Could President Trump Rely on Legal Advice to Order the Offensive Use of Military Force at His Discretion?
by Chris Edelson, American University
As Donald Trump engages in a high stakes game of nuclear brinksmanship with North Korea over Twitter, it’s well worth asking: can Trump legally order the offensive use of military force at his own discretion? Could he order a pre-emptive strike against North Korea, other countries, or terrorist groups? This article considers the ways in which legal arguments could be mustered to justify unilateral military action by the Trump administration without congressional authorization. Since the Truman administration, presidents have often found ways to order the use of military force on their own. Trump administration lawyers could draw on recent precedent from the Obama administration to justify broad presidential discretion over the decision to initiate military conflict. This article concludes that the Constitution only permits unilateral presidential action in an emergency situation when the US faces imminent or actual attack. But the Constitution is not self-enforcing. Whether meaningful limits exist will depend largely on what Congress does or doesn’t do.