Threats related to North Korea are causing another reexamination of the President’s ability to wage war – and use nuclear weapons – without congressional approval.
The original 1950 conflict in Korea was the first major United States military effort undertaken after World War II, the last war formally declared by Congress under Article 1, Section 8 of the Constitution. President Harry Truman committed troops to the Korean Conflict under terms of a Senate-approved act allowing the United States to take part in United Nations actions, instead of asking for a war declaration.
Truman’s move was controversial, although over time it became more of a precedent. The Vietnam conflict escalated in 1964 after Congress passed a joint resolution (the Gulf of Tonkin Resolution), just short of a war declaration, authorizing President Lyndon Johnson to help any country that signed a treaty pact in Southeast Asia.
The United States’ involvement in the former Yugoslavia in the 1990s was part of a United Nations action. The first United States involvement in Iraqi was supported by a public law passed by Congress in 1990. Other public laws approved by Congress endorsed military actions after the September 11, 2001 terrorist attacks.
Back in 1951, Republican leader Senator Robert Taft was among those in Washington who thought the President needed a declared war to act in Korea when he said "without congressional approval, [the President] can go to war in Malaya or Indonesia or Iran or South America."
Also at that time, Truman made it clear that the President, and only the President, should decide how nuclear weapons are deployed. After a November 1950 press conference where Truman confirmed the atomic bomb could be used in Korea, the White House followed up with a statement defining such a tactic in constitutional terms.
“By law, only the President can authorize the use of the atom bomb, and no such authorization has been given. If and when such authorization should be given, the military commander in the field would have charge of the tactical delivery of the weapon,” the White House reiterated.
Twenty years later, as the Vietnam War grew more unpopular, Congress repealed the Gulf of Tonkin Resolution. In 1973, the War Powers Resolution was passed over the objections and veto of President Richard Nixon, as Congress sought to avoid another military conflict where it had little input.
Nixon believed that War Powers Resolution was illegal, and it was “unconstitutional and dangerous.” Since then, his successors in the White House also have believed the Resolution was illegal, that they have acted within its rules, or they have the power to act outside the Resolution.
The War Powers Resolution allows a President to use U.S. forces in combat in the event of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” But the President also needs to report to Congress within 48 hours of such a military action, and Congress has 60 days to approve or reject it.
The current debate about the Trump administration and the War Powers Resolution started in April, when several Senators objected to United States missile strikes in Syria. The Trump Administration said the Constitution’s Article II gave the President the power to make such decisions.
In the unforeseen act of a nuclear attack on North Korea, there are few precedents for congressional approval of such an action. In 1945, President Truman’s decision to use two atomic bombs in Japan was cloaked in secrecy, years after Congress approved its war declaration against Japan. The Atomic Energy Act of 1946 made sure that the United States nuclear stockpile was under civilian controlled, to be deployed if needed with presidential approval.
In the 1980s, there was an attempt to pass legislation that would require the President to consult with Congress before using nuclear weapons, but the effort failed.
And in January 2017, two lawmakers introduced a new bill in Congress that would require an official war declaration in place before a President could order a nuclear attack.