As the tension between North Korea and the U.S. continues to rise, there have been questions about if President Donald Trump could use nuclear weapons against the communist state without Congress’ approval. While the President does have the power to launch nuclear weapons, the U.S. Constitution states that only Congress can declare war. Congress has not issued a declaration of war since World War II, but that hasn’t stopped presidents from taking military action. There is no way to stop Trump from using nuclear weapons at the moment.
Technically, the U.S. and North Korea have been at war since 1950, when the Korean War began. The war started when the Democratic People’s Republic of Korea (DPRK) sent troops south of the 38th parallel, the dividing line between North and South Korea. North Korea was supported by the Soviets and the U.S. backed South Korea. After the deaths of 5 million soldiers and civilians, the war “ended” with an armistice in July 1953. However, the war didn’t start with a formal declaration of war like World War II did. Instead, President Harry S. Truman called it a “police action.”
While Trump has said his “fire and fury” comment might not have been tough enough, Secretary of State Rex Tillerson and Secretary of Defense James Mattis have tried to calm fears of a nuclear war.
“My portfolio, my mission, my responsibility is to have military options should they be needed. However, right now, Secretary Tillerson, Ambassador Haley, you can see the American effort is diplomatically led, it has diplomatic traction, it is gaining diplomatic results,” Mattis said on Thursday. “The tragedy of war is well enough known, it doesn’t need another characterization beyond the fact that it would be catastrophic.”
The War Powers Act
As Commander-In-Chief, the President does have the power to take military action, but Congress is the body that declares war. The War Powers Act of 1973 gives the president 60 days to take military action without Congressional approval. After 60 days, the president is required to ask Congress for approval to continue the military action.
“The administration has done a good job up until now working closely with the Congress on their broader strategy. But we’re going to play an important role here,” Sullivan said.
Trump has already taken military action as President. In early April, Trump launched missiles against Syria. Then-Press Secretary Sean Spicer insisted that Trump didn’t have to go to Congress because of Article II of the Constitution.
“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,” Article II, Section 2 reads in part. So it allows presidents to lead the military, but declaring war is Congress’ job. National security law professor Steve Vladeck told CNN that presidents have “interpreted to give them at least some room to use the military without express permission from Congress.”
The Washington Post notes that the president’s ability to launch a nuclear missile without Congressional approval ties into the idea of nuclear deterrence. The U.S. has a stockpile of nuclear weapons and the very idea that it can use them to retaliate is expected to deter others from using theirs. Since Trump can launch them quickly and without having to work through Congress, North Korea would think twice about launching nuclear weapons because it knows Trump can retaliate quickly.
“[Nuclear weapons] exist to protect us from catastrophe. Their role in the world is to prevent their use and to deter their use,” Rebecca Hersman of the Center for Strategic and International Studies told the Post. “You need the president to be able to react responsibly and quickly.”
In January, Rep. Ted Lieu and Senator Ed Markey, both Democrats, introduced legislation to ban presidents from using nuclear weapons first without a declaration of war from Congress. “The crucial issue of nuclear ‘first use’ is more urgent than ever now that President Donald Trump has the power to launch a nuclear war at a moment’s notice,” the legislators said. Trump isn’t likely to sign that even if it passed both houses of Congress.
The 2001 Authorization for the Use of Military Force
Another card Trump has is the 2001 Authorization for the Use of Military Force, signed by President George W. Bush three days after the September 11, 2001 terrorist attacks. As Foreign Policy notes, Bush, President Barack Obama and Trump have all used it to justify actions. Trump already used it in June to justify keeping forces at the U.S. Guantanamo Bay naval base and in April to justify the Syria attack.
The AUMF says the President “is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Recently, Congress has taken steps to curb the AUMF. In June, CBS News reported that the House Appropriations Committee voted to repeal it and approved an amendment proposed by Representative Barbara Lee, the only House member to vote against AUMF in 2001. She proposed a 240-day deadline for Congress to debate and pass a new military authorizing measure.
Of course, the repeal of AUMF still has to reach the House floor. Then it would have to pass the Senate and be signed by Trump.