War

Bruce Ackerman on the Need to Rein in Unconstitutional Warmaking Before it is Too Late

A prominent constitutional law scholar highlights the perils of wars waged without congressional authorization - a practice engaged in by Obama and now perpetuated by Trump.

|The Volokh Conspiracy |

Donald Trump and North Korean ruler Kim Jong Un

Yale Law School Professor Bruce Ackerman, one of the nation's leading constitutional law scholars, has an insightful post on the Lawfare site critiquing the Trump Administration's dubious rationales for waging a large-scale war against the ISIS terror group without the congressional authorization required by Article I of the Constitution, which reserves the power to declare war to Congress:

On Dec. 11, the New York City Bar Association hosted a session on "The Global War on Terrorism: Do We Need a New AUMF?" William Castle, deputy general counsel of the Department of Defense, explained why the Trump administration contends that the 2001 and 2002 authorizations for the use of military force (AUMF) suffice to justify President Donald Trump's ongoing war against terrorist groups…..

My own presentation attempts a point-by-point refutation of Castle's claims. Castle first asserts that the 2001 AUMF authorizes warmaking against groups, such as the Islamic Sate, that only came into existence after Sept. 11. But Congress expressly rejected the Bush Administration's initial AUMF, which would have authorized the use of force to "preempt" future attacks, and instead restricted the authorization only to organizations that were responsible for Sept. 11; this limitation on war-making authority was expressly reaffirmed by Congress in the 2012 National Defense Appropriations Act (NDAA). Nevertheless, the administration "interprets" the AUMF as if it contained language that Congress has twice explicitly rejected—violating fundamental canons of statutory interpretation, as explained by the late Justice Antonin Scalia in his treatise on the subject. I then emphasize that the 2002 AUMF only authorizes force against the military threats posed "by Iraq," and argue that this cannot plausibly be extended to justify the use of force against Syria or other states in the Middle East.

Trump's reliance on the 2001 AUMF against Al Qaeda and its allies, and the 2002 AUMF authorizing George W. Bush's war against Saddam Hussein's regime recycles earlier, similarly specious, arguments made by the Obama administration. In this respect, Trump is building on and perpetuating one of Obama's most dangerous legacies: repeated circumvention of the constitutional requirement of congressional authorization for war.

Unlike some other liberal commentators and legal scholars, Ackerman also condemned Obama's violations of the requirement of congressional authorization when he initated wars against Libya and ISIS, as well as Trump's. For what it is worth, I too was highly critical of this aspect of Obama's record.

As Ackerman points out, this issue is relevant not only to the ongoing war against ISIS, but to Trump's potential decision to start a much larger and more dangerous conflict with North Korea. Ackerman emphasizes that, even if Congress is willing to let the smaller war against ISIS slide, it should "draw the line" on Korea.

Trump has threatened to rain down "fire and fury" on North Korea in response to their threats and nuclear weapons development, and done so without any apparent recognition that initiating such a conflict requires congressional authorization. The North Korean regime is probably the most oppressive in the world, and I would be more than happy to get rid of it if that could be done at a remotely acceptable cost. But, as most defense policy experts agree, there doesn't seem to be a a way to do it without risking millions of deaths from the use of nuclear weapons and large-scale conventional targeting of civilians. Secretary of Defense James Mattis—probably the administration's most respected cabinet member—has warned that a war with North Korea would be a "catastrophic conflict." At the very least, we should not initiate any such dangerous war on the say-so of a single man.

Of course, all of this might just be Trumpian bluster that we need not take seriously. Presidents generally step back from the brink of catastrophe, and Trump might prove to be no exception. It could also be that Trump is just bluffing in order to pressure North Korea into making concessions. But that scenario is not entirely reassuring. If Kim Jong Un calls the bluff, Trump would face a difficult choice between losing credibility and carrying out his threats.

But a good many experts believe that Trump may be serious about striking North Korea. It is difficult to know for sure, either way. Still the risk is great enough that we should avoid taking it, if at all possible. Congress should reassert its control over war powers sooner rather than later—lest later be too late. Congress need not (and probably should not) simply end the intervention against ISIS and its allies. But it should adopt an AUMF That places strict limits on executive power, and bars future presidentially initiated conflicts.

Presidentially initiated wars that stop short of utter catastrophe can still cause great harm. President Obama himself has admitted that his conduct of the Libya War was his "worst mistake," though he still fails to recognize that its flaws were in part the result of violating the constitutional requirement of congressional authorization. Even if the current crisis is a false alarm, eventually there is likely to be one that isn't.

The Founding Fathers gave Congress the power to initiate war precisely to preclude such a danger. As James Madison put it, "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department…. [T]he trust and the temptation would be too great for any one man…" Even Alexander Hamilton, the biggest supporter of broad executive power among the framers of the Constitution, recognized that "the Legislature have a right to make war" and that "it is . . . the duty of the Executive to preserve Peace till war is declared…"

One of the reasons why the Constitution limits executive war initiation and otherwise checks executive power is that, as Madison famously wrote in Federalist 10, "[e]nlightened statesmen will not always be at the helm." To put it mildly, the present occupant of the White House is about as far from being an enlightened statesman as he can be. But even a more conventional politician could not be trusted with the power to initiate a "catastrophic" war on his or her own. Madison rightly warned that we cannot trust such power to the kinds of politicians that "may be expected in the ordinary successions of magistracy."

In a recent New York Review of Books article, Ackerman presents a solid argument that Trump's moves against North Korea are already in violation of the War Powers Act of 1973, which, among other things, bars the president from sending US troops "into situations where imminent involvement in hostilities is clearly indicated by the circumstances" for more than 60 days, without congressional authorization. Here, matters are far from clear. It is difficult to say whether hostilities are truly "imminent," and most of the US troops in the region are there on regular deployments as part of the longstanding US-South Korean alliance, rather than specifically sent by Trump to back up his threats.

But, whether or not the War Powers Act has been breached, Congress should take action to reassert its prerogatives with respect to war initation. I suggested some possible ways to do so here, and Ackerman's article outlines others. The goal is not just to pass specific statutory language, but to reestablish a political norm of congressional control in this field. This is one of those constitutional issues that is more likely to be governed by expectations and norms than by court decisions or technical legal arguments. If we continue to get the norms wrong, we might end up paying an extraordinarily high price for our mistakes.

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44 responses to “Bruce Ackerman on the Need to Rein in Unconstitutional Warmaking Before it is Too Late

  1. “but to Trump’s potential decision to start a much larger and more dangerous conflict with North Korea.”

    You know, I’m as irate as anyone about Presidents starting wars without Congressional approval, but there’s always been an understood exception if foreign troops are about to attack. And North Korea IS kind of threatening us with nuclear annihilation, no?

    1. Mad Dog Mattis says ‘no,’ but bedwetters such as Brett Bellmore say ‘yes.’

      A time for choosing.

    2. No, not really. Not even the most outlandish braggadocio coming out of the DPRK asserts anything beyond the ability to strike somewhere within the U.S. “Annihilate?” They’re nowhere near making credible threats in that regard.

      1. Agreed, the threats aren’t credible at this time, the worst they could do is destroy some of our cities. I mere trifle, I guess.

        Doesn’t mean they haven’t made them.

  2. While I agree with you that President Trump should seek Congressional approval before taking extended military action against North Korea, isn’t the lack of a peace treaty ending the Korean War a complicating factor? The Armistice which ended the Korean War has been unilaterally denounced by North Korea on multiple occasions. Doesn’t this mean an argument can be made that the status quo ante (war) is now in effect?

  3. What is known here as the French and Indian war was “declared” in 1756 by England . . . after several battles over a period of at least two years. This historical background was recent when the word “declare” was written into the Constitution. It would not seem that the framers understood the word “declare” to be synonymous with “start.”

  4. I find it a stretch to claim that the power to “declare” war is the same thing as the power to initiate a war. Wouldn’t that actually obligate the Executive Branch to carry out a war on order of the Legislative Branch, in contravention of the separation of powers?

    My hunch as a non-lawyer is that the Founders created a strong presumption that war should involve consultation and cooperation by the Executive and Legislative branches — with exceptions for executive action when Congress was not in session … a practice that the two branches already observe, albeit in a very non-satisfying way.

  5. “To put it mildly, the present occupant of the White House is about as far from being an enlightened statesman as he can be. But even a more conventional politician could not be trusted with the power to initiate a “catastrophic” war on his or her own.”

    TDS.

    1. I suppose the hidden message is that Obama was more enlightened. If he means he spoke more purty, well, maybe, although his sing-song cadence drive me batty and he was at a loss for words without a teleprompter.

      I think you’d have to go back to Eisenhower to get even close to a statesman. JFK? Fucking rookie chasing nookie. LBJ a laugh. Nixon maybe closer than any other, since he had at least some international experience. Ford? Carter? not a chance. Reagan just a movie actor who fooled more people than others. Bush I just a CIA bureaucrat over his head. Clinton chased nookie like JFK, with more executive experience, but not a statesman. Bush II a bumbling bumpkin.

      I wonder what the definition of statesman is these days.

      1. I wonder what the definition of statesman is these days.

        Statesman: A person that says what you want to hear.

        1. Oh my god, you missed such an obvious one. Statesman: a man that states what you want to hear.

          You’re not even trying!

      2. Even though I liked Obama, I’ll admit I have a hard time describing him as a “statesman.” I think he had the wisdom to defer to his diplomatic staff for handling the challenging issues during his term, and for the most part they managed to maintain acceptable status quos on many fronts. I think the Iran deal was a notable achievement, as was the Paris Accord. I think the TPP would also have laid a strong foundation for moving responsibly into a multipolar world, and I agreed with his moves on Cuba. All of that would have led well into a Hillary presidency; I thought she had the chops for true statesmanship.

        But there were also multiple failures and lost opportunities – Syria, Libya, Israel, and so on. I think history will show that Obama’s soft-pedaling on Putin during the campaign (out of a desire not to seem like he was playing favorites) was an historic, perhaps catastrophic, mistake. His inability to translate much of his high-minded rhetoric into real-world achievements was frustrating and hard to spin away.

        1. As we learn the price of the Iran deal, it starts to look worse. Billions in literal small, unmarked bills, and turning a blind eye to Hezbollah run crime networks. (Favoring re-legalizing drugs doesn’t mean you want to ignore terrorists selling them to fund terror!) And the enforcement provisions are proving to be a joke. Basically he was so desperate to achieve an agreement that he didn’t care if it was an agreement worth the price.

          Both this and the Paris accord demonstrate one of Obama’s serious flaws: His determination that he alone was entitled to make policy, even contrary to the will of Congress. He started out his administration admitting that Congress actually had authority to decide certain matters, and ended up attempting to dictate policy in those areas himself. DACA was an example of this, in particular.

          1. There were serious scandals, too. Running guns to the Mexican cartels to try to engineer a case for cracking down on US gun sales. Pressuring financial services companies to cut off services to legal businesses the administration disapproved of, by threats of abusive regulatory enforcement. IRS targeting of conservative political organizations. Lying about the cause of an embassy being attacked. (And putting somebody in jail to make the lie look more plausible!)

            That the media generally downplayed these scandals didn’t make them any less serious.

            That said, I think many past “statesmen” look good today largely out of our ignorance of what they were up to on the side.

    2. There’s a lot of TDS around, and even some from Somin, but calling him the opposite of “an enlightened statesman” seems completely sane and fair

  6. The Executive is only getting away with what the Legislative wants it to. Congress could rein in this POTUS, and any preceding and subsequent holders of the office, if it chooses. It has chosen not to for reasons craven, and otherwise.

  7. My understanding of the Korean situation is that we have never ended the last war. We signed an Armistice agreement (a temporary cease fire) which North Korea repudiated in 2013 (notably long before President Trump was elected or even started running).

    I agree with the author and Eugene that we have apparently completely abandoned the concept of the authority for war-making powers over the past fifty or sixty years and that this is not a situation confined to one party or the other. Kennedy, LBJ, Nixon, Reagan, Bush (both), Clinton, Obama and counting. (One can certainly argue the point on each individual conflict or action but I suspect that all overstepped at one time or another).

    However, if there is a rational case to be made for a president to have the authority, I would think that North Korea would be it. Although we never formally declared war on Korea, fighting under the auspices of the United Nations, Congress did appropriate funding specifically for the conflict, thus giving their tacit approval to the effort. A parallel might be found in the First Barbary War in which Congress never voted on a specific declaration of war but did provide funding.

    Which brings up another question which I think would be worth discussion, namely, what qualifies as “war”? If North Korea threatens to nuke the United States is it “going to war” to destroy their nuclear missile facilities and nuclear plants? Does it require a full declaration to

    1. However, if there is a rational case to be made for a president to have the authority, I would think that North Korea would be it.
      More than that the tax cut passed, need some spending to fund the MIC, it is how we become great.

      Which brings up another question which I think would be worth discussion, namely, what qualifies as “war”? If North Korea threatens to nuke the United States is it “going to war” to destroy their nuclear missile facilities and nuclear plants?
      Whatever the POTUS decides it is. Who is going to stop him? Not the Constitution. Good luck impeaching one in the midst of a war.

  8. I’d like to see a review of all the combat actions since WW2 and how they were authorized. Serbia, Kosovo, Panama, and more.

    That said, Korea is going to be harder since, to my understanding, we are still at war with them and this hasn’t stopped in the past 60 years. A cease fire is not a peace treaty. Also, our defense treaty with South Korea will have an impact on any Congressional authorization.

    1. The US never declared war on North Korea (or on anybody since December 8, 1941). Our war with them was and still is, technically, a war by the UN Security Council. The same holds true of the Kosovo conflict and the 1991 Iraq/Kuwait war.

      “Operation Just Cause” in Panama was a unilateral action by the President of the US, as was our war in Grenada.

      Our wars in Afghanistan, Iraq (2003), Libya, and Syria, the raid into Pakistan to get Bin Laden, and our ongoing drone campaign in Yemen were all, allegedly, authorized by the 2001 AUMF. But I take the position that the AUMF is illegal on its face, because it is an attempt by Congress to delegate to the President its power to declare war. I believe Congress must always do so directly.

      1. Try December 11th or so, on Germany.

        /nitpicker

      2. Your an idiot. The AUMF _is_ a declaration of war, and the conduct of ALL wars is delegated to the Executive, which is kinda why they call him the Commander in Chief.

        1. I’m imagining you as the Michael Scott of war declarations. “I declare… war!”

          No, you do not get to declare war on random people because someone said you could fight (not declare war on) someone else

      3. “”Operation Just Cause” in Panama was a unilateral action by the President of the US”

        It should be noted, that Panama declared war on the US before we invaded. If there is any case where a President can go to war without a declaration of war by Congress, a declaration of war against the US by a foreign nation would be it.

        From the Wikipedia article on the US invarion of Panama:

        “On 15 December, the Panamanian general assembly passed a resolution declaring that the actions of the United States had caused a state of war to exist between Panama and the United States.”

        I’d provide a link, but anytime I try to post a comment on Reason with a link in it I get the error “Your comment contains a word that is too long (50 characters).”

  9. The problem with the logic, as applied to Korea, is that a surprise attack may be warranted by the threat, and that only a surprise attacks stands a chance of averting huge numbers of casualties.

    Thus, the situation is similar to that faced by a president watching hundreds of incoming ICBM’s on radar – launch without authorization from Congress..

    This is a very slippery area, of course. But North Korea, via EMP, may very shortly have the capability to destroy the United States. That is a threat only previously seen (in modern times) from the Soviet/Russian and Chinese ICBM force.

    1. Iraq was days away from those WMDs; luckily we invaded him. EMP is like, worse. Like Iraq, N. Korea has the history of attacking us without provocation.

  10. > “Congress need not (and probably should not) simply end the intervention against ISIS and its allies. But it should adopt an AUMF That places strict limits on executive power, and bars future presidentially initiated conflicts.”

    Excuse me if this is a stupid question, but why would having such a law matter in the slightest, so long as the separation of powers enables the President to disregard anything the Supreme Court says, as has been happening since Andrew Jackson went ahead and used the army to enforce the unconstitutional Indian Removal Act?

  11. Obama’s illegal wars, of course, need to be mentioned. Especially all the catastrophic ones on Libya, Yemen, Afghanistan, and those other turd sandwiches.

    Because those wars were illegal; had no congressional declaration save an AUMF.

    Which is why we ignore the wars prosecuted by Dubya, Bubba, Pa Dubya, Raygun, … Ike. Those might be illegal, but as long as we mention Obama, they are all covered.

    While discussing how to reign in Drumpf.

    1. Some people can handle posting drunk. You are not one of those people

  12. I know I’m beating a dead horse, but “The president shall be the Commander-in-Chief” can be taken as appointing the person who is president to a separate office (CinC), distinct from the presidency, that is subordinate to Congress’s war-making authority. It would avoid a great deal of confusion if we did read it that way. As CinC, the person who is president becomes the most senior general, able to respond to an attack on his own (as is the lowest private on guard duty), but unable to initiate military action without a congressional order to do so.

  13. Ackermans rather tepid letter to the Editor of the NYT, does not come close to the vitriol since Election Day 2016. Another, rather banal, scholar overseas opining. I gather he supported Hillariously Crooked who, actually pushed Syria. Remember Benghazi?

  14. I also, find this Headline grossly misleading. “…Before it’s too late.” If, it was “Too Late” then, perhaps the Berlin University Professor would show his work regarding; Crooked Clinton Impeachment when she was Sec. of State? Buehler?

  15. “It could also be that Trump is just bluffing in order to pressure North Korea into making concessions.”

    You haven’t run out of alternatives.

    What is Trump is bluffing to pressure the Chinese?

    1. Honest opinion: If you’re an intelligent, professional, and well-resourced head of a foreign government, and you’re trying to decide what Trump might do vis-a-vis North Korea, are you more likely to conclude that: (a) Trump is just crazy and inexperienced enough to think that launching a preemptive, even nuclear attack on North Korea is justified despite its considerable costs or (b) Trump is an idiot and a braggart who is easily satisfied by saying incendiary things on Twitter and being flattered by showy displays, so that very little of what he says actually matters?

  16. “What if …”

  17. In the near future, there will either be a climactic war over the North Koreans having ICBMs and nuclear warheads (perhaps with EMP capability that could grievously harm the USA even if the warheads were intercepted over our country!) or there will not be such a war.

    If there is such a war, we will either survive it and somehow recover, or we will catastrophically lose to the extent that very marginal recovery can ever occur.

    In this war, a wide spectrum of opinion will spring up internationally and internally (in our nation) as to whether even edging close to the brink of war should have been done or not.

    All second-guessing is bunk. Destiny is what it is. I am kinda of the mind that Trump would never have been miraculously elected if God Almighty did not have a historical purpose and a plan.

    1. Any plan involving the election of Donald Trump would be the work of a puny, paltry god.

      Choose reason. Every time. Be an adult. Or, at least, try.

      1. “Choose reason. Every time.”

        That would be more persuasive if there was some evidence that you had ever actually chosen reason yourself.

  18. On the other hand we can keep kicking that can down the road indefinitely and hope for the best. History is replete with examples of how passivity defeats evil.

    /sarc for those who are slow.

  19. Certainly North Korea is a credible threat to the countries in the region and soon to be an active threat to United States. A madman with Nuks is a scary and dangerous scenario. The US will have to act on this threat soon with or without congressional approval.

  20. Seems to me those who apparently think the word “declare” as used by the framers (and now) can be construed to mean commence, begin, initiate, launch, or start have the burden of proof. Somin and Ackerman clearly have not met the burden.

  21. Should I be shocked that this is only an issue now? I mean, what about Hillary & Baracks unconstitutional interventions in Syria & Libya? Why are you only upset now? Why? Why?

  22. The grave danger is that Russia may be tacitly encouraging the DPRK to take it right to the brink with the USA. China may calculate that it can not allow a successful American demonstration of power this close to what China considers its own sphere of hegemony.

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