Since then, Trump has proposed a new strategy in Afghanistan, but declined to explain what it is or how many more troops will be required. And his national security adviser, H.R. McMaster, told the nation that “preventive war” against North Korea may be in the offing.
This situation is dangerous. Trump has had a short course in executive effrontery and experienced nothing but reward. The wise heads of Washington, and the pundits of newspapers and cable TV, have scorned most of what he has done as president—but their praise for the Syrian intervention was rapturous. There’s little doubt that he believes he can do anything.
But he can’t, and Congress shouldn’t let him. As Georgetown’s Lederman points out, not only would a unilateral attack against North Korea violate the War Powers Act, it would also violate the United Nations Charter (which as a “treaty made ... under the authority of the United States” is, under the Constitution, “the Supreme Law of the Land”) and the text of the Constitution.
Begin with Article I. It explicitly grants Congress not simply the power “to declare war,” but the power to raise and support armies, to set rules for governing the armed forces, to control the training, arming, and discipline of state militias, and to decide how they can be called into federal service. What’s left over for the president is to command the military when it is lawfully engaged, in war or peace. That “commander in chief” power doesn’t sanction presidential wars.
Next, the U.N. Charter. This treaty, signed by many nations in 1945, ratified by the Senate, and enacted into federal law by the two houses of Congress, requires member states to settle disputes by diplomacy. If they cannot, they are required to seek advance authorization for military action from the Security Council. There’s an exception for self-defense “if an armed attack occurs”—not simply because a country might find it advantageous to attack first.
Finally, the War Powers Resolution. Many people believe the WPR “gives” the president power to commit U.S. troops abroad for up to 60 days. That’s a serious misreading.
The WPR says that the president may send U.S. forces into actual or imminent hostilities “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.” The 60-day provision is applicable only in the latter sudden attack case; the 60-day provision is a limit, not a license. After an emergency response, the president must seek authorization within 60 days; if Congress doesn’t grant it, the president is required to withdraw. “Nothing in this joint resolution,” the Resolution says emphatically, “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.”