17

Looking on Wikipedia, we learn that:

It is generally agreed that the commander-in-chief role gives the President power to repel attacks against the United States[3][4] and makes the President responsible for leading the armed forces. The President has the right to sign or veto congressional acts, such as a declaration of war, and Congress may override any such presidential veto. Additionally, when the president's actions (or inactions) provide "Aid and Comfort" to enemies or levy war against the United States, then Congress has the power to impeach and remove (convict) the president for treason. For actions short of treason, they can remove the president for "Bribery, or other high Crimes and Misdemeanors", the definition of which the Supreme Court has left up to Congress. Therefore, the war power was intentionally split between Congress and the Executive to prevent unilateral executive action that is contrary to the wishes of Congress.

But the question is if the President can make direct orders without consulting any of his general through a phone call. For example, can the President order the U.S. military to launch a bomb against Canada without any reason? It is not explicitly stated if he can do so, but it seems that he can, but risk being impeached for such random and foolish decisions.

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    The sentences "But the question is if the President can make direct orders without consulting any of his general through a phone call." and "For example, can the President order the U.S. military to launch a bomb against Canada without any reason?" contradict each other, since the second question allows for going through the chain of command. – RonJohn Sep 19 at 14:28
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    Not to mention unless attacked it would be a clear war crime. – dan-klasson Sep 19 at 16:11
28

Yes and no.

The War Powers Resolution (sometimes known as the War Powers Act) is supposed to limit it.

The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a Congressional authorization for use of military force (AUMF) or a declaration of war by the United States. The resolution was passed by two-thirds of each of the House and Senate, overriding the veto of the bill from President Nixon.

In theory, it limits the unilateral war actions of the President beyond 60 days. In practice, it has not really changed anything. Every President has violated the WPA since its passage, with all of them (both parties) believing it too be unconstitutional. Even Obama, who endlessly praised it

President Obama, in defending the legitimacy of the Libyan operation, hasn’t actually made that argument. On Wednesday, he submitted a report to Congress arguing that his administration isn’t in violation of the act at all, despite the fact that the 60-day deadline for congressional approval of Libya operations came and went in May.

President Obama is far from alone in finding creative ways around the War Powers Act. As the New York Times has noted, the Clinton administration continued the bombing campaign in Kosovo past the 60-day deadline, arguing that Congress had implicitly approved the mission when it approved funding for it. (The Act specifically says that funding doesn’t constitute authorization, the Times notes. And Obama wouldn’t be able to use that reasoning anyway—the administration is using existing funds for the Libya mission.)

Does that mean the President is not constrained by Congress at all? Hardly. As the House notes, they still hold the power of the purse

Congress—and in particular, the House of Representatives—is invested with the “power of the purse,” the ability to tax and spend public money for the national government.

Let's say a President tried to start a war without Congress. They would quickly find out the military did not have funding to run the war for very long. As a result, the military would be hamstrung in operating without funds. It would not bode well for anyone to be squabbling politically while troops were deployed to a military theater, but at that point, the war would become a direct political question. If people felt the war should not be pursued, they could elect people who would refuse to fund it. If people felt the President was right, they could vote people in who would fund it.

Let's finish this by talking about this hypothetical bombing of Canada. Without a good reason, the President would quickly find themselves on the losing end of public opinion (neither party would tolerate a direct act of aggression), and possibly facing impeachment.

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    hmm, so technically the president could stand down the forces on day 59, then commit them again on day 61, inform congress again, and have another 60 days? Or is that loophole closed in the WPA? – jwenting Sep 19 at 5:46
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    I wouldn't vote for anyone who would chose not to fund troops that are already on the ground. That's why in practice it changes nothing, and why presidents that inherit a war three freaking days before they take office, find that they have to fight them. – Mazura Sep 19 at 8:42
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    It is truly sad Obama was awarded a Nobel Peace Prize. It was even sadder the Foundation did not rescind the award after Obama opened the war front in Libya. I personally sent a letter to the committee asking for prize to be rescinded. The Foundation had a call to action that they failed to act upon. – user28205 Sep 19 at 10:52
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    "They would quickly find out the military did not have funding to run the war for very long." - Bold of you to assume any governing body would hesitate to enact something they couldn't pay for. – Zibbobz Sep 19 at 17:07
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    @jwenting: It hardly matters. The position of the White House has been, very consistently, that the law is not actually the law and they don't have to follow it anyway. – Kevin Sep 20 at 2:11
11

2017 Shayrat missile strike

On the morning of 7 April 2017, the United States launched 59 Tomahawk cruise missiles from the Mediterranean Sea into Syria, aimed at Shayrat Airbase controlled by the Syrian government. The strike was executed under responsibility of U.S. President Donald Trump, as a direct response to the Khan Shaykhun chemical attack that occurred on 4 April.

The strike was the first unilateral military action by the United States targeting Ba'athist Syrian government forces during the Syrian Civil War. Trump stated shortly thereafter, "It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons."

So if you can 'prove' (or get enough people to believe) that maple syrup is a threat to national security, then you can bomb Canada without repercussion. Or you could just do it anyway:

The strike was conducted without either U.S. congressional or United Nations Security Council approval.[23][24][25][23][26][27][28]

That's at least one instance of "unilateral executive action" and it was "contrary to the wishes of [at least one member of] Congress" :

Representative Adam Schiff (D–CA), the Ranking Member of the House Intelligence Committee, was informed of the strike by Dan Coats, the Director of National Intelligence, as it was happening. He urged the administration "not to make this a military effort to change the regime".

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    I think we can safely assume that Trump is not going to let a lack of UN approval obstruct his decisions. – EvilSnack Sep 20 at 4:22
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    "contrary to the wishes of [at least one member of] Congress" is complete and utter nonsense. Congress does not act by unanimous consent, so the modifier changes the meaning completely, and parenthesizing it is entirely wrong. – Ben Voigt Sep 21 at 18:10
  • That's the point; session was not held, @BenVoigt "On the evening of 6 April, President Trump notified members of the U.S. Congress of his plan on the missile strike. According to a White House official, more than two dozen members of Congress were briefed at the notification." - there's a lot more than two dozen members of Congress, and at the very least, the Ranking Member of the House Intelligence Committee should've been one of them but they were, probably quite intentionally, left in the dark: : "without consulting"; "notified" – Mazura Sep 21 at 19:00
  • @Mazura: Pending military actions are routinely disclosed to a small subset of Congress, to reduce the chance of the information leaking to the intended target. "Two dozen members of Congress" probably mean hundreds of staff members are in the know, and it's hard enough for a group that size to keep a lid on things for 24 hours, nevermind the staffs of the whole Congress some of which have been caught intentionally leaking information in the past. The Ranking Member ordinarily would have been told but he'd already proven he can't be trusted with that information. – Ben Voigt Sep 21 at 19:04
  • @BenVoigt - Nobody needs to know what you want to do or where you want to do it; just whom you want to do it to. Syria? So, you're after a regime change, huh? Ironically, our adversaries were better informed than our own Congress about the strike. The advanced warning given to them is (un)cited as the reason the capability remained for "Syrian government's warplanes [to take] off from the Shayrat base to attack rebel positions again". – Mazura Sep 21 at 19:24
6

US soldiers swear to follow orders which are legal according to the Uniform Code of Military Justice, and are explicitly disallowed from following orders which are unlawful. Any Presidential power to use troops has to come from an Act of Congress per Article 1, Section 8, Clause 11 of the US Constitution

[The Congress shall have the Power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

Congress has already granted the President broad power to use troops offensively without prior consent through the War Powers Resolution, but has also ratified membership in the NATO, which Canada is also a member of and almost certainly includes a provision against members attacking each other. Ratified treaties have equivalent power to an Act of Congress, so an officer would probably be justified in refusing to follow an order to attack Canada unprovoked without Congressional approval.

The Constitutionality of the War Powers Resolution is disputed by scholars, especially the effective blanket approval for military action without specific authorization from Congress. However, President is not legally required to consult with anyone prior to ordering a military action in general, and the legality of such an action would be determined after it was ordered - put differently, the President doesn't have to prove an order is legal before giving it, it's up to the military to refuse to follow it if it is unlawful.

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    "Any Presidential power ..." Needs citation and expansion. Most presidential scholars would tend to disagree – K Dog Sep 18 at 23:37
  • In fact a plurality of Const scholars hold that the War Powers Act is itself unconstitutional, although that's never been tested. Obama, e.g., repeatedly violated the reporting requirements in Libya – K Dog Sep 19 at 0:15
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    NATO "includes a provision against members attacking each other". That would probably be a good separate question given what Turkey and Greece (both NATO members) did sometimes... vice.com/en_us/article/7x5x3q/… but also en.wikipedia.org/wiki/1974_Cypriot_coup_d%27%C3%A9tat – Fizz Sep 19 at 3:40
  • Presidential power is vested in Article 2. – K Dog Sep 19 at 13:53
4

Frame Challenge

the question is if the President can make direct orders without consulting any of his general[sic] through a phone call.

This question means that he's skipping many layers of the chain of command (Joint Chiefs of Staff, Commands, Divisions/Wings/etc), jumping straight down to a Colonel and telling him Attack Canada!, ignoring all the logistics of how that Colonel transports his Brigade Combat Team from whatever base it's at to Canada.

(Sure they've got some organic transportation, but eventually they run out of fuel and food, and the Colonel can't just contact the Transportation Corps and Quartermaster Corps and say, "send me fuel and food because POTUS ordered me to attack Canada!")

And who exactly would he give the order to?

1

You ask

Can the U.S. president make military decisions without consulting anyone?

Can he? Yes, he can. (That much is trivial.)

Would it be legal? According to the constitution, it seems like it, at least in an emergency: "the Justice Department’s Office of Legal Counsel has claimed that the Constitution authorizes the president, as commander in chief, to order the military to attack other countries without congressional permission" (https://www.nytimes.com/interactive/2019/us/politics/presidential-war-powers-executive-power.html). So the civil checks are off, in the opinion of the OLC which is, one could say, the authority on that matter, biased as it may seem on occasion. As far as the military side is concerned, he is commander in chief, which kindof settles the matter, if I understand correctly the prime directive of the military: Follow orders.

This covers national law; the international law is less clear, but of course there have been convictions for crimes against humanity or war crimes. In most cases such trials (which will determine legality or illegality) are only possible against governments of defeated nations or ousted leaders, which makes the probability of such a determination for actions of an American president unlikely, unless Congress brings itself to impeach. Conceded, nuking another nation for no good reason would likely raise the chances of an impeachment.

Would the president's solitary military decisions be executed? Now here is an interesting question, which was discussed in another New York Times article. It appears that while the military chain of command is clearly defined, orders can be executed with different levels of expedition and eagerness. Not every command from the top may be executed without delay and detour. This is more likely when the president is under unrelated stress or his judgement appears otherwise impaired. To quote another New York Times article:

In real life, the lines of authority have blurred — markedly so during the Nixon administration, when there were at least two instances in which top officials tried to slow, or undermine, the president’s nuclear authority.

President Trump's judgement was questioned from a different angle — there was some debate about his sanity when he entered office. Apparently it was just above a level that would have warranted removing him from office for medical reasons.

An anonymous opinion piece from a White House senior official in the New York Times stated:

Some of his aides [...] have gone to great lengths to keep bad decisions contained to the West Wing, though they are clearly not always successful. [...] It may be cold comfort in this chaotic era, but Americans should know that there are adults in the room. We fully recognize what is happening. And we are trying to do what’s right even when Donald Trump won’t.

The other article concluded:

“In some scenarios,” Mr. Sagan [a nuclear expert at Stanford University] added, “such as an unprovoked nuclear attack by a president in peacetime, a constitutional crisis would be more likely than a prompt following of rules regarding succession and command authority.”

  • "[T]he prime directive of the military: Follow lawful orders." There is an important distinction missing I've added: "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." Granted that's a relatively low bar, but there is a bar. – TemporalWolf Sep 19 at 18:28
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    @TemporalWolf Lawfulness is as much part of the military prime directive as protecting the environment is a goal of the coal industry: By name only, and determined by others. One of the main problems with the concept in practice is that if you happen to be in disagreement with your superiors about that detail you are not only in danger of being fired, you are in danger of being fired at. – Peter A. Schneider Sep 19 at 19:13
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    From a position of firsthand knowledge, I would strongly disagree with that assessment. I'd be curious to see what sources you have to back that assertion. – TemporalWolf Sep 19 at 20:01
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    Neither of them relate to disobeying unlawful orders? They were tried for violating the UCMJ & federal law, namely the Espionage Act. I did, on a few occasions disobey unlawful orders, and the person who issued them was angry and tried to have me punished. When they did so, the facts came out and it was they who ended up being reprimanded because they should have known better. Also, it's significantly harder to fire people in the military: we had members convicted of a drug offense and it took 18 months, while they were receiving (reduced) pay, to "fire" them. – TemporalWolf Sep 19 at 21:41
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    The part you missed was "as a court-martial may direct" which means a court-martial must be convened to issue punishment by death. Courts martial where the death penalty are issued are automatically appealed (twice) and must ultimately be approved by the President. There is a reason no one has been executed since 1961 under the UCMJ. See Fair and Impartial? Military Jurisdiction and the Decision to Seek the Death Penalty – TemporalWolf Sep 20 at 18:06

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