Professor Garrett Epps, writing today in The Atlantic, warns that Donald Trump does not have the authority to launch a “preventive” strike against North Korea.
In “Trump Doesn’t Have the Authority to Attack North Korea Without Congress” (Aug. 30, 2017), Epps spells out the situations in which a president can, and cannot, strike preemptively:
“If a foreign enemy attacks the U.S. or one of its allies first, or is preparing to do so imminently, the president can order an immediate retaliatory response. But if there’s no such initial attack, the commander in chief cannot decide for himself to take the nation to war. That decision is for Congress. The requirement is not a formality, and it’s not outdated. It’s a central requirement of our system, and for good reason.”
Epps noted that Georgetown law professor Martin Lederman pointed out three weeks ago that an unapproved attack on North Korea would violate not just the U.S. Constitution but also the United Nations Charter. The charter, signed by the United States and many other nations in 1945, was ratified by the U.S. Senate and enacted into federal law by both houses of Congress. It requires member states to settle disputes with diplomacy; if they can’t, they must seek authorization for military action from the UN Security Council.
Wrote Epps: “If Trump takes the United States to war, he will no doubt demand national unity in support of the armed forces. And national unity is important in time of war. The Framers of the Constitution provided a way to unify the nation—let the people’s representatives, not one person, make the decision. Let there be a debate and a decision, not a series of tweets and cable-news panels.”