The History and Future of Presidential War Powers

Lindsay: With several major wars threatening to spill over into wider regional conflicts, the question of U.S. involvement in foreign wars has once again gained relevance. And meanwhile, at home, we’re heading into a consequential presidential election that will usher in a new executive into the White House. This has prompted us at Talking Policy to want to take a deeper look at the extent of U.S. presidential war powers, and their implications for American foreign policy and the balance of power.

To help us unpack this big topic, we’re joined today by Patrick Hulme, who is a Stanton nuclear security fellow at Stanford and a longtime IGCC affiliate. He’s here to discuss the history and the future of U.S. presidential war powers.

Patrick, welcome to Talking Policy.

Patrick: Great, and thanks for having me here. I’m excited to be here and to talk about these issues.

Lindsay: So to start off, can you give us your read on the state of the world? Like where are we at? Is this an especially dangerous moment in terms of the potential for war?

Patrick: So I think a lot of people will say we’re at a very dangerous moment. But whenever people say that, I always want to take a step back. So why would people say that right now? So I’m gonna point to probably number one: There’s the war in Ukraine. And why is that so important? Because Russia is involved. Russia is a superpower. They have nuclear weapons, right? There’s been nuclear threats. So that’s extraordinarily dangerous.

Of course, there’s the war going on in the Middle East, with Israel and Gaza. Also, there’s the potential for that to escalate into Lebanon. Iran could get involved. And then, of course, we’re also watching what’s going on in the Taiwan Straits with China. Are they going to make a move against Taiwan? There’s always tension between India and Pakistan, and they both have nuclear weapons, et cetera, et cetera, et cetera. So there are a lot of issues out there that are potentially dangerous.

At the same time, and I think about this a lot, if you ask anyone at the time, any decade, 1950s, 60s, 70s, all the way through today. Not always, but almost always they’re going to say, oh my gosh, this is the most dangerous period ever.

So being in the Cold War, they’re going to say nuclear weapons. After the Cold War, people think it goes down, but then we have terrorism and suddenly people say, “oh, we have all these much more complex threats” And of course, now we have the complexity of we have great power competition again. Nuclear weapons have kind of come back from the background. Then, of course, we have developments like AI, bioweapons, cyber-attacks, et cetera.

So I think there are a lot of very large threats out there. I would hesitate to say that this is—some people will say this is the most dangerous time in history. I’m not willing to go quite that far, although I could be persuaded.

Lindsay: Well, that’s great context.

So the conflicts you mentioned: Ukraine, the Middle East, the simmering tensions in Northeast Asia. The U.S. isn’t directly engaged in any of those conflicts, but we’re talking about what may happen in the future. So what power does an American president have to wage war, and how have these powers evolved over time?

Patrick: So famously, you know, most Americans will, of course, learn this in civics classes growing up, the Constitution itself gives Congress the power to declare war and it gives the president the power as commander in chief, and these are kind of vague terms and that was actually sort of on purpose.

So a lot of people point out that every major war [that] the U.S. is involved in between our first major war after the Revolutionary War, the War of 1812, through World War II, all of these are formally declared by Congress, with the exception of the Civil War—and really, the only reason that’s not declared is because in traditional international law, you don’t declare war on a country you don’t recognize. And of course, the whole thing about the Civil War is we’re saying the South can’t secede, they’re not a country. But all other major wars are formally declared.

After 1945, we never declare war again. And not only we don’t declare war, virtually no one declares war after World War II. However, there’s an important thing to note here. There is another way that Congress can formally authorize the use of force. People usually are really focused on formal war declarations, but legally there’s no problem, there’s nothing suspect about getting what’s called an AUMF, Authorization for the Use of Military Force. This is just another law that formally authorizes, as the name suggests, the president to use military force. And the fact is that every single major war the U.S. has fought since Vietnam—so Vietnam, Gulf War, Iraq, and Afghanistan—all of these saw a president go to Congress, [and] get some kind of formal legal authorization before using force. So the pattern is, we don’t declare war anymore. But we do have these AUMFs, instead.

Lindsay: That’s interesting. So, Congress hasn’t officially approved a declaration of war since World War II, because no declaration of war has been made since World War II?

Patrick: There’s a few, but not very many. It’s very, very rare.

Lindsay: Okay. But you talked about this engagement between the executive and Congress, requesting resources and authorization to deploy military resources. Which is interesting, given that we think of the war powers having kind of tilted towards the executive and away from Congress, but Congress is still involved.

Can you talk about the War Powers Act of 1973, which is viewed by some as this act of Congress to take back that power. Is that what was going on?

Patrick: Okay, so that’s an excellent question, and this perfectly segues off of our discussion of declarations of war.

You get a lot of dissatisfaction with both the Korean War and the Vietnam War. So the Korean War, President Truman enters it, and he doesn’t get any kind of authorization from Congress. He says, I’m president. He does get authorization from the UN, but he says, look, there’s a quote, something like, we have to respond quickly in the circumstances of this new era, and so I want to show that I can act unilaterally.

Now the fun fact is, Congress totally, overwhelmingly supported this war, they just realized, “Hey, we can get him to intervene, and we don’t have to take responsibility for it. This is fantastic!” Of course, the war starts going wrong and they say, “Oh, not our war, not our war. This is Truman’s war.”

So then you get to Vietnam, Johnson—and all the other presidents in between, so you see this with Eisenhower, Kennedy, and then Nixon afterwards. They say, okay, what Truman did, that was pretty dumb. You could have gotten this authorization, and you didn’t.

So Johnson is very much about, no, no, no, we’re not doing anything until I get formal authorization. This is very clear, and so he gets what we now infamously call the Gulf of Tonkin Resolution in 1964.

But then over time, as we see these increases in troops through 1968, this is becoming more and more controversial. And people are saying, well, why didn’t you get a declaration of war? This Gulf of Tonkin thing, this is a big sham. Suddenly they have the investigations about, well, what actually happened in 1964? They eventually repeal the Gulf of Tonkin Resolution in 1971. And then by 1973, Congress is basically asserting that the president has, you know, usurped all this power, and we want to try and claw it back. Between 1970 and 1973, a lot of different drafts of resolutions, and finally the one they actually get passed, it’s a little bit wishy-washy, right?

And so this is the one we have today, and people will note that basically, what it definitely does is it says if a president does not have a declaration of war or an AUMF—so again, those two different potential authorizations—if they don’t have that after 60 days, they have to withdraw. There’s some kind of a 30-day grace period. Everyone kind of agrees it says that.

So Congress passes this in 1973 and the standard kind of story of what’s going on here after World War II is presidents are just wanting to conduct wars, and Congress are these, you know, innocent little puppies, right, and they’re, you know, really standing up against the big bad president. And that’s what’s going on with the 1973 War Powers Resolution. And then we have this whole, over 50 years, since it passed, we have expanding presidential power since.

The way I look at it is slightly differently. I think what’s always been the case, going all the way back to World War II and before, is really this whole thing is a game about who’s to blame if things go wrong, right? And so, when a president and Congress is contemplating the use of force, one: things can go wrong. Things go wrong in war all the time. It’s really, really difficult to know you’re going to really stick the landing, and things are gonna go well. Two, you’re probably gonna have dead Americans and of course, dead citizens of other countries, but particularly Americans is gonna be really salient in the U.S. So you’re gonna have this big, salient political liability that’s very likely to be out there. You’re really exposed. So this is gonna mean a couple of things. It’s gonna mean that presidents are going to have pretty strong incentives to try and shift some of the blame onto Congress. And then Congress is going to have a lot of incentives to say, “not my war”. This is Johnson’s war, this is Bush’s war, this is Nixon’s war, etc. So I think a lot of what’s going on with the 1973 War Powers Resolution is Congress is trying to say this wasn’t our war, as its way of kind of shifting blame back to the president.

Lindsay: Yeah. It’s a little disheartening to hear it framed as blame avoidance, rather than thoughtful checks and balances. But so what are some of the problems with allowing presidents, ultimately, to make decisions, for example, to send troops somewhere? And what are some of the problems with relying on Congress to authorize that kind of activity?

One of the things that comes to mind is the idea that, you know, Congress might be too slow, and a president can act fast. What are some of the tradeoffs?

Patrick: So on the one hand, people say, no, we shouldn’t have the president act unilaterally because they might do something rash. You actually saw this a lot from the Constitutional Convention, but certainly even later years, including during the Vietnam War and after, by legal scholars. They say it’s better for Congress to, quote, “clog the road to war,” with the idea being that Congress is a more deliberative body, can think about is this something we actually want to do or not? Kind of just from, like, a normative democratic theory perspective, it’s probably better to have the buy-in from the representatives of the American people, et cetera.

On the other hand, as you point out, others will say, well no, sometimes we need things to happen quickly, and Congress is slow. That’s kind of the whole point to be deliberative and kind of slow. So you could have a situation where the president just needs to act.

I actually find I’m less concerned about the president acting unilaterally because I think they have really, really strong political incentives to like not do something crazy, because they’re really exposed politically. On the other hand, I also don’t really buy as much this idea that Congress can’t react quickly if it needs to, because I think it totally can. So a lot of times people will cite the Cuban Missile Crisis.

A lot of scholars, especially traditionally, would look at this and say, you know, Congress can’t react, it’s important, the president have time to make decision with his advisors to maintain secrecy, et cetera, et cetera. And I in general agree with that, but what they overlook is that, in the Cuban Missile Crisis, the reason they’re not talking to Congress is because Congress had already made its position super, super clear in the preceding months.

And in fact, they actually passed a resolution, like these resolutions we’re talking about, a couple months before. And there was a huge debate about this, and it was very clear what was going on is that Congress was pushing the Kennedy administration into taking a really hard stand against the potential of Soviet missiles in Cuba, right? And so basically passed this resolution at the beginning of October, if missiles show up, you’re going to get them out. Two weeks later, the missiles show up, right? And so why doesn’t the Kennedy administration feel it necessary to kind of take Congress’s temperature on this? Because it already has Congress’s temperature.

What the administration is doing is they’re basically fulfilling the will of Congress. They’re not just doing whatever they want. So I find that argument that Congress can’t be involved because of the necessity of speed, et cetera, in the nuclear era, I find a little bit less convincing.

Lindsay: That’s really interesting. Is there a partisan flavor to these debates at all about war powers? Is there a Republican stance and a Democratic stance, or not?

Patrick: That’s a really good question. So, if you asked me this 10 years ago, I would say definitely. And the reason I would say that is, basically after the War Powers Resolution, you had a lot of Republican attempts, even when it gets passed. Nixon, Republican, obviously, vetoes it. Ford, again, a Republican, he complains about it a lot. He even complains about it a lot after he’s no longer president to say like, hey guys, like really, we need to get rid of this thing. Although he basically complies with it more or less. And Democrats were a little bit more willing to defer—Jimmy Carter definitely was, although he gets frustrated with it. The Reagan administration is really pushing back against it, quite a bit. The Bush 41 administration, at least publicly, is trying to push back against it. By the time you get to Clinton we get in these interesting situations where Democrats, they will say that they want to defer to Congress and honor these things, but then you get these situations where essentially they’re forced to act unilaterally after all. So Clinton, for example, has a bunch of these humanitarian interventions and doesn’t get congressional approval.

Probably the biggest difference that we actually see is between the George W. Bush administration and the War on Terror, versus Barack Obama. So, famously, that Bush 43 administration made these really broad claims to power after 9/11. One of then-Senator Obama’s kind of main selling points, both in the democratic primaries and in the campaign against Senator McCain, was that “I’m going to be more respectful of the constitution and the rule of law,” “I’m not going to be this wild cowboy,” essentially, right? And so there you had these pretty different perspectives on presidential powers.

However, it turns out that President Obama, much more frequently, would use force, there’s a lot more evidence of him using force not authorized by Congress than there was of George W. Bush, which is almost like kind of like, wait, how does this happen, right? One is saying, I’m going to do this and they’re not doing it. And the other saying, I won’t do this, and they are.

Lindsay: What about between Trump and Harris—any difference there?

Patrick: I actually don’t see a big difference between the two. So, there’s actually a reporter for the New York Times named Charlie Savage, and he writes a lot about these issues, and he will quite often, before a presidential election, send out this questionnaire about presidential powers to candidates to see what they say.

He sent one of these out in 2019. I actually just looked this up today, because I was curious, you know, what does Harris think? And basically, the question is, under what circumstances, other than a literally imminent threat to the United States, if any, does the Constitution permit a president to order an attack on another country without waiting for formal authorization?

And this is really interesting. This is Harris’s answer. She says, “the president’s top priority is to keep America secure, and I won’t hesitate to do what it takes to protect our country in the face of an imminent threat in the future.” There’s some questions about what about like Iran and North Korea. She says “the situations in Iran and North Korea would require careful consideration of all surrounding facts and circumstances.” So basically, nowhere in there says I’m gonna wait for Congress. A little bit wishy-washy, not saying I’m gonna do whatever I want. But definitely not Barack Obama’s answer from 2007.

So, not surprisingly, President Trump did not answer this. Although, because he already was president, we can actually look at, you know, what he’s done. I don’t think anyone’s going to accuse President Trump of being super deferential to institutions. So, you know, I think there is kind of this image of him that he’s willing to do whatever he wants, kind of the law be damned. But at the same time, actually, interestingly enough, his Department of Justice, basically they’ll have these like war powers opinions internally. They actually adopted basically the same standard as the Barack Obama and Bill Clinton administrations, and not this super expansive standard that the Bush 43 administration did.

So that was a little more restrained. And then President Trump’s uses of force were actually very, very short, he intervened a lot less than, for example, Barack Obama. So on the rhetoric side, I think Trump has this image of he’s going to do whatever he wants. If you actually look at what he’s doing, it’s a little more complex.

Lindsay: Yeah. You spoke to this a little bit already, but I want to ask you again, what are the different values that underlie these different points of view about who ought to be able to make these decisions?

Patrick: So, I guess there’s two levels to this. I would kind of roughly divide it by what people will say in the abstract, so what do they say before they’re president, and then what are they doing when they are president?

And I think really the two tensions are kind of a respect for institutions. You know, the Constitution says Congress declares war. Not every country has that, by the way. So, for example, in Britain, it’s like the king or the executive’s prerogative. Not so for us, right? It’s Congress that declares war. So I think a lot of people are uncomfortable with the idea the president can do whatever they want.

On the other hand, I think those that take a more expansive view tend to be more focused on things like deterrence, reassuring allies, things of that nature, and basically saying, look, it’s less important what these people wrote in the 18th century. What matters is today. And if you want to deter adversaries, if you want to reassure allies, the president needs to have more power.

Lindsay: So the U.S. is special and unique in one way, globally, in that we as a superpower provide protection to our allies through various alliances and agreements. So part of the implication of our war powers is that it impacts not just our own country, but also other countries; our allies. So how do they think about this issue?

Patrick: So there’s actually not a lot of research on this, and the reason I know that really well is because currently I’m doing research on this with a law professor at Columbia, Matt Waxman, who actually served in the George W. Bush administration. And we actually show some pretty interesting things.

If you are an ally of the U.S., when it comes to creating the commitment, you’d rather have Congress involved. Similar to that, when it comes to the possibility of leaving the commitment, you would also want an extra veto player in that process. So for example, there’s been the last couple of years, this question of what if Trump wants to leave NATO? And there’s actually been some interesting legal games going on with the National Defense Authorization Act trying to prevent this. So again, if you’re an ally, you would want Congress to be involved in this decision because it’s just another veto player.

But when it comes to the most high profile of all the war power decisions, the power to initiate the use of force… it’s completely the opposite. They do not like the idea that the president has to wait for Congress’ approval to come to their defense.

So what you get in our treaties is this interesting language, this compromise language. It’s meant to be kind of a gray area on purpose in order to sort of create a commitment, but then also get it through the Senate. It says that states—that’s really referring to the U.S.—will follow its, quote,
“constitutional processes” when it comes to enforcing this treaty. And it purposely leaves out what that means.

So what the interesting thing that Matt and I show is that on each of these treaties…so that’s like publicly what’s happening, but at the same time, the allies come to the president saying no, it has to be automatic. We show this for every treaty except for U.S.-Japan. But every other treaty, we have the ally coming up and saying, “What does this constitutional processes thing mean?” And the president says, or the secretary of state, et cetera. They say, “Don’t worry about it, we’ll come on our own if we need.”

So for example, we talked about the War Powers Resolution in 1973. War Powers Resolution, you’ll notice the things we said that allowed a president to use force under the resolution: Declaration of War. Authorization Use of Military Force. What is not in there? Treaty is not in there. That was very specific. And by the way, there’s actually a clause in the War Powers Resolution that explicitly says a treaty does not count.

So allies were losing their minds over this. If you’re Canada or Great Britain and you’re kind of sitting back, you’re not going to care as much about this. South Korea was like going absolutely crazy about this. the Philippines, Thailand, all these countries on the front lines, for example, in East Asia were going absolutely nuts. They’re saying, “What is this? These treaties aren’t worth the paper they’re written on because of this War Powers Resolution.” So again, what do we see? We see the president saying, “Don’t worry about this.” And even actually having to demonstrate their ability to act unilaterally.

So famously the first use of force undertaken after the War Powers Resolution, which legal scholars complain about all the time, is called the Mayaguez incident, after the fall of Saigon. Without going into too many details, essentially a container cargo ship gets taken over by forces in Cambodia, which was communist at the time. It’s captured and the Ford administration goes in, doesn’t get authorization from Congress, and has this, like, kind of exaggerated mission to get it released.

This was all about reassuring allies, especially, believe it or not, South Korea, because they were worried about this war powers resolution. So they do this to show them, say, look, we can act unilaterally. Don’t worry about it.

Lindsay: So Russia’s war in Ukraine has, as you say, rattled U.S. allies in Europe who are members of the North Atlantic Treaty Organization, which is a mutual defense pact, where we commit to come to their defense should they be attacked.

So if Russia suddenly invaded Germany tomorrow, is what you’re saying that, technically, the U.S. is constrained by that language about process, but in practice, U.S. presidents have said, you know, “don’t worry about it, I’ll act in your defense if that is needed”? So there’s this kind of discrepancy between what’s official and what’s said—is that right?

Patrick: Basically. So, I will say that “constitutional processes” language does not specifically say they have to go to Congress, right? It’s meant to be sort of ambiguous. So the president can tell allies, “You know, yeah, constitutional processes, I’m constitutionally the commander in chief. Boom, that’s a constitutional process.” So this actually did come up very recently when the Senate ratified the ascension of Sweden and Finland to NATO. Senator Paul, who’s one of these kind of constitutional conservatives, kind of libertarian, who’s always harping on this war powers thing, the president shouldn’t be able to use force without Congress. He actually proposed an amendment that said we’ll allow them in, but the U.S. will follow its constitutional processes. Like, I don’t even think it said that the president needs to come to Congress. Maybe it did. But anyways, it got shot down, like, 95 to 2 or something, and all the other senators said, like, if we pass this, this is going to freak out our allies. So we’re not going to pass this. So it’s intentionally kept kind of ambiguous.

Congress actually kind of benefits from this, because this could potentially lead to a situation where again, you know, if Estonia were attacked, you would have a lot of support in Congress, I’d imagine, to use force. I think they’d be much more worried about voting on the use of force. But again, if they can point to the treaty and say look, you know, President Biden, President Trump, President Harris, whoever might be, you got to go do this, don’t ask us. Like, for a lot of them, they’d actually prefer that. So it does lead to some interesting situations.

The other thing I would just highlight there is, it’s not just about alliance reassurance. It’s also about deterrence. Certainly, presidents don’t want the Russians or the Chinese, whatever, definitely don’t want them to think that the president is super constrained by Congress.

And just to connect this with the war in Ukraine, in the fall of, I believe it was 2022, so it’s about six or eight months into the war, the Russians started making all these, like, kind of nuclear threats, amongst kind of losses on the battlefield.

I can’t remember who it was, like the director of intelligence or someone like high up in the U.S. administration actually later said that they had estimated like a 50 percent chance of the Russians using a tactical nuclear weapon, which is just to say, it’s only, “only” like the size of like a Hiroshima bomb, right? People don’t realize that, like, the biggest bombs we have are like a thousand times bigger than the Hiroshima bomb.

Apparently, the U.S. made a bunch of like private threats to the Russians saying, well, if you do this, X, Y, and Z will happen. I have no idea what the Russians felt about this. Apparently, on the American side, it seems like we think that they took this as a real threat. But my point here is if the Russians really believed that the president was super constrained by Congress, that would likely decrease the seriousness with which they would take the threat.

Certainly for U.S. deterrent purposes, it’s better for the president to be perceived as having a lot of flexibility.

Lindsay: Well, let’s talk for a minute about nuclear weapons. This is a little different than, you know, sending troops or going to war in a traditional sense. What power does the president have in terms of nuclear weapons?

Patrick: So just to give kind of an overview on nuclear weapons in general: In the U.S., we have something that’s called “sole authority” over nuclear weapons. This originates with the Truman administration in the Korean War. Nuclear weapons are, of course, brand new in 1945. And suddenly there’s an argument that, “Okay, great, you know, we have rifles, we have grenades, we have tanks, we have ships. You know, we’re going to use these when we’re going to use these. I don’t need to call up the President every time I use a tank or a ship or whatever, you know, this is a military thing.” And the Truman White House said, “No, no, these are different. The president has sole authority over the use of nuclear weapons. You cannot use nuclear weapons unless you get the president’s go ahead.”

So that’s the beginning of sole authority. But notice that’s not about the president and Congress, that’s about civil military relations, right? The president versus the military. So basically, they have this kind of infamous military aide that’s with them 24/7, 365, the entire term with a briefcase called the football, which has basically control over all U.S. nuclear weapons. The president carries on them what’s called the biscuit, which is essentially the launch codes. And the president could order the use of nuclear weapons wherever they want to. They can ask for advice from the national security advisor, secretary of defense, you name it. They can ask congressional leaders, but none of this is legally part of the chain, right? They don’t have to.

So a lot of people worried that a crazy president could do whatever they want. There’s actually been some proposals to put more people in that decision chain. Some people have said, “Well, Congress should be a part of that decision.” I think there’s advantages and disadvantages to that. Others have suggested, you know, the secretary of defense. There’s all different kinds of proposals. Some will actually even have members of the judiciary.

Now there’s like constitutional problems with this. There’s also other, more practical constraints that do seem to perhaps be operating. So, for example, I’ve heard Scott Sagan talk about this before, kind of a prominent nuclear expert, up at Stanford. He points out that—it sounds so random, but you’ll see why it’s important—after the My Lai Massacre in 1960 in Vietnam, nothing to do with nuclear weapons, but a civilian massacre undertaken by a U.S. military unit, for U.S. military officers after that, there’s a duty to not follow an illegal order. So the president says, just out of nowhere, “Nuke New Zealand,” or Iran, whatever it might be, just completely unprovoked, “Hit a cultural site, hit the center of the city with no military targets.” Theoretically, the military officers would have a duty to say, “Excuse me, sir. No. According to the laws of war, just targeting civilians, that would be an illegal order. We can’t follow that.”

There’s some question about, you know, would that actually happen or not? I think it’s potential. We do know in history, there have been a couple times where essentially we’ve had people kind of step into this chain of command. One was during Watergate, where they thought Nixon might go crazy, and so Secretary of Defense Schlesinger basically stepped in and said something like, “If you get any orders to use nuclear weapons, make sure it comes through me first.” Technically, that wasn’t his legal right to do that. He just did it, right? And I don’t think anyone’s going to say Schlesinger was like a dove or something, by the way. So like, just to give some context on him.

More recently, in 2020, I believe this was before January 6th, but after the election, it was the Chairman of the Joint Chiefs, Mark Milley, so this is the military. He basically said something like, “Follow all your procedures, dot every I, cross every T on any orders you get. And remember all that goes through me.”

So people at times have kind of stepped into the process, but others have pointed out and said, well, that’s fine, but like, we should have a legal regime that, like, would actually, like, do this so this is never a problem.

Lindsay: That leads into another question, because I think it’s relevant in the context of the upcoming presidential election, and some of the debates about these topics in that context. If a president were to make some kind of a reckless or irresponsible decision—whether it’s deployment of troops, or something to do with nuclear weapons—what guardrails do exist?

You described a couple of informal things that have happened. Is there any kind of a process that can protect against a rogue leader?

Patrick: So basically, if you just have someone that is so determined no matter what to do this, and they just don’t care about the consequences, that’s going to be a lot more difficult. I do want to highlight, though, that there are a lot of consequences baked into this decision, which a lot of times is just going to dissuade this.

So, first, we should never lose sight of the political context in which presidents are operating. What are some of these consequences that we know get baked in all the time? And so we’ve talked about this a bit, using military force can often go wrong, and it often is leading to dead Americans, right? This is a salient issue that the president does not want to have to face, that they can’t justify to the American public, right, unless they’re just completely off their rocker. And there’s tons of examples of presidents, some of the most hawkish ones, making these huge claims to presidential power that are completely deterred by this.

So for one example I’d like to give is in April 1969, President Nixon was about three months in office. A U.S. spy plane got shot down by North Korea. It was in international airspace, gets shot down and it kills 31 Americans. I mean, that, that’s quite a bit, right? [If] that happened today, that’d be a huge deal, right?

And of course, Nixon being Nixon, you know, cares a lot about his reputation for being tough, et cetera. And this is the very beginning of his term. So it’s even more important that he feels like he can establish his reputation. He really wants to respond. But he has both advisors, and then members of Congress really pushing back against this, basically saying like, no, no, no, don’t do this. We’re gonna have this war in Vietnam. We certainly don’t want one on the Korean peninsula, et cetera, et cetera. And he gets dissuaded from doing this, despite really, really wanting to do it, because of this domestic resistance.

So that’s all to say, a lot of times people will say, “Well, those are just political things. It’s not legal.” It’s somehow a lot less important. In a lot of ways, I think these political checks are actually even more important, because it will work for Nixon and Trump or other presidents just as much as it’ll operate for President Obama or President Carter, ones that we think are more respective of institutions.

However, nuclear weapons, the potential destructive value of nuclear weapons is so large. The potential downside is so extreme that we should be worried, even for something that has a very small chance of happening, just because the amount of damage would be so big. So the question is: what would stop a president from doing that?

We’ve had a lot of recent proposals. Some have pointed out, as I mentioned before, that the military actually has this duty to disobey illegal orders. Another thing we actually have more today, we didn’t have in the Cold War, was what actually counts as illegal. And this is usually, when I’m saying illegal, it’s really focused on the law of armed conflict and its targeting.

So long story short, it was kind of seen as fine during the Cold War to target large population centers. And then over, let’s say, the last 30, 40, 50 years, both due to changes in international law and changes in weapons technology, we actually have much more accurate nuclear weapons now, and it’s just considered basically illegal to just go after a civilian population center.

Why does this all matter? Because now, it would actually be much more plausible that a military officer would say, you know, “Mr. President, Madam President, like, no, that’s an illegal order. We can’t do that. Give me something else.” So that’s one potential route, but it’s not perfect.

Lindsay: How do American citizens think about this issue? Do they think about this issue?

Patrick: So most Americans don’t even really realize that a president could essentially, if they’re just really determined, and no one kind of informally in the chain steps in the way, they can basically order the use of nuclear weapons. Most Americans don’t even know this. During the Cold War, this was much more in the conscious of the public. It basically went away after the Cold War, but over the last—at least since 2016, 2018, 2020, certainly with the war in Ukraine, basically we’re having an actual nuclear arms race again.

We have nuclear threats with Russia. We could potentially have a war between the U.S. and China over Taiwan. Both of them have huge nuclear arsenals. These issues are becoming important geopolitically, once again. But it’s not clear that Americans are really paying attention to this.

I think on the more general war powers issue, they tend to be more aware of that just because we’ve never seen a nuclear weapon used since 1945, but we see, you know, ISIS, or strikes in Syria, whatever, all the time. So they tend to be more aware of that.

And Americans, basically, across the political spectrum, by and large, do not like the idea of a president using military force without congressional approval, and that tends to be across political parties, and it tends to even be the case, even, some people will say, well, you know, Democrats will say that when it’s a Republican president, but then when it’s a Democrat, they’ll say, oh, the president can do whatever they want, and vice versa. But when you actually look at public opinion polls, it’s not really clear that’s the case. They still think like, well, you know, yeah, I kind of support my president, but yeah, you know, they really should be getting authorization. So I think the American public does actually care quite a bit about that, and that can also have a restraining effect on the president.

Lindsay: What are you most concerned about, looking out to the next year here in the U.S., and what gives you the most reason to be hopeful about the potential to prevent these conflicts?

Patrick: So, a couple things. I don’t think this is a super common opinion when it comes to people focused on foreign affairs or war powers. So when it comes to kind of a president doing something crazy internationally, I’m less concerned about that. I would actually be more concerned about what goes on domestically. Domestic political polarization. And we know that our elections are becoming more and more contentious over time. So I’m just worried about the election in general. We know for sure one side’s going to lose, right? And they’re not going to be happy, you know, so I’m worried about that.

What I’m a little bit more optimistic about than most is I think presidents are a lot more constrained than people realize. It essentially comes down to this: Yep, they can do whatever they want, but they’re leaving themselves really politically exposed. They have all the reasons in the world not to do this. So I’m a little bit less concerned about that.

More broadly, what I am concerned about though is nuclear weapons. Over the last ten years, we’ve essentially seen every arms control treaty from the mid-Cold War through the end of the Cold War to decrease nuclear testing, to limit stockpiles of nuclear warheads, etc. These have all unraveled. So I’m worried about that.

I’m also worried, even probably more than anything, about AI. I think a lot of this stuff is developing really, really quickly. Again, we’re in this kind of AI arms race situation, and who knows where that’s going to end up?

Lindsay: Yeah, well and for listeners interested in learning more about nuclear weapons in particular, I’d encourage you to check out our last episode, which was a special roundtable with Governor Jerry Brown, Alex Bell at the State Department, and John Scott of Los Alamos National Lab, and it was all about the risk of an arms race.

Patrick, this was such a rich discussion. Thank you so much for being with us on Talking Policy, always a pleasure.

Patrick: Absolutely. I really appreciate the opportunity and look forward to listening to other podcasts in the future.

Lindsay: Thank you for listening to this episode of Talking Policy. Talking Policy is a production of the University of California Institute on Global Conflict and Cooperation. This episode was produced and edited by Tyler Ellison. To ensure you never miss an episode, subscribe to Talking Policy wherever you get your podcasts.

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