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War and the Constitution - with Professor Ilya Somin

Main Discussion Topics

The Constitutional Text on War Powers

Article I grants Congress the power to declare war
Article II, Section 2 makes the president Commander in Chief of the armed forces
Professor Somin explains that the Commander in Chief clause, as Alexander Hamilton stated in Federalist 69, means the president is the highest-ranking general and admiral of the armed forces -- not that he has unlimited authority to initiate conflict
The clause means the president is the highest decision-maker within whatever the military is legally authorized to do; it does not authorize the military to do anything the president wants

Professor Somin on the Commander in Chief clause: "Whatever the military is authorized to do legally, the president is the highest ranking officer in the military... but the fact that you're the Commander in Chief of the armed forces does not mean that you're allowed to order the armed forces to do anything that you want them to do."

"Make War" vs. "Declare War" -- The Constitutional Convention

On August 17, 1787, Elbridge Gerry and James Madison moved to change "make war" to "declare war" for Congress
The change was intended to allow the president to respond defensively if the country was attacked while Congress could not quickly convene, without giving the president unilateral power to initiate conflict
Madison and Hamilton -- who disagreed on nearly every major constitutional question of the era -- agreed on this point: only Congress has the power to initiate a war

Professor Somin: "The power to declare war is a power to initiate a conflict on your own as opposed to merely react to one that the other side has started."

Does the Iran Conflict Qualify as a War?

Professor Somin argues the Iran conflict meets any plausible definition of war, both historically and under founding-era legal sources
Hundreds of thousands of troops involved, thousands of deaths, fighting ongoing for weeks
The president has articulated objectives including massive damage to Iranian military capacity and potential regime change
Michael references founding-era legal dictionaries (Samuel Johnson's dictionary, Richard Burns's legal dictionary, and the legal philosopher Vattel) -- all of which define war in terms of armed conflict between sovereign nations
Professor Somin: this is not a borderline case -- it is unambiguously a war

Jefferson and the Barbary Pirates -- A Common Counterargument

Michael addresses the frequent pushback that Jefferson acted without congressional authorization against the Barbary Pirates
Professor Somin notes key distinctions: the Barbary Pirates had attacked American ships first (a defensive posture), the scale was far smaller, and Jefferson did eventually obtain some form of congressional authorization
Even so, Michael's position: a violation by Jefferson is still a violation -- the founders were not above violating the Constitution themselves

Congress HAS Authorized War Since 1942

Contrary to a common claim, Congress has authorized large-scale military action multiple times since the last formal Declaration of War in 1942
Authorization does not require use of the phrase "declaration of war" -- both Gulf Wars, the War on Terror, and the Vietnam War involved congressional authorizations that everyone understood at the time to mean large-scale military conflict
The Iran war has none of these prior authorizations, and no mitigating factors present in earlier edge cases

Professor Somin on the pattern of executive overreach: "The fact that some previous presidents got away with violating the law like Obama with Libya in 2011... the fact that somebody previously got away with violating the Constitution is no reason to do it again. There are also every year hundreds or even thousands of people who get away with murder. That doesn't make murder legal."

Venezuela: Drug Boats and the Seizure of Maduro

Attacks on drug boats: Professor Somin argues this likely does not rise to the level of war, but is actually worse in a legal sense -- the targets were not engaged in armed hostilities against the United States, and in many cases there was no proof they were even trafficking drugs to the US. He characterizes it as outright murder.
Seizure of Maduro: Professor Somin argues this was an act of war -- seizing the head of state of a foreign government is generally considered an act of war even when the use of force involved is smaller in scale. The administration's "law enforcement operation" defense does not hold up.
Neither action received congressional authorization

The War Powers Act

Enacted in 1973 in the aftermath of Vietnam, the War Powers Act is a limitation on presidential authority, not a grant of new power
It requires the president to obtain congressional authorization within 90 days of sending troops into armed hostilities or situations with a high likelihood of hostilities
It also contains a provision permitting deployment only in the case of a declared war, a direct attack on the United States, or an imminent threat of such an attack -- none of which apply to the Iran situation
The consultation requirement (within 48 hours of initiating action) was likely violated; merely informing a few members of Congress does not meet the ordinary meaning of "consult"
Whether the War Powers Act is constitutional or not, it does not authorize the Iran war -- to the contrary, it provides an additional layer of restriction

Professor Somin on the War Powers Act: "If it is constitutional, it's an additional limitation on his authority."

Standing and the Political Question Doctrine

Congressional lawsuits face two major obstacles: standing requirements and the political question doctrine
Courts have generally held that questions about war initiation are political questions the judiciary should not resolve
Individual members of Congress likely lack standing, though Congress as an institution has been granted standing in prior cases (e.g., the Democratic-controlled House suing over border wall funding)
Even if standing were established, the political question doctrine would likely result in the case being dismissed

Why Constitutional Process Matters Even Against Evil Regimes

Michael frames the challenge: upholding the Constitution can appear to mean prioritizing an abstract document over confronting genuinely evil regimes
Professor Somin's response: concentrating war-making power in one person is exactly the monarchical structure the founders were trying to break from
Congressional authorization also serves a practical military function -- it requires building broad public support before going to war, which increases national will and staying power
The Iran war began with more public disapproval than approval in polling -- a historically unusual starting point that reduces the country's ability to sustain the conflict

Professor Somin: "War is a contest of wills. If a war starts out with very little public support... that means we don't have a lot of will or a lot of staying power, and that greatly increases the chance that the Iranians or other adversaries can simply wait us out."

Constitutional Principles at Stake

Michael identifies the core principles: separation of powers, checks and balances, and rule of law
Professor Somin agrees these are exactly the principles implicated -- not technical legal arcana, but foundational structural choices the founders made deliberately
The argument that the Constitution is hard to interpret does not apply cleanly here: the war powers provisions are not among the Constitution's vague clauses; the Iran war is an easy case

Trump's Tariff Case -- Somin's Role

Separate from war powers, Professor Somin discusses his involvement in the IEEPA tariff challenge
The administration attempted to use the International Emergency Economic Powers Act of 1977 to impose the highest tariffs since the Great Depression -- a statute that had never been used to impose tariffs and does not mention the word "tariff" or any synonym
Working with the Liberty Justice Center, Somin filed suit on behalf of five small businesses harmed by the tariffs; the case was consolidated with a suit by twelve state governments
The Supreme Court ruled 6-3 that IEEPA does not authorize tariffs; some justices in the majority also cited the major questions doctrine
Trump is now attempting to replace those tariffs with so-called Section 122 tariffs; Somin believes those are also illegal and new litigation is underway

Trump's Attacks on the Court

Michael raises Trump's public statement that the tariff ruling was against his wishes and the judges knew it
Professor Somin distinguishes between legitimate criticism of court decisions and attacks on the court for alleged disloyalty
He characterizes Trump's attacks on the court as "stupid and reprehensible" while noting they are part of a broader and more serious pattern of norm-breaking, including bigoted attacks on migrants

Enforcement and What Comes Next

Professor Somin acknowledges the most pressing unresolved question: what can actually be done to prevent future abuses
Impeachment is theoretically the primary remedy but has been rendered largely inoperable by partisan dynamics the founders did not anticipate
Congressional funding cutoffs are another tool but create their own complications
Enforcement mechanisms are weak relative to the scope of the violations; Professor Somin is working on ideas and calls for broader public engagement with the problem

Key Constitutional Principles Raised

Article I war declaration power vested exclusively in Congress
Article II Commander in Chief clause as a command-and-control role, not a war-initiation power
Separation of powers and checks and balances as structural safeguards against one-person war-making
War Powers Act as an additional limitation, not a grant of authority
Major questions doctrine in the context of executive power grabs via statute
Political question doctrine as a barrier to judicial enforcement of war powers

Notable Quotes

Professor Somin on constitutional enforcement: "The fact that you're the Commander in Chief of the armed forces does not mean that you're allowed to order the armed forces to do anything that you want them to do."

Professor Somin on prior violations as precedent: "Every year hundreds or even thousands of people get away with murder. That doesn't make murder legal, and that doesn't mean we shouldn't catch and punish the next murder we detect."

Professor Somin on public support and military success: "Requiring the buildup of public support beforehand increases the likelihood that we can actually win."

Michael on the constitutional stakes: "The principles that I say are at stake are separation of powers, checks and balances, rule of law. None of those are flawed."

Professor Somin on constitutional complexity: "With the provisions we're talking about now, they're not actually that difficult to understand except in certain marginal cases."