Congress needs to assert the war power against a dangerous president

Donald Trump’s implicit threat to use nuclear weapons on North Korea in order to appear tough, while at the same time appeasing Russian President Vladimir Putin by praising him for ejecting hundreds of U.S. diplomats from Russia, indicates that the American founders’ Electoral College system allowed exactly what it was designed to prevent: the election of a dangerous demagogue who may very well be in the pocket of a foreign power. The system was designed for a group of experts to choose the president, because the founders thought that the average voter would be too ill-informed about the candidates to choose wisely.

Yet eliminating the Electoral College system is unlikely to happen soon, because Republicans think that the system benefits them, and many of the three-fourths of the states needed to ratify a constitutional amendment are currently red on the electoral map.

{mosads}In fact, this perception is probably erroneous: although George W. Bush in 2000 and Donald Trump in 2016 are the most recent electoral vote winners/popular vote losers, many election experts say that if votes had been tallied correctly in the very close 1960 election, Democrat John F. Kennedy would still have won the Electoral College and the presidency, but Republican Richard Nixon would have won the popular vote.

Also, in 2004, Democrat John Kerry came close to winning the electoral college and the presidency but losing the popular vote to George W. Bush. Nevertheless, misperception affects reality.

Passing a constitutional amendment abolishing the Electoral College is probably not in the cards anytime soon and certainly not in time to deal with the volatile Donald Trump, who already sits in the presidential chair.

So what can be done? So far, the founders’ system of checks and balances has been pushing back against an out-of-control president, but not enough. The Congress–reasserting its constitutional, but long dormant, power in foreign policy—passed, with an overwhelming veto-proof majority, additional sanctions against Russia and required a legislative vote if Trump tried to remove any sanctions. Trump had no choice but to sign the bill.

The states have been resisting his commission to remedy practically non-existent voter fraud (even a Republican lawyers’ association couldn’t find any) by declining to provide their data on specific voters. The courts and the states have pushed back on Trump’s travel ban, which threw red meat to his political base but had little possibility of preventing terrorism. And the constitutionally protected free press, including Fox News, have been questioning his many lies and fabrications.

However, one of the most troubling things that Trump has done so far has been to double down on his implicit threat to use nuclear weapons against North Korea. Such inflammatory rhetoric toward an unstable North Korean regime, which is already paranoid about its security, could cause a miscalculation, causing a war on the Korean peninsula that could kill millions in East Asia. U.S. military installations in South Korea, Japan, and Guam could also be put at risk of attack. China, North Korea’s ally, has just gone on the record as saying that if North Korea attacks first, it will remain neutral, but if the United States attacks North Korea first, in a preventive attack, China will take North Korea’s side.

China’s statement is ominous, because if Trump decides North Korea has sufficiently threatened the United States’ honor—the North cannot yet threaten the continental United States with a nuclear tipped missile—and launches a preventive attack (in contrast, a pre-emptive attack is one launched before an opponent’s imminent attack), the conflict could escalate into a nuclear war between the United States and China (which now can hit the continental United States with nuclear weapons).

Thus, Congress must put President Trump on notice that it expects him to follow the founders’ conception of the constitutional war power before launching any major offensive preventive war on North Korea. That framework would entail the president asking for and getting congressional approval for such an action.

In violation of the Constitution, some recent presidents have declined to get prior congressional authorization for a major military action–for example, Harry Truman before sending U.S. troops to the Korean War in 1950, Ronald Reagan prior to invading Grenada in 1983, George H. W. Bush when invading Panama in 1989, Bill Clinton before attacking Kosovo in 1999, and Barack Obama when launching the war to overthrow Muammar Gaddafi in Libya in 2011.

Congress needs to nix this troublesome trend and quit delegating the decision on whether to launch offensive war to the commander in chief, whose authority the founders intended to confine to being the top general on the battlefield, with responsibility only to carry out any war that the people’s houses of Congress choose to authorize. Congress needs to awaken from its sleep—maybe a dangerous, volatile president with autocratic tendencies is what it will take to make this happen—and pass a resolution that demands that President Trump ask for prior congressional approval for any offensive war against North Korea.

Eland is Senior Fellow and Director of the Center on Peace & Liberty at the Independent Institute.

The views expressed by this author are their own and are not the views of The Hill.