1. Short title
This Act may be cited as the “No Unconstitutional War with North Korea Act of 2020”.
No Unconstitutional War with North Korea Act of 2020
A BILL
To prevent an unconstitutional war with North Korea.
2. Findings
Congress makes the following findings:
The President is currently prohibited from initiating a war or launching a first strike without congressional approval under the United States Constitution and United States law.
The Constitution, in Article I, Section 8, grants Congress the sole power to declare war.
George Washington, in a letter to William Moultrie dated August 28, 1793, wrote, “The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”
In Examination Number 1 of the Hamilton Papers, dated December 17, 1801, Alexander Hamilton wrote, ““The Congress shall have the power to declare war”; the plain meaning of which is, that it is the peculiar and exclusive duty of Congress, when the nation is at peace, to change that state into a state of war.”
James Madison wrote, in Madison Papers, Helvidius, Number 4, dated September 14, 1793, “The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature … the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”
Section 2(c) of the War Powers Resolution (50 U.S.C. 1541(c)) states that “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”.
On April 12, 2018, then-Director of the Central Intelligence Agency, Mike Pompeo, testified before the Committee on Foreign Relations of the Senate that he believed the President had the authority to send United States military forces into action even if none of the qualifications of section 2(c) of the War Powers Resolution are met.
On February 13, 2020, a bipartisan majority in the Senate directed the President to remove Armed Forces from hostilities against Iran or any part of its government or military, unless otherwise explicitly authorized by Congress, following passage of a similar measure in the House of Representatives on January 9, 2020.
The United States has approximately 28,500 members of the Armed Forces stationed in Korea, and over 100,000 United States citizens in total, all of whom would be placed in grave danger if an active military conflict on the Korean Peninsula were to erupt.
3. Prohibition on unconstitutional military strikes against North Korea
Prohibition of authorized military force In or against North Korea— Except as provided in subsection (b), no Federal funds may be obligated or expended for any use of military force in or against North Korea unless Congress has—
declared war; or
enacted specific statutory authorization for such use of military force after the date of the enactment of this Act that meets the requirements of the War Powers Resolution (50 U.S.C. 1541 et seq.).
Exception— The prohibition under subsection (a) shall not apply to a use of military force that is consistent with section 2(c) of the War Powers Resolution.
Rule of construction— Nothing in this section may be construed—
to prevent the President from using necessary and appropriate force to defend United States allies and partners if Congress enacts specific statutory authorization for such use of force consistent with the requirements of the War Powers Resolution (50 U.S.C. 1541 et seq.);
to relieve the executive branch of restrictions on the use of force, reporting, or consultation requirements set forth in the War Powers Resolution (50 U.S.C. 1541 et seq.); or
to authorize the use of military force.
4. Sense of Congress in support of diplomatic resolution to growing tensions with North Korea
It is the sense of Congress that—
a conflict on the Korean peninsula would have catastrophic consequences for the American people, for members of the United States Armed Forces stationed in the region, for United States interests, for United States allies the Republic of Korea and Japan, for the long-suffering people of North Korea, and for global peace and security more broadly, and that actions and statements that increase tensions and could lead to miscalculation should be avoided; and
the President, in coordination with United States allies, should explore and pursue every feasible opportunity to engage in talks with the Government of North Korea on concrete steps to reduce tensions and improve communication, and to reinvigorate high-level negotiations aimed at achieving a diplomatic agreement consistent with the June 12, 2018, Joint Statement of President Donald J. Trump of the United States of America and Chairman Kim Jong Un of the Democratic People’s Republic of Korea at the Singapore Summit.