The Lawfare Podcast Lawfare Archive: The Past, Present, and Future of War Powers with Brian Finucane and Matt Waxman
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Sep 20, 2025 Brian Finucane, a Senior Adviser at the International Crisis Group, and Matthew Waxman, a law professor at Columbia, dive into the complexities of U.S. war powers following recent military actions. They discuss the Biden administration's legal justifications for operations in the Middle East without new congressional approvals. The duo explores historical contexts of the War Powers Resolution, the risks of 'creative lawyering' by the executive, and potential reforms for better congressional oversight. Their insights reveal the ongoing tension between executive authority and legislative accountability in matters of war.
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Post-October 7 War Powers Problem
- The Crisis Group traced post-October 7 U.S. hostilities in the Middle East and how they proceeded without fresh congressional authorization.
- The administration relied on constitutional and repurposed statutory rationales while avoiding public legal explanations.
History Shapes Constitutional Judgment
- Matthew Waxman argues the historical practice makes current unilateral presidential uses of force more constitutionally defensible than originalist accounts suggest.
- He nonetheless calls for a stronger congressional role and better oversight rather than new broad framework statutes.
Use The 60-Day Clock Intentionally
- The War Powers Resolution triggers reporting and a 60-day clock when forces enter hostilities, but executives have interpreted its terms loosely.
- Congress should tighten definitions and enforce reporting to restore the statute's forcing function.