By Jeffrey Frank
April 26, 2017
If officials worried that Trump was about to demand something that might go catastrophically wrong, who could stop him? – PHOTOGRAPH BY MANDEL NGAN / AFP / GETTY
Recent pictures of President Donald J. Trump entertaining an unusual trio of dinner guests at the White House—Sarah Palin, the former Alaska governor; Kid Rock, the singer; and the provocateur-musician Ted Nugent—looked like a scene out of “A Clockwork Orange,” the Stanley Kubrick film based on Anthony Burgess’s dystopian novel. It lacked only the actual trashing of the place. (Nugent’s public statements include him saying, “Obama, he’s a piece of shit, and I told him to suck on my machine gun.”) No one, though, will tell Trump to stop dining with whomever he chooses. After all, he’s the President, and a President can do pretty much as he pleases.
Or can he? The limit of executive power remains one of those enduring unsettled questions about American democracy. While a President may, in theory, entertain anyone cleared by the Secret Service, preferably someone not carrying a machine gun, what if he decides, on the spur of the moment, that he wants to start a war? Suppose, for instance, that he wants to launch a preëmptive strike, nuclear or otherwise, against a country he believes is a danger to the United States? Who could stop that from happening?
Americans tend to view their Presidents in a certain way: as men (so far) who’ve taken office with a basic understanding of history, of geopolitical realities, and of the Constitution; as people who possess enough wisdom to make cautious, rational choices about war and peace. Trump, though, has demonstrated few, if any, of those heretofore Presidential qualities. Rather, he’s shown an inclination to make casual, offhand choices, whether about dismantling the Affordable Care Act to get a “win” or, while feasting on “the most beautiful piece of chocolate cake,” and apparently in response to television images of the victims of chemical weapons, ordering the military to fire cruise missiles at a Syrian air base—an act followed almost immediately by Trump telling Fox Business Network’s Maria Bartiromo that “we’re not going into Syria.”
Many of the questions about the Syrian attack recall those asked after nearly every postwar American intervention, large and small, whether it was the decision to respond to North Korea’s invasion of South Korea, in July, 1950, which President Harry Truman was able to cast as a United Nations action to halt Communist aggression; President Lyndon Johnson’s escalation of the Vietnam conflict, aided by lies about an alleged attack on a Navy ship in the Gulf of Tonkin; or the invasion of Iraq, in 2002, when President George W. Bush asked for, and got, a joint congressional resolution that authorized the use of military force. In none of these instances was something called “war” ever declared, much to the dismay of people like the Ohio Republican Senator Robert A. Taft, in 1950, and, in recent years, the Kentucky Republican Senator Rand Paul, who each feared that dangerous precedents were being set by bypassing Article 1, Section 8, of the Constitution, which gives only Congress the power to declare war. After the Syrian strike, Paul said, “I think what we are doing right now is illegal and unconstitutional,” to which Senators John McCain and Lindsey Graham replied, “Unlike the previous Administration, President Trump confronted a pivotal moment in Syria and took action.”
Perhaps because there was already fighting in Afghanistan, those objections weren’t raised after Trump’s generals dropped the nation’s largest non-nuclear weapon—a device never previously deployed—on tunnels suspected of being used by Islamic State militants.
But what next? What if officials who knew more, or knew better, worried that Trump was about to demand something that might go catastrophically wrong? Who could stop him? The nation’s postwar history, and the unrestrained use of a President’s supposed war powers, suggests that, in the short term, he could not be stopped—though an ineffective attempt was made in 1973, when Congress passed the War Powers Act Resolution, which requires a President to inform Congress of any troop commitment and, if not given an extension by Congress, to remove all troops within sixty days. A lot can happen in sixty days.
But, before it’s too late, shouldn’t the nation revisit this question? One of the clearest statements on Presidential power, and the balance of power, came in an opinion by the Supreme Court Justice Robert H. Jackson (he served from 1941 to 1954), who wrote, “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”
Justice Jackson was concurring with a decision handed down, six to three, in June, 1952, to deny President Truman the “inherent power” to seize the nation’s steel mills, but Jackson was fully aware of its applicability to the war in Korea. He acknowledged that the Constitution “undoubtedly puts the Nation’s armed forces under presidential command” (Article 2, Section 2, states that a President is “commander in chief of the Army and Navy”); but that provision, he continued, had become an argument “sometimes advanced as support for any presidential action, internal or external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy.” And this development was one that Jackson found appalling.
“I cannot foresee all that it might entail if the Court should indorse this argument,” Jackson wrote. “Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress.” While acknowledging that a state of war may exist without a formal declaration, he continued, “No doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.” In case anyone missed the point, Jackson added, “And, if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian.” It is worth noting that Jackson, in 1945 and 1946, had been the U.S. prosecutor at the Nuremberg trials.
The Korean War has never formally ended, although an armistice has lasted since the summer of 1952. Recent threats by the apparently unstable North Korean leader Kim Jong-un are a reminder of how close the world already is to the edge of disaster. Mike Pence, the Vice-President, recently responded to those threats while aboard a carrier at the U.S. Yokosuka naval base, in Tokyo Bay, where he said that “the shield stands guard and the sword stands ready,” and added, “Those who would challenge our resolve or readiness should know, we will defeat any attack and meet any use of conventional or nuclear weapons with an overwhelming and effective American response.” That at least belongs to the tradition of tough talk, as opposed to the language of a Donald Trump, whose recent public words on the subject have tended to come in the form of childish tweets. “North Korea is behaving very badly. They have been ‘playing’ the United States for years. China has done little to help!” he tweeted on March 17th. “North Korea is looking for trouble. If China decides to help, that would be great. If not, we will solve the problem without them! U.S.A.,” he wrote on April 11th.
No one doubts that the United States has the capacity to obliterate North Korea, but under whose authority? The Constitution is a remarkable document, and few question a President’s power to respond if the nation is attacked. But the founders could not have imagined a world in which one person, whatever his rank or title, would have the authority to order the preëmptive use of nuclear weapons—an action that, as Secretary of State Rex Tillerson recently suggested, now seems within the realm of possibility. Nor could they could have foreseen a moment when the person who could issue such an order, the nation’s chief executive, might be someone unable to distinguish truth from fantasy, a failing that Trump has repeatedly demonstrated. Even the most ardent Trump supporter must recognize the potential problem, and must wonder who would have the patriotism, valor, or innate moral sense to deal with the unimaginable—to perhaps speak up, in a moment of crisis, and tell the President “no.”
Jeffrey Frank, a former senior editor of The New Yorker and the author of “Ike and Dick: Portrait of a Strange Political Marriage,” is working on a book about the Truman era.