The Libertarian Who Decides When America Goes to War?
Dec 19, 2025
Richard Epstein, a renowned legal scholar specializing in constitutional law, delves into the complex dynamics of war powers in the U.S. He discusses the original constitutional division between Congress and the president, and how modern practices have tilted authority towards the presidency. Epstein highlights the reluctance of Congress to make decisive war declarations, the evolution of authorizations, and the implications of emergency actions. He provocatively suggests the existence of two constitutions—one written, and one lived—shaping America’s approach to war today.
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Founders Built A Dual Warpower System
- The Constitution split war roles: Congress decides deliberatively while the president must act with expedition.
- That dual design intended a balance between representative authorization and urgent executive action.
Jackson's Three-Part Framework Still Matters
- Supreme Court doctrine limits but does not fully constrain presidential war powers, leaving gray areas.
- Justice Jackson framed a tripartite test balancing congressional support, presidential action, and judicial restraint.
Vague Authorizations Expand Executive Reach
- Broad authorizations like the AUMF empower presidents to decide scope and targets over time.
- Ambiguity about who falls under an authorization has let presidential war-making expand without fresh congressional votes.