Welcome to The Libertarian. I am Charles C.W. Cook, the host, and I'm here with the Libertarian himself, Richard Epstein. Richard, welcome to your own show.

It's always a pleasure to be a guest on my own show.

Of course. All right. Well, this is a production of the Civitas Institute at the University of Texas at Austin.

And today we're going to talk about war powers. We talked a couple of episodes ago, specifically about the administration's

attacks on narco boats. This will be much broader. So let's go all the way back to the founding,

to the Constitution. The Constitution splits powers in some sense between Congress

and the presidency. Congress has the power to declare war. The presidency has, well, I'll ask you,

Richard, what powers it has. What were the founders trying to achieve when they put the war powers into both Article 1, Congress, and Article 2, the presidency?

Well, I mean, the basic division has always been that the executive has to act with dispatches on duty 24-7, so he has to take the initiatives in particular cases.

But before he can act, Congress,

which is a broader and more representative body, was supposed to engage in activities of deliberation, whereby I would decide whether or not to go to war with a foreign nation.

And so the theory was that Congress would then organize it. And then the president be the commander in chief of the Army and the Navy and of the militiamen

called into the active service of the United States.

And there is a peculiar kind of separation of powers there because the president cannot

call them up unilaterally.

There has to be a congressional authorization. But very early on,

Congress actually did authorize it in a blanket way. So that particular check and balance was

eliminated by Congress. The question then is, what is the powers of a commander in chief?

And it turns out the most instructive case on that particular issue is a case called the steel seizure cases involving the commissioner or the Secretary of Commerce, a man named Sawyer, and he was sued on the grounds that he could not commandeer the various steel mills during the Korean War because the

President's Commander-in-Chief power did not extend to dealing with civilian facilities of one

kind or another. And this was a version of the entire issue, which is quite contrary to the

unitary executive version that Trump had, it says that under the major opinion

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