Kennedy Demands Answers—Nominees Struggle Under Pressure.

Added: 2026-05-10

[00:00:00]When does When does the president have to uh to uh get permission of the United States Congress to to use military force?

[00:00:11]>> [snorts] >> Well, Senator Kennedy, uh as I was discussing with Ranking Member Durbin, I do want to be careful about hypotheticals in terms of prejudging the >> a hypothetical. That's I'm asking what the Constitution says.

[00:00:25]When uh When does the president of the United States have to get permission from Congress to use military force?

[00:00:33]Well, generally, uh Senator, my understanding is the division between Article 1 and Article 2 distinguish between the war powers, which are under Article 1 and require congressional consent. Again, I'm talking in great generalities, whereas other use of force, if I understand your question, are things that would are likely committed under Article 2 to the president's commander-in-chief powers. I have no idea what you just said, Mr. Endershot.

[00:00:58]Let's try it again. Tell me when the president has to go to Congress to get permission to use military force.

[00:01:05]Uh Senator, I think it's it's when because the text of the Constitution Article 1 talks about declarations of war, those would be circumstances where the president would, in a general sense, and uh use of force that is not war under the commander-in-chief power, I think those are under Article 2 without the consultation of Congress.

[00:01:29]Okay.

[00:01:30]I'm sorry. I don't mean to be rude. I just don't understand what you said.

[00:01:35]Um Mr. Jones, um Let Let's uh the mayor of a city uh Well, strike that. I suppose the mayor of a city goes to his or her uh uh uh city council and gets a rule freezing rents. You with me?

[00:02:21]Yes, Senator.

[00:02:21]>> Freezing all rents.

[00:02:23]Yes, Senator.

[00:02:24]>> Forever and a day.

[00:02:27]Um What Let's make it even more interesting.

[00:02:33]Reducing rents by 20% because housing is a problem, right? Cost of housing. Let's suppose it to to to try to uh uh help people with housing costs the the the city mayor and council uses its police power under its state constitution as recognized by the federal constitution. So, we're going to lower all rents by 20% and as a result, because of the cost of insurance and and electric electricity and that sort of thing, uh about half of uh the landlords in the city just say, "Look, you know, we're going to have to default on our mortgage." Can the city constitutionally can the city do that?

[00:03:17]What began as a routine Senate hearing quickly turned into a sharp and revealing exchange as John Kennedy pressed legal nominees on some of the most fundamental questions in constitutional law and exposed just how difficult clear answers can be under pressure. Kennedy opened with a direct and pointed question, "When does a president of the United States need permission from Congress to use military force?" What followed was a halting response from nominee Mr. Hendershot who attempted to explain the distinction between Article 1 and Article 2 powers in broad, technical terms. But, Kennedy wasn't satisfied. Interrupting the explanation, he cut through the legal jargon. "It's not a hypothetical," he insisted, demanding a straightforward interpretation of the Constitution.

[00:04:04]Hendershot eventually clarified that Congress must authorize formal declarations of war under Article 1, while the president may act independently in certain situations under commander-in-chief powers granted by Article 2. Still, Kennedy made it clear that the answer lacked clarity, bluntly admitting, "I have no idea what you just said." Well, Senator, I think it could depend. I do think the city could have some ability to freeze rents. Um but, I think you would have to look at the the Why why isn't that a taking?

[00:04:38]Well, it it certainly could be a taking, and I think When does it become a taking?

[00:04:43]At what point?

[00:04:45]Well, I I think it would have to be you'd have to initially look at the the impact the financial impact on the taking of what could amount to a property. Well, I suppose that's fair.

[00:04:55]Yes, sir. Let's let's suppose 40% of the landlords uh will default on their mortgage.

[00:05:02]Is that Have you reached the point of a taking or not? And how do you determine when when you reach the point of a taking?

[00:05:10]Well, I again, I think it could depend, but there would have to be a showing that, you know, what the the financial impact was, and I think Yes, sir. I I I'm sure. I don't mean to be rude. We just have so little time. I understand that you have to have a showing. Tell me what the rule is.

[00:05:25]Well, I think the rule is if you're taking property without uh the government, I should say, taking property uh for a legitimate government purpose, I think you can only do that by compensating the owner of the property.

[00:05:37]So, any any freeze on on on rent is a is a act of eminent domain. So, Well, not not necessarily, Senator. I think in your hypothetical, you were you were at least as I understood it, were talking about a financial impact, not just freezing it at the moment, but then going on down the road with >> the hypothetical I gave you, who's going to win if the landlord sues the city? The city or the landlords?

[00:06:03]Well, I think again it would depend on the on the length >> not going to give me an answer, are you?

[00:06:07]Well, I I could I think it could depend It's I know it's a very lawyerly answer, Senator, >> Yes, sir, it is. Very lawyerly.

[00:06:13]>> depend on >> Judge, I'll answer your question in the few minutes I have.

[00:06:19]Tell me Tell me under what circumstances the state legislature can draft a statute that makes a distinction that classifies people on the basis of race.

[00:06:40]Senator, I think Judge Grassley, may I answer? Yes, and then we'll go to Senator Goins.

[00:06:46]Um thank you, Senator. I I think these circumstances would depend on the specifics of the uh United States Supreme Court case law and >> Okay. Just give me some examples. Just give me some examples.

[00:06:59]>> Senator, on the basis of race, um I mean I I don't think I think the United States Supreme Court has held that there should be no classification >> No. They just say you got to have a compelling reason.

[00:07:11]That is true, Senator.

[00:07:13]>> So, tell me what would be a compelling reason?

[00:07:16]Senator, as we sit here today, I I do not cannot give you a compelling reason.

[00:07:20]Okay. I appreciate your honesty. Thanks, Mr. The hearing didn't ease up from there, turning to another nominee, Mr. Jones. Kennedy introduced a hypothetical scenario about a city imposing a 20% rent reduction to address housing costs.

[00:07:35]What seemed like a simple policy question quickly evolved into a deeper constitutional debate over property rights and government overreach. Kennedy zeroed in on one issue. At what point does government action become an unconstitutional taking of private property? Jones acknowledged that such a policy could qualify as a taking, but repeatedly fell back on a familiar legal refrain. It depends. Even when Kennedy escalated the scenario, suggesting that 40% of landlords might default on their mortgages, Jones declined to draw a clear line, emphasizing the need to assess financial impact case-by-case.

[00:08:11]That answer didn't sit well. Frustrated by what he described as very lawyerly responses, Kennedy pushed for a definitive rule. Jones ultimately conceded that if the government takes property for public use, it must provide compensation, echoing the Fifth Amendment, but stopped short of declaring rent control policies outright unconstitutional.

[00:08:32]In the final moments, Kennedy raised an even more sensitive issue. Under what circumstances can laws classify people based on race. With Chuck Grassley presiding, the nominee acknowledged that such classifications require a compelling reason under Supreme Court precedent, but admitted he could not provide a clear example. Kennedy's closing response was brief but telling.

[00:08:55]"I appreciate your honesty."

[00:08:57]The exchange underscored a recurring theme in high-stakes confirmation hearings, where legal theory meets political scrutiny. Clarity is often the first casualty.