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08/11/2017

Ilya Somin on Presidential War Power and North Korea
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Can Trump unleash “fire and fury” on North Korea without congressional authorization? Short answer, no:

The Constitution  very clearly reserves to Congress the power to start a war. The Founders did not want any single man to be able to take the nation to war on his own. Even Alexander Hamilton — the strongest supporter of sweeping presidential power among the framers  — understood that only “the Legislature have a right to make war” and that “it is . . . the duty of the Executive to preserve Peace till war is declared.”

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It is possible that the president has the power to initiate small-scale military actions that fall short of qualify as “war,” even without congressional authorization. In my view, this could justify the very limited air strike  Trump launched against Syria back in April, though some scholars disagree. Regardless, a conflict with North Korea is unlikely to be limited in this way. Secretary of Defense James Mattis – who, unlike Trump, tends to know what he’s talking about – has said that a conflict with North Korea “would lead to the end of its regime and destruction of its people” and that it “would be probably the worst kind of fighting in most people’s lifetimes.” That sure sounds like a war to me! I don’t think you have to be a lawyer or a constitutional law maven to recognize that a conflict that costs many thousands of lives and may well involve the use of nuclear weapons qualifies as “war” by any reasonable standard.

Agreed (See The Constitution's Text in Foreign Affairs, chs. 8-9).  But, a qualifier:

Trump would not need congressional authorization if North Korea strikes first, or if it is about to do so. In that event, Trump would not be initiating war, but merely  waging one already begun by the enemy.

I agree here also.  (As did Hamilton).

And a further qualifier:

With notable exceptions, such as the Korean War, presidents have generally sought advance congressional authorization for large-scale military actions comparable to the one now under discussion. That is what happened in the cases of the Vietnam War, the post-9/11 invasion of Afghanistan, and both Iraq wars. Unilateral presidential military actions typically involved situations where the enemy attacked or declared war first (as in the 1989 Panama intervention) or cases where the expected military action was brief and on a very small scale, involving little or no combat (as in the case of President Clinton’s 1994 intervention in Haiti, among many other examples).

Unfortunately, this norm has frayed in recent years, in considerable part because President Obama initiated two large-scale wars without congressional authorization – his 2011 intervention in Libya and the still-ongoing war against ISIS. In January, I warned that these  precedents were a dangerous “loaded gun” that  Obama left to Trump, and urged Congress to reassert its war powers.  Whether it will actually do so remains unclear.

I do not fully agree here, for the reasons set out in this article.  The 2011 Libya intervention was not a "large scale war" at least in terms of U.S. involvement (although perhaps it was in its consequences for Libya); more importantly, the Obama administration expressly defended it on the grounds that it was small scale.  The Obama administration defended the ISIS conflict principally as authorized by Congress' 2001 authorization to use military force (AUMF) against al-Qaeda and its affiliates.  (The Trump administration has continued this defense of its authority to use force against ISIS).  True, this argument may seem a stretch of the AUMF, but it's not precedent for presidential use of force where there is no remotely plausible claim to AUMF authorization.  Thus I do not believe there is any precedent from the Obama administration that would be useful to support a unilateral presidential attack on North Korea.