Vail Law column: Can the president declare war without consent of Congress?
August 15, 2017
Remember the old Hersey's Co. advertising jingle: "Sometimes you feel like a nut. Sometimes you don't"? If not exactly part of legal orthodoxy, at the moment, the catchphrase seems to have a bit of Constitutional resonance.
Bear with me as I parse through the shredded coconut of law.
If you've been dusting the cobwebs off your Cold War fallout shelter or returning your ploughshares into swords, then you know that the diminutive dictator of the Democratic People's Republic of Korea has been recently wagging his projectiles in the face of the United States, as well as aiming an alarming quantum of bombastic rhetoric at his neighbors, Japan and South Korea.
Poor Guam — a tiny spec of U.S. presence in the Western Pacific, near … well, it's not really near anything at all except a whole lot of water and a few similarly sized specs — is apparently the convenient object of the Numero Uno boss of the Hermit Kingdom's intended wrath. It is where, if the world does not bow down to him, Kim Jong Un vows he will take the first step toward his own destruction and, unfortunately, the destruction of untold innocents. Not since Nikita Khrushchev sent his fleet steaming toward Cuba has the world been so on the edge of its nuclear seat.
In reply to The Dear Eater's bloviating, rather than try to quell the fire, our Demander in Chief, has turned up the flame. Besides the threat of war of the nuclear variety, if this little flare-up of nuclear temper is to be quelled, then it seems the moral high ground will be ceded to the Chinese who, if there is a rescue of calm and sanity to be made, will be delivered by the president of China, Xi Jinping.
While one hopes and prays that war will be averted, there is little doubt that American leadership and credibility will be that much more marginalized and the esteem of China will continue to rise.
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All of this, of course, begs the question, "Can he do that? Can the president declare war all on his own and without consent of Congress?"
Well, no. And sorta.
Stated simply and explicitly, a president may not declare war without congressional approval. This has to do with the concept of Executive Power.
In its first three articles, the U.S. Constitution outlines the branches of the federal government, the powers that each may wield and the limitations by which they are constrained. Article II outlines the responsibilities of the Executive Branch.
Under the powers granted by the Constitution, the president is the commander in chief of the armed forces. He (or one day, she) has the power to call into service the state units of the National Guard, and in times of emergency, the president may be given the power to manage national security or the economy.
Keep a critical eye on the above paragraph; we will come back to it. As you will see, things are not as neat and tidy as they may seem. At times, it seems the whole raison d'etre of the Supreme Court is to figure out the wiggle room left in the wide margins of the Constitution.
Stated simply, the president may not declare war without congressional approval.
But that does not entirely settle it.
While the president cannot declare war without congressional approval, as the commander in chief of the armed forces, many are the times presidents have sent troops to battle without an official war declaration.
Beginning in 1950 with President Harry Truman's decision to go to war against North Korea without congressional approval, U.S. presidents of both parties have unilaterally ordered the use of military force. While the Constitution only intended for presidents to act unilaterally in the event of an emergency — when there was neither time nor opportunity to consult Congress — since the last loop around the carousel of war in Korea, presidents have, in effect, disregarded the constitutional framework.
And Congress has been generally complicit, having failed to assert its institutional powers and responsibilities. As a result, a dangerous — and, frankly anti-Constitutional — precedent has developed.
The Constitution is not self-enforcing. It must be policed and honored by the president, by Congress and by the people.
Vietnam was an "illegal" war, as were Kosovo under President Bill Clinton, the ISIS campaign under President Barack Obama and many, many more. Things stand as they are — that presidents have been given a long leash to exceed their constitutional power — because Congress has lacked the spine to act.
Dealing with the remorseful hangover of Vietnam, the 1973 War Powers Act attempted to define when and how the president could send troops into battle by adding strict time frames for reporting to Congress after sending troops to war. However it has not had much effect.
This president seems poised to rely on the precedent, its lineage tracing back to Truman, that the commander in chief may unilaterally decide when to order the use of military force. The rationale would be that presidents might order the use of military force when it is in the national interest to do so, when such actions do not rise to the level of "war" under the Constitution or "hostilities" under the War Powers Act. But even assuming that Trump recognized such principles, those wishy-washy limits leave a great deal of wiggle room. What constitutes an "emergency" and what is in the "national interest" is, to say the least, in the eye of the beholder.
Can the president declare without congressional buy? No, but yes.
I, for one, don't "feel like a nut" when it comes to the awesome force and consequences of nuclear annihilation. There is little doubt, however, that we have one on the Korean Peninsula. Let's hope and pray for all the bluster and bravado spewing from the White House that we don't have two, as the physics of nut-upon-nut could well result in an explosion of something much more consequential than a sugar rush.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.