My friend Marty Lederman has a characteristically useful post up about one of many important legal questions surrounding options in the current stand-off between the United States and North Korea. As he puts it: “Would it be lawful under the U.S. Constitution for Trump to use force, including nuclear weapons, as a ‘first strike’ against North Korea, in an effort to degrade that nation’s nuclear capabilities, absent evidence that Korea has already decided to strike the United States and is going to do so with no time for legislative deliberation?”
Marty and I have long argued in blogs and otherwise about the wisdom and scope of presidential power to use force without congressional authorization–but we both certainly agree that the most recent, formal executive branch view of the scope of that power may be found in the 2011 Justice Department OLC memorandum explaining why the President had constitutional authority to use force in Libya without prior congressional authorization, which rests, in large measure, on a pair of opinions written by Walter Dellinger in the Clinton Administration, respecting the use of force in Haiti (1994) and Bosnia (1995). According to the 2011 OLC view, the President has power to use force under Article II of the Constitution if two conditions are met: if a significant national interest is at stake, and if the anticipated “nature, scope, and duration” of the operation would make it something less than “war” within the meaning of the constitutional clause giving Congress the power to declare it.
In the Libya case, the President contemplated no use of ground troops, anticipated a short-term “and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster,” and foresaw minimal to no risk to U.S. troops. As OLC put it, “although it might not be true here that ‘the risk of sustained military conflict was negligible’”–in other words, while it wasn’t actually clear ex ante what kind of conflict was likely to ensue–the absence of any planned preparation for ground invasion and past practice of substantial, sustained bombing campaigns without congressional authorization, was sufficient to satisfy the criterion that the anticipated hostilities would be something less than “war.” In addition, OLC recognized significant national interests in promoting regional stability and in supporting the UN system (in particular, a UN Security Council Resolution that had authorized (as a matter of international law) the use of force to protect Libyan civilians then subject to brutal attack). The OLC memo of course did not limit the kind of “national interests” that could justify unilateral presidential action to those particular interests; indeed, other presidents have used force unilaterally to achieve different purposes entirely (most common of all – protection of U.S. persons and property).
This broad OLC concept of presidential authority notwithstanding, Marty now argues that it “must be wrong” that the President could act against North Korea under the circumstances he specifies here without congressional authorization for two primary reasons. First, because “unilateral use of force” in this scenario would put the United States “in breach of its treaty obligations – and a strike here would almost certainly violate Article 2(4) of the U.N. Charter” – it would also violate our own Constitution, which itself makes treaties part of the “supreme law of the land” under Article VI, which the President must “take care” to faithfully execute. Second, the President could not be understood to have Article II power to use force to a degree that would amount to “war in the constitutional sense,” for that power – the power to declare “war” per se — is textually committed to Congress alone. Where, as here, the President seems to have in mind using force in “a manner that threatens to lead to the sort of conflagration we can expect in this case,” it should be apparent that “[n]o one individual, let alone the one presently in the West Wing, should be afforded the unilateral power to so radically transform the world.”
I find it much harder than Marty to square OLC’s broad conception of presidential power in the post-Truman era with a denial of presidential power to act here. Continue Reading »