'Bloody Nose' Strike Illegal but Unstoppable
Eighteen Democratic Senators have reportedly signed a letter to President Trump informing him they are “deeply concerned about the potential consequences of a preemptive military strike on North Korea and the risks of miscalculation and retaliation.” Further, they assert, "without congressional authority, a preventative or preemptive U.S. military strike would lack either a constitutional basis or legal authority."
They are certainly right. Under the provisions of the 1973 War Powers Resolution, "The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." While it has never been tested in court, there's little question that this framing is Constitutionally sound. (The subsequent provisions giving Congress the power to force the president to cease hostilities after 60/90 days are much more contested.)
The problem, alas, is that there's simply nothing the Senate, or the Congress as a whole, can do to stop the President from acting as he sees fit. The House could certainly impeach him after the fact for overstepping his legal authority and, subsequent to that, the Senate could punish him by removing him from office. But the strike itself would be a fait accompli---as would the almost certain international war that would follow.
The Constitution famously set forth, as Edward S. Corwin put it over fifty years ago, an "invitation to struggle" over foreign policy and military affairs. Article I gives Congress the power to declare war, control of defense appropriations, and all manner of authority to regulate the armed forces. Article II makes the President commander-in-chief. In theory, the legislature is much more powerful in peacetime and the advantage shifts to the executive when the nation is at war. The reality is not that simple.
The mere existence of a standing force gives the President enormous leverage. Teddy Roosevelt recognized this more than a century ago. In his memoirs, he described a standoff with Congress over sailing the Navy into the Pacific:
The head of the Senate Committee on Naval Affairs announced that the fleet should not and could not go because Congress would refuse to appropriate the money—he being from an Eastern seaboard State. However, I announced in response that I had enough money to take the fleet around to the Pacific anyhow, that the fleet would certainly go, and that if Congress did not choose to appropriate enough money to get the fleet back, why, it would stay in the Pacific. There was no further difficulty about the money.
Roosevelt understood that, while Congress certainly had the power to withhold funds, it would have been politically impossible for them to do so. Realistically, then, a President's action with a force-in-being is limited mostly by the political fallout that ensues, not the approval of Congress.
Historically, the size of the force was itself a powerful constraint. While the United States has maintained a sizable Navy for the last century and a half, the Army was typically a garrison force until Congress declared war and provided the authority and money to build it up. That tradition ceased with the advent of the Korean War in 1950. While the nation continued buildups for war and drawdowns after, the exigencies of the Cold War and the desired for continued global hegemony in its aftermath have kept the “peacetime” force massive by global standards. This has significantly enhanced the freedom of maneuver of the commander-in-chief.
The existence of nuclear forces complicates matters even more. The deterrence strategy of the Cold War depended on the President be able to order a massive retaliatory strike on the Soviet Union in short order. It was simply not feasible to involve Congress in the decision, given the exigencies of time. While the Cold War has been over more than a quarter-century, few questioned the notion that the commander-in-chief should retain that power until Trump assumed that post and began routinely issuing provocations via his Twitter account.
Hearings this past November before the Senate Foreign Relations Committee aimed at rethinking this policy. Senator Chris Murphy, a signatory to Monday's letter, declared at the time, “We are concerned that the president of the United States is so unstable, is so volatile, has a decision-making process that is so quixotic, that he might order a nuclear weapons strike that is wildly out of step with U.S. national security interests."
Alas, witnesses including the sitting and former commanders of US nuclear forces, former national security officials, and scholars were unanimous that there was little that could be done by Congress to prevent such a strike. While lawyers could advise the president against the action and civilian and uniformed professionals are duty-bound to refuse to follow orders they deem illegal or immoral, the entire system is predicated on swift obedience to the duly elected commander-in-chief. A President hell-bent on launching missiles would simply fire people until he got to ones who would carry out the order.
The bottom line is that absent radical disarmament on a scale that no serious analyst is calling for, the major restraint on a President's war powers rests with his or her character and good judgment. The public ought to seriously weigh whether they trust a candidate to make life-and-death decisions before entrusting them with such awesome responsibilities. Failing that, the Constitution provides the extreme options of removal via the aforementioned impeachment process and the provisions of the 25th Amendment. Both of those are extreme options, however, that would undermine faith in our democracy if undertaken in other than the most exigent circumstances. Otherwise, we must wait until the next election and hope the public chooses more wisely---and that the commander-in-chief does not start World War III in the meantime.
James Joyner is a security studies professor at the Command and Staff College, Marine Corps University, and a nonresident senior fellow at the Brent Scowcroft Center on Security and Strategy at the Atlantic Council. These views are his own.