There has been recently an interesting discussion about revising and limiting the President’s power to initiate war. Though the Constitution reserves that power to Congress, Presidents can take (and have taken) actions that risk or initiate war without Congressional consent. The current flashpoint is North Korea, specifically President Trump’s ability to preemptively strike the country using nuclear or conventional forces.
Trump’s unconsidered outbursts pose a real risk in provoking a war, but Congress can hardly take away his phone. But Congress could limit his ability to strike North Korea without its consent.
President Trump, according to the New York Bar Association, can only take defensive actions against a threat that is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”. However, President Trump has shown little regard for rule of law and, besides, such a definition is open to a bit of interpretation. There is currently nothing stopping Trump from giving the order.
General Robert Kehler, commander of US strategic forces under President Obama, told Congress that soldiers are not obliged to follow an illegal order. Barring a nuclear launch by Pyonyang, Trump ordering a preemptive strike without Congressional approval would likely lead to a genuine constitutional crisis.
In the end, the only solution is to remove Donald Trump from office and refrain from electing such volatile figures to the American Presidency in the future. Any legislation that crystalizes the President’s power to launch a preemptive strike risks giving our adversaries carte-blanche to maneuver and might delay an American response until it is already too late.
In the interim, Congress could pass legislation that does not change when and how a President can declare or make war, but could simply declare that as long as Trump is President, it would take a unanimous vote by the President, Secretary of Defense and Secretary of State to undertake a preventative strike.
While that process may be constitutionally questionably, by the time the Supreme Court finally rules, the Trump threat may have become moot. The upside of this subject is that it further legitimizes discussion about a person’s temperament and capacity for decision making during an election cycle.