by Michael Dorf
In my latest Verdict column, I weigh in on the debate over whether President Trump's April 7 cruise missile strike against a Syrian airbase violated domestic constitutional law and/or international law. Here is the nutshell version: 1) Trump needed but did not receive congressional authorization as a matter of domestic constitutional law, although in that respect his action conforms to a longstanding pattern (in which Congress has acquiesced) of accretion of war-initiating power in the White House; and 2) the action violated the UN Charter because it was not plausibly justified as individual or collective self-defense of states nor authorized by the Security Council, notwithstanding arguments by some scholars (most prominently Harold Koh) who say that humanitarian interventions are legal even absent Security Council authorization. The sorts of arguments made by Koh and other interventionists are contestable on their own terms and could ultimately undermine international law and thus the substantive humanitarian norms that the interventionists seek to protect.
In this post, I want to step back from the immediate controversy and even from the broader legal questions they raise about humanitarian interventions to report on a fascinating conversation I recently had with a Chinese scholar. That has led me to conclude that executive unilateralism is something of a universal problem and that a much-vaunted feature of many constitutions--civilian control of the military--is a double-edged sword.
To avoid coming across as a parody of Thomas Friedman learning valuable lessons from (possibly fictional) taxi drivers, let me begin with a couple of disclaimers. First, I'm not going to reveal the identity of my interlocutor, except to say that I consider Scholar X to be highly reliable. I have come to know a great many students and scholars from China over the years and have some sense of their respective standing in their home country. Scholar X is well-respected. Second, neither Scholar X nor I claim to know much about law and politics in countries other than China and the U.S. respectively. What drives me to think that we may be onto something that goes beyond these two countries is the fact that the legal and political systems of China and the U.S. are so different, yet we observe similar dynamics. Two data points are hardly proof of a universal phenomenon, of course, but these two data points suggest that there might be something here worth further investigation.
Okay, enough windup. Now for the pitch.
I mentioned to Scholar X that I was working on a column on Trump's bombing of Syria. After some discussion of whether the bombing made sense as policy, Scholar X asked whether a more conventional president would have sought congressional approval. I said maybe. Presidents tend to seek congressional approval for military action that is very large (e.g., Bush 41 for Iraq War 1, Bush 43 for Afghanistan War and for Iraq War 2), but there are some pretty clear recent examples of actions taken by presidents that push the edge of the envelope (e.g., Obama's air campaign against Qaddafi in Libya). I pointed out--as I also point out in the column--that even when Congress withholds approval, it tends not to take any action to stop the president from making war. Kosovo is a dramatic example. The House rejected a bill that would have authorized the use of military force, President Clinton used military force anyway, and Congress subsequently approved presidential requests for funding for the military operations in Kosovo.
At that point, Scholar X said something like the following: So in principle Congress has the power to prevent the president from taking the country to war, but in practice it does not exercise that power in any effective way. Interestingly, we see something similar in China. Two small but collective bodies--one in the State and the other in the Party--have responsibility for military decisions. In the early years, military decisions were taken collectively, but over time, the collective bodies increasingly tended to defer to a single individual. The military suppression of the Tienanmen demonstrations in 1989 is a dramatic example. Although there were various factions with differing views about how to respond, the committees fell into line behind the decision of Li Peng--with apparently reluctant support from Deng Xiaoping (who had by then relinquished all official positions except for the key post of Chairman of the Central Military Commission)--to crack down.
To reiterate, there are a great many differences between the U.S. and China along multiple dimensions, but Scholar X nonetheless sees a cross-cutting similarity: In both systems, efforts to restrain the concentration of the power to initiate the use of military force by distributing that power to a multi-member body or bodies tend to be ineffective. In a crisis, power belongs to the chief executive officer who chooses to wield it.
This is not a universal law of history or politics, but perhaps it is a tendency. Most militaries are hierarchical, culminating in an ultimate authority. Regimes that attempt to diffuse authority to decide whether to go to war among multiple people (as in the U.S. and China) nonetheless leave day-to-day tactical decisions to a single commander in chief. The distinction is roughly between big-picture strategy (to be decided collectively) versus tactics to be deployed to execute the policy. The difficulty is that in a crisis the line between strategy and tactics blurs, and this leads to the consolidation of war-initiating power. Or at least that's a possible explanation for this possible phenomenon.
Scholar X also had some thoughts about the principle of civilian control of the military, which is generally regarded as an important safeguard for democracy. In a country with strong legal and cultural norms that keep active duty military personnel out of politics, there is little risk that military leaders will carry out a coup, even if the elected civilian government is unpopular.
But civilian control of the military can exacerbate the dangers posed by autocratic rulers. Scholar X drew a contrast between the old Soviet Union--where the military was less subordinate to the political leadership--and China. What would have happened if Gorbachev ordered the Red Army into East Berlin when the Wall was coming down? If the generals supported such a policy they would have complied, but if they did not, they might well have refused the order. By contrast, once Li and Deng gave the order to break up the Tienanmen and other demonstrations, the People's Liberation Army was highly certain to carry it out.
Put differently, civilian control of the military--while an important safeguard against a coup in a democracy--can strengthen the hand of an autocratic civilian regime.
If true, that insight has implications here at home. Because we have a long history of democracy, we tend to think that civilian control of the military is a blessing, as it disables coups. But notice what civilian control of the military would mean in the event that an elected leader sought to consolidate his own power beyond the limits of the law. Suppose, let us say, that Trump loses his re-election bid in 2020 but he claims that the result is fraudulent and that therefore he is not giving up power. He orders the use of military force to suppress what he claims is an insurrection in favor of the winning Democratic candidate--whom Trump says lost the election. Would the military follow Trump's order?
A simple-minded answer would be that there is no difficulty here. U.S. military personnel swear allegiance to the Constitution, so an ex-president who pretended to continue to exercise power would not deserve to have his commands obeyed. Not only would military personnel have no obligation to obey the orders of a holdover president; they would have an affirmative duty to defy his unlawful orders.
But that resolution of the dilemma is simple-minded because in a real crisis there would be competing claims to legitimate authority. One of the more disturbing truths of our era is the tendency of so many people to filter reality through their ideological lenses. It is quite possible that a great many people in our military would believe unfounded allegations of voter fraud (or something to that effect) and thus would conclude that their oath to support the Constitution in fact required continued obeisance to Trump. There would be no way to comply with the norm that military personnel stay out of politics, because the very question of who the lawful civilian leader of the military is would be profoundly political.
The potential danger that civilian control of the military poses in a democracy with a would-be autocrat has not heretofore been realized in the U.S. But there is no guarantee that it never will be.