Who Decides When America Goes to War?

Who actually decides when the United States goes to war—Congress or the president? Richard Epstein traces the Constitution’s original division of war powers from 1789 to the present and explain how practice, politics, and modern warfare have steadily shifted authority toward the presidency. Along the way, they explore declarations of war that never happen, authorizations that never expire, emergency actions that become routine, and why Congress so often prefers not to decide at all. Professor Epstein argues that America now operates under two constitutions—the one we wrote and the one we live with.

Richard Epstein does a deep into the Supreme Court’s latest showdown: Trump v. Slaughter, a case that could redefine presidential removal power and the future of independent agencies like the FTC. Epstein walks through the constitutional history — from the Founding to Humphrey’s Executor to modern administrative courts — and explains how the Court’s interpretation of Article II has evolved, splintered, and in some cases contradicted itself. The conversation covers everything from the steel-seizure precedent to the Federal Reserve, the structure of the administrative state, and the unresolved tension between originalism and the practical realities of modern governance. Epstein explains why this case could be one of the most consequential constitutional questions of our time.

Richard Epstein examines the constitutional, statutory, and international-law implications of the Trump administration’s recent strikes on vessels in the Caribbean alleged to be transporting “narco-terrorists.” Epstein outlines the traditional separation of war powers, emphasizing the limits on unilateral executive action and the enduring constraints imposed by international norms governing the use of force, self-defense, and the treatment of noncombatants. Their discussion highlights key precedents in maritime and public international law, the challenges of applying long-standing legal doctrines to modern security threats, and the potential domestic and geopolitical consequences of executive overreach.

Gerrymandering is back in the headlines — and this time, the political map wars in Texas and California are colliding with the courts, the Constitution, and the future of American democracy. Richard Epstein explains the history of gerrymandering, how modern technology turbocharges it, and why recent Supreme Court rulings have made the problem even harder to fix. From Texas judges tossing out new maps, to California’s counter-move, to the racial redistricting battles now reaching the Supreme Court — this conversation dives into the legal chaos, the political incentives, and the structural weaknesses that keep the cycle going.

Richard Epstein delves into one of the most consequential Constitutional questions of our time: can the president unilaterally impose tariffs under emergency powers? With the Supreme Court set to review Donald Trump’s use of the International Emergency Economic Powers Act (IEPA) to levy trade barriers, Epstein explains what the Constitution actually says about tariffs, how far Congress can delegate its authority, and why the doctrine of the “unitary executive” could reshape the balance between the legislative and executive branches. From Article I to Justice Taft’s 1928 tariff case, the discussion traces the fine line between lawful delegation and unconstitutional abdication—and what’s at stake for trade, separation of powers, and presidential authority.

Richard Epstein discusses Donald Trump’s surprise ceasefire deal between Israel and Hamas. Richard argues it’s not peace but a pause—born of Israel’s decisive military campaign and Hamas’s collapse. He explains how Netanyahu, Trump, and shifting Middle East alliances created a fragile new order, and why Gaza’s future now depends on demilitarization, reconstruction, and realism.

Richard Epstein dives into the controversy surrounding Jimmy Kimmel, the FCC, and free speech. Using the recent dust-up as a starting point, Epstein traces the history of the Federal Communications Commission from its origins in the 1930s through landmark cases like Red Lion. He explains how government licensing of the broadcast spectrum opened the door to censorship, distortion, and inefficiency—and why libertarians like Ronald Coase pushed for a market-based approach instead. Professor Epstein also contrasts Hayek’s vision of free entry with Felix Frankfurter’s regulatory mindset, explores the limits of “public interest” obligations, and shows how today’s fragmented media landscape makes FCC power increasingly obsolete.

Richard Epstein analyzes Justice Breyer’s ruling on Trump’s use of federal troops in Los Angeles. They explore the Posse Comitatus Act, the limits of presidential emergency powers, and why the courts often avoid tough factual questions—raising big issues about federal vs. state authority and executive overreach.

Richard Epstein explains why policy around laws governing coastal property rights and construction is grounded in ancient Roman natural law. In addition, he argues for coordinated, state-facilitated seawalls that preserve views and access and, where necessary, for using condemnation (and compensation) rather than forbidding owners to protect already-developed properties under a sweeping public-trust theory.

On episode 3, Charles C. W. Cooke asks Richard Epstein about Israel's potential defamation suit against the New York Times. Can a country sue a newspaper? Where would such a case be heard? Does it matter that Israel is a "public figure"? Could "actual malice" be proved? Would the New York Times want to settle? Does its non-retraction update help, or worsen, its position?