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Can Trump Attack North Korea Without Approval From Congress?

By Susan Kuebler

With all due respect to Congressman Ted Lieu, he may be wrong in the following tweet:

Technically, South Korea is still “at war” with North Korea, although the term used to describe our actions on the Korean peninsula was not a “war” but a “police action.”  This enabled President Harry Truman to deploy U.S. troops to South Korea after the army of North Korea invaded it on June 25, 1950.  It also bypassed an actual declaration of war by Congress, although Congress did authorize the funding for this operation.

This was also a joint operation of the United Nations and fifteen countries in addition to the United States actively fought in this conflict, including troops from Greece, Ethiopia and Luxembourg who died in Korea.  What began as a U.S response under General Douglas MacArthur quickly became an international intervention.

Two years of on-again, off-again peace negotiations finally resulted in an armistice signed on July 27, 1953.  This armistice led to the creation of the Demilitarized Zone around the 38th Parallel, the border that had been established between the two Koreas at the end of World War II.

However, no peace treaty was ever signed between North and South Korea, so the two countries are still, technically, at war.

In response to the other “not a war” of Vietnam, in 1973 Congress passed the War Powers Act which, according to “sought to restrain the president’s ability to commit U.S. forces by requiring the executive branch to consult with and report to Congress before involving U.S. forces in foreign hostilities.” goes on to note that “Since the passage of this joint resolution, presidents have tended to take action that have been ‘consistent with’ rather than ‘pursuant to’ to the provisions of the act – in some cases, seeking congressional approval for military action without invoking the law itself.”

President George W. Bush obtained official Congressional approval for his military action in Iraq through the passage of H.J. Res (107th) “Authorization for Use of Military Force Against Iraq” in 2002.  However, on June 29th, 2017 the House Appropriations Committee approved an amendment that would repeal an earlier (2001) Congressional Authorization for Use of Military Force that authorized fighting terrorist groups such as Al-Qaeda and ISIS.

As reported by CBS News on April 7th of this year, before launching a missile attack on Syria “Trump did let Congress know of his plans to launch 59 Tomahawk missiles….” although this was in the form of a briefing of more than two dozen members of Congress, both Republicans and Democrats.”  So, not the entire Congress was notified.

Congressman Lieu’s comment on the constitutionality of Trump going to war against North Korea without Congressional approval is somewhat disingenuous.  The Constitution does grant Congress the sole power to declare war – Article I, Section 8, Part 11 [The Congress shall have Power to] “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

It is disingenuous because the last time Congress officially declared war against another country was against – no, not Japan – but Rumania on June 3, 1942 by a vote of 361-0 (

Article II, Section 2 makes the President the Commander-in-Chief of the armed forces (including state national guards when they are called on to serve with federal armed forces) []  So there has always been a tug back and forth between the executive and legislative branches on presidential authority to use our armed forces.

Certainly no one disputes that the President, as Commander-in-Chief, can use force to defend the United States if attacked by a foreign government.  The 9/11 attacks needed Congressional approval because the attacks were launched by terrorist groups, not another nation.  But it was also the only time that Article 5 of the NATO agreement, which provides that all members shall come to the defense of another if attacked, was invoked.

Congressman Lieu does have a point in that a POTUS cannot unilaterally decide to go to war with another country.  In other words, Donald Trump can’t just wake up one morning and decide he’s going to nuke North Korea.  Except that he might.

U.N. Ambassador Nikey Halley has stated that the United States has not ruled out the use of force in dealing with Kim Jung-un’s regime.  But in our current system of checks and balances, that force cannot be deployed without at least advising Congress, or some of its members.  That’s not much of a check, and Congressman Lieu may be expressing the concerns of many in Congress who believe that military engagement with a foreign power, whether you call it a “war”, “police action” or “intervention” should not proceed without the approval of Congress.  As our Founding Fathers intended.

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"All shall be well and all shall be well and all manner of things shall be well". Julian of Norwich.

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