Has Congress surrendered?

This week on Firing Line.

>> "Going to war" is not the only constitutional prerogative Congress seems to have handed over to the president.

>> Legislators see themselves first and foremost as team players for their parties, not as members of the first branch.

>> Philip Wallach is a senior fellow at the American Enterprise Institute.

His book "Why Congress?"

examines how we can restore Congress to the role the founders intended.

>> It really is different than half a century ago.

There was much less of a presumption of just falling into line with the president because he happened to be in the same party as you were.

>> Phil's right.

Republicans, of course, control both houses of Congress, and they've made it quite clear that they don't see their job as placing limits on the president.

They see their job as enabling him and supporting him.

>> Oona Hathaway is a law professor at Yale and was a chair on the bipartisan Princeton Initiative on restoring the constitutional powers of Congress, whose final report warned, "Presidents unchecked by Congress become monarchs, and monarchs unchecked can become dictators."

I interviewed them in February, before the war in Iran, in front of a student audience at Hofstra University.

- Firing Line with Margaret Hoover is made possible in part by and by the following.

- Oona Hathaway, Philip Wallach, welcome to Firing Line at Hofstra University.

I'm so grateful that you've joined me here in front of a student audience.

The very first article of the Constitution enumerates the powers of Congress.

This includes powers to make laws, powers to tax, powers to spend.

Phil, what role is Congress supposed to play in the context of our representative democracy?

- Congress is supposed to be the place where we find our way through the big questions.

We make up our minds as a collective, right?

The founding fathers took it for granted that representative legislatures were at the center of government because the king, of course, was way across the ocean.

And so they assumed that Congress would be the place where the real action was.

- Oona, when Congress doesn't do its job, who fills the void?

- Yeah, it's a good question.

When Congress doesn't do its job, it really is left to the president to act on his own, unchecked.

And as Phil rightly said, that was not the original vision.

The original vision was quite the opposite.

We were responding to a situation in which we had been ruled by a king.

And the whole reason for the revolution was to reject that form of government and bring government back home, to have Congress play a central role in making policy.

But when the president is able to act without any checks from Congress, all that goes away.

Then you end up with something closer to a monarchy or a dictatorship, and that's not what our constitutional democracy is supposed to give us.

- You both refer to instances in our history where Congress has worked better than it is in its current iteration.

You, Philip, often refer to World War II, when Congress worked, as you say, at its best to navigate American involvement in the war.

Explain.

- Well, I think when a lot of people think of World War II, they think of generals and President Roosevelt, but what I try to bring out in my book is that Congress did a lot to figure out exactly what kind of cost the American people were willing to bear.

The war was way across the ocean, and Congress is a down-to-earth branch, right?

It sort of knows what people really will put up with.

And so there was a huge fight over taxes during the war.

Congress and the president were very much at odds.

Congress did not want to layer on the tax increases that the president wanted.

They stood up to FDR in that case.

And they kept him from kind of installing the war footing as a permanent feature of American government.

So I think Congress very much played a central role that people forget about.

Oona, after Pearl Harbor, Congress voted nearly unanimously to declare war.

How does America's entry into World War II contrast with most of the military operations that the country has engaged in in the last 15 to 20 years?

- Yeah, there's a huge contrast.

So as you rightly say, Congress declared war against the Axis powers, and that was the signal that the president could actually go to war.

In fact, there's lots of evidence that Roosevelt wanted to get involved earlier.

And in fact, he was constrained because he knew that Congress wasn't going to support it.

Today, we have a very different world.

We don't have declarations of war.

The last time Congress voted to authorize a use of military force was in 2002, which was the authorization to enter into war against Iraq.

- And yet we've had how many military operations in how many countries in the last 20 years?

- I mean, it depends on how you count, but we have military operations of various kinds in somewhere close to 80 countries.

So it's really extensive.

And the last time, as I said, Congress voted was 2002, and before that it was voted in 2001, right after the 9/11 attacks, to authorize the use of military force against those who caused those attacks.

But that authority is now still being used for things that have really nothing to do at all with those original attacks.

And so it's really drifted very far away from what Congress thought it was authorizing back in 2001.

- Okay, so we've just discussed sort of how it worked better in the past.

Can we just back up and establish what to each of you are the top three biggest problems with how Congress is operating right now?

Phil, you go first.

- I mean, the easy answer is just partisanship.

And I think it goes a long way, right?

Just this idea that legislators see themselves first and foremost as team players for their parties, not as members of the first branch.

And so we don't see a lot of standing up for Congress's prerogatives as an institution.

And on this war-making front, that's especially clear.

You know, you give the president a hard time when he's of the other party, and you defend him to the hilt when he's in your party.

That's the sort of default position today.

It really is different than how things were half a century ago.

There was much less of a presumption of just falling into line with the president because he happened to be in the same party as you were.

If the founders intended separate but equal branches of government, is Congress currently separate but equal?

I mean, in theory, yes.

It could do much more than it is choosing to do, but Phil's right.

I mean, the partisanship is preventing it from acting and actually defending its prerogatives.

So Republicans, of course, control both houses of Congress and they've made it quite clear that they don't see their job as placing limits on the president.

They see their job as enabling him and supporting him, even when what he's doing is really undermining traditional congressional prerogatives.

So using force in Venezuela without even informing Congress in advance.

Congress really did almost nothing in response.

And so that's a real problem in terms of Congress actually playing this separate but equal role that it's supposed to be playing under our constitution.

So, after the Vietnam War and Nixon's secret bombings of Cambodia, Congress passed the War Powers Resolution in 1973, which was intended to affirm its constitutional role in declaring war, as you've just discussed.

It is Congress's prerogative to declare war.

In 1989, William F. Buckley Jr.

hosted Barry Goldwater on the program.

And he had voted against the War Powers Resolution.

Take a look at what Goldwater said to Buckley in 1989.

>> We passed the War Powers Act a number of years ago.

I voted against it.

>> Did you say it was unconstitutional when you voted against it?

>> I said it's unconstitutional.

I still think it's unconstitutional.

Now, we've never had a president obey or pay any attention to the War Powers Act.

I wish we could do away with it.

The only man in this country that has the power to send your children or my children to war is the president.

And I don't care if he's a Democrat or Republican.

He should have that power.

- Well, but the Constitution says only Congress can declare war.

- Well, the declaration of war doesn't mean a thing.

- Oona, take on that argument.

Why shouldn't the president, who commands the armed forces, be the one who decides whether to send America's boys and girls into war?

- So it's true that the president needs to support the war, right?

President's commander in chief.

You're not going to wage a war if the commander in chief opposes it.

But you also need the approval of Congress.

So that is the constitutional arrangement, is that Congress declares war.

Congress is the one that raises and supports armies, you know, that it pays for the war.

And then, of course, the president decides how to fight the war.

So, yes, the president needs to be behind it, but Congress needs to approve it as well.

- Phil, is Goldwater right that presidents have essentially blown off the War Powers Resolution?

- I think that's mostly right.

I think that the underlying impulse to say we need cooperation between the branches is still active, even as the formal mechanism of the War Powers Resolution hasn't been such a success.

Presidents have all sorts of ways of manipulating it.

But I think it's also just clear that presidents of both parties have found if they initiate short actions, there's very little that Congress can do to really second-guess them.

>> Look, Trump -- President Trump has gone further than any of his predecessors in pursuing military action without the consent of Congress.

His administration bombed Iran's nuclear facilities, attacked boats in the ocean under the suspicion that they were carrying drugs, targeted terrorists in Nigeria, and removed Venezuelan leader Nicholas Maduro.

It's also threatening further action against Iran now.

Oona, you have written extensively about the illegality, from your perspective, of many of these actions internationally.

Why don't you see a plausible legal rationale for these attacks?

Yeah, so each of these, I mean, each of these has to be justified both as a matter of international law and domestic law.

So under international law, the only justification available would be if it's an act of self-defense.

Under domestic law, the president needs to get the consent of Congress, or it also, again, has to be a situation where there's an imminent attack on the United States, where there's no moment for deliberation and there is necessary to act to respond to save the country.

That's the kind of situation which the president can act without going to Congress.

None of these meet that test.

And that is, I think, very troubling to me because it suggests the lawyers aren't in the room, the lawyers are not really being listened to, and this suggests there's no legal limits whatsoever.

Phil, how do we get from a Congress in, say, the 1960s, where bipartisan coalitions passed sweeping laws from the Civil Rights Act to the Voting Rights Act, to one that now can barely keep the government funded, let alone resolve major policy debates, as the founders intended in your description at the beginning.

- Well, it's not something that happened overnight.

It's really been kind of a slow, steady decline in many ways, and an erosion of the political culture that used to prevail on Capitol Hill, where people felt that they could argue with each other in quite a heated way and call each other some names, but at the end of the day, they were gonna make a deal.

And along the way, the whole idea of making a deal has come to be discredited as somehow corrupt.

And so many of our politicians today spend almost all their time denouncing the institution that they're a part of.

What they wanna show their voters is that they're willing to always say no to deal making.

And that leaves Congress in a very awkward place.

Congress is an inherently transactional kind of branch.

It's always, if it's working well, it's about getting to yes.

And you know, I think we should pause and note, even today, it could be worse.

We got some appropriations laws by healthy bipartisan basis even here in 2026.

We passed 11 out of 12 appropriation bills as we're here taping today.

That sounds very glass half full.

- Yes, it is.

- Okay, as Congress has sidelined itself, the presidents increasingly have pushed the limits of executive action.

President Obama created DACA, the Deferred Action for Childhood Arrivals in 2012.

This is an executive order, as you both know, that intended to protect undocumented immigrants who arrived to the United States as children from deportation.

President Biden also, through executive action, tried to forgive vast sums of student debt through an executive order.

In 2025 alone, President Trump has signed 225 executive orders, exceeding his total for his entire first term.

All of the presidents would agree that congressional dysfunction has left them in a position where they have no choice but to govern through executive order.

Phil, is there some truth to that?

There is, but at the same time, when executives take up that slack, they also deflate the pressure for Congress to get to yes, right?

There was active negotiations on the immigration reform front in President Obama's first administration, and he was frustrated.

He thought Republicans were so determined to thwart him that it just wasn't gonna happen, so he decided to go ahead and use the executive branch's prosecutorial discretion to make this happen.

It's not a great substitute, though, right?

When we pass a law, it's there on the books.

It's settled.

When we have a president go through executive action, it's kind of just waiting for the next president to come in and sweep it away and replace it with something else.

So we, you know, for all the folks who were classified in the DACA program that you just mentioned, a decade later, they're still in this legal gray zone.

It's terrible that we've allowed it to go on that way.

- Oona, in your report, you focused on fixes, things that could be changed pretty easily.

In order for Congress to begin to assert itself again and to really become a separate but equal branch of government, one of them relates to war powers.

Do you want to walk us through some of those?

- Yeah, I mean, look, I think the main power that the Congress has that it really doesn't use is the power of the purse.

It could do a much better job of conditioning the power of the president and his ability to spend money on actually following the law.

So the War Powers Resolution, which you mentioned passed in 1973, doesn't condition funding on following the law.

You could condition the ability to actually pay the troops and to actually pay for a military operation on having it be consistent with the law, with the War Powers Resolution and with the Constitution.

But Congress is nervous about doing that.

And I think the test is gonna be, at some point, does Congress realize it's being turned into completely irrelevant institution, and that it's gonna have to actually use the power of the purse to more effectively assert itself.

But it needs to be willing to push back against the president, which right now, this Congress is just not willing to do.

- Philip, what do you see as a couple of the major fixes, or easy fixes, that would allow Congress to assert itself in a way that would balance the powers?

- Well, it's not really about allowing, right?

The Constitution allows them, so it's really giving them the push to take the action.

I think we as citizens should all remember that these legislators can make this institution what they decide for it to be.

What they've decided for it to be right now is not what it's always been.

So I think it is a matter of putting the onus on them to act.

How do we get them to break out of this bad equilibrium where they're partisans first and legislators a distant second?

I think we have to make both the House and Senate less leader-dominated chambers.

Both are historically leader-dominated at the moment, and the leaders have an interest in keeping things on a hard partisan edge.

If we recenter power more in the committees, that allows people to be workhorses.

It allows them to say, okay, I'm gonna invest in this issue, work with my colleagues, and at the end of the day, the work we do together is gonna change the laws.

That sort of creates a better set of incentives for lawmakers to think of themselves as lawmakers.

- Did you, were you gonna add?

- Yeah, I just wanna add that, you know, one of the problems that we have right now is that we've got hyper-partisanship and increasing polarization.

And to some degree, we can say to Congress, like, do better.

But in the end, some of these are structural problems.

And the structural problems are gonna require structural fixes.

So for instance, like the gerrymandering, to get these very kind of crazy districts that then allow you to elect very extremist representatives who then won't talk to the people across the aisle.

That really needs to be addressed.

The extreme role of money in politics really needs to be addressed.

There's a lot of structural things that are driving this increasing polarization.

- How about closed partisan primaries?

- Yeah, I mean, that probably is part of it, right?

And the closed partisan primaries and the concern about being primaried.

So this concern about if you do any kind of deal with the other side, your own party is going to run somebody against you.

- All the election that matters is your partisan primary.

- Right, and I will say the court is partially responsible for this, so the Supreme Court has allowed unlimited money in politics, it's undone a lot of the protections for voter rights and protections of like effective, you know, preventing some of the worst gerrymandering techniques that are being used to basically close out people from being able to actually have a say in who their representative is.

So I do think part of this also eventually is going to go to reform at the Supreme Court, which sounds like it doesn't have anything to do with Congress, but it has a lot to do with Congress because they've struck down a lot of the important limitations that actually were helping to keep Congress within some bounds.

- That actually brings us to our first student question from a freshman political science major, Olivia Anstadt.

Olivia, what is your question?

- How do we ensure that in making Congress more efficient and transparent, the reform neither targets a specific party or obstructs Congress's constitutional right to check and balance the president?

- That's a great question.

Whenever you're doing congressional reforms today, there's such a suspicion that you must be just working out a partisan advantage one way or the other.

That's what makes those of us who are trying to find things that Congress can do for itself as an institution, makes our job very challenging because people are so cynical and so suspicious of each other.

So that is a real challenge.

And I think transparency is one that I'm very interested in.

I think we have to realize that in some ways transparency has taken away the spaces where legislators are able to meet each other as individuals and have candid conversations.

We don't have enough smokey rooms in some ways today where those relationships get built.

So I'm sympathetic to the idea that many things should be transparent, but I think that in this age of constant media surveillance and self-surveillance, we may have taken it too far.

We have one more student question from Morgan Mighty, class of 2027.

How do you feel Congress can more broadly appeal and represent future generations such as Gen Z, that being the issue wherein my generation increasingly shares the sentiment of growing cognitive dissonance in Congress between the interests of long-term sustainable goals and short-term policy change that benefit previous generations?

- Ultimately, it's the voters who have to assert their generational perspective, right?

So, you know, young people tuning in, this is your Congress, right?

And the ultimate term limit is the voters.

So, you know, we see some Gen Zers already showing up in the halls of Congress.

And I think a lot of them understand how to connect with voters in a very different way in this 21st century media environment.

So I think that's something that we can hope for improvement on.

- And I'll just add to that, I mean, traditionally, young people don't turn out to vote.

And if you don't turn out to vote, then you can't be surprised when Congress doesn't represent your interests.

So it's absolutely critical the young people turn out to vote, express themselves, and play their role in our constitutional democracy, because it won't work if they don't.

- Well, it's interesting you mention that, that young people often don't vote, because young people showed up in an extraordinary way in the New York City mayoral primary this last year, and effectively selected the person who would ultimately win the candidacy, of course, this is Zohran Mamdani.

There is an entire conversation around what we want from a representative democracy as we approach our 250th anniversary as a country.

And as much of our audience tonight is Generation Z, and increasingly they're skeptical of our entire system of government.

So what is a pitch from both of you to the next generation that the system is worth fixing?

- Yeah, I mean, the question is, what's the alternative?

And you really have the power to make it work.

I mean, the New York mayoral race is such a good example 'cause it wasn't just that young people turned out to vote, but the young people just made a difference from the beginning.

They were out canvassing, they were, you know, on the streets talking to people.

I mean, it really was a groundswell effort really run by young people.

I mean, that's what it takes to change politics is for young people to get involved, to do the hard work, and to play their role in the system.

If they do that, that's the only way in which the system is going to actually work for Gen Z and for the rest of us.

- What is your pitch to Gen Z?

- Well, I think what we've been trending toward is this system where every four years, we feel like we're electing a king for the next four years.

And it makes us all go crazy.

So my pitch is that that's a very bad system for finding a way for us all to live together.

It's a way for us all to go to each other's throats and feel like we're in a constant war.

I would think that Gen Z should internalize and understand the appeal of that pitch, that they can see that in this era that they've grown up in, politics has gone absolutely crazy.

But it's hard to break out of the cycle.

I don't pretend it isn't because so many of us feel like the next election really is somehow existential, that everything rides on it.

We actually have to be able to zoom out and say, this whole evolution of the system toward presidential dominance is what's making us go so crazy.

- Philip Wallach, Oona Hathaway, and the students of Hofstra University, thank you for joining me here on Firing Line.

- Thanks so much for having us.

- Thank you.

- Firing Line with Margaret Hoover is made possible in part by and by the following.

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