WEBVTT - North Korea Threat Exposes Presidential War Powers (Audio)

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<v Speaker 1>Tensions are once again increasing between the US and North Korea. Today,

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<v Speaker 1>American forces began an annual series of joint military exercises

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<v Speaker 1>with South Korea. North Korea has responded and typically Bellico style,

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<v Speaker 1>releasing a video that shows, among other other things, a

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<v Speaker 1>missile headed towards you the U s territory of Guam.

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<v Speaker 1>It comes less than two weeks after President Trump promised

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<v Speaker 1>fire and fury if North Korea continued its threatening behavior.

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<v Speaker 1>The continuing standoff raises a number of legal questions, among them,

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<v Speaker 1>could the president launch an attack on North Korea without

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<v Speaker 1>getting congressional authorization. Our next guest is someone who has

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<v Speaker 1>been thinking about that question. He is Ilia Sulman, professor

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<v Speaker 1>at George Mason University, Antonin Scalia Law School, IL. Yeah,

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<v Speaker 1>thanks for joining me on Bloomberg Law. Let me just

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<v Speaker 1>start with the core constitutional question and put aside the

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<v Speaker 1>possibility of North Korea launching a first strike. Could Donald

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<v Speaker 1>Trump legally order a preemptive attack on North Korea without

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<v Speaker 1>getting congressional authorization? I think not. In west perhaps the

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<v Speaker 1>North Korean attack was imminent because the Constitution makes it

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<v Speaker 1>clear that only Congress has the power to authorize the

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<v Speaker 1>initiation of a war. However, it's possible that despite its unconstitutionality,

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<v Speaker 1>Trump could potentially get away with starting a war without

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<v Speaker 1>congressional authorization, because adhering to that constitutional principle has been

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<v Speaker 1>spotty in recent years, including under President Obama. Let's let's

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<v Speaker 1>get into some of that history in a moment um.

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<v Speaker 1>If it were a smaller scale strike, is that something

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<v Speaker 1>that that Trump could could do without going to Congress first.

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<v Speaker 1>I think there's room for a legitimate debate over that.

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<v Speaker 1>Some people would argue, and I tend to agree with this,

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<v Speaker 1>that there might be small scale military actions that fall

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<v Speaker 1>short of a war, and then perhaps the president could

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<v Speaker 1>undertake them on their own, maybe his strike on Syria

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<v Speaker 1>a few months ago as an example of this. Others, however,

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<v Speaker 1>argued that any attack kind of foreign power, even a

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<v Speaker 1>very small one, qualifies as an act of war, and

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<v Speaker 1>if it's done to start a conflict rather than in

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<v Speaker 1>reaction to an enemy attack or to like, then uh,

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<v Speaker 1>it's a war and Congress have to authorize it. So

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<v Speaker 1>there is some debate over that among experts. And you

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<v Speaker 1>alluded to the notion that if if North Korea to

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<v Speaker 1>were to strike first, then Donald Trump could could act.

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<v Speaker 1>The president has the authority to act UH immediately in

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<v Speaker 1>that circumstance, What does that mean as a practical matter,

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<v Speaker 1>So one thing UH North Korea has threatened is this

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<v Speaker 1>idea of launching missiles that would land near Guam. Would

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<v Speaker 1>that be enough to allow the president to respond without

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<v Speaker 1>having to get something some authorization from Congress. It's an

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<v Speaker 1>interesting case, as would almost steady legal principle. They're going

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<v Speaker 1>to be borderline situations which may be hard to categorize.

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<v Speaker 1>I would very tell seditively say that if the strike

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<v Speaker 1>on Guam looked like it was likely intended to actually

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<v Speaker 1>hit Guam, then that's an act of war and Trump

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<v Speaker 1>certainly could respond, or any president could respond. If on

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<v Speaker 1>the other hand, it seems pretty clear that all North

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<v Speaker 1>Korea is doing is landing missiles in international waters. That's

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<v Speaker 1>provocative and I advised act, but in itself wouldn't count

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<v Speaker 1>as a war because all sorts of governments have war

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<v Speaker 1>games and military exercises and international waters all the time.

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<v Speaker 1>I grant that while legally speaking the two situations are distinct,

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<v Speaker 1>in practice it may not always be able to tell

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<v Speaker 1>the difference between them very quickly. UH and obviously that

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<v Speaker 1>creates a risk of escalation in in this situation. So

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<v Speaker 1>you mentioned past presidents, uh, and in particular President Obama.

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<v Speaker 1>What has been the norm in terms of what presidents

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<v Speaker 1>do when they are contemplating some sort of military action?

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<v Speaker 1>Do they go to kind Historically, when presidents contemplate a

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<v Speaker 1>large scale war or a military action that seems likely

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<v Speaker 1>to result in the large scale war, they do, in

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<v Speaker 1>fact go to Congress. That's what happened with the Vietnam War,

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<v Speaker 1>with the two Iraq wars and so forth. There have

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<v Speaker 1>been a few notable exceptions to this, including most notably

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<v Speaker 1>the original Korean War. Also, President Obama did not get

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<v Speaker 1>congressional authorization for his war against Wibia or for the

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<v Speaker 1>war against ISIS, which is currently still ongoing. Uh. So,

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<v Speaker 1>I think, uh, the norm has significantly frayed in the

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<v Speaker 1>last several years. And I was very critical of President

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<v Speaker 1>Obama at the time, and as we're a lot of people, uh,

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<v Speaker 1>And should Trump try to use those precedents to start

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<v Speaker 1>a war in North Korea anywhere else, I think that

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<v Speaker 1>would be a very bad thing. Even though Trump could

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<v Speaker 1>potentially say, well, if Obama could do it, why can't

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<v Speaker 1>die you suggested that Trump would be able to get

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<v Speaker 1>away get away with it, and I think those are

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<v Speaker 1>your word. Is there a way in which if it's

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<v Speaker 1>if it does seem clear that he is uh going

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<v Speaker 1>beyond what he's authorized to do? Is there any role

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<v Speaker 1>for the courts? Is anything Congress can can do at

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<v Speaker 1>that point? Or um as a practical matter, can the

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<v Speaker 1>president get away with it? I think whether he gets

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<v Speaker 1>away with it depends, in large pardon whether Congress and

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<v Speaker 1>public opinion decide to support it. So if Congress wants

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<v Speaker 1>to prevent any precipitous action by the president on his own, UH,

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<v Speaker 1>they can, for example, make it clear that they oppose it.

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<v Speaker 1>They can pass a resolution to that effect. UH. And similarly,

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<v Speaker 1>the public both politically leads and the rest of us

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<v Speaker 1>the general public, also has a role to play. Ultimately,

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<v Speaker 1>this is an area where the courts rarely get involved. UH.

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<v Speaker 1>The way constitutional constraints work here is usually true political norms. UH.

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<v Speaker 1>If a president senses that taking a particular action will

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<v Speaker 1>be politically very dangerous for him, in most cases, he

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<v Speaker 1>won't do so. Do Obviously, in the case of this president,

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<v Speaker 1>his political judgment sometimes isn't all that good. But in general. Uh,

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<v Speaker 1>Presidents do try to avoid doing things that they believe

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<v Speaker 1>are likely to blow up in their faces. UH So,

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<v Speaker 1>if Congress, if civil society, if commentators like herself take

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<v Speaker 1>a strong stance that makes it less likely that this

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<v Speaker 1>president or any president will start a war that isn't

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<v Speaker 1>constitutionally authorized, We're gonna have to leave it there. I

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<v Speaker 1>want to thank our guest, Elia Summon, professor at George

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<v Speaker 1>Mason University's Anthony and Scalia Law School, talking about whether

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<v Speaker 1>Donald Trump would have to go to Congress to get authorization.

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<v Speaker 1>Uh and in the ament of a conflict with North Korea,