What is the scope of the President’s power over war and foreign policy? Are there any internal constraints – legal, political, institutional – on the President’s behavior toward other countries? Does the executive’s ability to operate in secret allow it to evade these potential constraints? Have these dynamics changed over time, and if so, why?
When it comes to conflicts and diplomacy abroad: Who holds the reins? That’s one of the big questions I find myself asking as I look at the news about American involvement – whether in Iran, in Ukraine, or throughout American history. What is the scope of the President’s power over war and foreign affairs? Doesn’t the Constitution constrain those powers, or give Congress the ability to constrain those powers? Or have legal constraints proven unworkable or unwise over time? If the President has come to dominate American military and foreign policy, should we have misgivings about that, or accept it?
To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Curt Bradley, the Allen M. Singer Distinguished Service Professor of Law, and Austin Carson, an associate professor of political science. Curt is an expert in constitutional law and foreign relations law, the author of casebooks and legal restatements on foreign relations, and has recently published an important book: Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, and is working on a new book on US Sovereignty and federal power in constitutional law. Austin is an expert in secret and intelligence and their relationship to international security and global governance. His first book was Secret Wars, Cover Conflict in International Politics, followed by Secrets in Global Governance: Disclosure Dilemmas and the Challenge of International Cooperation (coauthored with Allison Carnegie), and he’s now working on a third: To Spy on the World: The Infrastructure of Intelligence and America’s Rise to Power.
I’ve brought them here to help me understand how the executive projects American power around the world and what we should think about that.
Have a listen.
WILLIAM BAUDE: When it comes to conflicts and diplomacy abroad, who holds the reins? That's one of the big questions I find myself asking as I look at the news about American involvement, whether in Iran, Ukraine, or throughout American history. What is the scope of the president's power over war and foreign affairs? Doesn't the Constitution constrain those powers or give Congress the ability to constrain those powers, or have legal constraints proven unworkable or unwise over time? If the president has come to dominate American military and foreign policy, should we be bothered about that or accept it?
To try to find out the answers to those questions, I'm here with two of my colleagues at the University of Chicago-- Curt Bradley, the Alan Singer Distinguished Service Professor of Law, and Austin Carson, an associate professor of political science. Curt is an expert in constitutional law and foreign relations law and the author of casebooks and legal restatements on foreign relations and has recently published an important book, Historical Gloss in Foreign Affairs-- Constitutional Authority in Practice, and is working on a new book on US sovereignty and federal power and constitutional law.
Austin is an expert in secrecy and intelligence and their relationship to international security and global governance. His first book was Secret Wars-- Covert Conflict in International Politics, followed by Secrets in Global Governance-- Disclosure Dilemmas and the Challenge of International Cooperation, co-authored with Allison Carnegie. And he's now working on a third, To Spy on the World-- The Infrastructure of Intelligence and America's Rise to Power. I've brought them here to help me understand how the executive projects American power around the world and what we should think about that. Have a listen.
Curt, Austin, thank you for joining me. So it's no secret that the president has a lot of power, especially when it comes to the use of force, especially abroad in military or quasi-military situations. And that's something that's been in the news a lot lately-- of course, something that's happened a lot throughout American history. And it's part of what I want to understand-- is what is the nature of that power? What are the legal or political constraints on that power, if any? And how should we think about things that are going on today and things that might happen?
So Curt, if I could just start with you, you're one of my colleagues in the Law School. You've done a lot of work on the constitutional law that governs these areas. So big picture, what does constitutional law say about the president's power over war and foreign affairs?
CURTIS A. BRADLEY: Thanks. And thanks for hosting us for this. Well, the place any lawyer would start to try to get a handle on the question would, of course, be going to the text of the Constitution. You would run into immediate problem, which I have to grapple with my students, which is that text is often silent, or at least unclear, about many issues of presidential power, including in the foreign affairs area. In fact, the part of the Constitution that deals with the president is quite short. It doesn't have a lot of powers listed in it. The part of the Constitution that lists Congress powers is much longer.
But we all know that the president has a lot of authority in foreign affairs. And most people, as you had indicated, think it's grown significantly over time. And then the question is, why has this happened? If we can't see it in the constitutional text, where is it coming from? And I think there are a lot of causes.
One we forget about, I think, easily is Congress has delegated a tremendous amount of authority to the President of the United States in many areas, but certainly in foreign affairs. And if you think our current president engages in many actions that people regard as controversial, most of them are connected to statutes. That is, Congress has delegated emergency powers or war powers or other things in various statutes that presidents, of course, invoke. They don't always have statutes, but they often do in the modern era.
So one part of the explanation is Congress has decided that presidents should have a lot of flexibility in foreign affairs and that-- the immigration law is like that. A lot of statutes have these. So obviously, unless we think there ought to be some constraints on Congress delegating power, that is really a decision that's really coming out of the legislative branch. It's not the whole story. Sometimes, presidents certainly do act without a statute. And those actions are controversial at times.
That has just been an accretion of practice, too, over time. As the United States became a more powerful country in foreign affairs, presidents became more assertive. I think that's not surprising. To be a powerful actor in the international stage, you typically benefit from having a powerful executive. If you have a powerful executive, they can engage in more credible negotiations with other countries and get more concessions for their country. And I think that's part of the reason Congress has delegated a lot. But it's also a reason that presidents have been assertive a lot without necessarily getting pushback in the domestic realm when they assert themselves in foreign affairs.
And the other part of the equation that I teach is that in some areas of constitutional law, courts have played a very significant role in policing the boundaries of constitutional authority, or also just updating the Constitution in certain kinds of ways. If you think about Congress's ability to say-- to regulate the domestic economy, as a practical matter, it grew significantly in American history. But the Supreme Court was part of that project. They endorsed broad constructions of Congress's power.
What we don't see in the foreign affairs area is anything like that active judicial court intervention. So what we have instead are Congress and the president mainly taking the initiative to decide on their own powers. And they bargain with each other. Sometimes, they fight with each other. Often, the president acts and then sees how Congress responds. And often, Congress does not respond significantly.
And in many areas of law, lawyers rely on precedent. So we look to what the Supreme Court has done. And usually, they tend to try to follow those precedents. We don't have a lot of the judicial precedents in the foreign affairs and war areas. So what most lawyers look to, at least in part, are the precedents that presidents and Congress have set over time. I call these non-judicial precedents or historical gloss or other labels for it.
And so we now-- of course, we have 230 or more years now of practice since the Constitution was set up. We have a long body of these precedents that the government has itself set that I think do guide the government a lot in making decisions about whether the president can do something or whether the president cannot do something. And the upshot of that is that there is a lot of precedent that supports presidential action in foreign affairs. And when they cite to the fact that many presidents before them have done certain actions, it does seem to legitimize what they're doing today as opposed to trying to do something completely new.
And I think Congress-- and sometimes when the courts do get pulled in, they defer to long bodies of this practice and precedent. And so I just wrote a book about how practice has built up in various ways to support presidential authority. It's not unlimited. And I think sometimes, Congress has also benefited from some of this practice.
But on the whole, the president's probably been a bigger beneficiary. And that includes in some contested areas, like war making, where people certainly have strong views about it. But I think that's another area where presidents over time developed a lot of precedent to support their ability to use military force. And we've seen it all the way up into this administration.
WILLIAM BAUDE: As you know, I love the text of the Constitution. So when we get to an area of constitutional law where the answer is there's not a lot in the text of the Constitution or what's there is not something we care about very much, it's always hard for me. And then a lot of lawyers love precedents that courts decide. And so an area where you say, well, we don't really use the text of the Constitution or judicial precedent is a disorienting area.
CURTIS A. BRADLEY: It can be, although more for lawyers who focus on courts. If you were an executive branch lawyer, this would not be as disorienting. And so if you look at the opinions that come out of the lawyers in the executive branch, who are often asked by presidents whether they have authority to do something, and they are expected to write up an opinion that actually often looks like a judicial opinion about the president's authority, the main source of material that those executive lawyers cite tends to be this non-judicial or historical precedent.
And I think those of us who-- if you're not focused on that, if you mainly teach cases and the like, this does look a little bit different. But part of the reason that we look to it is there just isn't any other place to look. We can, obviously, debate how much text is really available.
But many powers that everybody agrees the president has-- for example, what we call the recognition power, recognizing sovereignty in other countries, big powers that Congress has, even like immigration powers, not specifically in the text of the Constitution-- everybody's always agreed the president can use military force to defend the United States without having to go to Congress first, which could have been disastrous in the early days, when Congress was almost always out of session. But it's not clear within the text this defensive war power. You can, obviously, make some arguments.
And I like to remind my students we had very talented, I think-- on the whole, very talented drafters of the Constitution, for the most part. They drafted over a few months in Philadelphia, a hot summer. A lot of what they did was completely new. They were setting up-- this presidency was completely a new institution for them. And it was the republic, a democratic republic. A lot of their models they would have had would be monarchies.
So the idea that they could have thought through all of the difficult power issues that were likely to come up-- they would have to be superhuman to even have a chance. And they were human. And I give an example that maybe they just forgot this one. Who gets to pull the United States out of treaties after we make a big treaty? You have to be able to get out of some commitments if they're not working well, if the other side's breaching your treaty-- nothing in the text about who can pull us out of a treaty.
Now, you might argue, well, maybe the president has to go back to the Senate, who had to help make the treaty. But that could really be cumbersome. And maybe the other side then gets to keep breaching the treaty. That doesn't seem quite right. And nobody knew in the early days, actually. They looked at the text. And it wasn't obvious who got to pull the United States out of that treaty.
So they just muddled along, actually, for much of the 19th century on that. And eventually, president decided it made more sense for them to take the initiative. And I would say for the most part, Congress didn't object too strenuously to that. But it's just one example of many where probably, just the founders weren't thinking about it.
We only had seven treaties at the founding. We didn't expect to get out of any of them anytime soon. So they had so many more pressing issues on the agenda. It's not surprising they didn't necessarily get to all of the ones that weren't pressing at the time. They were writing the Constitution.
That's just been an issue, I think, for a Constitution like the United States, which is very old by most standards-- it's over 230 years old. And it was, obviously, a very different time for the United States-- 13 former colonies, very weak country. The world was very different than it is today. And national security issues were very different.
We have never amended any of the foreign affairs provisions that are specific about foreign affairs in the Constitution in 230 years, never one amendment. So we literally have the same text that they had in 1789 for dealing with George Washington. And you think about the military situation In 1789. We had 600 people in the army and nobody in the Navy. We didn't have a navy. So that was the entire military strength of the United States other than pulling-- trying to call state militia out in 1789. And everybody was quite worried that we better not get involved in any wars because we would be defeated immediately and carved up.
And then you go to today. And US is a superpower. It has well over a million troops in the standing army, bases around the world, embassies, et cetera. The founders couldn't even have contemplated the kind of national security situation and the global environment that we have today. But we still have the same text that they had. And one has to figure out what to do with that. And presidents, I think, understandably, think that they should be able to push ahead and take actions that are necessary, in their minds, for the United States' interests. And I think that's what's happened over time.
WILLIAM BAUDE: So if constitutional text and judicial precedent aren't necessarily doing the work and we have this relatively expansive constitutional law of executive power, then it seems like a lot of the work is going to be coming from politics, from pushback from Congress or the American public or something, to the extent there is any pushback. Maybe there isn't. So Austin, can you give us what that picture looks like? Are there political checks on the executive power of foreign affairs and war? How do they work?
AUSTIN CARSON: I think to start, I would lay out two other ways to think about power and the president in foreign affairs. And one is the power to persuade. And the other would be the power to implement. So as I was listening to your answer, I kept thinking, well, let's fill that picture out.
So one is this power to persuade. So there's a lot of research in political science, the field that I do my work in, that is about the unique visibility and persuasive power that the president holds in American politics. And I think that's been affected by the technology and the context around the presidency with the rise of radio and television, social media now. How presidents communicate, how presidents command, what's oftentimes called the bully pulpit, has changed.
But the president's advantage in being able to set the tone, set the terms of conversation, what agenda items in foreign policy with respect to the use of military force are we thinking about and talking about as a voting public-- the president oftentimes has that power of initiative. And more than that, not just getting-- telling us what to think about, how to think about it, how to frame that issue, how to persuade in the direction of the policy that the president wants-- and so there's ways that power has been used for good. There's ways it's been used for bad.
For my 20s, the run-up to the use of military force against Iraq in 2003, a lot of really interesting dynamics about the power of persuasion and the use of media, the use of intelligence in the-- making those cases-- so I think that's one thing where there is an absence of regulation through statute and constitutional language. We have to look even more to the ideas and the contestation over what to talk about and how to talk about it.
And the president has real advantages. They're not the only political actor who can do that. Members of Congress can hold hearings. Opposition political figures can make foreign policy or war decisions a part of their platform opposing the president. There are non-governmental actors that can shape that conversation. But as a first-place position in terms of influence, I think that's one place to keep in mind.
The other is the power to implement, which is, I think, a really important thing to keep in mind. By that, I mean the bureaucracy, the administrative state that's specifically for national defense, for intelligence functions, for diplomacy-- the State Department, the Department of Defense, the intelligence community.
The president-- now, these are all funded by acts of Congress. And that's very important, an important-- to your original question just now, an important source of a check on presidential power-- is the power of the purse, which is not limited to domestic issues. It also funds all the foreign policy and war-related bureaucratic actions. But once that money is-- a check is signed, the president and the executive branch have an incredible amount of power that flows from their control over the thousands and thousands of human beings who have jobs in these bureaucratic institutions and who get to put a fine point on all the different aspects of policy, US diplomatic relations with other recognized governments, how military force is used in practice.
If we look at it historically over time, that has truly transformed. If we go back to the late 18th century or the 19th century, the American federal state was a shadow of its current version and, in the national security and defense arena, a shadow of a shadow, if you will. Now, especially after World War II, there was a massive increase in the size and the funding for foreign policy and what's oftentimes called the national security state.
And so I've done-- a fair amount of my research has been about the intelligence entities in the intelligence community. There's something like 18 now, but-- going back to the creation of the CIA, the National Security Agency. And those are places where I see executive power exerted in all kinds of interesting and subtle ways, but in ways that are checked formally through funding decisions-- also, through oversight committees.
There's committees and both branches of Congress, whose job is to see what these branches are up to and assess whether or not they're using funding in certain ways, whatever. But there's still a tremendous amount of leeway and discretion that's involved in that power to implement.
WILLIAM BAUDE: So what's just the most interesting example, or one that comes to mind, of the power of intelligence agencies?
AUSTIN CARSON: I think you trace-- if you just look at the history of the intelligence community during the Cold War, what we didn't know and then later found out is a perfect example of parting the curtain and figuring out just how much activity was going on that was unknown to the American public, and also unknown to Congress. So there was a committee in the early to mid 1970s, the Church Committee, which dove very deep into what the CIA and the NSA had been up to for the first couple of decades of the Cold War. And it exposed all kinds of measures and activities that folks thought maybe violated the Constitution in terms of violating privacy protections and certainly went well beyond what people thought was going on. And it's the stuff of good novels.
So you've got mass surveillance programs where telephone calls or telegraphs routed through private companies-- batches of those are given to the NSA each week, or even each day. And they're reviewing those for communications. So this is the early-- the pre-digital version of what the NSA was exposed as doing by Edward Snowden more recently.
And you've got a slew of covert action programs-- assassination attempts against Castro in Cuba with all kinds of interesting gadgets and techniques and other foreign leaders, assassination attempts, all kinds of armed rebel groups in countries that the CIA had set up funding support for, or even arming them with lethal weaponry. And just a slew of those who were exposed in the-- that congressional investigation and the Church Committee and another one, the Pike Committee, on the House side.
And so I think what the lesson was was that before that, Congress was not necessarily much of a check in this of space in which the government is operating in secret for either intelligence or other kinds of activities. And afterwards, there's more. But still, I would argue that the systems that were put in place to provide oversight by Congress and indirectly by the public still leaves a vast amount of activity unknown, by nature-- it's supposed to be-- you can't engage in espionage and advertise it to your adversary, or otherwise you're not going to learn much.
So there's an interesting tension there between trying to do what you're trying to-- want to do and the ability for other institutions or the public to provide a check on that. But it is a place where you can see how the executive and the president specifically has a lot more power than the other formal institutions.
WILLIAM BAUDE: The natural question this sets up is, are we supposed to be OK with this? So this is descriptively-- I understand this is the way the world and the way the executive branch and America works. But should we be troubled by that, or is there something we could do about it? Has Congress failed its job in some important way, or is this actually a healthy state of affairs?
AUSTIN CARSON: Well, I think one thing I'd like on the optimistic side to draw attention to is one solution to this problem that scholars of secrecy and folks who designed legislation in Congress about how to regulate these issues-- is the idea that we may want the government to be able to do things in secret, empowering the executive to do those things, but learn about them after the fact. But that secrecy is very valuable in the initial implementation. But retrospectively, there's a form of a check on that power if we can learn about it later.
And so freedom of information acts and transparency and declassification laws-- the United States is pretty good about those. And my own research has-- basically, as a daily practice, I'm taking advantage of those laws. So I'm glad they're there. But that is one interesting way that we can think about how to reconcile democratic accountability to be OK with the amount of secrecy that exists, because we can see it later, sometimes 20 or 30 years later, which that's-- begins to be part of the critique-- is how much later do we have to wait to learn about this stuff?
But that's one way we try to thread that needle. But I think in a certain way, there's only so much you can do. And should we be OK with it? I think a lot of the research that I've done-- I've written a couple of books about secrecy. I've really been trying in a lot of my research to understand what exactly we-- we might generically say it's important for a government to be able to do things in secret in order to drive a good bargain in diplomacy or be able to use military force effectively.
But let's actually look and peel back the layers of what is done in secret to really see the full scope and then ask ourselves, how much leeway do we want to give to the executive branch to do that? And so the more you learn about it, the more complicated it gets because there's a lot of reasons and rationales for why if we strip away that secrecy, if we built in congressional accountability and visibility on those things or public accountability and visibility on those things, it's just harder to do the everyday business of diplomacy, of commercial negotiations for trade treaties, let's say, up through and including all aspects of using military force and conducting things like espionage.
So I'm pretty torn about it. I think my main way of handling it is to learn more about it and think more about it and add more understanding and nuance to what secrecy in these different ways-- how it's used in practice to then be able to ask ourselves, how much do we want to constrain that? How not OK are we with it?
WILLIAM BAUDE: I have to say-- so I was-- a couple years ago, I was on a presidential advisory commission about reforming the Supreme Court, which I discovered was governed by the Federal Advisory Committees Act, which I think is one of these statutes designed to promote transparency. And it was the worst thing ever. I think every-- most of us who are scholars are suddenly on this and suddenly confronting all these transparency requirements that are not the way we normally do our job. And that was not-- there was no espionage. Nobody was trying to assassinate anybody. And still, you just think, man, how does anybody get anything done around here?
CURTIS A. BRADLEY: These are difficult issues. There are debates even when the executive does things that are not secret. When they are secret, the worry, of course, is that they will violate the laws without people knowing about it. And there are questions about how to deter that or have accountability for it.
In the same period in which there were some initial reform efforts in the intelligence area, they also-- Congress became very concerned about lots of secret agreements that presidents were making, like military assistance agreements that would pull the United States into conflicts or have other repercussions for the US that Congress had not even been advised of. So over President Nixon's veto during the same period, they passed a big transparency law that required after the agreements are done-- they didn't think they should really intrude on the negotiation part, which could be quite sensitive-- that they then at least had to report those agreements within a time period to Congress so that if something strange had happened, they'd know, at least, pretty quickly after it happened.
And at least many of them happened to be published as well. But they also have provisions for classified agreements. So there is an option that if it really is sensitive and involves secrets of the United States, they can report it to Congress in a more limited way. That still allows leadership in Congress to about it. And it's not completely immune. And the hope is if the executive knows they have to do the reporting after the fact, they'll be less likely to do some abusive action beforehand because they know somebody will find.
And for the most part, it's not been a perfect regime. That was in early 1970s. But presidents are reported thousands of agreements under this statute to Congress that they previously had no obligation to report. And some colleagues and I actually helped persuade some members of Congress to amend the statute a couple of years ago. And it's now actually much more stringent on the executive.
And we had some worries, would the executive actually comply with these-- now they have to report every month all the agreements that they're making. And if they've decided to make them what's called a non-binding agreement, which had been a loophole under the old law, those-- many of those now have to be reported.
And I just checked yesterday. And the current administration is reporting every month these agreements, including-- I don't-- you may remember in the news, the Trump administration has been sending some Venezuelans and others to this prison in El Salvador. It sounded like there was an agreement. Some colleagues and I had written some blog posts saying we'd love to see this agreement. And the administration looked like they were not interested in disclosing the context of this pretty important agreement with another country. I just checked yesterday. And it's now unlined. So it has been reported.
So having some laws in place that require transparency, but maybe after the agreements are done, with some provisions for classified reporting, has worked reasonably well in that area and is certainly an improvement over what it had been, I think, prior to the laws of the 1970s. So that's some progress.
AUSTIN CARSON: What's interesting, though, is that there's such a cat-and-mouse game. Every time something becomes regulated by statute, there's an adaptation by the executive branch to try to push around and find the weak points in the language or the workaround. And you can get very cynical thinking, well, all it is is you plug this gap, and then a new hole opens up or something. But maybe instead, it's a iterative process where we get more-- gradually, more accountability over time, even as the executive branch finds ways to have gentleman's agreements or just an exchange of memoranda instead of an actual written agreement.
CURTIS A. BRADLEY: Exactly what we've seen in this area, fortunately. It's not a perfect workaround. And so I still think it improves the transparency overall. But you're absolutely right. That dynamic has-- we've seen that in the agreement space.
AUSTIN CARSON: The other thing that's interesting for-- and certainly of interest to both of you is the courts are nowhere in this. The judicial branch simply does not weigh in on these things. And this is not like in a domestic policy context, where statute and constitutional parameters, where policies exploring those and struck down and adopted and there's-- and it's adjudicated through decisions and judges. This is an interesting-- purely political, in a way-- back-and-forth between the legislative branch and the executive branch. And it's not always clear if you violate the terms of a statute about reporting-- so what?
CURTIS A. BRADLEY: I was asked that exact question by members of the staff in the Congress, which is, how do we enforce this if we find there's not compliance? They do have some tools, which you had mentioned earlier. And they had used these in some prior times when they had found non-compliance, which is-- there had been a couple of times when they stopped funding certain agreements and others as a penalty. And they said until the reporting improved, you wouldn't get certain kinds of funding. And it turns out-- we looked at the numbers. And the numbers of reporting went way up after those funding cutoffs.
AUSTIN CARSON: For sure.
CURTIS A. BRADLEY: So they didn't put that in this-- latest iterations because it was a compromise bill. The executive branch had been heavily opposed to any change. And so the compromise was not to put the funding cutoff in it. But that could be another move if they thought it was not going well. The hope is that the executive has enough incentive not to irritate Congress too much, I think, in this space, that there'll be enough compliance.
WILLIAM BAUDE: I think this is remarkable. So just to think about the El Salvador example for a second-- so why do we think President Trump didn't have a lawyer in the executive branch write a memo that says, you do not have to report this agreement because reporting it would intrude on your constitutional powers as commander in chief and your constitutional powers to engage in foreign affairs, as recognized in Professor Bradley's book? And therefore, if you determine that disclosing the agreement would, in some way, harm the relationship and make El Salvador less likely to comply, you don't have to report it. Well, either he didn't think a lawyer would say that or he thought that it wouldn't be good. It would be better just normally, politically, to comply.
CURTIS A. BRADLEY: I think it's more likely the latter. I think lawyers could make, plausibly, the argument you were articulating, which is that at least for this gentleman's agreement, which is what-- I looked at the El Salvador agreement. It's written perfectly to not be a treaty, to be more of a diplomatic exchange, where they would have the strongest argument that Congress shouldn't be able to regulate the diplomatic speech and informal arrangements that the executive branch makes with foreign embassies or presidents.
I think they have a plausible argument. So they must have enough incentives to comply, at least in this instance. I do think there had been so much publicity about the El Salvador issue. You had mentioned public views. And I think that had already been a political cost for the president that was more than it was probably viewed as worth at that point.
And then deciding to violate the statute, even if they had an argument for it, would have just increased some of the criticisms. And a number of members of Congress had specifically written to the State Department asking for the agreement. And to then say, we're also going to disregard the very law you passed recently, I do think would increase the political cost of doing that.
AUSTIN CARSON: Absolutely. And I think that's what's so interesting about this more subtle power play back-and-forth-- is that when you asked that question, my thought is, he certainly could have found a lawyer to write that. He's mastered the art of staffing everybody around him with loyalists. And so that could be taken care of.
The issue is you don't want to antagonize Congress. The last thing you want to do is so provoke Congress that they then pass a new statute that regulates or even ties funding to either that specific site in El Salvador or, maybe even worse for the executive branch, passes a law that's more broadly applicable, that all agreements having to do with the detention of yada, yada in foreign countries must be reported within 60 days.
And if not, the-- all foreign assistance to that country will be cut off for one year. I don't know. I just made that up. All I know is the presidency or the occupant of the White House would hate to have that pass. And that's the game they're playing. They're gauging the level of congressional frustration, the amount of public attention to that specific site, let's say.
And then their-- the problem-- my guess is they're making a calculation. If we make a little concession here and give them a little bit of information about what we're up to, that will at least keep things chill enough that the energy for a new statute that could really complicate our lives and our plans would then be triggered.
WILLIAM BAUDE: That's remarkable. And then so do we think it's a similar story or a different story when it comes not just to, let's say, information and agreements, but the use of force? Congress has occasionally passed statutes like the War Powers Resolution that-- supposed to impose some checks on the presidential use of force. Do we see the same picture where that matters or it doesn't matter? Do we think we have constraints there, or is this more of a--
CURTIS A. BRADLEY: Yeah. And people this-- the example in the book, in my book, that draws the most controversy is the use of military force. People have strong views about it. And many people think the president has just acquired too much ability to project force without legislative agreement.
And part of the story there is not even fully a law story. It's a capacity story, as we were talking about. The president has at his capacity a large standing military force and forces around the world that he can-- he's the commander in chief under the Constitution. He can order them to do things and then gauge Congress's reaction after. And of course, Congress is in a difficult spot once the United States started using force. Often, they don't want to undercut the US position that's now been initiated. It could seem disloyal, or it could just hurt the US-- the United States' ability to achieve its objectives.
So presidents often can get away with being the first mover. And they have the capacity. If it's a longer term campaign, they're more dependent on the legislative branch. And they know that. And even in the modern era, some of the biggest ground campaigns have all gone to Congress.
The two Iraq wars both did get channeled through Congress. And the whole war on terrorism and war in Afghanistan did go through Congress right after 9/11, in part, I think, because presidents knew these were longer term, significant commitments where not having the legislature on board, including just for continuing funding purposes, would have been very risky. But if they have an aerial bombing campaign, they largely don't need Congress, in a practical-- it doesn't mean it's legal, obviously.
And there are many people who argue just because they can get away with it doesn't mean it's-- if you're one of-- if you're somebody who believes we should just do what the original understanding of the Constitution was, and I know, Will, you have that perspective, the best guess about the original understanding is probably the president should not have this ability.
Why do I-- even though the text is not super clear about it because we know the early presidents, against interest, all said they didn't think they could do it. What they said-- George Washington, John Adams, Thomas Jefferson-- they said, we, under the Constitution, don't have the authority to initiate the use of force, although we have some responsibility to defend if we're being attacked. And that was the line they thought maybe the Constitution was drawing. Even that's not clear from the text, by the way. But it's a reasonable inference.
But over time, what had happened? The United States developed a Navy. And it projected the Navy around the world to protect trade and do other things in foreign relations-- no telegraphs and other communications. So the Navy commanders just went out with executive instructions. And they ran into hostile villagers or other situations. And they used force.
And then, by the way, Congress finds out about this six months later, a year later because we have no easy communication. And then maybe Congress is unhappy about it. But often, the Navy commander says, I felt like force was needed. But it wasn't going through Congress in these smaller scale uses. And that really is a story of the whole 19th century. But every major war of the 19th century that was going to require big ground campaigns and the like were all declarations of war and authorized by Congress.
And then the turning point I talk about in my book is actually 1900 because what's happened? The United States has just won the Spanish-American War. It now has a huge number of forces over in Asian theater. And a conflict breaks out in China, which is called the Boxer Rebellion. And some US citizens and others are at risk.
So McKinley just sends some of the many troops he already has at his disposal into China on his own authority, over 5,000 or 6,000 troops-- doesn't go-- now, it's not unpopular because he's defending American interests. And there were Americans besieged in the embassies. And it's successful, which is also a selling point in Congress. But that's a-- that's not just a naval commander. That's a big commitment. And presidents then take advantage of that precedent and start using so-called gunboat diplomacy in Latin America, a number of presidents.
But the big world wars, of course, do go to Congress. So we have this line that gets developed where somewhat smaller scale, shorter term engagements-- presidents just think they can do those. And where the big wars-- they tend to go to the legislative branch. And I think the legislature expects that.
And then the other big turning point in the 20th century, and nobody quite knows what to do with this precedent, is after World War II, now, the president has at his capacity a very large national security state at that point. The North Koreans invade South Korea. And we're now part of the United Nations, which has a very complicated force arrangement that we're committed to.
So Truman really consciously decides not to go to Congress. He could have gone to Congress. And by the way, they would have approved the use of force. The initial war in Korea was quite popular. It became significantly less popular over time. But at first, there were only-- only Taft and a few others were opposed to the war. But his Secretary of State, Acheson, advised him, let's not set a precedent of going to Congress as part of our UN peacekeeping police action-- is what he called it. But that's a very significant, high-casualty, protracted campaign done without Congress authorizing the Korean War.
If you're worried about that, the only good news is we haven't seen a repeat of something quite like that since the Korean War. The biggest campaigns since then-- I would include the Vietnam War-- it's complicated, but there were statutes-- have been authorized by Congress.
And then the smaller scale campaigns, including very recently, as everybody knows-- the bombing campaign in Iran, just very recent, was done without any effort to go to Congress to see if they agreed with Trump. But that was consistent with what many presidents, Democrat and Republican, had done since the Korean War.
But for whatever reason, the presidents have not, at least yet, tried that unilateralism when it comes to, say, a significant commitment of ground forces, at least for the most part. I think there are a few exceptions even to that. But the Iraq wars would be-- would have been the exception. And both times, both Bush, Sr., and Bush, Jr., did go to Congress for the Iraq War.
So we have this equilibrium now where presidents used particularly aerial force for short-term strategic goals. Many times, Congress does not fight about it too much. And maybe there's some sense, and even executive lawyers have conceded this, that if it looks like we're going to go into a major, protracted ground campaign, Congress may need to be involved. And it's something like that. But that's not in the text of the Constitution, just to be very clear. It's much more of a modern practice.
AUSTIN CARSON: And what's so interesting about that evolution over time is that the very way governments can use military force has changed as technology has changed. So you add naval power, and now there's a way or a possibility of using military force without a declaration of war or an endorsement by Congress. You develop air power. Now there's new ways. And you can conduct a short-term air campaign without it going to Congress.
Now we have cyber weapons. Now we have a space force. So this doesn't stop. But what's interesting is that these new kinds of ways of using military force-- suppose we had a drone force or something like that. These would be ways, additional ways, added tools in the toolkit for the president, to use discrete-- to engage in discrete maybe short-term acts of military force without putting boots on the ground, but potentially breaking a lot of china, doing a lot of damage.
And so it's interesting to think, number one, about how technology is changing. The other thing is you brought up the Korean War. And that was the conflict with-- an angle of that conflict, which started my whole research program and my dissertation, going all the way back to graduate school. But it was a little facet, a little feature of that war. And it speaks to some-- another kind of executive advantage in the war domain, which is that there was a question about who was flying the planes on the other side during the Korean War.
The United States at the time, as of late November 1950, was fighting the North Koreans and their Chinese allies. But the North Koreans didn't have, really, an air force to speak of. The Chinese barely had one as well. And the United States and its UN allies was dominating the air campaign.
And it turns out that the Chinese went to Joseph Stalin and the Soviet Union to say, you all have a very good air force. And it was sharpened to a fine point in this war we just had, World War II. Would you be able to support us in the air? So what ended up happening, we now know, Is that the Soviets sent experienced Russian aviators to fly planes that were marked as Chinese or North Korean in-- with uniforms that were Chinese and North Korean uniforms.
And even, allegedly, there was a little note card cheat sheet where they were supposed to communicate in Chinese phrases when they were communicating over the radios. But of course, they-- in the middle of a dogfight, you're not like, help. How do I say "help"?
So what ended up happening is the United States intercepted the communications between those pilots and the ground support units that they were communicating with. And they were all-- 90% of them, according to one document that ended up trickling out-- 90% of the intercepted communication was in Russian. And what's really interesting is that that-- and that gave rise to this whole book I ended up writing called Secret Wars. It's about the covert ways states, outside states, get involved in conflicts.
But what was fascinating is that the intelligence community figured that out. The White House knew. And then they faced this choice about whether or not to inform Congress, whether or not to go public with that information. And they chose not to. And so for over a year in that war, the United States, in its aerial campaigns, knew it was fighting directly against Russian pilots. It was, in all intents and purposes, at war with the Soviet Union in 1952. And we call it the Cold War. And of course, that-- I was like, I need to do more research about this.
But it's a really interesting additional way that the executive branch has power. They have the power of information and knowledge because of their control of that intelligence apparatus. And they get to make decisions every day, every month, and every year about what to inform Congress, what to inform the public, what to inform the world about what they learn.
And we've seen examples recently. The Biden administration had information from intelligence sources about the Russians about to invade Ukraine. And they went public with that information, but they didn't have to. And for every one instance of that, there's 1,000 instances when that kind of information is not made public or shared with Congress. And that's the kind of power that when-- the more you learn about it and what, at times, it might have allowed the United States to know and the ramifications of what it knew what was going on-- that also gives you pause about, is this-- are we really OK with that?
CURTIS A. BRADLEY: That is fascinating history. I hadn't known that aspect of the Korean War. But that example reminds me of a worry that people always have in the war powers area, which is conflicts that are supposedly limited in certain kinds of ways have the ability, obviously, to be-- to escalate and, in that case, easily could have escalated into maybe World War III at that point.
And the public didn't even necessarily know all of the risks associated with it. And that was even a concern even in the recent Iran bombing, which was supposed to be very limited. But will it be limited? And it's hard to know. And presidents, when they act alone, are obviously creating a risk that it turns into something more substantial. And then it may be very hard to pull out.
And you talked about the War Powers law. Congress was worried partly about that-- that once we get drawn in, it can be very difficult to extract ourselves and it will just get larger over time. And so they at least wanted presidents if-- before that started to happen to maybe have to get-- persuade the legislative branch that it made sense.
So during the Nixon administration, again, they passed the War Powers Resolution, War Powers Act, that was designed to prevent this kind of escalation that they worried had happened in the Vietnam era with bombings in Cambodia and the like. And most people think that statute has been a complete failure, by the way. It passed in the '70s. I would say that's a little bit harsher than the truth. But it hasn't been an overwhelming success.
Partly, just it's poorly drafted, I think, in many-- it doesn't even define-- it says the president's-- it talks about when they move forces into hostilities. And then it doesn't define what that means. And some presidents have--
AUSTIN CARSON: Loophole.
CURTIS A. BRADLEY: --taken advantage as a loophole. Most importantly, it's only enforcement provision is it says presidents-- if you start using force and hostilities, you have to stop within 60 days unless you get our permission. But partly because of technological changes, 60 days is actually a long time. Trump didn't need 60 days for Iran. And so it never really ran into the teeth of the resolution.
And then there are workarounds about the 60-day rule. So ever since that statute has been passed, there have been discussions about amending it or making it better. And for whatever reason, we haven't seen Congress really have the institutional willingness to improve that statute.
WILLIAM BAUDE: I have one last question for you guys just to put on the table, which is what do we still need to know? So we sometimes talk at the university about the research frontier, like here's all the body of knowledge we have. And we're trying to push it out, to learn more. So what are the-- what's the question at the frontier that you think, this is the next thing that we need to figure out the answer to?
CURTIS A. BRADLEY: I have a legal answer because that's what-- that's my focus. I focus on constitutional law and how we ought to interpret the Constitution. One legal debate that's going on, I think, in the Supreme Court, as well as in academia, is many of the justices on the Supreme Court are committed to an original understanding of the Constitution. And I think when you get into foreign affairs, that presents certain kinds of issues, which is, can you reconcile being committed to an original understanding of the Constitution and also accept the fact that our constitutional law is made up of a lot of traditions that come up after the Constitution was established? Is there a way of accommodating those two positions?
A number of the justices on the Supreme Court, and you know this, Will, have at least talked out loud about the possibility that they could both be committed to the original design of the Constitution, but accept that it might have had, in some way, some evolutionary quality that comes through filling in gaps and ambiguities in the Constitution. That might be a way of justifying, at least, some of our foreign affairs law that's not easily accommodated in the original understanding of the Constitution.
The big practical issue that I run into in thinking about this is if we want to treat what presidents do or Congress does over time as a precedent, what are the limitations on it? What are the parameters? Many people would not accept that just because a president violates the law once, somehow, it's legitimized. We would want some criteria for when to credit it or not credit it. And we'd still want to be able to say, no, that's actually a violation. And how would you distinguish it?
And the most common argument that I run into, and I think there's a lot to it, is we ought to be crediting practices that have a longstanding bipartisan quality where there really has been an acceptance by the other affected branch in various kinds of ways because in some ways, that shows a workability. It shows that it's not just opportunistic. And it shows a certain settlement that seems to be working at least reasonably well in our constitutional system.
And I don't think everything fits that model. I think some things presidents do in the war area, for example, probably don't reflect that kind of a settlement. And so the frontier is trying to probably distinguish between things that presidents are doing that are just overly aggressive and that we ought to push back against versus things that really do seem to be a bit more settled in our constitutional law. And as a lawyer who tries to think through that, I think that's one of the areas of scholarship ahead.
AUSTIN CARSON: I'll give you two frontiers that I think are really interesting. One is very much the day-to-day of what I'm working on in my own research. So it's to continue to learn about what I-- I teach a class here at UChicago called The Secret Side of International Politics-- to continue to look and understand what the government and foreign policy and diplomacy and in war is done, and does, in secret.
And so I'm doing work right now on, actually, the logistics of how governments do surveillance of one another. And so I didn't know this. A few of us do. How do you actually intercept the signal of another country? You talk about SIGINT or-- is the acronym for it. How do you do that? Well, it turns out that you have to have an antenna system that's near where the wireless radio communication is happening. The United States built many of. And most of those, or a majority of those, were in foreign countries, where we often went to them and asked them, could we build an installation on your soil? And in return, we'll give you this, that, or the other, whatever.
And so I'm working on a book that's looking at this intelligence or surveillance infrastructure and trying to understand what it looked like, where it placed at the United States and its personnel, and what kind of geopolitical relationships that came from that, very relevant to US-China competition. Both the Chinese and the Americans are interested in places to do surveillance on one another and how that affects countries in the region.
So I think there's-- pushing the frontiers there to better understand using scholarship, using social science, using declassified archival materials where we can to really put more flesh on the bone of what the government is able to do and what we think about it. That's answer number one from my research.
The second thing I really think about more from the political moment now is thinking about institutional resilience and institutional responses. What's going on right now in the current Trump administration is radical changes to whole bureaucracies-- the USAID, international development agency, gone, thousands of jobs being cut from the State Department, from even the Pentagon and from a number of other institutions.
We need to understand what's going on there and what we think about that. But then we also need to maybe look historically, look at other governments, look at other historical moments. What happens after that? Do those things snap back in a resilient way? If another leader takes power in a few years, even if it's a-- the same political party, what does that look like? Where do all these people with these-- that used to have these jobs go? And are they rehired in that future? And what is the nature of democratic political institutions, but also the bureaucracy when it's been so-- changed so radically?
Maybe that's a good thing. Maybe that's a bad thing. You can have your own view of that. But the question of the long-term durability of that, to me, is something we don't know a ton about, but is of very high importance in the current political moment.
WILLIAM BAUDE: The Battle of the Branches series explores how traditional norms surrounding executive authority, legislative oversight, and judicial intervention are increasingly being tested and reshaping our democracy. Grounded in UChicago's values of free inquiry and expression and driven by rigorous interdisciplinary research, the project brings together leading scholars to explore these questions with depth and nuance. We hope you'll join us this summer.