Bob and Jack chat about the war with Iran and Congress’s response. They discuss Congress’s failed efforts to halt the conflict, an emerging proposal for a constrained authorization of force, and the Trump administration’s limited engagement with lawmakers. They examine the politics of the conflict, the role of funding and appropriations, the status of the War Powers Resolution, and contemporary legal debates over military operations without congressional authorization, including the scope of Office of Legal Counsel opinions and the broader shift toward a one-man-decides model of war powers.
Thumbnail: President Donald Trump attends the Dignified Transfer of remains of six U.S. soldiers killed in an Iranian drone strike in Kuwait. (Official White House by Daniel Torok.)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Good afternoon, Bob.
Bob Bauer: Good afternoon.
Today we’re going to discuss issues on the horizon in the war in Iran with respect to Congress, and I’m going to start off with some background, and then we’re going to go over three or four kind of fundamental issues on the horizon.
The operation began without congressional authorization on February 28th, about four weeks ago. The United States, apparently led by Vice President Vance, is reportedly in a negotiation with Iran through Pakistan to reach a ceasefire or a peace deal. In recent days, the Pentagon has ordered thousands of Marines and several more battleships to the Middle East. Both parties in Congress have complained that the administration has kept them in the dark in terms of objectives, costs, and timelines for combat operations in Iran. And a Pew Research poll from two days ago showed that 61 percent of Americans disapprove of President Trump’s handling of the conflict, while 37 approve.
So that’s the background. The first issue we should discuss are the efforts in Congress this month to stop the war. There have been three votes earlier this month, all failing by 47 to 53, and all pursuant to fast-track procedures to stop the conflict. And all three of them had language as follows: Congress hereby directs the president to remove the United States Armed Forces from hostilities within or against Iran. And as I said, the votes on that proposition failed.
Yesterday, The New York Times reported that Senator Murkowski of Alaska, Republican Senator Murkowski, is working with a group of senators for a formal authorization of force, and the Times story suggested that she’s focusing on an authorization to try to put some constraints around it, and I believe to try to get the president to engage Congress more, give Congress more information about what’s going on. So that’s what’s going on. What are your thoughts, first of all, Bob, about these votes in Congress and the politics slash law of this?
It’s always very difficult at the outset—and now we’re several weeks into it—but at the outset of a conflict like this, with the deployment of U.S. force in fulfillment, however described, however variously described, national security objectives, for Congress to vote to terminate the hostility. So three times Congress has voted on it; three times Congress has declined to cast that vote.
What will be interesting in the Murkowski case is how she’s going to craft a resolution that hits, if you will, the political sweet spot for a number of members. On the one hand, she’s asking them to take an unpopular step, which is to authorize a very unpopular war, and on the other hand, in some way setting parameters. She wants to give them the opportunity to say that they’ve expressed reservations and that there’s some limits or restrictions that they want to hold the administration to. And how she does that will be extremely interesting, because the core vote to authorize is a very tough vote at this point with a 37 approval rating for this war. And we don’t know yet because we haven’t seen the text.
And we can’t assume that the 53 members of the Senate who voted against the proposition that the war should stop would all be available to actually go on the record authorizing the war, right?
Correct.
And why is that? Just flesh that out. Why is that vote different? Why is it that we can’t expect that the 53 senators who voted to block the resolution to stop the war—it’s one thing to block a resolution to stop war; it’s another thing to affirmatively vote to authorize the war—and I’m just wondering what the political difference is?
The political—I think where she’s headed, and again this is based on very limited news reports—but I think what she wants to do is give them an opportunity to vote an authorization, but with exceptions, giving them an opportunity to say, well, I voted to authorize, I originally blocked an irresponsible Democratic resolution to stop the war, now I’m voting an authorization, but I have real concerns about the way the administration is proceeding here. So this authorization is in some way restrictive or conditional, and the question is, how does she establish that kind of cover?
Right. I mean, how unusual is it that in a war of this consequence, the president has basically stiff-armed Congress completely? I mean, I think there’s been a little bit of explanation about what’s going on in closed sessions, but even Republicans are now complaining that they don’t know what the objectives are. They’re worried about the cost. They’re worried about the timelines. They’re worried about the buildup.
How unusual is it for a president to engage in a conflict like this without making a greater effort to get Congress at least on board in terms of telling them what’s going on and what the expectation should be?
I think it’s unusual. I don’t know that I can call to mind immediately any cases like it. The risk that an administration runs proceeding the way this administration is going is that, as the public—and the polls certainly reflect this—begins to become increasingly restive about this war and oppose it, it cannot look even to its own natural allies for support, because those allies are hearing from voters, they’re seeing the public opinion polling, and yet there’s no background of building up trust, of presenting rationales, and appearing to take congressional questions seriously and answering them.
So they haven’t laid the foundation for the tough times. And one of the most significant steps that an administration can take to prepare itself for a deployment of force like this is to lay a foundation so that, as unpredictable as things can be, as unpredictable as these deployments can unfold, it has some foundation that it can fall back on. And this administration has none. It has just simply stiff-armed both parties. And that can come back to haunt them.
I think it very much can come back to haunt them. It means basically that Trump entirely owns it, no matter what happens. So if this somehow ended up in a spectacular victory over Iran, in which a new dawn rose over the Middle East and there was peace and prosperity, Trump would completely get credit for that. He owns that completely. But he also is going to own all of the downsides, including the military downsides, the security downsides, and the economic downsides—completely owns it.
No question about it. And things are not going to be tidied up that way. Whatever victory he ultimately tries to declare, however this all concludes, if conclusion is the right word, there will not be in the immediate prospect a resolution that is as tidy and satisfactory as the one that you hypothesize—he might be looking for a new dawn for the Middle East, a complete victory for the United States, a restoration of the economy. He said the other day he was confident that this war would end soon and immediately the economy would be restored, or at least the rate of inflation would drop rapidly. All of that is not going to happen. So he owns all of that. He owns all of the downside, with very limited opportunity to claim a major upside.
Wait is that a prediction that there can’t be a major upside here, or that if there is a major upside, he won’t get credit for it?
I think that there will be a very disputed upside, if there’s an upside. And I was just responding to your comment—well, if it all concludes and it appears that a new dawn is rising in the Middle East, I don’t think anything like that is going to be clear.
Already, the United States, having called for regime change at the very beginning, having said they were giving the Iranian people a chance to rebel and take their government back—already now we have the vice president of the United States commissioned to negotiate with that regime. I mean, the other day—I just have to mention this—the other day the president was asked about the Strait of Hormuz, and he said, well, you know, eventually it’ll be administered jointly. And the question was—I think the follow-up question was—well, how would it be administered jointly? Me and an ayatollah? That's a far, far cry from saying we're going to topple this government and the people will have a new day.
Okay, let’s talk about funding. The administration’s been hinting in the last week that it’s going to seek supplemental appropriations, perhaps as high as 200 billion dollars. And this has already been an extremely expensive war. I think they’ve put in requests for shifting around funding authorities. There’s talk about, I believe, about taking assets deployed in Ukraine and bringing them to the United States, either monetary or military assets.
How do you view—I mean, I have a legal point to make about this—but how do you view this aspect of things? Do you think he can get a $200 billion appropriation? Is that something likely?
The little I’ve seen in the news suggests that he may be able to do so, but everyone in Congress is aware, and I think the evidence is pretty strong, that this is extremely unpopular. It puts a dollar, if you will, exclamation mark on public disaffection with this war. The public was displeased enough, or restless enough, about the financial commitments made to Ukraine. Here’s 200 billion dollars, and Secretary of Defense Hegseth has said that’s not a fixed number, so he may need more. And I just think it adds to his political woes to a very significant degree.
Is that because that 200 billion dollars is not being directed to domestic matters, and it’s being directed, as you say, on an unpopular conflict. Is that the reason?
Yes. It puts a number on what people don’t care for in the first place, which is a war that they don’t approve of, with major consequences for the U.S. economy, which are being experienced when they thought he campaigned on the exact opposite set of objectives.
So the only other issue I want to make on this is that Congress—someone might write about this next week—Congress needs to be careful how it crafts any appropriation that it gives for this conflict, because an appropriation for a war can be deemed to be an authorization for the war, even though the War Powers Resolution says that appropriations should not be deemed as authorizations.
There’s an OLC opinion that says that, despite what the War Powers Resolution says, a subsequent appropriation, if it clearly authorizes the war, can do so. So there’s an issue about whether, in giving money for the war, Congress will be authorizing it, and it needs to be very careful how it words that appropriation.
Okay, on the War Powers Resolution, there’s a 60-day clock—the War Powers Resolution 60 to 90 days, or there’s a 30-day extension the president can give. The War Powers Resolution, after that clock runs, mandates withdrawal of troops that have been introduced into hostilities. We’re still probably two months away from that clock.
Would a normal administration be thinking about the War Powers clock this early?
Well, a normal administration would certainly do so in the same way that I mentioned earlier. A normal administration would be trying to lay a political foundation, establish more political support for this deployment of force, for this war. But this administration isn’t doing it, and I don’t think this administration is worrying about the War Powers Resolution at all.
It’s taken the explicit position that the statute is unconstitutional. And just the other day—I mean, in the last 24 hours—the president was essentially sneering at the whole question of whether it was a war or something else. He said, well, I won’t say war. He said something to the effect of, I won’t say war because I’m told I shouldn’t say war, so I’ll just call it a military operation.
He was taunting anybody who thought that the distinction was meaningful. And, by the way, I just want to take that really quickly back to the point you made about the care Congress ought to be taking in crafting support by appropriations. Here again, there’s maybe something at stake for Congress on that, but there’s nothing at stake for the administration. It just wants the money, and I don’t think it matters to them one way or the other whether, from the congressional point of view, it strengthens or weakens the case under the War Powers Resolution, because it doesn’t accept the authority of the War Powers Resolution anyway.
Yeah, so on the point that I think President Trump, Vice President Vance, and Secretary of State Rubio have all said in the last year that the War Powers Resolution is unconstitutional—and every administration has held—so that is a fraught and ambiguous statement.
There are many parts of the War Powers Resolution, and it’s not clear which part they say is unconstitutional. The legislative veto part of the original War Powers Resolution is not operational because of Chadha. They probably weren’t thinking about that. There’s discussion in the War Powers Resolution about what the president’s Article II powers are; presidents have disagreed with that articulation.
They might have been talking about the 60-day clock and saying that the War Powers Resolution was unconstitutional. There’s still an OLC opinion on the books, I believe going back to 1980, that says to the contrary—it is constitutional. I wouldn’t be surprised if they said the 60-day clock, or the 60/90-day clock, is unconstitutional and that Congress cannot, through that automatic procedure, terminate the president’s deployment.
It’s not clear, but they also have so many other options under the War Powers Resolution. They could conceivably say, depending on the state of the war—although it’s not moving in this direction now—that there’s not hostilities. There’s an old interpretive move going back to the Reagan administration that the Obama administration did for a while with the Islamic State: Every wave of a new use of force is a new introduction into hostilities and therefore restarts the clock. That seems preposterous, but it’s been done before.
I guess I don’t think, whether it’s through one of those interpretive moves or whether it’s through unconstitutionality, I don’t think that they’re going to be bothered legally by the clock. But politically, it’s a salient point to focus congressional deliberation. Do you think that’s right?
In what sense do you mean?
I mean the fact that—you know—you were there when there was a 60/90-day clock coming up on Libya, and I’m wondering whether that clock, whether it’s legally enforceable or not, is that kind of forcing mechanism to focus on the legality and politics of what’s going on?
Yes. The reason I asked a question about politically—you know, to what extent is the public focused on the legality question—and I suspect very little. They just simply don’t like the war for all sorts of reasons.
But take the Libya example. Yeah, the administration was very focused on that. It took a controversial legal position to avoid the problem with the 60-day clock, and then it sent the then-State Department Legal Adviser, Harold Koh, to Capitol Hill in June of 2011 to testify at length in defense of the legal position that they took. So they cared about it, and they wanted to take the position that their position was a lawful one and consistent with OLC precedent and also congressional intent behind the War Powers Resolution.
I don’t think we’re going to see this administration breaking a sweat on that topic. And I want to just add one other point: The president—you know, we get the presidents we have, with all their character and personality—this president is inclined to put on massive shows of machismo or muscularity. Think about the “bomb, bomb, bomb Iran” or the Truth Social videos that he ran after the bombings in Iran in June of last year, the video game montage that was recently put on, drawing on various movies and scenes of conflict and heroism, Hegseth’s martial rhetoric. . .
All of that just cuts completely against any concern whatsoever about constraint. It all depends on him and what he thinks he should be able to do, which is why you get that kind of language from him. And I think that plays into his general contempt for the constitutional issue.
Yeah. Okay, speaking of the constitutional issue—and so whatever the constitutional rules are about the use of force are contested—but there are a set of very permissive OLC opinions that we’ve discussed before, and that probably most of our listeners know about.
Those opinions, I say, are very permissive, but they do sometimes say that there is, or hint that there might be, one limit at least, and that is a prolonged and substantial military engagement involving exposure of U.S. military personnel to significant risk over a substantial period. If the conflict arises to that, and OLC says that ground troops is a good marker of that, then OLC has said that the president must, or might have to, go to Congress to get an authorization.
So there’s a question whether even out of the OLC opinions, if this conflict continues to ramp up—especially if the president introduces so-called boots on the ground—that the OLC opinions that say the president has to go to Congress might come into play.
My own view is that these opinions are very wishy-washy. There are a whole bunch of other opinions that OLC can and probably would rely on, including some that you and I, eight years ago, wrote to the Justice Department asking them to withdraw—opinions related to Iraq 20-some-odd years ago—and also opinions about self-defense.
So I don’t expect OLC to tell the president that he can’t continue with the war, but there is this issue about the language in the opinions being implicated.
Yes, and you know, you and I talked offline about one thing that I think this conflict really brings to the surface. This nature, scope, and duration test has been debated in recent years primarily against the background of whether the United States would have boots on the ground, and there was a significant risk of American casualties, even if the United States itself was using force and training fire on the enemy—whether it was encountering any high likelihood of return fire that could kill American servicemen and women. That’s the way this has been debated; that’s the context in which it has been debated.
But what we see currently, which I think requires really rethinking this old model, is a war that has caused the largest oil supply disruption in history—literally in history—in which the United States has also lost billions of dollars, according to Wall Street Journal reporting, and sensitive equipment, including drones and radar, and has had a convulsive effect on international relations.
So it’s a deployment of force, the significance of which—which in turn, of course, involves what we think of as Congress’s role—the significance of which cannot be measured only in terms of the anticipated loss of American servicemen or women or casualties.
So it’s a good point. I’ll point out that even on the kind of risk to troops, there have been 13 casualties thus far and many hundreds, I think, of injuries to U.S. servicemen and women growing out of the war—that’s the first point.
Your point is that this has been a massively consequential and costly war beyond loss of troops—troop death, and troop injury—and that the test should take that into account.
I mean, certainly, if we go back to the very beginning, what were the framers trying to do? It’s not clear how they did it—whether they did it with the Declare War Clause or with control over the standing army—that remains contested. It’s not clear exactly what the Declare War Clause meant, but it’s pretty clear that the framers wanted to ensure that the president did not use U.S. troops abroad in a consequential way that was going to be consequential for the country without getting the people, through Congress, on board.
And you’re pointing out that this war, even if there were no U.S. casualties, has been massively consequential financially and in terms of the economy, and probably will be for a very long time, and that a president should be required by law—and if not by law, by political prudence—to go to Congress and get Congress on board.
I’ll note that both President Bushes, in both Iraq wars—the first and second—President Bush in the first and second Iraq wars, they both claimed the authority to send the troops to Iraq and to use force there. They claimed the Article II authority without the need to get Congress on board, yet in both instances they both went to Congress in a tough situation, when it wasn’t clear in both cases that they were going to get the authorization, and they got Congress on board.
Whether that was a constitutional or a political imperative, they both sensed—they didn’t think it was a constitutional imperative, at least that’s what they said—but they both sensed that the stakes were so big that they needed to get Congress on board. And that thus far has not been, obviously, the impulse of the Trump administration.
That’s right, and I think the 37 percent approval rating reflects in part the absence of any effort to really build public support for this effort, or, as we said earlier, to line up political allies that would help build and reinforce that public support. And the price that a government pays for that is extremely high.
They’re making the point—this probably goes to their rejection of the constitutional issues—they’re making the point repeatedly, Trump has done so, Hegseth has done so, they’re not putting any limits on this war. Sometimes Trump says that it’s a matter of weeks—he may say that periodically because he wants to calm the markets—but both of them have made it clear that it ends when they say it will end.
Right, and this gets to the point you were making about President Trump saying, “I’m not supposed to say it’s a war.” I mean, I’m surprised he even knows that, because that communication came from his lawyers—but the idea in the OLC opinions is that if something is a war in the constitutional sense, Congress has to approve it, and that the conflicts that OLC has approved in recent decades have not been wars in the constitutional sense that require congressional authorization.
So that’s why he made that distinction, kind of dismissing the whole thing. But they’ve also, as you say, not taken anything off the table. They have not tried to say this is going to be limited along any dimension, and that is in serious tension with the OLC opinions.
Yes. You know, you can think about all sorts of things that could happen, right?
You could think about a cyberattack on the United States that the Iranians engineer that wipes out energy infrastructure in the United States, water desalination. . . You could think of a single drone attack in the United States, two or three terror attacks in the United States, bombs that are set off that completely tank the stock market. . . all of which is a result of this “military operation.”
And it’s just not part of the debate about when the president owes Congress and the public an explanation and some kind of legislative buy-in. It’s just not part of that debate.
I agree. First of all, he’s going to own it completely.
Yes, he is.
Whatever happens negatively, they’ll try to say it would have happened anyway—this is what we went to war to prevent, they were going to do this—but that’s going to be a tough argument to make.
But we’ve just really become deadened, on your second point, to the politics here. The idea that this is really Congress’s responsibility—and it really is Congress’s responsibility—the whole frame of understanding war powers has shifted to the one-man-decides model, and then Congress bickers from the sidelines. And, you know, if things get really bad, they may do something. That whole model is just out of culture. I mean, all of these things should be being debated; they should be being debated front and center, and they’re not.
Right, and Congress has not, and there are ways to do it, certainly beyond the one suggestion that I made in my posting, Congress isn’t even putting itself on the record on the legal issues. It’s just voting up or down to terminate the hostilities.
The findings that vary among the three, from Kaine to Murphy—the findings vary because there’s a little bit more detail built into the finding section about Trump having referred to war, some of the rhetoric that is contrary to any suggestion there’s anything other than a war—but Congress is not—there’s no—how would I call it—line in the sand that Congress is drawing legally.
It doesn’t have a mechanism for really doing so. It hasn’t attempted to do so. So when all of this is over with, we still won’t know a lot more, except that public pressure could cause this war to end earlier than it otherwise might, about when Congress believes the president owes that responsibility.
This is just a massive structural difference between Congress and the president.
Yes.
Presidents always have an incentive to justify their Article II power, and they can ensure that it can happen by the unitary nature of the executive, and basically the interpretive power flows from the president through the Justice Department down to OLC.
I mean, the reason that there aren’t legal findings in any of these resolutions is it would make it even harder to get the votes, because specifying in a list of congressional findings the nature of the president’s powers—it was hard enough to do, and they failed, in the War Powers Resolution. Doing that on the fly in findings in a law like this is—I agree with you—it would be great if Congress could do it, but they just can’t. They’re not structurally able to form that consensus.
Even the War Powers Resolution, when they were at the maximum consensus about the president’s powers and Congress’s powers—even there, there was vagueness in how they described the president’s Article II powers. It’s just a very hard thing for a decentralized body, divided by parties, to reach consensus on.
Yes.
All right. Thanks very much.
Thank you.
