>> good afternoon everyone thank you so much for being here at the national constitution center. my name is jenny parker and i'm the vice president of communication. before we begin, i would like you to take a few moments to share some basic housekeeping. we will begin, we will take audience questions at the conclusion of our program today. please jot down your? the note card provided to you and they will be gathered from one of our staff members. if you are on twitter, and encourage you to follow us at at constitution center and you can also # and submit questions, comments comments and # them with america's town hall. we will have a book sale and book signing opportunity "after words". please join us in the lobby to get your signed copy of the book. i would like to thank any members here for joining us today. the center is a private nonprofit and our work relies heavily on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional education and debate. if you are not yet a member, please consider becoming one and to support our work including today's program, you can visit the membership table just outside the auditorium where you can get information on today's gallery talk. the benefits of membership and how you can join today. lastly, please take a moment to silence your cell phone. and now, i will introduce today's guest. david baron is the honorable s william greene visiting professor of public law at harvard law school and judge of the first circuit court of appeal. he has clerked for both judge reinhardt and justice stevens and has previously served as the acting assistant attorney general of legal counsel at the u.s. department of state. he joins us today to discuss his newly released book, waging war, the class between president and congress 1776 until isis. a timely account of the tug-of-war between congress and presidents over how and when to wage war. monitoring today's program is the professor of law at the university of pennsylvania law school. his current research draws on his work of constitutionalism and addresses the manner in which american legal institutions, including the u.s. supreme court has shaped the field of law over the past two centuries. please join me in welcoming judge david baron and ted ruger. [applause] >> thank you and i want to thank our host at the national constitution center. it's an institution that i am really plead pleased is involved in we are doing more collaboratively with this excellent institution over the past few years and it is a pleasure to be here. it's a pleasure to be here with a very old and dear friend of mine, david baron. we have known each other for almost 25 years since we were in law school together. judge barron, you have done, you do a number of things over the past couple of decades, working at the highest levels of government and researching and then as a scholar at harvard law school. your research touches on a number of areas including in this book, and i guess they wanted to start by asking you to talk about what led you to write this book over the past many years given the different rolls in which you work. how does this book reflect your thinking over this long. of time? >> thank you for all of you to coming on a day when you had reason to be outside. and also for agreeing to do this i started thinking about the book when i was still a professor and it was in the early years after the attacks of 9/11 when the united states was formulating its initial response. at that time, some of you may recall there was a range of opinions coming out of the justice department which i had worked on years before at the end of the clinton administration. there were some very sweeping statements and the position taken in those opinions was that it was for the president alone to decide how to wage the war on terrorism. at the time, that struck me and i know other scholars as a controversial statement and so i really wanted to dig in the history of it and i started researching it. over time, i then ended up serving in the justice department in the obama administration. while that war on terrorism was continuing, and within the same office that had produced those opinions at the early stage, i had a new perspective, not thinking about it just academically, but for real, what is the president supposed to do in wartime operations if there are statutes that congress pass that seem to put obstacles in the way of how he would like to fight. what is the president supposed to do. over time, that led led me to write this book which is less of a legal answer and more of a look at how the president has hank handled that very serious president and how has congress handled it. >> let's pick up on where you just ended. when you teach constitutional law or we think about in this institution, we often think about the constitutional convention of 1787 which was ratified a couple years later in 1789. your book title, your subtitle is 1776. what was happening in 1776 and why is that relevant today? >> the book opens with the very opening of the revolutionary war and the first commander-in-chief and he confronted this dilemma very early on. he confronted at most directly after a relatively successful encounter with the british in boston and then the battle moved to new york and while in new york, things were not going well and he became convinced that he would have to retreat from new york when the british who had amassed a huge naval force was going to attack. his question at the time was, if you leave new york, how do we leave? should we burn your to the ground because strategically, washington thought it made a great deal of sense that it would be better if it raised it so they would have nothing that they took, but washington at the time was operating under a commission he received from the congress which was located in philadelphia and before ordering the destruction of new york, he wrote to the continental congress and asked, should we leave new york for the enemy. that's what you call a leading question. he expected the answer would be no, go ahead and raise it. that's that's not the answer he got. the next day he got a letter back from john hancock that absolutely forbid him. washington thought this was a ridiculous strategic decision out of philadelphia, but he obeyed it and did not plan strategically. a significant chunk of new york did burn during the retreat but all accounts washington had not organized it and it wasn't as successful as it would've been if he had tried to raise it himself. that really instances the kind of conflict that we have been living with for better or worse ever since and we are quite aware of it. washington was extraordinary as a powerful sheaf in a successful one but also one that was very cognizant of the limits of his power and quite insistent on. [inaudible] >> this leads us to an interpretive question, why is it important to think about something that happened before the constitution, over a decade before, what kind of theories gives us license or promotes the desirability of taking things that happened before into account? in all of these situations there's really two levels we can think of. we can think of it as an interpretive question in the legal sense, you have a legal dispute and a judge has to make a decision and what resources do they draw on on deciding what the constitution means, but there's another sense that it operates which is just as a framework for government in which people in the government have to make hard decisions. what do they drawn in making those hard decisions. a very common one is to look back at how other people, who came before them, made those decisions. washington, as you know is a figure that a figure that most people think, if you're doing what he did that you're doing something pretty good. he has a lot of purchase and did have a lot of purchase on the framework. a striking thing on the ratification debate, after the country went to the states to decide whether to approve it is the degree to which the constitution proponents realize they had a problem. it made claim about the dangers of executive power being somewhat hollow because it was clear as possible to have a chief executive who people could respect. since he was likely to be the new president, that made those arguments harder so what you see the constitution doing is constantly stressing to the audience, there's going to people after washington that might not all be like him, and the power that you are giving, you you have to think about people who are not washington who come down the line. let's be a little more concrete. one of the lessons in your book, take a problem that happened over 200 years ago that still happens today that somewhere outside the u.s. territory you have attacks on american commercial interests either by a state actor or nonstate actor. we might think our constitution give someone or some institution the power to define what those acts are. are they war or not? i guess first i would ask, what have we learned from the text itself? you have an entity attacking u.s. interest, your basis today, what does article two of the constitution say about who gets to decide whether that's war or who gets to decide whether to respond. have we learned much from a text? >> while it tells as you know, that congress has the power to declare war and it also tells us that the president is the commander-in-chief and that tension between how do we recognize and she and two things is a huge debate. what the book focuses in on is a topic that has gotten somewhat less attention but in our current situation has a great deal of relevance which is, when congress has said nothing, who decides then? , president start a war or use military force on his own? and a question about one congress does say something and when they do enter the field and try to regulate in some way and there's a national security crisis. what is the president's obligation to follow what congress said. how strictly does he have to read the word that congress lay down on those statutes? the reason that is such a significant issue for the past 15 years is that, as as most of you know, congress has authorized a pretty wide range of military operations ever since the attack of 2001. we have been living in a situation a situation in which much of the force that is used, and almost all of it that is claimed is said to be from a statute that congress passed. the operation in iraq which as you know was authorized by congress and many of the hardest questions were issues about how to fight that war given other statutes that have been passed. statues limiting detention powers in regulating interrogation that you can engage in. that kind of dilemma has a long-standing history, in connection with the questions you are raising. those really took the form of statutes that regulated to try and keep america neutral from european wars that were going on at the time. it was true in the early fight with france in the late 18th century, it was a huge fight in congress in philadelphia at the time. it was right down the street from here about what kind of force john adams could use to protect american shipping when the french were attacking it. congress had put a lot of restrictions on it and congress was hesitant to follow him but also hesitant not to follow him and try to negotiate his way through it and of course this one up to world war ii. it was a huge fight about what kind of system could lend to the british. they were intent on keeping america out of another war. >> what about the role, i think this is important point about the statute making behavior is part of the constitutional authority and many scholars have joined you in writing about, thinking about major statutes in this area as constitutional or quasi-constitutional? >> i don't know that i'd give it that label, but the constitution, we often think of the bill of rights this set of rights that's guaranteed to all of us and it certainly is that. the bill of rights came after the constitution and it was before that the charter of government and it created a congress and the legislature which was supposed to be an active participant in shaping the rules of the road and then the president was supposed to be executing those laws. so their role, particularly in warmaking, it came up at the tail end of vietnam, his story was really one where congress was out of the picture and it was an account of congress being weak, not being involved, and the president trying to find out how to wage war and dominate the scene. this is a response to that to try to tell a history that is a little more complicated story from start to finish in which the two branches are really in advance with each other all the time. the president is pushing congress, the president is worried about taking it too far. i liked your metaphor of dance. we see these tv shows now are there are people dancing and there are judges and that makes me think of the court and judges what role for judges? you talk about checks and balances between the court and the president, you talk about, you talk less in the book about supreme court intervention. this is an area where, i know given your current role you need to be nuanced and how you speak about this, but maybe thinking historically, has the article three judiciary been a major guiding force or is this particular part of the constitution in individual rights where judges need to leave it to other branches. >> judges certainly have listened more than they have spoken spoken in this area, but they have said things and when they have said things it has had a big impact in shaping how the rules were understood and how far presidents can go and how far congress can go. they said that it's important for the president to follow the law that congress lays down, even in more, and they've also said that congress doesn't have the power to tell the president how to conduct a campaign which means, if you're listening closely, they said two things that aren't consistent with one another. that. that has created a great deal of ambiguity, but it's important not to think that just because it's not what congress said what the court has said that that has given no guidance. what it has suggested is that there are boundaries. i will just give you two stories that i think show that. one is in world war ii, as you may know, in world war ii, in 1942, a 1942, a number of german saboteurs came over to the u.s. on german u-boats, landed both in florida, and in long island with the plan to do a sabotage campaign in the united states. they were picked off, one of them turned himself into the fbi and they were handed over to the military for trial. they were tried in a military commission, actually in one of the offices, my office occupies the justice department on the fifth floor. they contended that the saboteurs that it was wrong to try to try them in a military commission when they could've been tried down the street. roosevelt didn't believe they should get a civilian trial. that case went to the supreme court to decide whether they could be tried in a military commission or not. the court upheld the, but the court also took jurisdiction over the case to make clear that they were watching and they would have a view on it. another thing happened in the course of those deliberations. that was, the court had to confront whether what roosevelt had done in organizing that military commission was legal, and the big question was, this period he had said certain procedures which were relatively favorable to the prosecution, not surprisingly, congress had laid down provisions for how to convict conduct things that were somewhat less favorable and the court had to decide whether they were going to uphold the tribunal in what it had done, notwithstanding this conflict potentially between the rules between what congress had set. at the time they were deciding whether to approve it or not, roosevelt was engaged in an effort to limit prices. he was very worried about prices in world war ii. there was a law at the time that limited his ability to cap prices. roosevelt made a big speech in which he threatened that if congress didn't give him the power he wanted to cap prices, he would just cap them on his own as commander-in-chief, and it was quite an extreme statement that he was making. the court was quite aware that roosevelt was making these claims. at the time they were trying to decide and when you look at the internal debate within the court , they were very cognizant of saying nothing that would be a green light to roosevelt. to assert that kind of us power and they wrote something that was very narrow so as not to give that green light. i mention that because even though they don't lay down hard and fast rules, it's also been very sensitive to the idea of giving a green light that might make presidents feel as if the decisions are theirs and theirs alone to make. i want to follow up in that era of world war ii, there's something you're dressed in the book and it's something we think a lot about and the komatsu case, the case case where it kind of all three branches participated in what we now see as a wrong turn. was that a failure of our checks and balances? what happened there that led to this massive internment of u.s. citizen. >> one feature of the system that is open and ambiguous like ours is that there is the risk that decisions are made that in retrospect the public as a whole recognizes. the court signed off on it, congress signed signed off on it, the president signed off on it. in light of history, it doesn't look like it was a decision that can be justified. a difficult issue and thinking about our system as a whole is how to evaluate it. you evaluated by the mistakes it made, do you evaluated in the moment that it allowed such mistakes be made or do you evaluated from a larger timeframe. a remarkable feature of the system, if you you look at it from the framers perspective, it is endured for two and half centuries. it has managed to enable the country to experience war with a fair degree of frequency, both its own internal struggle and being a leader on the stage in wars that we are proud of the wars that have created a great deal of controversy. through that, it has managed to operate as a system with two branches that are recognizable as checking one another, and it enables transfer of power to occur relatively easily. that is no small accomplishment from the perspective of the people who designed the system of government going back to way back when. one of the features that enables that to happen is the ambiguity that is built into it. that's the judgment that many people have made after looking at. a product of that, you have to make your own judgment about how serious a mistake you think it is and what that suggest than about what directions need to be made, but we can say about the system that built within it, the capacity. [inaudible] >> to the point about senate design, one institution that is very important in our democracy and this political season as political parties. i wanted to ask you about that in the context of checks and balances. the framers didn't think about parties and the way we do. they didn't really structure them into the constitution and the concern would be, the framers designed these institutional checks and balances that you write about the president and congress as having an interesting, in restraining each other, what happens if the framers didn't receive this in there in a world of two-party democracy, the white house and congress are the controlled by the same party. how does that put a strain on these checks and balances? >> it's a tricky feature of this issue. what we think of in terms of checks and balances, what do we want them to be. i say that because the functioning democracy also should be one in which the system can accomplish the things that the people of the whole want to accomplish. so, sometimes if you have branches of the same party, that's a reflection of the fact that the popular will is supportive of that program and the system is also designed to enable that program to be an asset. one thing that is interesting is that when you have instances of same party government congress controlled by the same party, it does not mean that the president and the congress always ci to eye. a great example of that is in the civil war itself. lincoln was a republican and the congress was the republican. but they had very different ideas of the pace of the war, how hard it should be thought, how aggressive and what the aims and mission of the war should be an lincoln and congress were in constant connection through that where they created a committee to oversee the conduct of the war because they thought it was atrocious at the beginning. there was a major, perhaps the most significant site over wartime tactics ever was in 1862, congress passed a statute effectively ordering him as commander-in-chief to conference gate the claims. well before he was ready to do that. it led to a huge fight on the for the congress over whether congress had usurped his role as commander-in-chief. many of his allies were saying if you give into the congress on this point, they will be running the war and you won't be running the war. lincoln, being the master technician that he was took his time, listened, didn't say very much and then thought you know what, i actually could use this to help justify the emancipation then even one better an issue not long after that statute. to say that the fact that the same party does mean they're often going in the same direction but it doesn't mean they are in lockstep. >> one ask you about, we've been discussing to use your phrase the stance between the congress and the president and i think even here the past half hour, we have talked about the president as an individual, but of course as you know when your career, the executive branch is a collective as much as congress is a collective. can you talk about constitutional interpretation within the executive branch, what institutions engage in it. is it a collective process? >> one of the things that i most enjoyed writing about was learning about some of the advisors to the president who were charged with making these legal decisions and the pressures that they faced, some of which were from my own experience, which i also just think are of intrinsic interest. jeremiah black who is a figure of history but was also at justice on the supreme court in the late 19th century, he was the attorney general for james buchanan. that was late in the years leading up to. [inaudible] that's a hard time to be the attorney general. just to give you an idea of how hard a time it was, here's the question that buchanan asked him one day. he gave him three days to answer this question. he said if the south concedes, what legal power do i have to respond? that's a pretty hard question. this was a big deal question. : >> >> we would both will compressions from the audience that i just want to ask this book has a historical scope with this and trash - - interaction a relationship and, live in a world where non-governmental groups can perform acts of terrorism and relive in the world at pathogens or disease can sped quickly at a moment's notice to. is this uh challenge to your continuity? at almost every age the participants class that question and the people have always tried to make some argument that they have changed so radically that we have to do it differently. it was true in adams stayed dealing with the of french the we were vulnerable the we have not contemplated so i need a standing force congress was very hesitant partly because of what had happened with what is congress supposed to do? that is different than if you have to come to us first . that his eighth time of crisis of partner - - orders of magnitude. whether the bridge should be operating differently and world war two and the whole concept of a different idea. not just on the battlefield at war with each other that changes people's thinking and today with an in nature of secrecy is not an answer but therefore we have to do it differently we have been engaged in that debate with those boundaries a list tried to do it the same way. >> i will move to a few of your questions bollenbach to the text of the constitution so one of the questions goes to as the commander-in-chief of the armed forces and white do presidents try to push quick. >> it is a great question. early on you may know that a point that the president started to refer to themselves not is the commander-in-chief but as the commander in chief. one you think that is the of president then you have a special job and as a commander of chief but the tension high as arisen chiefly because of total war . his advisers of world war ii the greatest threat was legislation that got out of the event wants there is no way the country should persevere. and it cannot be fired of negative just the power of the naval forces. and abraham lincoln to some extent is an issue or is he the commander in chief with the "emancipation proclamation" and as a contextual matter we have a president of the misstates just of the armed forces. so talk about popular culture or the misgivings of the troops overseas if we get to places like grenada or nicaragua with uh notion that this was not the big concern of the framers. but they most concerned? >> that struck me with the debate particularly over ratification. as an opponent of the constitution then you try to make the case and sees all of the lowly tenth concerns with a military dictator coming to the nine estates so how was it you make the case. >> united states was not a powerful nation so to takeover countries had no army navy and was not a realistic concern that there could be a military uprising at home and not just put it down and then started to whenever she wanted. and that you'd give the president the power death was the power to command troops in the field that really scared them. leading the troops into battle and those proposals to require congress to authorize the commander-in-chief to exercise that power for fear if he did that you could never put him in his place but to leave that up for grabs but that gives insight into their concerns me they're not our concerns and that was how to design that system that to something off the table and they managed to do it by senate hearing in is a question about concern of one of the things is the power to declare war from congress that has become more rare in with nine possible life so could you speak to the historical trends whether or not that declaration is thought to be required from but there seems to be the n drive around this. >> the big change in this regard is the substitution of the declarations of war with what authorization to use military force so listed of congress to say we're now at war can authorize the president, to choose to commit forces had time of their choosing after 2001 is structured that is how iraq was structured in the first goal for and the second. and we have not had declared war since world war two but what is interesting is what habited in korea. by all or any reckoning committed with notes declaration with the innovation in the way that america of went to war. on the ground with no declared war. >> but truman was very hesitant to declare war at that time there are many reasons but little think is known as well but is interesting they're very scared of the signal it would send to the world. why? remember with the first rolled for the and the second world war was declared but before either was declared by the time truman is in korea there are atomic weapons and the fear was if we declare war this signal that would send to china or other countries about the conflict that this is is a signal we may not want to send. especially having atomic bombs dropped in the united states for crowfoot so they downplay that operation not as an end run around the constitution but politics to keep it contained if he says that is a police action not that i don't want to do what congress tells me but want the world to see this as world war iii but fear they have illogic and for which is more in keeping with the constitutional system of. >> so as a follow-up was beyond a war? si did answer that as deceptively and as a scholar >> there is a book called the vietnam war so i say it is a war. but from the constitutional perspective it is hard to see how something of that scale could be expunged of course, it was authorized there were big debates about appropriations up followed but the war dragged on. but you start to see many critics starting to hold men why isn't congress stopping this? there was equally strong view developing maybe congress was implicated day authorized now what is there will to end it? and remarkable thing about vietnam at the very time he is writing his book imperial presidency how the president has unlimited power to wage war, for the first time in the nation's history there legislating the end of the war. generally to the point that when ford, after nixon faces a difficult challenge to be stripped of the powers to use combat force. but he has to get u.s. citizens out of cambodia and vietnam. but how does he get that amount if he cannot use force so he goes to congress and says what my supposed to do? you obviously want me to get the americans out what am i supposed to do? they basically said you will figure it out. [laughter] , they did that because they were very scared to give him an inch for fear he would take a mile. and ford internalize that as a figurative way and the biggest challenge faced was he felt to get the south vietnamese who had cooperated with the united states out. the congress people said obviously can use force to save american lives but you cannot use it to get the south vietnamese out. we will not go to war to reopen the whole conflict for that to. so what ford and his lawyers decide is they could use the authority to get the u.s. personnel out if they could make the argument the only safe way to get them out was to interweave the evacuation with the evacuation of the south vietnamese. the argument was plausible think about how that works if we just take out the americans that is chaos we have to do it together with. that was the legal theory notwithstanding the restrictions on combat. >> so your story about ford and congress and the ministrations is one where we favor transparency and clarity which is the choice the framers made. a is this an area where the rules are ambiguously helpful quite. >> that is of great question and when i was a lawyer there were definitely times the you would not have to do very much and it was easier but but i thought it was the unappreciated virtue that things are not clear. so think about the choices plan would make a deal had to choose a rule in advance when you select a rule that says you can do a lot or very little? i dunno which. if you say you can do a lot that is maybe way too much and if you say you can do very little but instead if you left it open with that basic instruction with the curfew don't step too late that is hard to violate and hard to comply. >> and that is what the framers did so how many presidents and advisers and members of congress tried to keep things made -- vague very few have ever asserted that sweeping power when they confronted the limit congress put forward page tried to put that in their favor. often they get to what they want in the end but not through the defiant claim of power but to go sideways and congress has then consistent in the reconstruction era with johnson as opposed to taking away the commander-in-chief powers with that end run around the congress and that did not end well. >> with that impeachment vote but by and large they back off from putting themselves in a situation but they understood the virtues of leaving things undecided. and what what professors call horizontal checks and balances but more longitude one through time to have a higher form of lawmaking but as an empirical matter are they bound by prior presidents and how much of a constraint one is that to stick with the treaty? >> there is a whole separate history and with respect to war fighting a big issue for truman was whether he would seek u.n. approval there was a debate if he would end pressure was not present for the vote to get that through the security council he would validate what he was doing. but with more making the treaty is only passed the senate so people think that is a substitute for a declared war and to use military force so we can not be a false substitute. >> this relates to what we were talking about just before wedlock or to north at the hall where the constitution was framed is this an area where the framers themselves thought about what was intended as we talk about original intent what does that mean and how important is that intent for those debtor thinking about these questions quick. >> remember there now are to ways adopted a constitution the ratification and process without that and has no legal meaning. but to be involved in the a ratification they were not much interested to figure out what was intended by the people that wrote the charter in philadelphia. they decide for themselves whether to take the document and the opponents of the constitution with george mason being the most articulate is what will happen in the future? not to water the intentions of those that drafted it years ago? it is just as ambiguous as i say it is. but 45 words in article 213 talk about the war powers of the president and of those 4,000 words of the whole constitution only 13 talk about the war powers of the president. we thought it would have spent more time but they are acutely aware, important this document is and they are focusing on the debate how will people use this going forward? not what did 1x delicate or think it meant when they met two years before? because they will use the powers we are giving them now to give them this much discretion. >> hearing is a question in your book talks specifically of those who would wield the powers of so aside from fdr who is the most powerful or skilled president in recent times by. >> sinai you'll stairway from recent president the sure what judicial role with those that have impressed you were as a constitutional scholar? >> the most impressive to me is remarkable with his ability to seek tactically, the big picture picture, his commitment to the particulars, the policy struggles but the larger constitutional framework and it is extraordinary of the many levels with how his thinking is on it. but i was very impressed of the situation of ford. to come in as the unelected president taking office said it time when fear putting of the president and loss of faith will still in a combat operations, and the amount of focus of your using your powers wisely not and that means what? strong? passive? that dilemma for yen to which she was very sensitive that he would draw on throughout his time. but it is not in a small feat to be elected president in the matter several years at a time when i think that was quite remarkable. >> but the nice comment if of the underappreciated president. >> do want to give you a chance but i want to remind you to continue the discussion he will stay after to sign some books after. is anything you would like to sum up in the landscape? >> just one thing the question you keep coming back to illness how do presidents relate to one another? of course, it is hard to know when you go to the of what house this interesting which presidents they put them there officer don't just leave the one that was there before laugh laugh they have their own views. and i think they're both in in a the moment and being successful. but they also try to think of themselves in the air that goes along after them and before them and there is a lot for them to draw upon and i guess one of the themes of the book is the new problems that we confront have history and if we look hard enough ricans sees similarities to our own situations. >> that is a nice way to conclude your invited to the book signing downstairs after words. [applause] [inaudible conversations] if bp

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