Does Trump Need Congressional Authority to Attack North Korea?

04_20_Trump_Korea_01
Missiles are driven past the stand where North Korean leader Kim Jong Un and other high-ranking officials sit at a military parade in Pyongyang on April 15. A North Korean official said the country would be prepared for dialogue with the U.S. if conditions were right. Damir Sagolj/reuters

This article first appeared on the Just Security site.

At Monday’s press briefing, White House Press Secretary Sean Spicer was asked whether President Donald Trump would seek congressional authorization before taking military action in North Korea.

The full response is below. The short answer: No.

As a blanket statement, this is quite concerning, suggesting a president that seeks to concentrate the war-declaring and war-making powers into one, and, in the course of doing so, potentially embroil the United States and key allies in a costly conflict based on a unilateral decision to act.

Question: On North Korea, is the president prepared to act alone? Or does he feel that Congress should be somehow involved in the process if any decision that includes the use of force is made?

Spicer: I think he’s going to utilize the powers under Article II of the Constitution. He—I think what you saw with—with respect to the action that he had with Syria, we did a—he made sure that members of Congress were notified of his action in a very, very short amount of time. We’re going to continue to seek fair input on the policy overall and then make sure that they’re notified. We’ll do that.

But I think the bigger consultation issue is what we do with the larger world community and have that dialogue, as I’ve mentioned earlier, to make sure that every country that can is putting the appropriate level of economic and political pressure on North Korea to act in a way that helps us.

The devil, of course, is in the details. There is the possibility that North Korea would take the kind of action that would require the kind of self-defense or defense of one of our key allies—think South Korea or Japan—that would justify the president responding immediately and unilaterally, without advance congressional approval.

Related: Will Trump’s tough approach to North Korea’s Kim Jong Un work?

But that doesn’t seem to be the situation we are in. To the contrary, the president and his top advisers are actively weighing a variety of options in response to North Korea’s provocative testing of missiles.

The fact that the administration intends to consult with “larger world community” is a positive development and one that should be encouraged. But the idea that all such responses will involve a legitimate exercise of Article II authorities—read: unilateral action without authorization from Congress—is both improbable and disturbing.

The stakes are extremely high. As we all know, North Korea’s missiles can easily reach South Korea or Japan. Unlike the strikes in Syria, there is a real and significant risk of retaliation by North Korea—and thus escalation of the conflict in ways that draws the United States and its allies into a protracted and perilous conflict.

According to at least some analyses, millions of lives are on the line. This is thus a very different situation than that posed by the strikes in Syria, where the risk of direct retaliation was relatively low. By contrast, here the risk of retaliation, escalation and harm to service members in the region—and thus further engagement—is high.

This matters for both policy and legal reasons. A widely held view of presidential powers says that the legitimacy of unilateral uses of force turns precisely on this question—whether the use of force is expected to be extensive in nature, scope and duration. If it is, then congressional approval is required.

This makes sense. Committing the United States to a potentially escalating conflict is generally not the kind of decision that should be made by one person alone.

Related: Flirting with war: Is Trump as petulant as Kaiser Wilhelm?

To sound like a broken record, there is a reason that the Founding Fathers gave Congress the war-declaring powers and the executive branch the war-making power. They recognized that the extraordinary decision to engage in offensive uses of force in other nations—and potentially engage the nation in an extended war—is precisely the kind of decision that requires not just consultation but approval by more than just a single man (or woman).

From Trump’s perspective, he doesn’t want to risk signaling to the North Koreans the nature and details of the U.S. response. And that of course is a legitimate concern.

But an authorization could be written in a way to give the president the power to take action without specifying when or what precisely the administration could do. Conversely, if Congress objects, the president should know the scope of any objection in advance of taking action. And respect that.

There is also a real risk that the general celebration of the Syria airstrikes has led Trump to conclude that the best course of action is to act first and seek approval later. But he would be wrong to reach that conclusion.

The legal and policy stakes here are much higher. And to the extent it doesn’t go exactly as planned, he would presumably want others to have some shared sense of responsibility.

All that said, I don’t hold out an enormous amount of hope that this administration will go to Congress without Congress first demanding it.

Our senators and representatives should insist on it. For the sake of the institution they serve. For the sake of democracy. And as a means of having at least some say in what could end up being one of the more consequential decisions of the Trump presidency.

Jennifer Daskal is an associate professor at American University’s Washington College of Law.