President’s Contrived Emergencies Seek to Erase Legal Limits on War Powers

Over the past three months, the Trump administration has effectively gone to war with an amorphous foe. Although the administration describes this as “non-international [i.e. not between nations] armed conflict” with vaguely defined drug cartels, it is in fact a one-sided affair in which U.S. missiles have struck and killed more than 80 people on boats in the Caribbean and eastern Pacific. Perhaps most notoriously, one of these strikes killed two men who survived an initial attack and were clinging to wreckage; some experts are concerned that all of the strikes were simply murder.

Despite the broad consensus among international law experts that the U.S. military campaign violates international law, President Donald Trump has suggested he could escalate the fight, including perhaps by an invasion of Venezuela (the administration has claimed, without evidence, the boats it is attacking are bringing drugs from Venezuela to the United States). The Trump administration’s military actions also violate U.S. law. This is not a particularly complicated question but requires an understanding of the relevant context and background.

Sometimes, questions of constitutional interpretation are unclear, difficult to resolve. To paraphrase Justice Robert H. Jackson’s observation from the Youngstown Sheet steel seizure case, sorting out precisely what the framers had in mind when it comes to some of the more ambiguous constitutional provisions can be daunting. Originalism does not always offer clear answers.

But, as Jackson also recognized, sometimes the record is clear. For example, there is no doubt that the framers rejected the notion of unlimited prerogative—the power to act against the law— associated with 17th century British monarchs (Jackson incorrectly claimed King George III had such power; in fact, the monarchy’s power had been reined in after the Glorious Revolution of 1688-89).

Whatever else we may not know about the framers’ intentions, we know this: they did not create the U.S. presidency in the image of the Stuart monarchy. As Alexander Hamilton explained, the president would not be a king. While the person of the British monarch would be “sacred and inviolable,” unanswerable to any punishment “without involving the crisis of a national revolution,” the president would be subject to impeachment and removal from office, as well as “prosecution and punishment in the ordinary course of law” (the Supreme Court smoked this historical layup in Trump v. United States).

In the same vein, the historical record is clear when it comes to war power. As political scientist Louis Fisher recounts, the framers broke with the British model that assigned royal prerogative to the monarch when it came to foreign affairs, including the power to go to war. As Fisher explains, the framers were in agreement that Congress, not the president, would initiate war. The record is filled with evidence to support this point, whether it is Hamilton asserting that “the Legislature alone can declare war, can actually transfer the nation from a state of Peace to a state of War,” James Madison pointing out that “those who are to conduct a war [i.e. the president] cannot, in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded,” or George Washington acknowledging that “no offensive [military] expedition of importance can be undertaken until after [Congress] shall have … authorized such a measure.”  None of the framers claimed that the president could unilaterally take the nation to war. As Washington’s words suggest, and as Madison and Elbridge Gerry said more precisely at the constitutional convention, the president’s unilateral war power would extend only to “the power to repel sudden attacks,” a limited implied emergency power.

Presidents before Truman understood this constitutional reality. Even Abraham Lincoln, faced with a far-reaching rebellion, realized he needed congressional approval in order to wage the Civil War. After initially taking emergency unilateral action with Congress out of session at the start of the war, Lincoln called Congress into special session in July 1861, provided a detailed explanation of and justification for the actions he had taken on his own, and deferred to “the better judgment of Congress” as to what would happen next.

Unlike Lincoln, Trump faces no emergency that demands immediate unilateral action. Congress is available to weigh in and there is time to seek legislative authorization, but for the Trump administration, Congress is largely irrelevant. Trump has not made his case to Congress or to the American people as to why this military campaign is necessary.

Of course, Trump is not the first president to unconstitutionally order the offensive use of military force without congressional approval when no emergency demanded immediate action. Presidents of both parties have often followed Truman’s example in writing Congress out of the equation. However, as political scientist Jim Pfiffner observes, “repeated violation of the provisions of the Constitution do not make them constitutional.”  As I have pointed out, Presidents Barack Obama and Joe Biden also violated the Constitution by unilaterally ordering military action outside the emergency self-defense context.

What’s different with Trump is that, unlike any recent president other than Nixon, he is an authoritarian more in the mold of Viktor Orban than Ronald Reagan. As historian Robert Kagan has worried, Trump could use a foreign war as a pretext to consolidate control domestically. It is important not to catastrophize or suggest anything is inevitable. However, it is also essential to describe the reality we are experiencing. Trump is using textbook authoritarian tactics in seeking to erase legal limits on power, including by waging what he describes as a “war from within” against his perceived domestic enemies. As I explain in a forthcoming book, Trump has used contrived emergencies as a pretext to consolidate power, including by deploying troops on U.S. streets, justifying many of the administration’s tariffs, and invoking the Alien Enemies Act for the first time since World War II.

The ongoing presidential war against claimed drug runners is no different. Trump suggests that an emergency justified defensive action against boats allegedly bringing drugs to the U.S., but there is no evidence of any genuine emergency, and certainly no reason why Trump could not have sought congressional authorization sometime over the past three months. In a functioning constitutional system, Congress would, in Madison’s words, act to “resist encroachments” by the president on its war power. In our failed constitutional system, Congress passively stands by as a president with authoritarian goals claims prerogative. This is not the system the framers designed; indeed, Trump’s aspirations bring to mind the kind of monarchical power the framers unequivocally rejected. Of course, Madison did not envision Congress as the only check; he described “a dependence on the people” as “the primary control on the government”. Polling suggests that war with Venezuela is unpopular and Trump’s overall unpopularity “may hinder his [broader] efforts to entrench authoritarian rule.” Trump is gambling that he can do as he likes when it comes to war power, but even at a time when congressional checks on presidential power have eroded, but there is no guarantee as to how this plays out.

Constitutional Interpretation, Executive Order, National Security and Civil Liberties, War Powers