I. Why the Constitution Requires Congressional Authorization.

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As the failures of President Obama’s Libya policy dramatically illustrate, obeying the constitutional requirement of congressional authorization is more than a legal technicality. It also helps ensure that we do not initiate dubious conflicts at the behest of a single man, and that we maximize the chances of success if we do start a new war. If the president is required to get congressional authorization before starting a war, he is forced to build up a broad political consensus behind his decision, which in turn increases the likelihood of a beneficial outcome.

Trump would not need congressional authorization if North Korea strikes first, or if it is about to do so. In that event, Trump would not be initiating war, but merely waging one already begun by the enemy. But so far, at least, it does not seem as if North Korea is about to attack.

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II. Why Trump Might be able to get Away with an Unauthorized Attack.

Unfortunately, Trump might be able to start a war even without congressional authorization, regardless of what the Constitution requires. This is an area where adherence to the rule of law depends mainly on political norms. The courts are highly unlikely to intervene. With notable exceptions, such as the Korean War, presidents have generally sought advance congressional authorization for large-scale military actions comparable to the one now under discussion. That is what happened in the cases of the Vietnam War, the post-9/11 invasion of Afghanistan, and both Iraq wars. Unilateral presidential military actions typically involved situations where the enemy attacked or declared war first (as in the 1989 Panama intervention) or cases where the expected military action was brief and on a very small scale, involving little or no combat (as in the case of President Clinton’s 1994 intervention in Haiti, among many other examples).

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To avoid misunderstanding, I should emphasize that I agree that North Korea is a dangerous menace and I would be happy to see this brutal communist regime – a real-life 1984 that is probably the most oppressive in the world – overthrown. But it is still unwise to initiate a massive war without a broad political consensus favor and without first securing the support of key allies in the region, such as Japan and South Korea. At this point, they don’t seem eager for a conflict. Such caution is even more important in a situation where war could result in the use of nuclear weapons and enormous civilian casualties. As conservative defense policy expert Eliot Cohen explains, we are not well prepared for all-out war against North Korea, and Trump is a dubious choice to lead any such effort.

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Of course, all of this may be irrelevant if Trump’s threat turns out to be just hollow bluster. North Korea has already, in a sense, called his bluff by threatening to attack Guam, and there has been no indication that a US military response is imminent. This could be yet another case where Trump engage in impulsive grandstanding without carefully considering the implications.

If Trump does not make good on his threats, there will be no constitutional problem, and we will avoid a massive war on the Korean peninsula – at least for now. But making hollow threats is not costless. Doing so may erode the credibility of any future threats Trump might make. That in turn may increase the likelihood of conflict in the future.

UPDATE: Michael Ramsey comments on this post here, agreeing with much of it, but also arguing that Libya may not be a relevant precedent because it was not a “large-scale” war from the standpoint of the US and “the Obama administration expressly defended it on the grounds that it was small scale.” The Obama administration did indeed make that argument. But if a war that involves many weeks of bombing for the purpose of overthrowing the opposing nation’s government can qualify as “small scale,” then so can a wide range of conflicts, including an attack on North Korea intended to destroy its nuclear forces. At least initially, such an attack might not involve US ground forces, and would be waged for more limited objectives than the Libya intervention.