The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.