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Strategic and political constraints weigh most heavily on whether the Trump administration would decide to take unilateral action against North Korea. And of course it would depend on whether the North Koreans themselves cross thresholds of what might be called “plausible imminence”: circumstances under which anticipatory, pre-emptive or even preventive action could be justified as defensive (see Alex Potcovaru at Lawfare on this crucial distinction). Rick Gladstone at the New York Times has an excellent tutorial on how circumstances matter.
But the law also weighs into any such calculation, and it is surprising how divided the legal community appears to be on the issue. Those that lean towards “no” anchor their reservations in international law (taken up in a subsequent post) and constitutional constraints associated with the Congressional power to make war and the War Powers Resolution of 1973; Martin Lederman at Just Security is exemplary. The tension in the Constitution is well-known. On the one hand, Article I grants Congress powers not only to make war but to raise and support armies, provide for a navy, establish the rules for the operation of American military forces, organize and arm the militias of the states, and specify the conditions for converting the militias into national service. That is a lot of powers, and probably speaks to deeper intent on where power on these issues lies. On the other hand, one of the main— if not the only—substantive function assigned to the President is the national defense in his role as commander in chief.
The case for “no” rests in the first instance in the clearly-stated powers of Congress, limits against which virtually every president in the post-war period has chafed at some point or another.
But Congress has also more explicitly sought to tie the hands of the president in the wake of Vietnam through the War Powers Resolution (very good Library of Congress resources here). These restraints come up in the Lederman piece cited above and in the good introduction by Garret Epps at the Atlantic, which has been publishing very thoughtful essays on North Korea of late. The War Powers Resolution says that the president may send US forces into actual or imminent hostilities in only three circumstances: a declaration of war; specific authorization; or a national emergency created by attack upon the United States, its territories or possessions or its armed forces (think Guam, but clearly US forces stationed in Japan and Korea as well). In the case of the last circumstance, the president is granted a 60-day window when he or she can act with discretion in response to an emergency. But the resolution states explicitly that “Nothing in this joint resolution shall be construed as granting any [new or independent] authority to the President with respect to the introduction of United States Armed Forces into [actual or imminent] hostilities.”
The War Powers Resolution would seem to be pretty unambiguous: unless we are attacked or the president declares war or Congress authorizes it, action would seem to be foreclosed. But without parsing this too closely, an interesting question is whether a surgical strike such as that taken in Syria would in fact constitute “sending US forces” into hostilities. The answer is far from clear. But under this account, the parameters under which the President can act unilaterally to initiate a wider conflict would seem to be very limited.
Not so fast says Jack Goldsmith at Lawfare. The President’s Article II powers as commander in chief are clearly not spelled out in any detail in the Constitution, and for good reasons: the eventualities under which they might be exercised are nearly infinite. But Goldsmith’s conclusion on these powers is stark: “the only opinion about Article II that effectively matters on this question is the Executive branch’s. The Executive branch will decide for itself whether to act unilaterally and neither the People nor the other two branches can do much in advance, at least as a legal matter, to stop it.”
However, Goldsmith does not stop there. He parses two opinions from the Office of Legal Counsel in support of presidential discretion, both of which were retained by the Obama administration (and in a context where others related to national security under the Bush administration were explicitly rescinded). The first is the post-9/11 September 25, 2001 opinion on using force against terrorists and nations that support them, and the second is an October 23, 2002 opinion to use force against Iraq. I reproduce the sections that Goldsmith himself cites in his piece below, but the bottom line is simple and captured by the title of Goldsmith’s Lawfare piece: that it would be pretty easy to write an OLC justification for military action. The conclusion is based on the fact that both OLC opinions grant the president significant latitude, and even on grounds that sound surprisingly close to preventive war to me.
Truth in advertising; I am not a lawyer. I would love to see a debate on this in the comments section below. But the lines are pretty clearly joined. Those who generally believe that imperial presidents have abused their authority; and those more inclined to believe that the president’s powers with respect to national security—in his role as commander in chief—are fairly broad. We wish that these were clean constitutional issues that have nothing to do with the incumbent. But as in the past, it is hard to avoid the conclusion that those leaning toward “no” both now and in the past were looking for checks on presidents deemed unpredictable or incautious.
Excerpts from the Office of Legal Counsel Rulings (emphases from Goldstone)
September 25, 2001 on using force against terrorists.
We think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001. Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon: the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas. In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.
October 23, 2002 on Iraq.
Accordingly, we believe that the President’s constitutional authority to undertake military action to protect the national security interests of the United States is firmly established in the text and structure of the Constitution and in executive branch practice. Thus, to the extent that the President were to determine that military action against Iraq would protect our national interests, he could take such action based on his independent constitutional authority; no action by Congress would be necessary. For example, were the President to conclude that Iraq’s development of WMD might endanger our national security because of the risk that such weapons either would be targeted against the United States, or would be used to destabilize the region, he could direct the use of military force against Iraq to destroy its WMD capability. Or, were it the President’s judgment that a change of regime in Iraq would remove a threat to our national interests, he could direct the use of force to achieve that goal. Were the President to take such action, he would be acting consistent with the historical practice of the executive branch.
