The constitutional power and its purpose
Across the episodes, the declaration of war is treated as a structural feature of the Constitution rather than a formality. A caller identified as John, on the 2011 episode with Gary Johnson, states that the Commander-in-Chief is called into actual service under Section 2 of Article II and that the call comes from a declaration of war, which he describes as foreign policy created by both houses of Congress and the only foreign policy created by both houses. He adds that a declaration is meant for going onto foreign soil for a specific defense function and then getting out, and that the absence of declarations reflects a desire to invade and occupy; such actions, he says, are police actions that are totally unconstitutional and totally unlawful. He frames the remedy as getting every member of Congress to honor their oaths and their public employment contracts to support and defend the Constitution without any mental reservation or purpose of evasion. Bob Zadek’s response to the call is to thank John and to thank Governor Gary Johnson for spending an hour on the show Straight Talk with Gary Johnson (2011).
Christopher Preble, on the 2019 episode, grounds the clause in Madison, whom he calls effectively the author of the Constitution or at least one of the principal authors, and who called the War Powers Clause the most important in the entire document. Preble argues that if Congress routinely relinquished other powers granted to it by the Constitution—raising taxes, or originating spending bills—people would feel that members were not doing their jobs, and it would literally be a dereliction of duty; yet when Congress avoids weighing in on matters of war and peace, public sentiment shrugs. He says it should be politically damaging for a member of Congress not to weigh in, because it is truly one of the most important decisions an elected official can make On Foreign Policy, will Trump heed the Restraining Constituency or John Bolton? (2019).
On the 2022 episode, Preble repeats that Madison referred to the war powers clause as the most important clause of the entire document, and that the founders were anxious about the concentration of power in the executive branch. In his account, the founders believed the decision to take the country to war would not be taken lightly, would not be taken by one man or by a small number of people, but would be with the consensus, or something approaching the consensus, of the American people, expressed through a declaration of war. He adds that the founders did not wish to have large, powerful militaries, citing Washington’s Farewell Address and its warning against what Washington called overgrown military establishments, which were always a threat to liberty. Preble notes that Washington was not a pacifist and spent most of his life involved in fighting or preparing to fight wars, and that the founders saw war as the health of the state; their approach was to advance U.S. interests, prosperity and liberty as much as possible through peaceful means, through diplomacy and trade, and not through war Chris Preble on Ukraine (2022).
The record since World War II
The episodes converge on the claim that no formal declaration of war has been made since the Second World War. Preble states that since World War II, that was the last time Congress actually authorized and declared war, and that the occasions since—the first Gulf War in 1991, the authorization after 9/11, and another leading into the Iraq War—were congressional authorizations to use military force rather than declarations. He describes those authorizations as notoriously open-ended and as a sign of Congress’s willingness to hand its authority to the executive, functioning as a blank check if the president decides it is in the United States’ interest to go to war. He notes that people deploying to Afghanistan in 2019 were not born at the time of the passage of the 2001 AUMF, and that people were fighting under the 2002 AUMF on pretenses he calls completely phony with respect to the war in Iraq On Foreign Policy, will Trump heed the Restraining Constituency or John Bolton? (2019).
On the 2022 episode, Zadek puts the Korean War to Preble as a war that was never declared because Congress would not have voted to declare it, and says it was only by the executive branch doing an end-run, calling it something which sounds benign: a police action. Zadek says the statute creating the police action is still in effect, so the country is technically still conducting a police action in Korea, and asks about Vietnam. Preble confirms there was no declaration of war with respect to Vietnam. Zadek calls the founders prescient on Korea and Vietnam and asks about Iraq; Preble agrees there was no declaration there either. Preble adds that the Gulf of Tonkin resolution, which paved the way for the dramatic expansion of the war after 1964, was overwhelmingly popular but premised on a falsehood—the attack that allegedly happened in the Gulf of Tonkin never did. He notes that the AUMF after 9/11 to go after Al-Qaeda remains in effect and has been used to justify military operations in over a dozen countries, that the Iraq AUMF also remains in effect, and that attempts by some members of Congress to repeal those authorizations have been foiled by those who worry that removing them would tie the president’s hands. His response is to urge them to read the Constitution, the Federalist Papers and Madison’s statements, because that is precisely the point: the president’s hands should be tied except in extraordinary circumstances that actually call for the use of force, and if they are so extraordinary, there should be strong public support Chris Preble on Ukraine (2022).
Remedies proposed
Ted Galen Carpenter, on the 2023 episode, is asked whether any statute or behavior in government is so offensive that a statute should be passed or repealed. He answers that Congress can and should repeal the Espionage Act of 1917, and, prompted by Zadek to explain it, describes it together with the related 1918 Sedition Act as essentially criminalizing any criticism of U.S. policy during a period of national emergency. In his account the government can classify any document it wishes, and disclosing it violates the Act; over one billion documents have now been classified, including the luncheon menu at the Central Intelligence Agency, which he says is designed to conceal all government activity from media and public scrutiny. He calls the Act abused again and again and says it needs to be repealed immediately. He also says he would like to see a Supreme Court decision explicitly overruling Korematsu v. United States, which he describes as approving Franklin Roosevelt’s executive order imprisoning Japanese and Japanese-American citizens on the basis that they might pose a security threat on the West Coast states—dishonest at the time, politically motivated, unnecessary, and a deep offense to the liberties of the American people. Third, he says Congress needs to get serious about following the constitutional process if the country goes to war: a declaration of war from Congress, and an end to presidential wars Taking the Lapdog Press to Task on Foreign Policy Reporting (2023).
Across episodes: the same argument, restated
The same question is argued in all four episodes, and the treatment does not develop so much as recur with different speakers. The 2011 caller John states the constitutional case in its most uncompromising form, tying the Commander-in-Chief clause to a declaration of war and calling undeclared actions police actions that are totally unconstitutional and totally unlawful. Christopher Preble, in 2019 and again in 2022, supplies the historical and textual elaboration—Madison’s ranking of the War Powers Clause, the open-ended AUMFs, the blank check, the deployments under authorizations passed before the soldiers were born—and in 2022 adds the founders’ fear of standing armies and Washington’s warning against overgrown military establishments. Ted Galen Carpenter in 2023 reduces the remedy to three items: repeal the Espionage Act, overrule Korematsu, and require a declaration of war. What changes across the episodes is chiefly the speaker and the emphasis; the diagnosis of congressional abdication and presidential war is constant.
What the sources do not cover
The excerpts do not state the text of the War Powers Clause, the names or dates of the AUMF statutes, or the holding of any case beyond Carpenter’s description of Korematsu. They do not say which amendment any argument turns on, nor do they give the outcome of any repeal effort beyond Preble’s statement that attempts have been foiled. The 2019 and 2022 excerpts both break off at a Bob Zadek line, and the 2011 episode ends in closing remarks, so no further exchange on these points is available.