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Trump Needs Congressional Authorization for Pre-Emptive Strike on North Korea

But Congress has to assert its role if that's to mean anything.

defense.govdefense.govPresident Donald Trump needs authorization from Congress to launch a pre-emptive strike against North Korea. That much is clear in the Constitution, but it's not always so clear in Washington itself.

Republican Sen. Dan Sullivan—who represents Alaska, one of the U.S. locations the North Korean regime sometimes threatens with missile strikes—has stressed this.

"If one of the military options that the administration is looking at is a preemptive war on the Korean peninsula launched by the United States, that would require the authorization of Congress," Sullivan said yesterday on Fox News. "Article I of the U.S. Constitution is very clear about that."

The Constitution is only as useful as it's applied, and there are few indications the Congress will reassert its role here. Efforts up to now to enforce the Constitution's strictures in this area have all failed.

Trump yesterday warned that further North Korean threats may be met with "fire and fury like the world has never seen." Pyongyang promptly responded by floating the idea it would strike Guam, a U.S. territory with a number of military installations.

The governor of Guam says there was currently "no threat" to his island. Secretary of State Rex Tillerson also sought to tamp down fears, telling reporters "I do not believe that there is any imminent threat" and "I have no concerns about this particular rhetoric of the last few days."

Russia's foreign minister, Sergei Lavrov, tried to put the rhetorical crossfire in perspective as well.

"Strictly speaking, this is how representatives of the Democratic People's Republic of Korea have reacted to all previous UN Security Council resolutions. We will judge by their actions," Lavrov told reporters at the end of the ASEAN summit in Manila. "We are confident that there is no alternative to the resumption of the political process, in particular the six-party talks" between North Korea, South Korea, China, Japan, Russia, and the United States.

The War Powers Act permits the president to commit military forces for 60 days before congressional authorization is necessary, and it requires him to notify Congress of a military action within 48 hours.

The Congress has not authorized a military action since the 2002 Authorization for Use of Military Force (AUMF) concerning Iraq and its alleged WMD threat. The executive branch has justified most of the military operations falling under the umbrella of the war on terror with the 2001 AUMF aimed at the perpetrators of the September 11 terror attacks and "associated forces."

Originally intended for the war in Afghanistan, the 2001 AUMF has been used to cover for military action across the Muslim world. There have been other military actions lacking explicit congressional authorization too—Barack Obama pointed to resolutions from the U.N. Security Council and the Arab League to justify the 2011 intervention in Libya. Congress declined both to authorize the intervention and to defund it.

Trump launched a strike earlier this year against an airfield in Syria allegedly used to transport chemical weapons. A handful of members of Congress—including Sen. Rand Paul (R-Ky.), Rep. Justin Amash (R-Mich.), and the lone vote against the 2001 AUMF, Rep. Barbara Lee (D-Calif.)—insisted the president needed congressional authorization, but no effort to get Congress to reassert its role got anywhere.

Trump took to Twitter this morning to claim the U.S.'s nuclear weapons arsenal was "far stronger and ever more powerful than before" because of an order he made in January for a Nuclear Posture Review.

"Hopefully we will never have to use this power, but there will never be a time that we are not the most powerful nation in the world!" the president tweeted.

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  • TW||

    President Donald Trump needs authorization from Congress to launch a pre-emptive strike against North Korea.

    No, he doesn't.

  • BYODB||

    Am I wrong when I say that we are actually still technically at war with North Korea?

  • Longtobefree||

    As technical as our response to UN resolution 83.

  • BYODB||

    I only ask since several of my Army & Marine buddies have been stationed at the DMZ at one point or another, and they were telling me that technically the whole thing is just a really bizarrely long lasting cease fire but that doesn't mean the 'war' ended.

    Semantics, perhaps, but there it is.

  • JoeBlow123||

    North Korea is insane but the DMZ is one of the most insane places on the planet. Especially Panmunjom, the UN mediation place. Go visit it if you ever get a chance, the Army guys there do a fantastic job as tour guides.

  • loveconstitution1789||

    There was an armistice in 1953 but no peace treaty and North Korea has renounced that armistice over 4 times in the last 64 years.

  • EscherEnigma||

    Don't know, but the point is that unless Congress decides to do something about Executive power in this area, it doesn't actually matter.

  • Incomprehensible Bitching||

    If there's one thing we've never debated, it's the power of the president as commander in chief of the armed forces.

  • Unlabelable MJGreen||

    ...And?

  • CE||

    It's debated all the time, even though the Constitution and the War Powers Act are clear -- the president only has the power to follow Congressional authorization, except in response to an attack.

  • Hugh Akston||

    Just imagine the consequences for Trump if he launches a preemptive strike without Congressional approval!

  • CE||

    If it works, North Korea is conquered and China doesn't object, his approval rating goes way up.

    If it's a disaster, or if it works but starts a shooting war with China, or if it entails thousands or tens of thousands of casualties, he'll be impeached.

  • DarrenM||

    It would most likely be the latter, unless it was very quick. Then you have the aftermath to deal with. Does NK reunify with SK? Is a Chinese puppet government installed? I doubt anyone friendly to the US would take over. Maybe friendly for about 3 days.

  • Mickey Rat||

    They will surely be at least as dire as the consequences for Obama attacking Libya without Congressional approval.

  • loveconstitution1789||

    And Yemen.

    And Pakistan.

    And Somalia.

  • Longtobefree||

    Replace "Trump" with "president" and it has happened many times so far, and the world is still spinning.

  • Diane Reynolds (Paul.)||

    Here Reason goes again with their quaint "congressional approval" notions for kinetic actions.

  • ChipToBeSquare||

    Why go through any of that when you can just reinterpret the old AUMF?

  • mashed potatoes||

    Exactly what I came to write.. I have no doubt they will try.. It is one of the biggest disgraces Paul Ryan removed that amendment that had so much bipartisan support..

  • CE||

    Because North Koreans are Muslims now?

  • sarcasmic||

    Trump Needs Congressional Authorization for Pre-Emptive Strike on North Korea

    How quaint...

  • carl jacobs||

    The power of command is a tangible power whereas the power to declare war is a formal power. If Congress wants to limit the President's tangible power of command, then congress will have to employ the tangible power of impeachment. Unless and until it does so, the President will have broad latitude in commiting the country to war. The President has the authority to issue lawful commands and the military will obey those lawful commands. A dead letter like the War Powers Act cannot solve this problem, and the Supreme Court learned its lesson with Chief Justice Tanney.

    Don't blame the President. Blame a gutless Congress that doesn't have the courage to enforce its own prerogatives.

  • Unlabelable MJGreen||

    Don't blame the guy that uses his power to do a bad thing?

    Blame is not a finite resource.

  • Cynical Asshole||

    Don't blame the guy that uses his power to do a bad thing?

    Exactly. Don't blame the cop who carelessly tossed a flash bang into a toddler's crib during a 3am drug raid, blame the judge who signed off on the dubious warrant.

    There's more than enough blame to throw around at everyone involved, just as there will be if Trump orders a pre-emptive strike against North Korea without Congress' approval.

  • CE||

    The War Powers Act is still an active part of the US code. It hasn't lapsed.

  • ||

    What happens if Trump simply launches a pre-emptive kinetic military action?

  • Robespierre Josef Stalin||

    Why do libertarians think that Congressional approval of a murderous and immoral war gives it any more legitimacy? I have little doubt that the Republican Party cult would vote for approval of military action, but-- you know-- so what? Killing third world peasants is killing third world peasants.

    What has fucking happened to you guys? Some Republican douche is threatening nuclear war and all libertarians have is "meh?" God, it's so pathetic and embarrassing to watch libertarians make excuses for Dear Leader. Poor pathetic you.

  • Crusty Juggler||

    God, it's so pathetic and embarrassing to watch libertarians make excuses for Dear Leader. you desperately seek attention.

  • Robespierre Josef Stalin||

    I haven't been on here for a week.

    Can we go back in the archives so that we can post Some of your screams about Obama and Libya? That should be fun.

  • Crusty Juggler||

    Oh! Let's have a party!

  • Bgoptmst||

    You were posting garbage just the other day. I can't think of any legitimate long time poster, not referring to you and your ilk, who had good things to say about Libya.

  • ChipToBeSquare||

    It's so cute when our aspie leftists think a Reason Magazine article or random internet commenter represents libertarianism at large

  • Robespierre Josef Stalin||

    Where do you find principled libertarian opposition to Trump's bellicosity? An article about the War Powers Act? I'm against any and all military acts against sovereign countries no matter what Congress votes. What are you for? It's hard to tell what principle libertarians back whenever some right-winger tells them it's time to drop some bombs.

  • ChipToBeSquare||

    Hmm where oh where might you find a consistent antiwar sentiment among libertarians?

    Let me take a shot in the dark: ANTIWAR.COM

    Wait, a libertarian bought that domain name before anyone else? You don't say...

    (I can't say they don't occasionally humor a conspiracy theory, or that it's worth creeping the comments)

  • JoeBlow123||

    This is a stupid gutless position. Sometimes there are a lot of bad options and that is it. I am not even speaking about a potential North Korean War, but your statement in general. So I assume war with Germany in WWII you would have been opposed to?

    You should read George Orwell, he has words for leftists like you. Same with Hannah Arendt. People so morally righteous and gutless and cowardly all combined in one package. Happy to crap on the state as evil and morally repugnant, dodging the dying when it comes, but happy to reap the rewards of living in a 21st state that has safeguarded the freedoms he so freely craps on.

  • CE||

    A war can still be a really bad idea, even with Congressional and/or popular support. But a US president with supposedly strictly limited powers starting a way on his own, in blatant disregard of US law, is always a bad idea.

  • loveconstitution1789||

    The Declaration of War requirement just is another check and balance between branches of government and that is certainly a good thing.

    If Congress would do their job and only issue limited authorizations of war for presidents.

  • Cynical Asshole||

    I have little doubt that the Republican Party cult would vote for approval of military action

    I don't think that's nearly as likely as you seem to think it is. I highly doubt that Paul would vote for a pre-emptive (key word here) war on N. Korea. And I think it's also unlikely that all 51 other Republican senators would automatically vote in lock step for a pre-emptive war either. Believe it or not, they are individuals with minds of their own. They don't always just go along with whatever the "Dear Leader" Trump wants them to do. If they did, they would have passed healthcare reform months ago.

    Now, if N. Korea actually does follow on their threat to attack Guam (or attempts to) then all bets are off, but that wouldn't be a pre-emptive war, which is what's being discussed here.

  • TW||

    Trump launched a strike earlier this year against an airfield in Syria allegedly used to transport chemical weapons. A handful of members of Congress—including Sen. Rand Paul (R-Ky.), Rep. Justin Amash (R-Mich.), and the lone vote against the 2001 AUMF, Rep. Barbara Lee (D-Calif.)—insisted the president needed congressional authorization, but no effort to get Congress to reassert its role got anywhere.

    That's because Paul, Amash and Lee were wrong. There is no requirement in either the Constitution or any applicable statute for the President to first get Congressional approval before engaging in a military action. The only applicable statute on this matter requires that the President notify Congress within 48 hours after launching a military action. If they want to limit his power to launch an attack without prior Congressional authorization, they'll need to either pass a new statute or amend the Constitution to that effect.

  • CE||

    Or you could read the actual law first:

    https://www.law.cornell.edu/uscode/text/50/1541

  • Cynical Asshole||

    Yes, specifically part c:

    (c) Presidential executive power as Commander-in-Chief; limitation

    The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.[Emphasis added]

    Clearly a pre-emptive war with N. Korea wouldn't fall under part 3. Only if they actually are stupid to enough to attack Guam would Trump have the authority to start a war with them. Of course, the question is would Congress actually do anything to stop him if he did start a war on his own? Based on recent precedent, I wouldn't hold my breathe.

  • retiredfire||

    The WPA cannot override what the Constitution says.
    They would need to amend the document to take away the president's Commander in Chief powers.

  • loveconstitution1789||

    The Constitution is only specific that a Declaration of War be a power of Congress but clearly it is a check to the power of the Commander-in-Chief of the armed forces.

    War and the armed forces are mentioned numerous times in the Constitution implying that these things were important to prepare for but also that there needed to be checks to presidents attacking countries without congressional approval at some point.

  • Jerryskids||

    There is no requirement in either the Constitution or any applicable statute for the President to first get Congressional approval before engaging in a military action.

    That's not how the Constitution works. Show me in the Constitution where it says the President *can* take action. That part where it says the President is the Commander in Chief? The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; - note the bolded part. Euphemize it all you want, but a "military action" is an act of war and only Congress can declare war. Those old dead white guys couldn't foresee military actions that might be accomplished in a matter of minutes rather than months, but it doesn't excuse the lack of action in amending the Constitution in the last century or so in order to deal with modern military exigencies.

    (And don't be silly and bring up Jefferson and the Barbary pirates like some people do - Tripoli declared war on the US and Jefferson went to Congress expressly declaring that only Congress had the Constitutional authority to initiate action, they gave him some ships and told him to go fight the pirates even without a formal declaration of war.)

  • TrickyVic (old school)||

    ""Show me in the Constitution where it says the President *can* take action. ""

    I totally agree, and await the war tribunals of Bush, and Obama.

    Not gonna happen. Apparently, there is an unwritten Constitutional clause called that ship has sailed.

  • Longtobefree||

    Please cite your source for Tripoli declaring war. I can't find it anywhere. Thanks.

  • TrickyVic (old school)||

    It's buried somewhere along the shores.

  • losmazeman||

    NIce!

  • Unlabelable MJGreen||

    wiki:

    Consequently, on 10 May 1801, the Pasha declared war on the U.S., not through any formal written documents but in the customary Barbary manner of cutting down the flagstaff in front of the U.S. Consulate.[29]
  • retiredfire||

    The qualification "when called into the actual Service of the United States" relates to the Militia of the several States, not his Commander in Chief status. His position as Commander in Chief of the Army and Navy of the United States is constant.

  • Longtobefree||

    Exactly. And the real point is that when not "in the actual service of the United States", the militia(s) is/are NOT under his control.

  • JFree||

    That's not how the Constitution works.

    The Constitution is not directly applicable here because what IS applicable is Truman's authorization to introduce US troops into Korea pursuant to UNSC resolutions and the Armistice Agreement between the UN and DPRK/China.

    It is entirely valid for Congress to claw back what Truman deemed to be CinC and UN Treaty authorization. But after 65 years as status quo, that does require Congress to take positive action to claw that back. Simply arguing that Trump has less power as CinC than Truman had is NOT a constitutional argument. And the Armistice once broken leads to a resumption of hostilities. And again, Congress may choose not to fund the new round of fighting but they do not have the authority to deny its existence and/or pretend that only they can authorize its existence.

  • Dalben||

    "Now, if N. Korea actually does follow on their threat to attack Guam (or attempts to) then all bets are off"

    If North Korea sent missiles to attack Guam (presumably nuclear missiles because otherwise what would the point be?) I think all bets would be on the US retaliating with all its powers and only refraining from using its own nukes if we had such overwhelming conventional superiority that it simply wasn't necessary. And congress would have 98 or 99 votes in favor of war, because there's always one exception who won't vote for war even if there's mushroom cloud rising out of what used to be a US military base or town.

    I suppose if they just sent conventional weapons for some strange reason then we might be a little more restrained since it would still be war, but they'd be less of a threat. I assume we'd still retaliate hard though.

  • Domestic Dissident||

    There isn't going to be any pre=emptive strike on North Korea.

    Again, this is more hysterical fake news from fake libertarians.

  • CE||

    The War Powers Act permits the president to commit military forces for 60 days before congressional authorization is necessary, and it requires him to notify Congress of a military action within 48 hours.

    Actually, that presidential power to act before Congressional approval is strictly limited by the clear text of the War Powers Act itself, 50 US Code S1541(c), to a national emergency created by an attack by the other side:

    (c) Presidential executive power as Commander-in-Chief; limitation

    The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

  • Longtobefree||

    Is that right above or below the part where insurance companies cannot get payments not appropriated by congress? You must think the laws apply to everyone.

  • Cynical Asshole||

    President Donald Trump needs authorization from Congress to launch a pre-emptive strike against North Korea. That much is clear in the Constitution

    Pffft, that thing was written, like, over 100 years ago by slave owning white men. /sarc

  • Rebel Scum||

    President Donald Trump needs authorization from Congress to launch a pre-emptive strike against North Korea.

    I don't know all the intricate details, but aren't we still technically at war with the Norks as there was no formal peace at the end of the Korean War? If so, it seems that Congressional approval is ongoing.

  • Rebel Scum||

    Of course, I am assuming there was a formal declaration in the first place.

  • Cynical Asshole||

    Nope, there wasn't. In fact, we haven't formally declared war since 1942. Interestingly, not only did we actually bother with formally declaring war, we formally declared war with each individual nation involved instead of just using a vague, overly broad AUMF to justify making war against whoever we felt like. It was a simpler, quainter time.

  • Longtobefree||

    Yeah, way back then, armed conflicts were restricted to nation states.

  • Longtobefree||

    UN resolution 83.

  • Half-Virtue, Half-Vice||

    Good video on NK, preemptive strikes and their relation to the NAP

    I'm a fan of this guys stuff, kind of a leather jacket part deux.

  • TrickyVic (old school)||

    IIRC, the Korean war was never over. It's a cease fire with an armistice agreement. N. Korea withdrew from it. One could argue that the resumption of war is warranted due to that withdraw, and/or the expansion of new weapons in violation of that agreement. A new declaration of war would not be needed.

    A little similar to Bush Jr's. claim of justification of resuming war with Iraq due to violation of UN res 1441.

    It's a by product of leaving wars open ended.

  • PurityDiluting||

    "Russia's foreign minister, Sergei Lavrov, tried to put the rhetorical crossfire in perspective as well."

    Whew, good thing we got the Russian perspective on this. Can't have a story these days without mentioning them.

  • TrickyVic (old school)||

    Did we ever get a AUFM for Syria?

  • Longtobefree||

    "Trump Needs Congressional Authorization for Pre-Emptive Strike on North Korea"

    Yep; just like the fourth amendment prevents asset forfeiture, and just like the second amendment prevents infringement on the right to keep and bear arms. So strap on a sidearm and walk into a New York airport and see how much the constitution means these days.

  • TrickyVic (old school)||

    I'm sure if Trump bombs N. Korea, the left will start war protesting again. They have been on a 8 year hiatus so they are refreshed.

  • Ken Shultz||

    The president has the power to do whatever he won't be impeached for or whatever won't make him lose reelection. One need only look at the Bush Jr. and Obama administrations to see that principle in action-- they both made mockeries of constitutional principles and our constitutional rights, were reelected, and got away with it. The only constitutional check on presidential power that really matters is the extent to which violating constitutional principles provokes the anger of the American people, provokes impeachment, or loses the president enough support so that he isn't reelected.

    Also, talking about whether something is preemption or retaliation doesn't make sense within the context of North Korea. They've repeatedly attacked our ally--from sinking a South Korean ship without provocation to shelling a South Korean village without provocation.

    In fact, the Korean armistice agreement was only a ceasefire. No final peace treaty was ever established or signed by the UN or the United States. Legally, we are still at war. Meanwhile, the North Koreans have violated the cease of hostilities agreement many times, and any time they do or did so is more than sufficient to meet whatever legal requirements we imagine are necessary in order for the president to be justified in acting without another authorization from congress. That approval has already been in place since 1950. Just because we don't like the way things are, doesn't mean they aren't that way.

  • BYODB||

    Well, a UN resolution isn't a declaration of war either but there is no denying we've been there for 70 years and show absolutely zero chance of pulling out any time soon. Mostly because North Korea will certainly move into the region the second we move out.

    So thanks, USSR, for giving the gift that keeps on giving.

  • TrickyVic (old school)||

    "absolutely zero chance of pulling out any time soon."

    Phrasing!

  • Laird||

    "The War Powers Act permits the president to commit military forces for 60 days before congressional authorization is necessary". Not strictly accurate. What the War Powers Resolution actually says is that the President may deploy US military forces in cases of "(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." 15 USC 1581(a). None of those conditions applies here (or, for that matter, applied in Syria or Somalia or many other places where presidents have intervened). The War Powers Resolution is honored mostly in the breach.

  • Lorenzo Valla||

    Members of Congress want to be involved when the president proposes the death of others, but they are too cowardly to vote for legislation that they believe is good for the country but is unpopular and thus jeopardizes their political careers.

    IOW, they are fine making decisions that will kill others, but aren't willing to take the relatively much lower risk to their careers.

    Biggest cowards in the nation.

  • Dillinger||

    if you didn't have to ask those knuckleheads first, would you?

  • TrickyVic (old school)||

    What I find friggin hilarious is Trump could launch an air war, then point back to Obama's air war in Syria as how Presidents get things done.

  • Longtobefree||

    "Oh, that's just a reconnaissance in force"

  • ||

    The last time we declared war was after the Japanese attack on Pearl Harbor. All these war resolutions since then is a violation of our Constitution including this cockamamie idea of Trump going to Congress to get authorization for a pre-emptive strike against North Korea. I thought libertarians believe in our Constitution? Apparently, I was misinformed. But having served in Vietnam, I can tell you it was just a bullshit war but they have all been bullshit wars since President Harry Truman violated the Constitution and bypassed the Senate for a vote to authorize the Korean War. He instead used a UN resolution to prosecute the war. He should have been impeached and thrown out of office. And we wouldn't still be dealing with this debate about North Korea. A United Communist Korea would be allied with a Communist China, and it would probably be experiencing an economic boom like its Big Red Brother to the north.
    .

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