Constitutionally, Trump Can’t Attack North Korea Alone; That Doesn’t Mean He Won’t

Forget the War Powers Act — that’s just a statute passed by Congress. Let’s talk about the Constitution, which, I hasten to add, cannot be changed by mere statute.

As Donald Trump’s malignant narcissism manifests in ways any discerning voter knew it eventually would — as his blustering and bloviating his way into chaos with all the rest of us in tow — we may be about to discover whether our institutions will finally fail us in a catastrophic way.

The founders of this nation — the framers of the Constitution — certainly foresaw that their creation — the United States of America — might have to conduct war from time to time throughout its history. That’s why they wrote into the Constitution that armies and navies could be raised and that war could be declared.

foundingBut by whom? The president alone? Wouldn’t that give the president license to use military hostilities for political purposes — to give entrance to the excuse that he is indispensable as a hero-warrior during interminable battles against menacing threats, real or imagined, to our very national survival? Would that not incentivize war-making and invite a speedy end to the this audacious experiment called a democratic republic?

Why yes, the framers said — yes it would. That is why they wrote into our founding charter that Congress — and not the president — has the power to raise armies and navies and declare war.

strangeloveBut then why, one might ask — if the framers were so concerned about a president unilaterally using war as a political tool — did they make him the commander-in-chief of the armed forces? The answer might surprise some. The president was not made commander-in-chief to expand the powers of the presidency, but to contain the powers of military generals. The assignment of the commander-in-chief power to the president reflected our framers’ insistence on civilian control of the military, not unbridled executive adventurism.

So it is not, as a constitutional matter (regardless what any long-standing amorphous, generic, non-Korea-specific statute might say) for Donald Trump to start a war with North Korea without express authorization to go to war with North Korea pursuant to a situation-specific Act of Congress. And suddenly, in the Age of Trump, the wisdom of the founders glows bright: Congress may not leave it to an emotionally stunted, personality-disordered madman to decide for himself that thousands must die in service of his boundless vanity.

There is ample evidence in the historical record to support this position. As I have discussed elsewhere, a fascinating debate erupted when the framers were drafting Article I and its “declare war” language. A proposed draft of Article I provided that only Congress could “make war.” A scholar named Louis Fisher describes what happened after that language was proposed:

[O]ne [thing the framers didn’t leave in Congress’s] control was the discretion left to the President to repel sudden attacks. An early draft empowered Congress to “make war.” Charles Pinckney objected that legislative proceedings “were too slow” for the safety of the country in an emergency …. Madison and Elbridge Gerry moved to insert “declare” for “make,” leaving the President with “the power to repel sudden attacks.” Their motion carried. The duty to repel sudden attacks represented an emergency measure that permits the President to take actions necessary to resist sudden attacks against the United States. This discretionary authority did not extend to taking the country into full-scale war or to mounting an offensive attack against other nations. 148 U Pa L Rev 1637 (2000).

So the framers had even flirted with requiring congressional assent to any involvement of the United States in war, let alone the decision to start one. The change in constitutional language from “make war” to “declare war” was a narrow concession to the reality that the United States might be attacked while Congress was unavailable to respond; the framers never envisioned that the United States, on orders from a president, might launch a preemptive attack while Congress was too craven to take up the matter itself.

Is Donald Trump constitutionally authorized to open a can of “fire and fury” on North Korea without authorization from Congress? No — the idea is positively un-American. Does that mean he can’t get away with it? No — more on that in a post to come.

-bb

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