No War Is Illegal (When They All Are) [TEASER]

As President Trump leads the U. S. into his very own middle eastern war, now may be a good time to ask: what part of the government actually has the power to declare war? And why does this theoretically limited power get used…constantly? Countries around the world would love to know. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Alli Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:02Speaker 00

  Hey, everyone. This is Leon from Prologue Projects. On this subscriber-only episode of Five to Four, Peter, Rhiannon, and Michael are telling the story of war in America and tracing the evolution of the law around who in the government gets to decide when the country starts one. As the Trump White House continues its war in Iran, it felt like a good time to take a look at what the Constitution has to say about the power to declare war and how various presidents from both parties have pushed this power to its absolute limits, broadening it so that America can drop bombs wherever the president wants without congressional approval. This is Five to Four, a podcast about how much the Supreme Court and the unchecked power of the executive to wreak havoc around the globe suck.

• 0:53Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have closed off our rights, like Iran closing off the Strait of Hormuz. I'm Peter. I'm here with Michael.

• 1:03Michael Liroff?

  Hey, everybody.

• 1:04Peter Shamshiri?

  And Rhiannon. Strait of... Shut. Shut.

• 1:08Michael Liroff?

  Shut. I see a lot of people being like, "Oh, Trump's gonna taco." And I'm like, "Maybe, maybe Trump will chicken out, but it's not really up to him anymore, now, is it? He doesn't really get to decide when the strait opens."

• 1:21Peter Shamshiri?

  Yeah. Yeah. No, Benjamin Netanyahu does. It's up to his... Our glorious king. One level above the president. It's the first time in a while we've done a topical opening metaphor, one that ties into the episode, because today we are talking about war powers, the power to declare and conduct wars. This has been, of course, in the news a bit lately with Trump's actions in Venezuela and especially Iran, and it's confusing, and I imagine that most people are watching the news, wondering what exactly the law says about this. You might hear someone say, "This is an illegal war." And you're like, "What does that mean? Right? What does that mean in this context?"

• 2:06Peter Shamshiri?

  So we're going to walk you through the law and the history and explain how past generations lead the groundwork for Donald Trump, for Donald Trump to swoop in and do Donald Trump shit.

• 2:19Speaker 03

  Yeah, we're going to talk about some history and like how the hell we got to where we are in terms of a context of modern warfare that puts us in endless, constant, perpetuated wars with other countries all of the time now, wars that are executed in many different ways in terms of operations, whether that's like cyber attacks, drone strikes, outright bombing, invasion, all of these things. But meanwhile, we have this modern context of how warfare is done, you know, in the year 2026. But meanwhile, you have this history of very limited or not as much as you would expect in terms of congressional action on

• 3:03Speaker 03

  war. We have only declared war against other countries officially 11 times in the total existence of the United States. We have not done that since World War II. But, okay, wait, in the last 26 years, we have had, you know, outright three full-scale wars, we have bombed at least 10 countries. I think that is a conservative estimate. I think that the US, you know, in terms of cyber attack and drone strikes, has had operations and many more than that. And those stats are just again since 9/11, right?

• 3:41Michael Liroff?

  I don't think it can be overstated. We've been a very sort of militaristic society, but that has ramped up after 9/11 to an extreme degree, both domestically and abroad, right? At home, you have surveillance. At abroad, you have invasions, you have drones, you have... You know, all of that.

• 4:03Speaker 03

  And so what you're going to see throughout this discussion as we build on, you know, what is the history of the war powers, the authorization, whether the president or Congress, what we're going to see is these common themes, that there are bad faith arguments about what the definition of war is. What does it, if the president has some limited authority to do war? Well, what does it mean if the president says, well, I'm not doing war? Right? I'm doing something else by initiating war or bombing. And I think what we're also going to talk about throughout this history, certainly, certainly in the modern era, is really a lack of political will in both political branches, but especially in Congress,

• 4:44Speaker 03

  to constrain the executive branch, to constrain the president as commander in chief in doing all of this war and getting us to where we are right now.

• 4:53Speaker 04

  Hey, folks, if you want to hear the rest of this episode, you're going to have to subscribe. This episode is one of our premium Patreon only episodes. Membership starts at just five bucks a month. If you want to hear the rest, join us at patreon.com/54pod. That's 54pod all spelled out. Members get a bunch of stuff. Not only do you get access to the premium episodes, but access to subscriber only events, discounts on merch. And at the $10 a month level, you get bigger discounts on merch and membership in the incredibly rowdy 5 to 4 Slack. So again, that's patreon.com/54pod. 54pod all spelled out. Become a member today.