The OLC argues that the presidential order, issued without authorization by or consultation with Congress, was nevertheless lawful because the president “had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense.”
.. Kaine describes as “ludicrous” the principle that presidents “can magically assert ‘national interest’ and redefine war to exclude missile attacks and thereby bypass Congress.”
The OLC’s capacious definition of actions in the “national interest” encompasses
- “protection of U.S. persons and property,”
- “assistance to allies,”
- “support for the United Nations,”
- “promoting regional stability,”
- prevention of a “humanitarian catastrophe,” and
- “deterrence of the use and proliferation of chemical weapons.”
.. Kim Jong Un committed himself only to a process — “to work toward” the goal of “complete denuclearization of the Korean Peninsula” — and processes can be interminable (e.g., the Middle East “peace process”). Furthermore, North Korea has espoused this goal for over three decades.
.. And that the achievement was related to the U.S. policy of “maximum pressure,” including the threat, made vivid by deployments of impressive U.S. military assets, of the use of force by the president, who, like many predecessors, feels free to act without involving Congress.
.. The threat of military force by an unconstrained president was underscored for Kim shortly before the Singapore meeting, when Sen. Lindsey Graham (R-S.C.), a confidant of this president, said of North Korea, “If they play Trump, we’re going to have a war.” He said “denuclearization” of North Korea is “non-negotiable,” and that a North Korean nuclear capability to strike America “ensures their demise”: “If [the president] has to pick between millions of people dying in America and millions of people dying over there, he’s going to pick millions of people dying over there.”
Note the senator’s clear premise: It is for the president to “pick” between war involving millions of deaths, and peace.
.. There can be “substantial” deployments (e.g., two years enforcing a no-fly zone, and 20,000 ground troops, in Bosnia) and engagements more violent than April’s Syria episode (e.g., the U.S.-led 2011 air campaign in Libya lasting more than a week and involving more than 600 missiles and precision-guided munitions) without “war in the constitutional sense.”
Taft, whom Rosen calls “the only president to approach the office in constitutional terms above all.”
Wilson was the first president to criticize the American founding, particularly for the separation of powers that crimps presidential supremacy. Roosevelt believed that presidents are free to do whatever the Constitution does not forbid. Taft’s constitutional modesty held that presidents should exercise only powers explicitly granted by the document.
.. Romanticizers of Roosevelt ignore his belief that no moral equivalent of war could be as invigorating as the real thing
.. Taft“extended federal environmental protection to more land than Roosevelt” — and he created 10 national parks — “and brought more antitrust suits in one term than Roosevelt brought in nearly two.”
.. Roosevelt thought that, in industry, big was beautiful (because efficiently Darwinian) if big government supervised it... Taft unsuccessfully resisted President William McKinley’s entreaties that he become governor of the Philippines (“I have never approved of keeping the Philippines”)... In 1912, Roosevelt’s “New Nationalism” promised populism rampant and a plebiscitary presidency untethered from constitutional inhibitions: “I don’t think that any harm comes from the concentration of powers in one man’s hands.”.. And “I believe in pure democracy,” the purity being unmediated, unfiltered public opinion empowered even to overturn state court decisions by referendums... The 1912 strife between conservative and progressive-populist Republicans simmered until Ronald Reagan’s election in 1980 sealed conservatism’s ascendancy in the party.