You know, when you picture the launch sequence
for a major weapon -like in one of those really
tense Cold War submarine movies, there is always
a very specific protocol. Right, a whole two
key system. Exactly. One officer has a key, the
other officer has a key. They stand across the
room from each other, they make eye contact,
and they have to turn those keys at the exact
same time. And I mean, that design is a physical
mechanical guarantee. It ensures that no single
human being can unilaterally make a decision
of that magnitude. It literally forces consensus.
It prevents a rogue commander from just acting
on a whim simply because the mechanism itself
demands shared responsibility. But then you step
out of the submarine and into the Oval Office
and you look at the history of how the United
States actually goes to war and suddenly you
realize that one of those keys has been missing
for a very long time. Or at the very least one
side figured out how to pick the lock. Right.
Exactly. So today we are tearing apart the origin
story of the War Powers Resolution of 1973. It
is quite the story. It really is. And if you
are out there prepping for a constitutional law
exam or, you know, maybe you were just insanely
curious about how power actually works in Washington
behind all the press conferences, this deep dive
is absolutely for you. Yeah, we are going to
be looking at some incredible historical accounts,
legislative histories, and some fairly heavy
constitutional analyses to figure out how the
mechanism of war broke down. Because the clash
between the president and Congress over military
action is what's a known constant in American
politics. Oh, absolutely. But the specific pivotal
law that was passed in 1973, it wasn't just another
routine disagreement over foreign policy. No,
not at all. It was the result of this intense
historical and constitutional pressure cooker.
So we are not just going to sit here and read
the text of the law. Right. That would be incredibly
boring. Exactly. Our mission today is to uncover
the sequence of events, the historical overreaches
and the absolute boiling point in the 1970s that
forced the legislative branch to fundamentally
challenge the commander in chief. But to really
grasp why 1973 was such an explosive moment,
starting the 1970s is actually way too late.
Yeah, you have to rewind. We have to rewind all
the way back to 1787. We need to look at the
original blueprints of American war power because
the framers of the Constitution were, well, they
were terrified of a monarchy. They had just fought
a brutal revolution against a king who could
plunge his entire nation into war on a whim.
Right. So they divided the power to make war
very carefully between the legislative and executive
branches. And by doing that, they created what
later legal scholars and actually a 1973 committee
report would call a twilight zone of concurrent
authority. A twilight zone. I love that phrase.
It's very accurate because the Constitution doesn't
actually draw a perfectly bright line between
who controls the military. It deliberately scrambles
the responsibilities. OK, let's unpack this because
if we look at Article one, section eight of the
Constitution, Congress has handed a massive amount
of authority. They don't just get some vague
oversight role. They get the power to declare
war. They can grant letters of marquee and reprisal.
And actually, I want to pause on that for a second
because letters of marquee sounds like something
out of a pirate movie. What actually is that
mechanism? Yeah, it's I mean, it is essentially
state -sponsored privateering. Wow. You have
to remember in the 18th century, the United States
didn't have a massive standing Navy. So if we
went to war. Congress had the power to issue
legal documents, these letters of marquee to
private merchant ship owners. Just regular citizens.
Right. It gave those private citizens the legal
right to arm their ships, attack enemy vessels,
capture them, and bring them back to port to
be sold in a prize court. That is wild to think
about today. It was a crucial military power,
and the founders gave it strictly to Congress,
not the president. So Congress is literally licensing
private citizens to commit acts of war. And their
power doesn't stop there. Congress has the power
to raise and support armies, but the Constitution
places a very strict, explicit two -year funding
limit on that army. Yes, the two -year limit
is huge. They also have the power to provide
and maintain a navy, to make rules for the government
and regulation of those forces, and to provide
for calling forth the militia. Congress basically
holds the purse strings, the rule book, and the
declarations. But then... You turn to Article
2, Section 2, which outlines the executive branch.
Right. And it states, quite simply, that the
president shall be the commander -in -chief of
the Army and Navy of the United States and of
the militia of the several states when called
into the actual service of the United States.
That's it. That is it. A sweeping overarching
title. The contrast there is jarring. I mean,
Congress gets this highly specific laundry limped
with fine print about funding limits, and the
president just gets a grand title. Why do they
design it this way? If Congress gets to build
the army and pay for it, why give the president
the command? Well, the founders recognized a
practical reality. A deliberative body of hundreds
of people cannot effectively lead a military
campaign. Right, you can't govern a battlefield
by committee. Exactly. You cannot have a legislature
vote on daily tactics, nor can they react quickly
enough if the nation is suddenly attacked. The
president is there to repel immediate invasions
and to manage the day -to -day operations of
the armed forces. OK, that makes sense. But entering
into a long -term war of choice, that required
broad national consensus through the people's
representatives. So going back to our submarine
analogy. It sounds like the founders set up a
joint bank account for a very dangerous business.
That's a great way to look at it. They put the
steering wheel in the president's hands, but
they locked the gas tank and gave Congress the
key. If Congress doesn't want the war, they just
stop paying for the gas. And that tension was
entirely intentional. It was meant to require
a super majority to override a president or to
force a president to constantly beg Congress
for resources. It's a feature, not a bug. Exactly.
But when you have overlapping responsibilities,
when Congress provides the military but the president
commands it, you inherently create friction.
Ambition is baked into the system. You cannot
leave a gray area in the highest levels of government
and expect powerful leaders not to explore it.
And ambitious leaders immediately started exploring
it. I mean the crisis of 1973 didn't just happen
in a vacuum. Not at all. Presidents slowly began
pushing the limits of that twilight zone, almost
from the moment the ink on the Constitution was
dry. And Congress pushed back just as hard. We
see this play out over a century of friction.
Yeah, there are some great historical examples
of this. Let's look at the 1847 spot resolutions
during the Mexican -American War. Abraham Lincoln
was a young Whig representative in the House
at the time. What exactly was he trying to do
with these resolutions? So President James K.
Polk had sent American troops into a highly disputed
border area between Texas and Mexico. Which is
incredibly provocative. Very. And predictably,
a skirmish broke out and American soldiers were
killed. So Polk went to Congress and declared
that Mexico had shed American blood upon the
American soil. He used that as a pretext to demand
a declaration of war. But Lincoln and other Whigs
in Congress were deeply suspicious of this narrative.
Right. Lincoln introduced a series of resolutions
demanding that Polk provide Congress with the
exact spot where the blood was shed. Because
Lincoln suspected the spot wasn't actually American
soil at all. Precisely. Lincoln was arguing that
Polk had deliberately provoked a conflict in
disputed territory just to force Congress's hand.
Wow. The mechanism of the spot resolutions was
a demand for information to challenge the commander
-in -chief's narrative. It was an early, very
public attempt by the legislative branch to say,
you do not get to unilaterally create a war and
then force us to declare it. But the Mexican
-American war happened anyway. It did. So the
president's maneuver ultimately worked. And we
see this friction escalate as the country grows.
If we jump forward to World War I, President
Woodrow Wilson wants to arm American merchant
ships to protect them from German U -boats, right?
And this is before the U .S. has officially entered
the war. Yes, and Congress is terrified this
will drag the country into a massive European
conflict. So what do they do? In 1917, they filibuster
the armed ship bill. They literally talk it to
death on the Senate floor to stop the president.
And how did Wilson respond? He simply bypassed
them. He dug up an old, obscure anti -piracy
statute from 1792 and claimed it gave him the
executive authority to arm the ships anyway.
So again, the president finds a way around the
legislative lock. Right. The Twilight Zone gets
a little bigger. Which brings us to the 1930s.
Congress is watching Europe destabilize with
the rise of Nazi Germany, and they're desperately
trying to build legislative walls to keep the
president from creeping into the conflict. They
were very proactive about it at first. Yeah,
they passed a series of neutrality acts between
1935 and 1939. How did these acts actually function
mechanically? The neutrality acts used mandatory
embargoes. Congress legally prohibited the export
of arms, ammunition, and implements of war to
any foreign nations at war. They were trying
to legally bind the hands of the executive branch
by making it a criminal offense to supply belligerence.
And there was also the proposed Ludlow Amendment
during this same period, which is, I mean, it's
just a staggering attempt to alter the Constitution
itself. Oh, the Ludlow Amendment is fascinating.
It proposed that the United States could not
declare war without a national popular referendum.
Literally putting the question to a public vote.
unless the U .S. was directly attacked first.
Which is incredible to think about. Wait, a national
popular vote to go to war? That would completely
bypass both the president and Congress. It would.
And it gained incredible traction because the
anti -war sentiment was so high after World War
I, President Franklin D. Roosevelt had to exert
massive political pressure to defeat the Ludlow
Amendment in the House. He argued it would completely
cripple his ability to conduct foreign policy.
And it's FDR who fundamentally shifts this dynamic.
He really does. When we get to World War II,
FDR is looking at the existential threat of the
Axis powers, and he takes incredibly bold unilateral
actions long before Congress officially declares
war after Pearl Harbor. Right. We are talking
about the Destroyers for Bases deal, where he
just gave 50 U .S. Navy destroyers to the United
Kingdom. He directed the U .S. Navy to protect
British shipping vessels, effectively engaging
in an undeclared naval war in the Atlantic. He
even ordered the military occupation of Greenland
and Iceland. Right. So how did he legally justify
doing all of this without Congress? He relied
heavily on his inherent powers as commander in
chief. He argued that the defense of the United
Kingdom was vital to the defense of the United
States. So he was framed as defensive. Exactly.
Therefore, deploying forces to Iceland or giving
away destroyers wasn't making war, it was executing
his Article 2 duty to defend a nation from an
encroaching threat. And he utilized executive
agreements rather than formal treaties, which
bypassed the Senate's approval process entirely.
Okay, here's where it gets really interesting.
History, and frankly the American public, remembers
FDR's actions before entering World War II as
heroic necessities. Yes, absolutely. He is viewed
as the savvy leader who recognized the evil of
fascism and did whatever he had to do to stop
it while tied down by an isolationist, stubborn
Congress. Right. But structurally, from a purely
constitutional standpoint, he was laying the
groundwork for the exact executive overreach
that would terrify Congress three decades later.
What's fascinating here is the paradox of executive
power. When a beloved president during an existential
globally recognized crisis acts unilaterally
and is praised for it, the fabric of the Constitution
stretches. Right, the boundaries shift. The boundaries
of the Twilight Zone are pushed outward. The
danger is that a precedent is set. The executive
branch learns that it can initiate military actions,
commit troops, and engage in hostilities. And
as long as they frame it as a defensive necessity
or a vital national interest, they can bypass
the formal declaration of war process entirely.
It's like you stretch the rubber band to save
the world, but once it's stretched, it never
quite snaps back to its original shape. Every
subsequent president inherits that slightly looser
rubber band. And that leads directly into the
Cold War. The era that followed World War II
wasn't about total war with a clear start and
end date. It was about containment, proxy wars,
and continuous global military engagement. Right.
The Twilight Zone expanded from a legal concept
into a global military posture. And it was the
conflict in Southeast Asia that finally brought
this centuries -long constitutional tension to
an absolute boiling point. Because the immediate
catalyst for the 1973 War Powers Resolution was
the Vietnam War. without a doubt. The United
States found itself deeply involved for years,
with hundreds of thousands of troops deployed,
suffering massive casualties and engaging in
brutal combat, all without a formal declaration
of war from Congress. The initial escalation
was authorized by the Gulf of Tonkin Resolution
in 1964, which was essentially a blank check
from Congress to President Lyndon B. Johnson.
But as the war dragged on and became deeply unpopular,
Congress felt trapped. Yet, while the broader
war was a massive point of friction, the ultimate
breaking point, the actual spark that ignited
the powder keg was a specific revelation. It
was the discovery that President Richard Nixon
had been conducting a massive secret bombing
campaign against Cambodia. This was known as
Operation Menu. And we really need to emphasize
the word secret here, because how does a president
hide an entire bombing campaign in a sovereign
nation from the United States Congress? It required
a deliberate systemic effort to falsify military
records. They utilized a dual reporting system.
The pilots flying the B -52 bombers were given
the actual coordinates for targets inside Cambodia,
but the radar operators and the official military
logs recorded the strikes as having occurred
inside South Vietnam. That is stangering. The
administration actively lied to the congressional
committees responsible for oversight and funding.
So this wasn't just a matter of the president
not picking up the phone to give Congress a heads
up. The executive branch was forging official
documents to hide the fact that they were expanding
a war into a neutral country. Yes. When the New
York Times finally broke the story and whistleblowers
in the military came forward, what was the reaction
in Congress? It was a profound institutional
shock. For Congress, this completely transcended
policy disagreements about Southeast Asia. It
took a massive psychological toll. I can imagine.
They realized that their constitutional authority
wasn't just being bypassed. It was being actively
subverted. Because if the president can run a
secret bombing campaign in a sovereign nation,
utilizing billions of dollars of taxpayer money
without telling the people whose job it is to
declare war and appropriate those funds. What
power does Congress actually have left? Exactly.
If we connect this to the bigger picture, it
goes right back to the dual key system you mentioned
earlier. Right. The president hadn't just used
his key. He had picked the lock, emptied the
bank account, and falsified the bank statements.
There's a perfect way to describe it. Legal scholar
Philip Bobbitt makes a really compelling argument
regarding this era. Based on his analysis and
the sources, he stated plainly that a democracy
cannot tolerate secret policies. Why? Because
secrecy inherently protects the government from
the voters. Exactly. Secret policies fundamentally
undermine the legitimacy of governmental action.
If the public and their elected representatives
are kept entirely in the dark about military
actions, the foundational consent of the governed
is destroyed. Right, the whole system breaks
down. A republic relies on transparency to function.
When the executive branch applies lethal force
on a global scale entirely in the shadows, it
ceases to be a democratic action. Just put yourself
in the shoes of a citizen or junior senator at
that time. You wake up, open the newspaper, and
find out your country has been carpet bombing
another nation for months. Yeah. It shatters
the illusion of democratic oversight. It forces
the realization that the machinery of war is
operating entirely on its own. The leak of the
Cambodia bombings was the moment the legislative
branch realized the Twilight Zone had become
a black hole. Their Article 1 powers were just
gone. So they had to act. They had to fight back,
not just to end the conflict in Vietnam, but
for their own institutional survival. Congress
didn't just snap their fingers and draft the
1973 resolution overnight. The revelation of
the bombings triggered a massive multi -year
legislative avalanche. And a long process. Congress
tried to claw back power piece by piece, building
a framework of resistance. In 1970, we see the
McGovern -Hatfield Amendment. How did they try
to use that to stop Nixon? The McGovern -Hatfield
Amendment was an attempt to use the ultimate
article, the power of the purse. It proposed
legally capping the number of U .S. troops in
Vietnam and forcing a total withdrawal by literally
cutting off the funding to pay for the deployment
after a specific date. Wait, but if Congress
controls the money, why didn't that just work?
Why do they need a whole new resolution later?
Couldn't they just say the war is defunded as
of Friday? You would think so, but because of
the brutal political reality of war, it's not
that simple. Opponents of the amendment argued
that cutting off funding would mean abandoning
American troops in the field. Oh, wow. Right,
leaving them without ammunition or support while
under fire. No politician wants to be accused
of defunding the soldiers. Of course not. And
Nixon understood this leverage perfectly. As
long as troops were deployed, Congress felt morally
and politically obligated to fund their protection.
Ah, so the power of the purse is... actually
incredibly difficult to use once the shooting
starts. That makes total sense. A very blunt
instrument. So Congress tries other tactics.
Also in 1970, they passed the Cooper Church Amendment,
which specifically aims to restrict funding for
U .S. ground operations in Cambodia. And then
in 1971, they take a huge symbolic step. They
officially repeal the Gulf of Tonkin Resolution.
They revoke the blank check they gave LBJ back
in 1964. But Nixon's response to the repeal of
the Tonkin Gulf Resolution was essentially a
shrug. Really? Yeah, his administration argued
that They didn't need the resolution anyway.
They claimed the president's inherent authority
as commander in chief under Article 2 was sufficient
to continue the want to protect American troops
as they withdrew. It is a terrifying legal loop.
It really is. The president sends troops into
danger using a congressional resolution. Congress
revokes the resolution and the president says,
well, the troops are in danger now, so my Article
2 powers allow me to keep fighting to protect
them. It's a self -justifying war machine. Which
is exactly why the legislative avalanche continued.
In 1973, Congress passed the Case Church Amendment,
which finally cut off all funds for U .S. military
involvement in Vietnam, Laos, and Cambodia. Right.
This cascade of legislation demonstrates a Congress
that is waking up, flexing its muscles, and trying
to build fences around the executive branch.
And all of this momentum culminates in the meat
event. Democratic Congressman Clement Zablocki,
representing Wisconsin's 4th District, introduces
House Joint Resolution 542. The big one. This
is the bill that will become the War Powers Resolution.
And the composition of the support for this bill
is crucial. It wasn't just liberal antiwar Democrats
taking a shot at a Republican president. No,
not at all. It had deep bipartisan support. Right.
And importantly, it was famously co -sponsored
by a significant number of U .S. military veterans
serving in Congress. Think about that for a second.
This wasn't a group of politicians sitting safely
in Washington, philosophically debating the Constitution.
These were military veterans, people who had
worn the uniform, who understood the grim reality
of combat, and they were the ones standing up
saying, we need stricter rules on how our troops
are sent into harm's way. That detail really
underscores the impartiality of the historical
moment. We cannot frame this as a simplistic
story of Congress acting as flawless heroes while
Nixon plays the comic book villain. Yeah, it's
more complicated than that. This was fundamentally
an institutional immune response. An institutional
immune response. The body politic realized a
single organ was doing far too much work and
stepped in to rebalance the system. Congress,
regardless of political party, felt the institution
of the presidency had grown dangerously powerful.
The executive branch had accumulated so much
unchecked authority over decades, from FDR through
the Cold War to Vietnam, that the legislative
branch felt compelled to act collectively to
restore the balance intended by the framers.
It was about protecting the legislative institution
itself. Exactly. So Congress builds this bipartisan
coalition, backed by veterans. They have the
momentum. But the commander -in -chief is not
going to just sign away his power without a fight.
No, he is not. The stage is set for a massive
showdown in the final months of 1973. This is
a period of immense political turmoil. The timeline
is incredibly tight. The War Powers Resolution
passes the House of Representatives on July 18th
by a vote of 244 to 170. OK. Two days later,
on July 20th, it passes the Senate by a margin
of 75 to 20. Congress throws down the gauntlet.
But President Nixon views the legislation as
a direct assault on the constitutional authority
of his office, and he communicates his opposition
in a highly theatrical manner. How so? Well,
Representative Gerald R. Ford, who would soon
become vice president and then president, stands
up on the floor of the House and reads, A telegram
allowed. A telegram from President Nixon directly
to Congress. He didn't just issue a press release.
He sent a telegram to be read on the floor warning
Congress that he would veto the legislation because
it contained dangerous and unconstitutional restrictions.
Right. He isn't arguing policy. He's claiming
the law violates the foundational law of the
land. And on October 24th, 1973, Nixon follows
through and vetoes the bill. But the timing here
is critical. The fall of 1973 is the height of
the Watergate scandal. Oh, right. Just days before
Nixon's veto, the Saturday Night Massacre occurred,
where Nixon fired the special prosecutor investigating
him, leading to the resignations of the attorney
general and deputy attorney general. So his approval
ratings are tanking. Nixon's political capital
was entirely destroyed. Which explains how Congress
was able to pull off what happened next. On November
7th, 1973, Congress strikes back. They override
the presidential veto. with the required two
-thirds majority in both chambers. Yes. The House
votes to override 284 to 135, and the Senate
votes to override 75 to 18. The veto is crushed
on national television, and the War Powers Resolution
becomes the law of the land. It is a monumental
moment in American legislative history, but we
really must pause and deeply analyze Nixon's
argument. Okay, let's do that. Why did he call
the resolution unconstitutional? It wasn't just
desperate rhetoric from a weakened president.
It was based on a very specific, fiercely defended
reading of Article 2. Okay, let's unpack Nixon's
perspective. Because to understand the modern
presidency, we have to treat his constitutional
defense with academic respect. What did the War
Powers Resolution actually do mechanically? It
essentially put a ticking clock on the president.
Right. It requires the president to formally
notify Congress within 48 hours of committing
armed forces to military action. Then, it forbids
those forces from remaining in combat for more
than 60 days with an additional 30 -day withdrawal
period unless Congress explicitly grants authorization
or declares war. And from the executive's point
of view, restricting the commander -in -chief
to an arbitrary 60 -day statutory clock fundamentally
infringes on his Article II duties. Because it
limits his command. Right. The president's explicit
constitutional job is to lead the armed forces
and defend the nation. Nixon's argument was this.
What if a military operation vital to national
security takes 65 days? If Congress simply refuses
to hold a vote like, if they just go on recess,
The president is legally forced by the statute
to abandon the mission. Does the military instantly
become an illegal occupation force on day 61?
Do they just drop their weapons? That's a compelling
point. Nixon viewed this clock as an unconstitutional
handcuff. And this wasn't just a Nixon argument
born out of Watergate. Future administrations
echo these exact same constitutional reservations.
Oh, absolutely. The Reagan administration harbored
extensive reservations about the law's constitutionality.
The legal adviser to the State Department at
the time, Abraham Sofer, argued that the resolution's
deadlines create unwise limitations on presidential
authority. The Reagan administration also argued
the law shouldn't apply to anti -terrorist operations,
viewing those more like international law enforcement
than state -on -state hostilities. Right. The
core executive argument remains constant to this
day. Article 2 grants the president inherent
dynamic authority to deploy troops. That article
I cannot simply legislate away with a stopwatch.
So what does this all mean? Congress wins the
vote. The veto is crushed. The law goes into
effect. Did they successfully put the genie back
in the bottle? Did they solve the Twilight Zone
problem? No. Passing the law didn't erase the
gray area. It just dropped a highly controversial
set of rules right into the middle of it. Wow.
And it ignited a deep constitutional debate over
whether the law itself is actually legal because
the arguments over the War Powers Resolution
get into the very DNA of how the Founding Fathers
viewed the structure of government. To justify
passing the 1973 law, Congress had to point to
something specific in the Constitution that gave
them the right to regulate the Commander -in
-Chief. They couldn't just say, we're mad about
Cambodia. Right. They need legal standing. So
they cited the necessary and proper clause. The
sweep up clause. Exactly. It states, Congress
has the power to make all laws necessary and
proper for carrying into execution its own powers,
but also all other powers vested by the Constitution
in the government of the United States. or in
any department or officer thereof. Or in any
officer thereof. That is the linchpin. Okay,
unpack that. Congress argued that since the president
is technically an officer of the United States,
Congress has the authority to pass laws that
structure and regulate exactly how the president
executes his war powers. So they can build the
operational framework. Exactly. They claim the
authority to build the operational framework
within which the commander -in -chief must operate.
But the executive branch fought back. Using the
separation of powers doctrine and there is a
fascinating historical parallel to this showdown
that we have to talk about Yes, the crisis between
President Andrew Johnson and Congress over the
Tenure of Office Act in 1867. Oh, this is a brilliant
comparison back in 1867 Congress passed a law
over President Johnson's veto that required the
president to get congressional approval before
he could fire his own cabinet members. Right.
Congress was actively trying to micromanage the
executive branch to protect the Secretary of
War, Edwin Stanton. Right. And when President
Johnson defied that act and fired Stanton anyway,
Stanton literally barricaded himself in his office.
The House impeached Johnson. It was chaos. It
was. He survived removal in the Senate by only
one single vote. But the legal coda to that story
is crucial for 1973. What happened? In 1926,
the Supreme Court ruled in a case called Myers
v. United States. Chief Justice William Howard
Taft, who was actually a former president himself,
wrote the Lanyun stating that the 1867 Tenure
of Office Act had been unconstitutional all along.
Why? Was Taft's reasoning? Taft argued that the
president must have absolute removal power over
purely executive officers to fulfill his constitutional
duty to take care that the laws be faithfully
executed. I see. Congress cannot usurp the president's
core executive functions. So the executive branch's
modern argument against the War Powers Resolution
is essentially you are doing the Tenure of Office
Act all over again. Wow. They argue that requiring
congressional approval for military deployments
and enforcing a 60 -day improperly breaches the
separation of powers. But the scholars defending
Congress have incredible counter arguments. Philip
Bobbitt's legal analysis is fascinating because
it challenges how we define the very word declare
in the Constitution's Declare War Clause. Yes.
Bobbitt's argument is highly influential here.
He argues that our modern notion that declaring
war simply means commencing or starting a fight
is a contemporary preconception. Right. It is
a misunderstanding of 18th century international
law. He argues that the framers believed statutory
authorization like passing regular funding bills
and specific laws was the normal route for committing
the U .S. to military action. Yes. A formal declaration
of war was meant only for total wars. where the
goal was the complete subjugation of another
nation. It was a legal announcement to neutral
countries, not a prerequisite for pulling a trigger.
And he cites the history of the Quasi -War with
France from 1798 to 1800. Oh, right. This was
a significant bloody naval conflict authorized
by Congress through a series of specific statutes.
They authorized the capturing of French ships,
the arming of merchant men. But they never formally
declared war. Exactly. Congress never formally
issued a declaration of war against France, yet
the Supreme Court at the time recognized it as
a fully constitutional, legally authorized conflict.
So Bobbitt's point is that constitutional powers
are linked and sequenced. Congress structures
the armed forces by passing laws and appropriating
money, and the president commands what Congress
builds. Correct. Therefore, we shouldn't fetishize
the formal act of declaring war. The statutory
controls, like the reporting requirements and
clocks and the war powers resolution, are completely
in line with how the founders intended Congress
to regulate conflict. And this raises an important
question about the physical reality of the military
the founders envisioned versus the military that
exists today. And this might be the most revealing
detail regarding why the system broke down. Let's
hear it. We have to look at the specific constitutional
wording regarding the Army versus the Navy. Yes.
The Constitution authorizes Congress to provide
and maintain a Navy. The word maintain implies
permanence. A Navy is expensive. Wooden ships
take years to build. A Navy was a permanent fixture
of national defense to protect shipping and the
coasts. But when it comes to the land forces,
the Constitution only authorizes Congress to
raise and support an army. Raise, not maintain.
Right. And it explicitly slaps a strict two -year
limit on any funding for it. The Founders envisioned
fighting land wars largely the way they fought
the revolution. Wow, so. You rely on state militias,
and if a major crisis happens, Congress raises
a Continental Army from scratch and disbands
it the moment the crisis is over. Because they
were absolutely terrified of a permanent standing
army. They remembered King George III quartering
troops in their homes. To the Founders, a massive
standing army wasn't a tool of defense. It was
what tyrants used to oppress their own people.
So the original system was designed with a built
-in physical limitation. The president is commander
-in -chief, but if he wants to fight a land war,
he literally has to go to Congress to ask them
to build an army for him first. Right. And he
has to go back every two years to ask for money
to keep it. The friction wasn't just legal theory,
it was a logistical reality. But fast forward
to 1973, or today. The United States has had
a massive, modern, permanent standing military
for decades. The dynamic the founders imagined
is completely gone. The president doesn't have
to ask Congress to raise an army. Millions of
troops are already in uniform. They are forward
deployed at hundreds of bases around the world.
They are armed with mechanized weapons, supersonic
jets, and nuclear submarines. The historical
irony is staggering. We are trying to use rules
written for 18th century local militias and wooden
ships to figure out who is allowed to order secret
carpet bombings in Southeast Asia. It's no wonder
the system broke down. Exactly. The Twilight
Zone became so volatile because of the physical
destructive reality of the modern military. completely
outgrew the 18th century paperwork meant to contain
it. The natural logistical speed bump of having
to build an army was gone. So Congress tried
to artificially recreate that speed bump with
a 60 day statutory clock in the War Powers Resolution.
That perfectly encapsulates the dilemma. The
War Powers Resolution was Congress's desperate
attempt to patch a 1787 document to deal with
the 20th century superpower. And that is why
the constitutional debates remain so fierce.
Let's summarize this incredible journey. We started
with a simple question about a law passed in
1973. But what we found is that the War Powers
Resolution wasn't just a random piece of legislation.
It was the explosive result of a century of executive
creep. It was a tension built into the Constitution
from day one. It was sparked into a modern precedent
by FDR's pre -WWII maneuvers escalated by the
undeclared perpetual nature of the Cold War in
Vietnam and finally detonated by the revelation
of Nixon's secret falsified bombing campaign
in Cambodia. It was a moment of absolute institutional
crisis. Congress drew a line in the sand, marshaled
a bipartisan coalition led by military veterans,
and overrode a presidential veto to reclaim their
constitutional voice. And while it didn't perfectly
resolve the tension, presidents to this day still
argue the laws unconstitutional. It permanently
changed the landscape. It forces the executive
branch to at least acknowledge the legislative
branch's role. Every single time you read the
news today about the United States sending troops
to a hot spot or launching drone strikes or positioning
carrier strike groups anywhere in the world,
the invisible ghost of this 1973 showdown is
hovering over the decision. Every 48 hour notification
report a modern president files with Congress
is a direct echo of Gerald Ford reading that
telegram and Congress deciding to override the
veto anyway. The tension between the branches
is not a flaw in the system. It is the system,
and the War Powers Resolution is the most visible
monument to that ongoing struggle balance. Which
leaves us with a final lingering thought to mull
over. The founders built a system to control
war based on the physical reality that raising
an army would be slow, cumbersome, and require
constant active permission from the people through
a two -year funding limit. The two keys in the
submarine had to be turned together because it
took time to even build the missile. But today,
the reality is entirely different. The United
States maintains a permanent military machine,
ready to deploy globally in a matter of hours.
The engines of war are always idling, just waiting
to be put into gear. Does any piece of paper
passed in 1973 really have the power to stop
a commander -in -chief who already has the entire
modern military right at their fingertips? It's
a heavy question. Can a 60 -day clock truly restrain
an office that holds the power to launch a global
strike before Congress even has time to gavel
a committee hearing into session? Something to
think about the next time you hear the words
commander -in -chief. Thank you for joining us
on this deep dive. We'll see you next time.