of the War Powers Act while discussing current military actions in Iran and their g

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I'm John Batsler.

It's a pleasure to welcome Professor Richard Epstein,

teaches Law at NYU in the University of Chicago.

He is at the Civitas Institute,

coming on history of the Vietnam War

and the War Powers Resolution of 1973,

which the story goes was intended to check

the president's powers to commit US Armed Forces

to armed conflict without congressional consent.

Requires the president to notify Congress

within 48 hours of deploying troops,

and mandates their withdrawal within 60 to 90 days,

unless authorized by Congress.

This was voted into effective resolution.

November, 1973, you will all recall

these are the Vietnamizing days of the Nixon administration,

while under assault by the investigation of Watergate scandal,

the president intended with his counselor

and in the second term,

and included the Secretary of State, Mr. Kissinger,

to Vietnamize the conflict

by transferring weapons and assistance

over to the South Vietnam government

and maintain that country outside of the reach

of North Vietnam indefinitely.

However, there was a spirit in the land

to get out, get entirely out,

War Powers Resolution, while not,

a mandate that the president must obey

certainly was the sense of Congress.

Mr. Nixon, the president in 1973,

he resigned in the summer of 74 you'll recall

over the Watergate scandal.

Mr. Nixon vetoed it, saying that Congress

was exceeding its authority.

Congress overrode the veto.

It remains on the books these many decades later.

Professor, a very good evening to you.

I mentioned, because I cannot prove it,

but I recall at the time, 1975, 76, and then 1980,

that the War Powers Resolution Act was blamed

or used to explain what followed the Vietnamization

and the US leaving and Saigon being overrun in 75

and falling under the boots of the Communists.

What happened afterwards was the killing fields of Cambodia

and the US was outside of the region

and could not stop that massacre of Cambodians and others.

Could also not intervene in any fashion

and stop the attack by the People's Republic

of China on Vietnam that happened at the end of the conflict

nor the final resolution, the Vietnam Army swept in

and stopped Paul Pot and his gang from mass murder.

All of that, the US was outside of.

It is said at the time that the War Powers Resolution

of 73 contributed to that helplessness

of the Carter administration and what came afterwards.

I don't choose that.

I'm just mentioning that was the politics

for the moment.

Here we are in 2026 and the Congress is again debating

War Powers Resolution, whether it fails or not,

is this something that is helpful to the President

and to the American people or is it a burden

left over from another war?

Good evening, too.

Well, I've always had great deal of uncertainty

about the War Powers Act, but let me start

by beginning with the terminal logiculation.

You called it at one point the resolution

and another point you call it an act.

The resolution is something that Congress could do

without the approval of the President

and then act essentially requires his approval.

You have to override the veto.

Now, if this is, in fact, a constitutional issue

where the President has certain paragogues

that are his and don't belong to the Congress,

then the statute is essentially unconstitutional

and the resolution, if you made it,

would be simply ineffective at the President's coast

the other way.

And so the real question in many cases

is just how do you run a war?

If you start over the analogy, the treaty power,

it is very clear that Congress has the power

when you're dealing with treaties, not minor agreements,

itself a big issue to implement the treaty,

but it's well established today

that when it comes to the modification

and enforcement of the treaty,

you don't have to go back to the Congress

every time you want to make a change.

It's exclusively within the power of the President.

My view, and I'm very unhappy with it,

but I think it's the correct view,

is that's the way in which wars have to be run.

The only thing that Congress can do

is decide to start it or to stop it,

but once the thing is underway,

the exigencies of battles make things much more difficult

to have deliberative processes.

And so what you have to do is what Trump did sort of in this case,

name we have informal consultation

with leaders in Congress and other places

in order to get a sense of what's going on,

but have no formal restraints on the way

in which it's going to be done.

Because if you put those things on there,

everything will end in a mess.

So let's go back to the current situation

where they start putting these resolutions out

to end the war right now,

which failed on straight-party line.

Trump had the problem is to figure out

what you're supposed to do in a ramp.

And he and the Israelis in very close collaboration

figured a certain date in February, the last day,

was in fact the optimal date to begin the war.

You put this thing up to a war's act.

This is not Pearl Harbor.

We're on December 8th, you have a unanimous resolution

to win the wars your entire foreign policy.

This is a case in which you're going to get a protective debate.

It's going to last for weeks.

And the moment you have that kind of debate,

then the opportunity to conduct the war is over.

The Iranians will continue to build missiles.

The Israelis may be less effective

if they decide to go with a loan.

So that what happens in the modern days,

this is not like it was in 1787

where Benjamin Franklin would go over to Paris

and try to win and die in the French court

in order to get some assistance in the Revolutionary War.

This is a situation where you have a deeply divided government

and you have a necessity of quick action

and the two things don't match.

So what has happened in fact is nobody declares war anybody

because that requires this congressional situation.

And it also triggers various kinds of external treaties

like the NATO treaty and so forth.

And so everybody just has a mission.

And that's exactly the language that they're using in this case.

This is a big war and everybody calls it this

so it's not a war at all.

But I think in effect the war acts,

well, the clear war, ways war won that seemed clear

in 1789 is not clear today.

And in fact, it can't be clear when did this war begin?

Well, did it begin in 1980 when the Iranians decided

to keep Americans in hostages

and you had the car to staying at home

during the entire election?

Or did it begin when they take out various ships

by missiles and try to murder our president and so forth?

What happens is the way wars begin today,

it's not no today.

And yes tomorrow there's a sliddy accretion.

And as you start going up that particular slope

is no clear point at which the war begins.

And therefore there's no clear way in which

to use the constitutional apparatus of 1789

to deal with the system today.

And I think that everybody kind of recognizes that.

And so if you go back to the situation under Obama,

he did not declare war on liberty.

He just simply spent eight or nine months

tacking them in order to achieve a political objective.

And who was his secretary?

On that case, it was Harold Coe, a very smart man

who had always written the opposite.

And then when he gets into government,

he basically reverses his field.

So what happens is all these decisions

have very high error rates no matter which way you go.

And so what you have to do is to make an educated guess

is to which is the lesser poison.

And I think in these circumstances

that Trump did the right thing.

Now, is he going to be able to carry it out?

Well, well, here's kind of one of the ironies.

The more domestic defense and opposition ever is.

The more they try to limit his hand,

the more likely they'll forceify the wisdom of his decision.

But on the other hand, to ask the Democrats

to bitterly accost everything he has to do,

to sit on the hand so he can win this war.

That's also hard to do.

The Wall Street Journal had a very nice editorial on this.

So you'll listen to these Democrats think.

And they hate so much.

They think we'd rather have the United States lose

this particular war.

If you read the Israeli position, which is my position,

the two most dangerous words on this kind of thing

is moderation and proportionality with respect

to what's going on.

If you're going to fight a war against somebody

who wants to kill you, kill them first,

or you're going to be drawn out into a war of attrition.

And in a war of attrition, it always loses to Iran.

If they can get it the size of both,

they can knock them back on their rear end

because they're not very good in the short run.

And that's the way in which you have to think about this.

And how long will this long last?

I don't know.

I mean, note that there's a kind of real ambivalence

in the president.

The one thing he wanted to do is to take out the eye of Tollant

and his crew.

And he's done that.

The second thing he wanted to do

is to degrade very substantially the military capacity

of Iran, missiles, conventional weapons, nuclear

advancement, and so on.

And he's done that.

But what about regime change?

Can you get that done through the air?

Can you get it done in time for this to happen?

Trump says he renounces it on Monday.

And on Tuesday, he wants to have a say

and pick who's going to be the guy.

There's a third at the table, Richard.

And that's the markets.

Brent crude is $90 a barrel right now.

And in addition, the market opens very much declining.

We have an already poor jobs report,

more negatives than expected by Wall Street.

And we're told out of the Middle East

that the natural gas prices will climb out of reach quickly

because of the attack on the cattari gas field.

We also have a warning to Azerbaijan

that sends natural gas to Europe from the Caspian Sea.

The expectation here is that not only will the price climb

sharply, but it will become shortages around the world.

So there is a clock running that is not in Washington

and that is not in Tehran.

It's in the markets.

Yes.

And the question is, can you clear the straits of humans?

Can you get enough American capacities overseas

to offset the shortages elsewhere?

Market's a very mobile on this stuff,

but there's no question that there's this ticking.

And if they could basically clear the sea lanes

out of the straits of humans,

this thing will start to evade.

But I agree with you.

I mean, I think he did the right thing.

It may well be that you can't achieve everything.

But if you ask me whether I would rather have a short war

which ended like this one, a no war at all,

I would rather have this situation

because you could continue all sorts of lower level activities

even after there's some kind of a peace treaty

because you'll know that there'll be access by a man

which will require at least some kind of a peace treaty.

Congress does not only represent the partisan opposition.

It represents members of the Republican Party

and both parties who have a constituency

are saying the price of gasoline is out of reach

of my family.

Do something.

And so it's not just ideology that moves them

to try to contain the conflict.

Well, I agree with you.

And not only that, if you want to talk about Asuna

and moves by the president, the last thing you should do

is say, I'm now going to impose this 15%

of the middle of the war.

I mean, so this is a self-inflicted war

because the president's still under the delusion

that these tariffs always pay for themselves

in some magical way.

So what you do is you have a leader

who's very good at ganglion fighting

and completing the remiss with respect

to the long-term economic implications

of his overall system.

So he could basically be a self-inflicted wound on all this.

Now, when I wrote about this a couple of days ago,

I said, I thought on balance that this was the right

to project.

Still believe that that was correct.

But it turns out, I think that the oil stuff

has to be resolved much more quickly.

In order for this thing to work, I don't believe

that you have a situation where the United States says,

we're going to halt in the Israeli's continued fire.

That's just too unstable.

And so it's going to be very much up to the two things.

One is you have a very short period of window to fight it

and you should be as intense as you possibly can

before the political pressures come in.

And if you do back down on this, it essentially probably

has to be in the neighborhood of a ceasefire.

And then what will happen is the ceasefire will be unstable

because somebody will violate it.

Remember, there was a ceasefire in Gaza on October 6th,

in that 2023.

Maybe here, but you know what?

There is so much uncertainty about all this

that anybody who's confident is wrong.

But remember, all you can do is make the best decision

possible on the basis of the available information

and you can second best yourself if you're wrong from all.

So everything is a 70-30 decision.

Professor Richard Epstein of the Civitas Institute,

the University of Texas at Austin, we turn to AI Goes to War.

Right now, I'm John Bachelor.

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