Congress is Powerless to Stop Presidential Strike on North Korea
My latest for RealClearDefense.
As I noted Monday, some Senate Democrats wrote a letter to President Trump declaring that a so-called “bloody nose” attack on North Korea would be illegal. This morning, RealClearDefense published my response essay, “‘Bloody Nose’ Strike Illegal but Unstoppable.”
They are certainly right. Under the provisions of the 1973 War Powers Resolution, “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” While it has never been tested in court, there’s little question that this framing is Constitutionally sound. (The subsequent provisions giving Congress the power to force the president to cease hostilities after 60/90 days are much more contested.)
The problem, alas, is that there’s simply nothing the Senate, or the Congress as a whole, can do to stop the President from acting as he sees fit. The House could certainly impeach him after the fact for overstepping his legal authority and, subsequent to that, the Senate could punish him by removing him from office. But the strike itself would be a fait accompli—as would the almost certain international war that would follow.
The key argument:
Realistically, then, a President’s action with a force-in-being is limited mostly by the political fallout that ensues, not the approval of Congress.
Historically, the size of the force was itself a powerful constraint. While the United States has maintained a sizable Navy for the last century and a half, the Army was typically a garrison force until Congress declared war and provided the authority and money to build it up. That tradition ceased with the advent of the Korean War in 1950. While the nation continued buildups for war and drawdowns after, the exigencies of the Cold War and the desired for continued global hegemony in its aftermath have kept the “peacetime” force massive by global standards. This has significantly enhanced the freedom of maneuver of the commander-in-chief.
The existence of nuclear forces complicates matters even more. The deterrence strategy of the Cold War depended on the President being able to order a massive retaliatory strike on the Soviet Union in short order. It was simply not feasible to involve Congress in the decision, given the exigencies of time. While the Cold War has been over more than a quarter-century, few questioned the notion that the commander-in-chief should retain that power until Trump assumed that post and began routinely issuing provocations via his Twitter account.
The bottom line is that absent radical disarmament on a scale that no serious analyst is calling for, the major restraint on a President’s war powers rests with his or her character and good judgment. The public ought to seriously weigh whether they trust a candidate to make life-and-death decisions before entrusting them with such awesome responsibilities. Failing that, the Constitution provides the extreme options of removal via the aforementioned impeachment process and the provisions of the 25th Amendment. Both of those are extreme options, however, that would undermine faith in our democracy if undertaken in other than the most exigent circumstances. Otherwise, we must wait until the next election and hope the public chooses more wisely—and that the commander-in-chief does not start World War III in the meantime.
More at the link.
Even if they could stop him, this supine Congress wouldn’t; Republicans in Congress have sold their souls.
@Daryl’s other brother Darryl: Yup.
I thought immediately that Congress should engage in some preemptive war of its own. Meaning to quietly let the president, or in this case Trump, that an attack on North Korea without Congressional approval would result in swift impeachment and removal.
But then I thought it would be easier to get strands of cooked spaghetti to stand at attention.
@Daryl’s other brother Darryl:
If we’re being honest, both parties have long track records of only opposing Presidential strikes and extended military action en mass when the opposing party controls the White House.
Just where did this whole “bloody nose” thing come from, anyway? Looks like a group of Democratic congresscritters got the idea in their head somehow and started whipping up a preemptive “Trump better not do this” move, based on… just what, exactly?
Either someone got some really good inside info, or someone got some really good drugs.
But, in the abstract, the War Powers Act has been weak ever since it was first passed, but Obama really dealt it a fatal blow with his (and Hillary’s!) little Libyan adventure.
This is the true test of patriotism. Republicans have failed. With someone as disconnected from reality and impetuous as Trump in charge, they should pass a resolution stating that unilateral action against NK would be seen as an impeachable and criminal offense.
@Bob The Arqubusier:
Hey dumb fvck…figured out the difference between debt and deficit yet?
As for the bloody nose…try keeping up.
This guy, it turns out, was too smart for the idiots, abusers, and sexual assaulters you helped vote into the White House.
@Bob The Arqubusier:
Victor Cha, I believe, originated the term “bloody nose” in an op-ed in the Wash Post.
The concept itself –that a limited strike against NK would embarass the regime enough to compel them into doing what we want — has been openly floated by POTUS and people on his team.
If you wanted a POTUS who was going to be quiet and deliberate about military matters, you probably shouldn’t have voted for Trump. As it is, we’re just going to get dumb ideas defended endlessly by dumber people.
The term goes back to at least December of 2017. Daniel Larison has been writing on it for a bit. Here’s his first posting on it:
Victor Cha later confirmed the administration was perusing the “bloody nose” strategy and that his opposition to it cost him an Ambassadorship to South Korea:
It’s again worth nothing that Cha is relatively hawkish when it comes to North Korea, but thinks that this is a terrible idea.
Here’s Larison writing on what happened to Cha:
So, unless you believe that Cha is lying, this isn’t something made up by the Democrats.
The idea that Baby Kim is more afraid of the US than his own people is laughable. He will need to respond in order to not appear weak. Bad for NK? Sure. But extremely bad for the rest of the world too. His isn’t a romp in the desert.
@Daryl’s other brother Darryl: You have a deficit of intelligence. You owe a debt to the Powers That Be here who let you repeatedly and flagrantly violate the rules of this site without consequence.
@James Pearce: What I meant was, this letter from 18 senators literally seems to have come out of nowhere. North Korea hasn’t done anything overly provocative in the immediate past, and actually made some mild, conciliatory gestures. Trump hasn’t said anything particularly bellicose about North Korea, either. This sudden concern so great as to get 18 Democratic senators to sign off on a letter….
OK, with a little more thought, and a little more reading, I’m seeing a touch of sense here. Considering how monolithic, now lockstep Democrats in the Senate are, I am surprised they didn’t get more than 18. And it seems to tie in to a failed ambassadorial nomination, with the nominee speaking out against such a possible action (among other things).
Sounds like the Democrats have taken a couple of crumbs of data and cooked up this whole grand theory of what Trump is planning to do. Some times that totally pays off (there was a low-level American officer who pieced together enough disparate details and asked if the allies were planning on invading Normandy in early June 1944), but usually it’s just misguided speculation.
My own hunch is that they’re not really worried about Trump ordering a “bloody nose” strike on North Korea. Rather, they’re looking to score points with their base by appearing to “stand up to Trump,” and also as a little power play — trying to assert their own authority to Trump.
It’s been my observation that, if you filter out Trump’s statements and focus on his deeds, he’s shown a remarkable respect for the separation of powers. When the courts stopped his travel bans, he fought them in the courts — he didn’t just try to unilaterally impose them anyway. On the DACA matter, he explicitly repudiated Obama’s unilateral actions and threw it in Congress’ lap, where it belongs.
I appear to be the only person here who recognizes that Trump is, at his core, a salesman and his native language isn’t English, but hyperbole. But I guess too many are invested in their Trump hatred and need to avoid recognizing that so they can keep exceeding their Recommended Daily Allowance of OUTRAGE!!!!!!!
@Bob The Arqubusier:
No, it came from Cha’s disclose in the Washington Post that his opposition to the strategy was what prevented him from getting nominated for the South Korean ambassadorship.
It also came out of the reporting, going on since at least December, that this has been a strategy option that the Trump administration has been pursuing.
Of course there are politics involved. But there is plenty of reason to send the note as a preemptive measure.
In that respect it’s not particularly different than note Republicans sent to Obama around the Iran agreement — which as with this note, was largely a symbolic gesture.
@Bob The Arqubusier:
So that’s a no.
You were banned…show some self-pride and leave.
Just to be clear, I think Cha’s failure to get nominated due to his opposition to the “Bloody Nose” strategy is a perfectly viable triggering event. Again, Cha was by all accounts, a conservative selection for a very important ambassadorship.
The fact that the SK ambassadorship has been empty for a year, given the overall complexity of what’s going on in the peninsula is deeply problematic. To learn that a Korea expert (who is a hawk in general) was turned down for an ambassadorship over his criticisms of military action against NK makes things worse — especially given that by all accounts Cha would-be boss, SoS Tillerson, is against the strike as well.
Basically it means that State is no loner in control over who gets to represent it. And that suggests that a military strike is still being considered as a key viable option.
Again, is the letter symbolic: sure. But let’s not pretend that there is not actual basis for it.
@Bob The Arqubusier:
But it didn’t “come out of nowhere.” NK has been firing test missiles. Remember Trump’s “fire and fury” comments?
He’s been restrained, much to his chagrin, but that doesn’t mean he’s restraining himself out of respect. That, to me, is a completely ridiculous notion.
No, you’re not the only one. In fact, I’d argue that Trump rides the fine line between “salesman” and “con artist,” but you’re spot on with the hyperbole stuff.
I think everyone in America needs to step back, recognize the level of hyperbole, and act accordingly. The right should stop the Pence-like hero worship of what is a deeply flawed man and the left needs to stop pretending he’s literally diabolical. He’s neither a hero nor the devil.
What about punishing the civilian and military commanders who put the President’s illegal order into action? As you note in the full article, uniformed officers are duty-bound to refuse illegal orders, so if the President oversteps his Constitutional authority and orders a first strike in circumstances not permitted by the War Powers Act and contrary to the explicit direction of Congress, wouldn’t the officers who carry out that order at least theoretically be subject to charges under the UCMJ? And couldn’t Congress refer the civilian commanders to the DoJ for possible criminal charges as well? There would be strong political resistance to both of those options, of course, but presumably it would be a lower bar than impeaching the President himself, and all we’re really trying to accomplish here is create sufficient institutional resistance to make it preferable to seek Congressional authorization in the first place.
@R.Dave: I’m not an expert in military law but my understanding is that “illegal orders” are those which are either so morally repugnant or so obviously in violation of the law of armed conflict that no reasonable person could presume they are legal. Officers are not expected to substitute their legal judgment for that of the chain of command otherwise.
BTW who wants to bet that Kim Jong Un will carry out a bomb or missile test during the Olympics?
@Bob The Arqubusier:
I don’t mean to thread-jack too much, but it is worth noting that in the thread about the federal budget, the people here pointed out several errors you made, exposing the fact that you had no idea what you were talking about. Your response? Crickets. You neither apologized for your errors nor attempted to rebut what anyone was saying. You did what you always do whenever you get clobbered in a debate: you fled the discussion, and then before long popped up in a new thread as if nothing happened.
I only point this out to highlight the intellectual bankruptcy of most of the conservative commenters here. Like most of the other conservatives at OTB, what you engage in can scarcely be termed “debating.” Instead, you state something factually untrue, the other commenters bring evidence decisively exposing the fact that it’s untrue–and then you just quickly am-scray from the discussion, with neither apology nor rebuttal. On those occasions when you choose to remain, you don’t actually address any of the debunkings; your commonest technique is to change the subject. You seem particularly enamored by the Gish Gallop–the technique of dumping large lists of dubious claims, hoping to overwhelm us by their sheer number.
I haven’t personally attacked you, nor did most of the other people who responded to you in the previous thread. The only reason I’m singling you out is because you’re not at all unique; on the contrary, your behavior is exactly the way most conservative commenters behave. They show a complete inability to defend their views against factual challenges, but they still manage to come out of every discussion maintaining a smug certainty that they’ve bested the weenie libtards we all self-evidently are.
I used to think I had a healthy sense of cynicism, but ever since the rise of Trump it’s gone through the roof. Still, I have to admit that part of me still gets astounded by seeing someone stare straight at evidence refuting their views and act completely unaffected. I’m well aware of all those studies about how when people are confronted by evidence contradicting their beliefs, the most typical reaction is that they cling to the beliefs more strongly than ever. But you (and Jack, and JKB, and Guarneri, and so on) are so oblivious to the basic protocols of conversation that you manage to convince yourself that you’ve accomplished something other than getting your ass handed to you. That’s what I still find so hard to fathom.
This is a hypothetical example of the harm done by a lack of Constitution Police ready to descend on any official who violates the Constitution. As the Trump Administration rolls on we are likely to see more, and more immediate, examples. For example, let’s say Trump orders Sessions to fire Rosenstein. The Rs would predictably fail to act. Now what do we do that won’t be in the courts for years. And then if Trump ignores a court order?
@Kylopod: After Bill Kristol got caught lying too many times NYT set out to replace him with a good conservative columnist. The best they could find was Ross Douthat. After the election they wanted to add another conservative. The best they could find was Bret Stephens. Douthat, Brooks, and Stephens have evolved into anti-Trumpers. (Or made marketing decisions to do so.) Now I read NYT is looking for pro-Trump columnists and has so far failed to find anyone meeting even their affirmative action standards. The problem exemplified by Bob the Arqubusier (sic) go a lot higher up the food chain. Maybe NYT should just admit it’s impossible to argue for the current GOP’s policies without lying.
@James Joyner: As was pointed out by one of the commenters in the RCDefense outlet, an attack on NKorea would be ‘legal’ within unique parameters because we still actually are at a state of war with them. I don’t believe the post actually specifies a Presidential unilateral & unprovoked attack – but that is what I imagine we who think about such stuff would be talking about. And I don’t believe the post specifies North Korea – but that’s who we’re really talking about, yes? So there’s that…
I was interested in the image of a general/admiral refusing an order to launch such an attack and being replaced by another who refuses who in his turn is replaced until a Robert Bork level quisling is found and an attack is launched by some Lieutenant Colonel in Omaha. Or similar; chose your own cinematic/novelistic setting and ending.
I have a question about that: Is there a counter-vailing pressure that officers on the receiving end of the Presidential phone call would feel? Would an officer-corps-wide distrust of such a President restrain such an attack? Is everything so automatic that a high command level is the only place such an attack could be countered?
I’ve tried to explain to our little friend that his complete lack of intellectual integrity renders him incapable of making a point and impossible to take seriously. But the cultists live in an alternate reality where merely regurgitating the last piece of nonsense you picked up at Breitbart is an accomplishment of some sort, even when reality-dwellers come along and maul you.
Sadly, this would have been more likely under Bill Clinton or Barack Obama than the current incumbent. While there are way more people willing to speak out privately against Trump than was the case with GW Bush, there’s still a widespread sense that his heart’s in the right place since he’s reflexively pro-military and deferential to the recommendations of the generals.
@michael reynolds: Uh… no, I would not be willing to bet against that although a bomb test could affect the games because Pyeong Chang is close enough to a test site, IIRC and might feel the earthquake.
@JohnMcC: I think it would be unseemly to go that direction because, apparently, the government of South Korea did not even sign the armistice and the US signed on behalf of the SK government as guarantor of SK’s keeping the cease fire.
@Just ‘nutha ig’nint cracker: When I was doing my patriotic chore (’64–’68) the ROK soldiers that I knew were downright scary and would have loved a chance to go one-on-one with the NKoreans on some desert somewhere. I have the general, vague impression that SKorean attitudes have – hum – matured? It is of course part of the winning strategy of the current ROK President that peace and unification are compatible goals.
In the case of our hypothetical unprovoked attack on NKorea by a crazed President, I didn’t take ROK preferences into consideration. Not sure that I ought to have.
James Joyner’s reply to me above really settled my major thoughts on this topic. But if you want to push a thread on hypothetical and counter-factual history/military stuff — I’m just the guy for you!
Just watched athletes from both Koreas march in the opening ceremony of the Olympics under one flag. Very thrilling. Let’s give peace a chance.
@gVOR08: The President has the authority to fire any political appointee at any time. If the House felt that he did so to obstruct justice, they could certainly impeach him but, as you say, that’s unlikely in the current circumstances.
@Slugger: Didn’t watch. Read this morning on the internet (where no one lies — ever!) that VP Pence & entourage rather ostentatiously failed to stand for the combined team. Anyone verify/dispute that?
OK – guilt over the sin of sloth…. Apparently VP Pence stood only for the U.S. team. He and the Mrs were the only sourpusses in the VIP box resolutely sitting as the Korean combined team entered.
@James Joyner: https://taskandpurpose.com/trump-nuclear-weapons-legal-authority/
@James Joyner: See also episode 33
See also Episode 33 https://itunes.apple.com/us/podcast/military-justice/id1153842115?mt=2
@Butch Bracknell: Thanks for the links. You’re obviously the military law expert here but there are surely questions about whether the commander-in-chief clause gives POTUS unmitigated powers to use military force. Obviously, the Framers never contemplated nuclear weapons or other extremely complicated aspects of the modern security environment. But, surely, the Congressional power to declare war still has some meaning. Obviously, POTUS can launch a retaliatory and probably even an anticipatory strike as CINC. There’s simply no time for consultation and War Powers Resolution would seem to delegate that, anyway. But I don’t see how he gets the authority to launch an unprovoked nuclear strike any more than an unprovoked land war.
Regardless, as I argue in the piece, there’s really nothing Congress or anyone else can do to stop him given, as you correctly argue in the piece, the reasonable and necessary presumption that presidential orders are legal and must be obeyed by those in the Executive branch.
We have never been in a state of war with North Korea. North Korea technically remains in a state of war with South Korea.
We acted in Korea in furtherance of a United Nations resolution (83) encouraging member states to provide assistance to the Republic of Korea (SK).
Short version: we aided South Korea in its war against North Korea. We were never at war with North Korea.
@JohnMcC: I visited the Korean Museum at the DMZ while I was there. The museum has a time line of the various… atrocities and violations of the cease fire by NK and the 60s were a turbulent time in that regard. I have no doubt about the desire and willingness of SK soldiers to “take on the enemy” as it were. Scary people for scary times.
Have you ever had the chance to go back since? Beautiful country with amazing transitions happening in the major cities as the wealth that has been generated looks for opportunities to gentrify older areas. Not always positive–there is a Trump Tower in Youido, for example–but always interesting to see progress. Most recent area to gentrify is Insa-dong, according to an article sent by my sister-in-law.
Wouldn’t that depend on the meaning of “unprovoked?” It seems that the very existence of North Korea is provocation enough in the Trump administration and among the masses of drooling cretins itching to “show those [insert epithet of your choice here] a thing or two.”
@HarvardLaw92: Well, obviously I stand corrected as to the declaration of war. And thank you. I flatter myself about correctness on things like that.
I’d add that with ‘Truce Negotiations’ on-going, there isn’t much difference to the discussion I was trying to have about the potential unprovoked nuclear attack on NKorea. The long-standing hostility would tend to make it easier to launch such an unprovoked attack than — for example — Paris.
@Just ‘nutha ig’nint cracker: Thought about going back once in a while but never inclined toward traditional tourism with hotels and airports and such.