//  8/13/17  //  Commentary

By guest blogger Eric Segall, and cross-posted from Dorf on Law.

Donald Trump might be the last person on the planet I would trust with making reasonable decisions concerning what to do about North Korea's nuclear capability. Having said that, we shouldn't trust any President with the unilateral power to commit a non-emergency, no-need-for secrecy, act of war without congressional consent. The founding fathers wanted to separate the war declaring function from the war fighting function, yet here we are in a world where the President can unilaterally start a war. Congress must act, and act now.

Article I Section 8 of the United States Constitution gives Congress the power to declare War. Alexander Hamilton explained that the "Congress shall have the power to declare war; the plain meaning of which is, that it is the peculiar and exclusive duty of Congress, when the nation is at peace, to change that state into a state of war." In a letter to Thomas Jefferson in 1798, James Madison wrote that the “constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it.  It has accordingly with studied care vested the question of war to the Legislature." And founding father James Wilson said that the new Constitution “will not hurry us into war; it is calculated to guard against it.  It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

There are many provisions of the Constitution that have contested histories and which are difficult to apply to modern circumstances. The power to declare War in Article I, Section 8, is not one of those provisions. Absent an imminent attack on the United States, or perhaps an important need for secrecy, it is Congress, not the President, who under our supreme law has the power to declare war.

Unfortunately, starting with the Korean War and then Viet Nam, American Presidents have used strong military force amounting to acts of war without Congress formally declaring war (although in both instances Congress did ultimately fund the wars, thereby giving tacit approval). In 1973, in the wake of the Viet Nam War, Congress passed, over President Nixon’s veto, the War Powers Resolution. This law confusingly says the President can introduce American troops into hostilities only after congressional approval or an attack on the United States, but also requires the President to remove such troops after sixty days if Congress has not given its approval, suggesting the former restriction may not be a restriction at all. In any event, the War Powers Resolution has been completely ineffective in separating the war deciding function from the war making function because Congress has consistently lacked the will to enforce it.

Sadly, President Obama made important decisions and arguments that further diluted Article I, Section 8, and the important separation-of-powers ideas behind the Constitution’s assignment of the war declaring function to Congress. He made those decisions despite having said, before he assumed Office, that "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

President Obama often acted without congressional consent when using military force. For example, he didn’t have approval to lead a NATO coalition against Libyan dictator Muammar Gaddafi in 2011, nor did he have approval when he ordered airstrikes against Islamic State fighters in Iraq and Syria. The President argued that those strikes were authorized under a law passed in the wake of 9/11 giving the President authority to use whatever means were necessary to capture the terrorists responsible for 9/11, but the Islamic State did not exist at the time. President Obama also argued that bombing Libya, without troops on the ground, did not constitute “hostilities” under the War Powers Resolution. That argument was derided by just about everyone. For example, a former CIA Director under President George W. Bush said the following: “Using armed Predator drones against Libyan targets with the occasional defense suppression strike from manned aircraft, all the while being on call for more robust missions and with U.S. servicemen collecting imminent danger pay ... all that certainly feels like hostilities."

Professor Bruce Ackerman, a liberal constitutional law scholar at Yale, argued in the New York Times that Obama’s decisions regarding the use of force “mark[ed] a decisive break in the American constitutional tradition,” and amounted to “imperial hubris.” Other commentators disagreed, arguing that Obama’s decisions simply reflected well-developed “constitutional traditions.”

President Donald Trump has made severe threats against North Korea, promising “fire and fury” and warning that "North Korea better get their act together, or they are going to be in trouble like few nations have ever been in trouble.” But so far there have been no attacks against the United States, and obviously Trump does not think secrecy is necessary for attacking North Korea. Where is Congress? There is no reason why there can’t be a serious discussion between the President and Congress, whether in public (even on the golf course if he prefers) or behind closed doors, about whether to actually attack North Korea.

There has never been a better time for Congress to reassert its authority to declare war before a President instigates one. The Congress and the President are of the same political party, so there can’t be charges of partisan politics interfering with important security decisions. President Trump’s first six months have been riddled in scandal like no other President, and he has absolutely no foreign policy experience, having never worked in public office before assuming the Presidency. I am not a huge fan of Paul Ryan, Mitch McConnell, or for that matter the Congress as a whole. But, now more than ever, it is time to heed the stern warnings of the founding fathers and divide the war declaring function from the Commandeer-in-Chief Power before it is too late. Where is Congress?


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