Two months ago today, our sister site, Liberty Viral, published a piece entitled “To Bomb North Korea, Trump Doesn’t Need Congress or the UN“. It was written by Squiggly Line Guy, who I respect despite his name, and whom I agree with on most issues. This isn’t one of them.
The basis for his article relies on one major assumption–that the US is already at war with Korea, because the Korean War never actually ended. Instead, the 1953 Korean Armistice Agreement was merely a ceasefire between North and South Korea, rather than a peace treaty.
From the piece– “We’re already at war with North Korea. This isn’t a recent development. On the contrary, we’ve been at war with North Korea for a while. For well over a half century. Since 1950, to be exact.”
Given that the Korean War is still ongoing, the article argues, Trump needs no approval from either Congress or the UN. I agree with the assessment that the Korean War is technically merely on pause. I disagree that America was ever constitutionally at war with North Korea, or that it ever even claimed to be.
Under our constitution, declarations of war are to come from Congress, not the President. The most persuasive reason for vesting this power in the legislature’s hands comes from James Madison, in a letter to Jefferson.
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature.”
The legislature has not passed a true declaration of war since World War 2, and this includes the Korean conflict. From time to time, it has passed “authorizations”, as well as the constitutionally dubious War Powers Act, allowing for greater yet still limited Presidential discretion for assigning troops to conflicts without Congress. However, the War Powers Act was not signed until twenty years after the end of hostilities in the Korean War. Truman didn’t ask Congress for a declaration of war, and “authorizations” for war wasn’t even yet in the political lexicon.
What involvement did Congress then have in authorizing the conflict? Well, they appropriated $12 billion dollars for use in the conflict, without giving authorizations for US troops to be involved. I assure you, that money has already been spent.
Given that there was no declaration of war, no authorization for war, and no vague interpretations of the war powers act to use as an excuse… what was Truman’s excuse for participation in a war?
Well, he claimed, absurdly, that it wasn’t a war at all. No, it was a new Orwellian phrase he created just for the occasion– a “police action”. This term was new, at least for American conflicts, though some colonial powers had used it to denote claims of sovereignty when suppressing local rebellions. The authority he claimed for this “police action” did not originate from the Constitution at all. After all, he never claimed that the Korean peninsula was an American territory. No, the authority he spoke to was UN resolutions which he believed granted America the right of enforcement in foreign lands.
The assumption that we were ever constitutionally at war with Korea, even if Korea had been at war with itself, is therefore false for several reasons.
1. Congress never declared war
2. Truman, when committing acts of war, claimed he was only executing a “police action” rather than war
3. The authority he claimed for his right to commit such action was the UN, so even if one buys Truman’s logic, it dictates UN approval for military action
In essence, Trump would need Congress for any war with Korea to be constitutional, he would need the UN to even pretend to follow Truman’s logic about non-war war, and he’s not going to receive either in any scenario short of DPRK attacking another nation first.