Jack Goldsmith interviews former Homeland Security Secretary and Pentagon General Counsel Jeh Johnson about the article he co-authored in the Journal of National Security Law and Policy, "Presidential War Powers, Executive Expansion, and Congressional Retreat." They discuss how Congress's power over war has eroded, the constitutional and practical obstacles to reasserting it, and the war in Iran as a live example.
Mentioned:
Jeh Johnson and Ethan Klaris, Presidential War Powers: Executive Expansion and Congressional Retreat (2026)
Cyrus Vance, Striking the Balance: Congress and the President Under the War Powers Resolution (1984)
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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: Today I’m with Jeh Johnson, the former Secretary of Homeland Security, who before that, among other things, was General Counsel of the Department of Defense. We’re talking today about an article Jeh co-authored in the Journal of National Security Law and Policy, entitled “Presidential War Powers, Executive Expansion, and Congressional Retreat.” Jeh, thanks for talking to me. What was the article about?
Jeh Johnson: Jack, thanks for your interest. As I’m sure you’ve noted, you were very frequently quoted and cited throughout the article. It’s about presidential war powers. This is a subject that has interested me going back to when I was a political science major in college, frankly. And then, when I was General Counsel of the Department of Defense — a lawyer to someone in the National Command Authority chain of command — I became personally acquainted with many of these issues. I’ve been thinking and talking about this topic for some time now, because it really is the case, in my view, that Article I, Section 8 has become a near nullity, if not a complete nullity.
May I stop you there? Article I, Section 8 is a nullity — you mean the war powers provision, or the whole thing?
Correct. The war powers provision.
And the political branches of government seem unable or unwilling to do anything about it. The founding fathers — the so-called founding fathers — in many respects had, in my view, a limited imagination for our Constitution. When they declared our independence in 1776 and wrote the Constitution in 1789, they simultaneously disenfranchised more than half of us in this country — women, Blacks, and Native Americans. And when the war powers provision was written, as you know, there was no standing army.
It would take weeks, if not months, to start a war. Now, of course, it’s radically different. A war can be started in hours.
You have ballistic missiles, nuclear weapons, drones. The one thing I believe has endured as an American value — and should be as relevant today as it was then — is that no one man can start a war. No one man should be able to take the nation to war, which is why the framers left it to the people’s representatives in Congress to do so.
I believe that is as relevant today as it was in 1789.
So let me ask you about that — about the framers’ intent. It seems to me — and I’ve been studying this for a long time — I agree with you that the framers believed they were constraining the president from using military force in the absence of congressional approval, at least in offensive situations. But it’s not clear to me, even now, how they thought they were doing that, and I don’t think they had a clear idea about it. There’s the Declare War Clause, which gives Congress the power to declare war — but of course, “declare war” is a technical term of art, and scholars debate today what it meant back then. There were other provisions, though, that gave Congress control, especially over appropriations and over providing for the standing army.
And if you just think about the first war, the first major war — the Quasi-War with France — President Adams couldn’t go to war without getting approval from Congress, because he needed Congress to pay for and build the ships. It seems to me that if that was the main mechanism by which the framers thought Congress would control the presidential war power — namely, that the president would have to go back to Congress to get an army or a navy to fight the war — then that form of constraint just went away with the rise of the standing army over time.
And so I’m just wondering what you think of that argument.
Another way to think about it is that the power of Congress, the prerogative of Congress, becomes even more important — all the more important — when you don’t have the need to go to Congress to build an army or a navy. But the provision still stands, and I believe it is just as important, just as relevant today, even if the commander-in-chief has the ability to go to war against another nation-state on a day’s notice, because behind the provision is the principle that no one person, no one man, should be able to take the nation into war.
I agree with that in general. Again, defensive wars are harder, and what counts as a defensive war is a tricky question a lot of the time. I’m just wondering — because, of course, appropriating for the army was supposed to happen every two years. There was a compromise at the founding; there was a debate about whether the standing army should be allowed at all. It was, as the framers understood it, allowed on the condition that Congress would have to reapprove it every two years.
But that process withered over time. With each war the standing army grew larger, and then, of course, after World War II, it remained huge. I’m just wondering whether it’s possible to have real, legal constraints on presidential war powers when there’s just this enormous standing army deployed globally.
Well, if Congress had the votes, it could always defund a military operation — “No dollar should be spent on this engagement.” That is a legal restraint, but it would also have to be tendered to the president for approval or veto.
The first thing that comes to mind is what Congress did in 2010, by inserting into the NDAA a provision that said no dollar should be spent transferring a prisoner at Guantanamo into the continental United States unless we approve it. So Congress always has the spending power, backed up by the Anti-Deficiency Act, which can impose a criminal sanction on an official who spends money that has not been appropriated. But again, that requires effectively a two-thirds majority.
This is what I’m trying to get at. Yes, Congress, in theory, can always defund a war, and it has exercised its prerogative to stop presidents from engaging in certain conflicts by defunding them. That’s happened.
The problem is that, with a huge standing army, the burden of inertia flips. The president has a huge standing army; he decides to use it; the war is under way; and then it’s up to Congress — with the troops in the field — not only to muster the votes to pass legislation cutting off funding, but to override a veto. And it seems to me that having a huge standing army gives the president that enormous advantage in being able to start and maintain wars.
Correct. Another way to think of it is that it’s a standing war capacity. You can pull that trigger at any moment, any day of the week — which, in my judgment, makes the original provision requiring a declaration of war all the more important. Because, as you point out, there are all these other checkpoints, all these other boxes that would have to be checked in 1789 in order to send the nation into war.
Now, effectively, it’s only the one in Article I, Section 8 — the requirement, the supposed requirement, that the president seek a declaration of war from Congress. But you’re absolutely right: to go to war now, you could do so by airstrikes or anything else, based on existing capabilities.
Okay. So you give a nice overview of the long history — the rise of presidential offensive war powers throughout the 19th century. As I see it, presidential war powers grew in conjunction with the rise of the standing army.
The more troops, the more weapons the president had, the more inclined he would be to use them. What’s your account of why this happened?
In the course of interviewing present and former members of Congress, one of the people we interviewed was Dick Gephardt, former majority leader of the House. He made the point, which is quoted here, that from the beginning, presidents don’t like to go to Congress to ask permission to do something. It’s going to a committee of 535 people who don’t all share your view, don’t have the resources, don’t have the intel, don’t have the insights that a president has.
So from the beginning there obviously has been a natural reluctance on the part of a president who wants to go to war, intends to go to war, to seek the permission of 535 people. I was surprised at the statistic — which I read and incorporated here — that Congress has only formally declared war five times in the history of this republic, even though the president has deployed the military in various contexts hundreds of times. So that, to me, suggests a natural reluctance from the beginning to go to Congress for this.
But I agree with you that the arc of that has, for the executive branch, trended upward.
But many of those hundreds of deployments you’re talking about were authorized. Even though they weren’t declared, they were authorized. Just as with an authorization to use force in modern times, the Quasi-War I was just talking about in the 1790s was not a declared war. That was Adams getting the authority from Congress to engage in limited naval warfare against France.
That was Adams getting the authority from Congress to engage in limited naval warfare against France.
There was no declaration of war in Korea, for example.
Yeah, that’s right. And there hasn’t been a declaration of war since World War II. There’s an argument (which we don’t need to get into) that declared wars are now passé because of the UN Charter.
Okay, so we’re in this situation. Iran is the latest and greatest example. I’ve written something that said, in effect, that I think Iran is the second most consequential unilateral use of force by a president; the other case being Korea, which you just mentioned. It’s a huge deal. It’s not going well. The president made the decision to do it on his own. He didn’t really consult with Congress. He hasn’t asked for their permission.
At the moment, however, they need money. The Secretary of Defense was before Congress this week seeking appropriations for DoD generally and for the war in Iran. So this is a point where Congress has leverage, because the president needs money to continue the war.
And yet it doesn’t look like it’s going to use that leverage, at least not yet, to limit the war in any way or put conditions on it. Now — and this reminds me of Kosovo — it looks like there might be the votes to continue appropriating for the war, even though there was a majority this week, I believe, in Congress that actually voted to stop the war.
And these contradictory signals are like something that happened in Kosovo.
Somebody’s trying to have it both ways.
Yeah, exactly. So what about this moment? Congress has to act, and the president ultimately can’t act unless Congress funds the war. How do you see the situation?
I have two thoughts in response to your question. One, there is no doubt — there should be no doubt — that Iran is a war. If another nation-state launched an airstrike on our nation’s capital and killed most of our political leadership, I think we’d all regard that as a war. And it has exceeded 60 days; it has exceeded 90 days. So this is an undeclared war. There’s no credible argument that it’s not. That’s number one.
Number two, Congress should not have to assert its existing constitutional prerogative by cutting off funding. If we take the provision in the Constitution seriously, the fact that Congress has not declared war should be enough. They shouldn’t have to go the extra mile to cut off spending in order to assert their constitutional prerogative. I hope that makes sense.
This is your Chadha argument.
Yes.
At the end of the article, you have several proposals about what can be done about the situation. One is to argue that Chadha does not apply to the War Powers Resolution. The War Powers Resolution says that Congress can, by concurrent resolution, declare that a war is not authorized. And that’s what the War Powers Resolution provides for. But the Supreme Court in Chadha, in the early 1980s, held that legislative vetoes were unconstitutional. Do you think Chadha might not apply to the War Powers Resolution? Is that the argument you’re making?
Yes. First, when we interviewed Congresswoman Elizabeth Holtzman, who was in Congress in the 1970s or 1980s, she really gave us this idea first — that Chadha effectively guts the constitutional provision and the War Powers Resolution. The legal argument we make is based on a law review article written by former Secretary of State Cyrus Vance in the 1980s.
He argues — and I fully agree — that Chadha, because it was decided in the immigration context, should require presidential approval (or, if he doesn’t approve, a veto) in order to have legal force and effect. Because when Congress enacted the Immigration and Nationality Act, it effectively delegated to the executive authority over that whole space — immigration. In the war context, the war powers context, that is not true. Congress has the prerogative to declare war. Congress has never said to the executive branch, “You know what, we’re going to give this all to you by statute, and you go figure it out.” And so we argue that it’s distinct from Chadha, because it’s war powers, not immigration. The authority to act has not been delegated to the president by statute. And apparently this has never been tested in court. I think it’s an entirely compelling argument.
So I’m skeptical, for a couple of reasons. Let’s say Congress does that. It’s not clear who is going to bring the lawsuit to enforce it, because the president is just going to disagree and say the act is void. And I’m not sure anybody is going to have standing to bring the lawsuit, or that a court is going to adjudicate it. So I’m not sure it’s going to work, for that reason.
Also, it seems to me the war powers situation could be harder, not easier, than Chadha, because, you’re right — the president isn’t relying on a statutory authorization to go to war. He’s relying on Article II. So what you’re saying is that the president makes an Article II claim to go to war. It’s a contested claim, but he thinks he has the constitutional authority. And Congress can, not through enactment of law but by a concurrent resolution, stop the president from exercising an Article II prerogative.
I don’t see how that’s going to be consistent with Chadha, which said that bicameralism and presentment were needed for Congress to have legal effect — to enact law. And I don’t see how Congress can stop the president from exercising his Article II authorities without passing a law.
Well, let’s put this in the context of Iran. If you’re correct, then Article II effectively makes the war powers provision in Article I a nullity, because what President Trump is doing here is engaging in a full-blown, protracted war. He can make the argument that it’s pursuant to his Article II authority.
But I think that effectively means the war powers provision in Article I becomes a nullity — which the framers could not possibly have intended. As I see it, when Congress acts — let’s say by majority vote — and says stop, it’s not trying to take back some authority the president has. It’s a manifestation of authority that Congress originally got in Article I. It’s simply stating, by majority vote, that you are violating Article I, Section 8, which is our prerogative, not yours. Congress ought to be able to do that by majority vote. That’s certainly what the War Powers Resolution contemplated.
Otherwise, requiring a two-thirds vote in order for the war powers provision to have any meaning effectively guts the provision.
Guts the constitutional provision.
Correct.
Okay. I think we’ve fleshed out the positions. This is just another way of saying the president has arrogated enormous Article II authority. I agree it’s a limitless understanding of Article II power. But Trump is acting in the Iran context with wind in his sails, based on a lot of OLC opinions, even though people don’t want to recognize that. The president has an Article II claim. Congress has an Article I claim. The question is: Who has authority here? Is Congress’s authority exclusive? If Congress passes a concurrent resolution that says, in effect, “We don’t like your assertion of Article II power,” I think the president just ignores it and says it’s not law.
Well, okay, two things. One, the current interpretation of the president’s Article II authority — “important national interest,” so long as it does not rise to the level of a war in scope, nature, and duration — has not expanded over the years because a group of lawyers one day got in a room together and decided this is what it really means.
It expanded through political inertia on the legislative side and urgency on the executive side. You and I know how this works.
I agree.
The White House goes to the Department of Justice, to the Office of Legal Counsel, and says, “We need a legal opinion to justify X.” The lawyers are under a lot of pressure to make it work. As you and I have both pointed out in writings, that authority has become so vast that it is virtually limitless.
No court, no lawyer is ever going to second-guess the president when he says there’s an important national interest that requires him to do this. It’s a virtually limitless test. It got that way because of a political dynamic between the two branches, not because of any concerted, methodical, thoughtful legal analysis that says, “You know what? We really think Article II means X. It’s been that way all along since 1789.”
The other thing I want to come back to is the litigation question. You’re correct. As we point out, Congress is extremely reluctant to get involved in fights between the political branches of government, particularly when it comes to matters of war and peace. Liz Holtzman was involved in Holtzman v. Schlesinger back in the 1970s to try to stop the Vietnam War. As a freshman Congresswoman, she sued the Secretary of Defense to try to stop the war. Congress has historically been reluctant to get in the middle of this, but I see among the nine of them [the Supreme Court] more of a willingness to get into spaces like this while there’s a stalemate between the political branches.
On the standing question — I’m not an expert on standing, but I would think that if someone purports to bring a lawsuit on behalf of the body, not just individual members of the body — let’s say the Democrats control the House, and the Speaker of the House, a Democrat, brings a lawsuit on behalf of the House, and the House has voted to bring that lawsuit by majority vote — I would think that would be a pretty compelling basis for standing.
It’s tough. Congressional standing is hard. It has a better fighting chance if Congress has authorized the lawsuit, but it’s just not clear whether that would work. But let’s talk briefly about your other proposals.
So your proposal — the concurrent resolution to stop the president — would, I think you agree, have to be enforced in court. That’s the problem with it. Even if your legal argument is right, even if you overcome standing, there’s going to be a political question. Do you really think a court is likely to say that the president— I mean, you’re basically talking about enforcing the War Powers Resolution and distinguishing Chadha. So I’m skeptical that that’s actually going to work out in court. I’m also skeptical about — and again, I’ve made similar proposals myself — your idea of revising the War Powers Resolution. That itself assumes you’ll be able to get a supermajority in Congress, as was required for the original War Powers Resolution. But even there, it’s hard to know exactly how to constrain the president in legal language.
I think it’s tough. We’ve both thought about these questions for a long time. The political reality — and you make this pretty clear in your article — is that Congress is kind of at sea and on its heels in this context.
Though, you know, Tim Kaine told us that he’s forcing Congress to exercise an atrophied muscle. So he’s forcing these votes — a vote on war powers as a privileged motion. He’s getting members more used to having to vote on this.
You know, I’m a bit of an optimist, in that you could have another candidate for president, like a Barack Obama, who says, “You know what, I agree with Johnson and Vance that Chadha doesn’t apply. And if Congress votes by majority, it’s a manifestation and implementation of its constitutional prerogatives. So if a majority of Congress says I should not be fighting this war, then I will not fight this war.”
So it could be that you have a thoughtful president or presidential candidate who respects the Constitution as much as you and I do, even in the face of a compelling national security matter. Could be.
You know, I don’t think President Obama would have signed off on that. He used war powers without congressional authorization, as you know.
And no president— remember, they had to pass that law over Nixon’s veto, when he was at his lowest point. No president is going to be able to sign on to that language easily. I was hopeful during the Biden administration. Senator Biden had proposed a very intelligent war powers bill that would have tightened restraints on the president’s use of war powers. There was zero interest — even from a president who held himself out as a constitutionalist, as favoring Congress, and the like. There was zero interest then. So I don’t want to say never. I just think — well, let me say this, and then I’ll let you have the next word. If it’s going to happen, it’s going to have to be after some utter, complete collapse and disaster. That’s kind of what happened in the 1970s — it was post-Vietnam. We’re getting pretty close to another complete disaster right now.
We’re getting pretty close to another complete disaster right now.
I think the optimistic scenario is that a war goes so badly that Congress finally decides it needs to exercise its prerogatives and put some constraints on the president. What do you think?
Well, a couple of thoughts. One, I was very impressed that in the run-up to the first Gulf War in 1990, George H.W. Bush’s lawyers told him, “We think you have constitutional authority to push Iraq out of Kuwait, and you don’t need congressional approval.” Notwithstanding that, Bush decided to go to Congress, because he respected the constitutional norm.
It might’ve been for pure political reasons, but he did it. And there was a robust debate in Congress, as you know, and Congress ultimately authorized Bush to go to war against Iraq. The other thing I’ll say is — I’m going to quote Jack Goldsmith, as I often do on this particular line. You wrote an article nine years ago about what happens if the president orders the Secretary of Defense to do something deeply unwise. And the last sentence of your article was something I wholeheartedly agree with and have quoted and requoted numerous times: “The current conundrum highlights again how very deeply our system of government depends on the people electing a president who is generally reasonable, prudent, and responsible.” Another way of saying that is: hopefully we elect presidents who respect constitutional norms.
Yep. I agree.
And respect the original intent of the Constitution.
I don’t want to relitigate the original intent of the Constitution. It’s a little tricky, because I imagine you’re probably not an originalist in constitutional interpretation on most matters — and it’s so strange that everyone becomes an originalist when it comes to war powers. There’s been a lot of water under the bridge in the last 240 years in terms of constitutional development. But setting the original intent aside, I agree that we’re in a place that just can’t be the right place to be — where the president has limitless power to bring the country to war. Let me ask you a final question.
You and I both worked on these issues in government, and my views have certainly changed since I worked in government. How do you see the issue differently now than when you were the person making the hard decisions?
Well, I’m going to answer a slightly different question. Take interpretations of the existing 2001 AUMF. When I was the General Counsel of the Defense Department, I was responsible for interpreting it. We made it work against core al-Qaeda, al-Qaeda in the Arabian Peninsula, and al-Shabaab — or at least the al-Qaeda-affiliated elements of al-Shabaab.
That was a compromise with Harold Koh. Subsequent interpretations have become so vast — it now encompasses ISIS, which didn’t even exist in 2001. I haven’t changed my view on this, but I’ve seen how vast the interpretation of that statutory authority has become, and it’s still on the books. Of course, when you’re out of government, you become more clear-eyed about certain things. I always tried to tell my clients what I believed to be the best, most sustainable legal authority, but I have seen the pressures that presidents and secretaries of defense come under in a national security emergency. If someone’s committing genocide against their own people, for example, there’s a human cry: “Mr. President, you’ve got the vast military at your fingertips — do something, stop this.”
So I see the pressure that presidents come under, where they have to effectively act contrary to certain statements they made while running for president. And so I’m probably more realistic about that now than I was then. But I still believe 100% that if a president wants to take the nation to war, it should be incumbent on the president to make the case to Congress and the American people why this is necessary. And if he makes a persuasive case — like Bush did in 1990, like Bush 43 did in 2001, and somehow again in 2002 and 2003 — then make the case. You shouldn’t be able to just take the nation into war overnight, as the current president has done in the current conflict.
And I agree with that. And I’ll just add that, comparing the two President Bushes on Iraq, both were told by their lawyers that they didn’t need to go to Congress, and both times they did. Probably political prudence — maybe a legal judgment by the president — but at a minimum it was political prudence. And that political prudence was enormously beneficial to them, both in getting the country on board and in arguments later, when things didn’t go so well. It’s something President Trump just didn’t do. And this is a very consequential war that doesn’t look great right now. He’s just out there completely by himself.
Well, yeah — to take it a step further, it’s not even the executive branch by itself. I’m convinced it’s a war council of one person. And there are people at the Pentagon who wake up in the morning not knowing whether they’re going to be at war by the time they go home that evening.
Yeah. Mercurial is an understatement. Okay, Jeh, thank you so much. The article is called “Presidential War Powers, Executive Expansion, and Congressional Retreat,” in the Journal of National Security Law and Policy. Thanks so much.
Thank you, Jack. Thanks for your interest.
