As Trump pauses before the nuclear brink, now is the time for Congress to rein him in. The War Powers Resolution of 1973 empowers 131 representatives and 30 senators to call a special session to take decisive action when “imminent involvement in hostilities is clearly indicated by the circumstances.” A bipartisan coalition should trigger this procedure and insist that all members cut their vacation short, return to Washington and make it clear to Trump that he cannot unilaterally usurp Congress’ constitutional power “to declare war.”
The Resolution’s draftsmen were perfectly aware of the dangers of presidential adventurism when senators and representatives go on summer vacation. They provided that when Congress leaves town “for any period in excess of three calendar days,” it can be called back into special session to “take appropriate action” at the request of “30 percent of the membership” of both the House and Senate. (This adds up to 131 and 30, respectively). Moreover, the resolution lays down special rules to make filibusters and other delaying tactics impossible, enabling Congress to impose limits on Trump’s powers as commander in chief with great speed – under plausible scenarios, after only three days of floor debate.
Yet Trump is acting as if he has the final say in letting loose “fire and fury” against North Korea. His present disdain for the War Powers Resolution contrasts with his approach in April when ordering a missile attack on Syria. Congress was then in session, and in a position to punish the president immediately if he refused to acknowledge its authority. As a consequence, Trump meekly complied with the resolution’s requirement that he notify the House Speaker and Senate President within 48 hours of initiating “hostilities” against Assad, expressly noting that he was acting “consistent[ly] with the War Powers Resolution.” See here.
Things are different this time around. Trump began his incendiary threats against North Korea on August 8, shortly after Congress went on vacation. But he has failed to inform the House Speaker and Senate President that he is placing the nation at profound risk of catastrophic conflict. As we have seen, the resolution does not merely require Congress to be notified when the president launches an actual attack. It also requires notification in any case “where imminent involvement in hostilities is clearly indicated by the circumstances.” Since Trump is doing his saber-rattling on vacation in New Jersey, he may not have bothered to ask his Washington lawyers for advice on this elementary point.
If so, he should correct his mistake immediately. Legally speaking, the present situation is intolerable. Trump is treating Kim Jong Un with greater respect than he is according the Congress of the United States. While he is communicating his threat of war directly to Kim and his government, he is treating the speaker of the House and the president of the Senate as if they were mere bystanders who did not need to be informed of his on-going preparations for a shattering attack with world-wide implications.
But perhaps, after consulting his lawyers, Trump may seek to banish the prospect of a rapid assertion of Congressional authority by brandishing a legal technicality. When the current House and Senate decided to go on vacation, they did not follow the custom of adjourning for the summer recess. Thanks to the lobbying of the Freedom Caucus, the House and Senate have scheduled a series of pro forma sessions, every three days, at which nothing is decided. This technique has been increasingly deployed, for a variety of strategic reasons, over the past decade, but was unfamiliar at the time that Congress wrote the Resolution in 1973. Moreover, when Mitch McConnell adopted the “pro forma” technique this summer for reasons of political convenience, he had no reason to anticipate Trump’s explosive military adventurism.
Serious constitutionalists should therefore reject any effort by Trump’s lawyers to employ the “pro forma” gambit to keep Congress out of action until its scheduled return on September 5. They should instead follow the basic approach taken by the Supreme Court in NLRB v. Noel Canning (2014). The Court unanimously held that when Congress leaves town for an extended period, it cannot defeat the president’s power to make recess appointments by scheduling “pro forma” sessions every three days to make it appear that it had remained in business. By the same reasoning, the WPR’s elaborate effort to provide for special sessions to prevent presidential abuse should not be defeated by the invocation of the legal fiction that Congress is still in business when it conducts “pro forma” meetings.
But for now, the crucial question is political, not legal: Are senators and representatives willing to move quickly, and on a bipartisan basis, to demand a special session on North Korea within the next week or two?
It certainly appears that many more than 30 senators and 131 representatives are prepared to stand up and be counted. Trump might well respond to their assertion of authority with tweets that glorify his supreme war-making in ways that would make John Yoo blush. Nevertheless, he would be courting impeachment if he refused to call a special session. In contrast, once Congress returns for its regular meetings in September, its attention will be diverted by the threat of a government shut-down if it fails to pass a budget. Assuming that we avoid nuclear catastrophe this time around, Congressional passivity will reinforce the impression that Trump has the constitutional authority to engage in future acts of unilateral brinkmanship.
No less important, the special session in Washington would put the world on notice that the American system of checks-and-balances is no constitutional fairy tale, but remains a potent force that can restrain our erratic and belligerent president in the tough times ahead.
For further discussion, listen to my appearance on the August 15 edition of NPR’s “To the Point,” at ( 38 minutes into the show.)
Bruce Ackerman is Sterling Professor of Law and Political Science at Yale, and author of The Decline and Fall of the American Republic.