North Korea and the Constitution: How far can Trump go?

As U.S. tensions with North Korea continue to rise amidst a backdrop of repeated Korean missile launches, many have questioned the extent of President Trump’s power to take action under the Constitution.

Photo: NBC News / Wong Maye-E / AP file, (Courtesy of Google Images)

Throughout the last century, the United States has grown all too familiar with times of war and conflict. Since the turn of the millennium, such strife has been seemingly continuous; however, the most recent of international conflicts has risen a little too close for comfort.

The world watched in disapproval as North Korea debuted its interests in long-distance warfare, as well as its growing capacity to achieve those interests, early in the summer of 2017. North Korea’s efforts seemingly climaxed on the Fourth of July, when it fired its first intercontinental ballistic missiles (“IBMs”) into the sea near Japan.

President Trump and his administration have been quick to respond to North Korea on a public scale. Earlier this month, Trump warned that North Korea would face “fire and fury, and, frankly, power the world has never seen before,” were it to continue its tests. Despite Trump’s warnings, North Korea has indicated an interest in striking Guam, a U.S. territory.

Since the threats on Guam, North Korea has been less active on the international scale. In fact, Trump proclaimed an optimistic attitude concerning North Korea and its leader, Kim Jong Un. Trump said “I respect the fact [Kim Jong Un] is starting to respect us.” On another positive note, Secretary of State Rex Tillerson recently praised Pyongyang for exercising “some level of restraint,” as North Korea has not launched any more missiles or otherwise acted otherwise provokingly towards the U.S.

The administration’s hopefulness was, perhaps, premature. On August 25, 2017, North Korea continued to demonstrate their weaponry and firing capacities as they launched three short-range ballistic missiles into the sea. Some believe North Korea’s latest tests serve as a response to joint military exercises by the U.S. and South Korean forces on the Korean Peninsula. While forces in Seoul have continuously said the drills are solely defensive in nature, North Korea is of the perspective that the drills are training procedures for invasion. Regardless of the purpose of the drills, the U.S. now has territory and soldiers within range of an increasingly aggressive, missile-launching country. So, therein begs the question: what, if anything, is the U.S. going to do about it?

Historically, this question has been analyzed under the War Powers Resolution doctrine. In short, the Constitution provides that Congress alone has the power to declare and fund war while the Executive retains the power to command the armed forces. Further, the power of the Commander in Chief is very broad. The President has the authority to protect the country from threats—a defensive power claim that has been practically used over the course of U.S. presidencies for a large range of military actions. Essentially, Congress may not be able to stop Trump from taking temporary, preemptive actions against North Korea in his authority as President without passing laws clearly prohibiting such force. According to some national security analysts, Congress would have to issue an outright ban against engaging with North Korea.

[T]he president alone has the power to utilize nuclear weapons with a single command.

The current nuclear missile launch process is of specific concern in the midst of nuclear talks. The current nuclear launch process was established by the Atomic Energy Act of 1946 under Harry Truman. The process does not include the same checks and balances as many other executive decisions; rather, the president alone has the power to utilize nuclear weapons with a single command. Further, there is no existing override provision; the president’s order is final when it comes to the country’s nuclear arsenal. While seemingly reckless, the reasoning for such a system is simple: the system allows the U.S. to launch within minutes. As a result, if any country were to engage in nuclear warfare with the United States, the president could respond immediately. Hopefully, the Secretary of Defense and the Joint Chiefs of Staff would be consulted first when considering any preemptive action.

In light of President Trump’s “fire and fury” comments, some lawmakers began calling on Congress to move forward and authorize any preemptive military action the president may choose to take on Pyongyang. The support does not come without opposition, though. Rep. Dan Kildee (D-Mich.) insists the “authority of Congress should be asserted, particularly in the case of this president where he seems to be somewhat erratic when it comes to what he suggests is American foreign policy.”

While partisan bias in Congress is inevitable, Kildee’s comment did not arise without prior concerns. For example, when Trump ordered military strikes against the Syrian regime, he did so without seeking congressional approval. Additionally, the administration spoke directly through then-press secretary Sean Spicer about the current issues in North Korea. Spicer assured the pressroom reporters that Congress would be “notified” if the president chose to take action, but any actions would be justified under Article II of the Constitution, which lists the powers granted to the Executive. With the broad authority granted to the President to defend the U.S., the President’s burden of proof for presidential action is relatively low– Trump would only need to show a threat to U.S. national security. Due to this seemingly low standard, Trump arguably could have taken action after North Korea issued direct statements concerning strikes against Guam.

University of Texas School of Law professor Steve Vladeck addressed the question of whether Trump would need to consult Congress at all. Vladeck said the Constitution functionally distinguishes offensive military action, which would require congressional approval, and defensive military action, which does not; however, Vladeck also made a point that this is a political debate, not a legal one.

North Korea “would lose any arms race it initiates,” he said, as the U.S. continues to stockpile more nuclear weapons than any other nation.

Secretary of Defense James Mattis introduced another element to consider in determining what authority is needed in order to act against North Korea. Mattis recognized the Trump administration’s attempts to resolve conflicts with North Korea in a diplomatic manner, but also noted probable U.S. success if the situation could not be resolved diplomatically. North Korea “would lose any arms race it initiates,” he said, as the U.S. continues to stockpile more nuclear weapons than any other nation.
Secretary of State Rex Tillerson affirmed Mattis’ perspective by stating, “What the president is doing is sending a strong message to North Korea… I think the president just wanted to be clear to the North Korean regime that the U.S. has the unquestionable ability to defend itself, will defend itself and its allies, and I think it was important that he deliver that message to avoid any miscalculation on their part.”

The ability of the U.S. to defend itself and its people is not the issue. Rather, the greatest question Washington will need to resolve is which avenue of power is the constitutionally mandated one to take. The Trump administration has made clear to North Korea that there will be negative consequences if North Korea continues to launch missiles. In such a case, Congress is unlikely to stand between the president and the defense of the country.

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About Taylor Elkins (11 Articles)
Taylor Elkins is a third year law student and serves as a Staff Writer for the Campbell Law Observer. Born and raised in Owasso, Oklahoma, Taylor went to Baylor University where she obtained a degree in biology and political science. During her time at Campbell, Taylor has worked at the North Carolina Department of Justice in the Criminal Appellate Division. She won Campbell's Richard Lord Intramural Moot Court Competition, and is now a member of Campbell's national moot court team. She is interested in patent law as well as appellate advocacy.