Speaker 1: Tensions are once again increasing between the US and North Korea. Today,
Speaker 1: American forces began an annual series of joint military exercises
Speaker 1: with South Korea. North Korea has responded and typically Bellico style,
Speaker 1: releasing a video that shows, among other other things, a
Speaker 1: missile headed towards you the U s territory of Guam.
Speaker 1: It comes less than two weeks after President Trump promised
Speaker 1: fire and fury if North Korea continued its threatening behavior.
Speaker 1: The continuing standoff raises a number of legal questions, among them,
Speaker 1: could the president launch an attack on North Korea without
Speaker 1: getting congressional authorization. Our next guest is someone who has
Speaker 1: been thinking about that question. He is Ilia Sulman, professor
Speaker 1: at George Mason University, Antonin Scalia Law School, IL. Yeah,
Speaker 1: thanks for joining me on Bloomberg Law. Let me just
Speaker 1: start with the core constitutional question and put aside the
Speaker 1: possibility of North Korea launching a first strike. Could Donald
Speaker 1: Trump legally order a preemptive attack on North Korea without
Speaker 1: getting congressional authorization? I think not. In west perhaps the
Speaker 1: North Korean attack was imminent because the Constitution makes it
Speaker 1: clear that only Congress has the power to authorize the
Speaker 1: initiation of a war. However, it's possible that despite its unconstitutionality,
Speaker 1: Trump could potentially get away with starting a war without
Speaker 1: congressional authorization, because adhering to that constitutional principle has been
Speaker 1: spotty in recent years, including under President Obama. Let's let's
Speaker 1: get into some of that history in a moment um.
Speaker 1: If it were a smaller scale strike, is that something
Speaker 1: that that Trump could could do without going to Congress first.
Speaker 1: I think there's room for a legitimate debate over that.
Speaker 1: Some people would argue, and I tend to agree with this,
Speaker 1: that there might be small scale military actions that fall
Speaker 1: short of a war, and then perhaps the president could
Speaker 1: undertake them on their own, maybe his strike on Syria
Speaker 1: a few months ago as an example of this. Others, however,
Speaker 1: argued that any attack kind of foreign power, even a
Speaker 1: very small one, qualifies as an act of war, and
Speaker 1: if it's done to start a conflict rather than in
Speaker 1: reaction to an enemy attack or to like, then uh,
Speaker 1: it's a war and Congress have to authorize it. So
Speaker 1: there is some debate over that among experts. And you
Speaker 1: alluded to the notion that if if North Korea to
Speaker 1: were to strike first, then Donald Trump could could act.
Speaker 1: The president has the authority to act UH immediately in
Speaker 1: that circumstance, What does that mean as a practical matter,
Speaker 1: So one thing UH North Korea has threatened is this
Speaker 1: idea of launching missiles that would land near Guam. Would
Speaker 1: that be enough to allow the president to respond without
Speaker 1: having to get something some authorization from Congress. It's an
Speaker 1: interesting case, as would almost steady legal principle. They're going
Speaker 1: to be borderline situations which may be hard to categorize.
Speaker 1: I would very tell seditively say that if the strike
Speaker 1: on Guam looked like it was likely intended to actually
Speaker 1: hit Guam, then that's an act of war and Trump
Speaker 1: certainly could respond, or any president could respond. If on
Speaker 1: the other hand, it seems pretty clear that all North
Speaker 1: Korea is doing is landing missiles in international waters. That's
Speaker 1: provocative and I advised act, but in itself wouldn't count
Speaker 1: as a war because all sorts of governments have war
Speaker 1: games and military exercises and international waters all the time.
Speaker 1: I grant that while legally speaking the two situations are distinct,
Speaker 1: in practice it may not always be able to tell
Speaker 1: the difference between them very quickly. UH and obviously that
Speaker 1: creates a risk of escalation in in this situation. So
Speaker 1: you mentioned past presidents, uh, and in particular President Obama.
Speaker 1: What has been the norm in terms of what presidents
Speaker 1: do when they are contemplating some sort of military action?
Speaker 1: Do they go to kind Historically, when presidents contemplate a
Speaker 1: large scale war or a military action that seems likely
Speaker 1: to result in the large scale war, they do, in
Speaker 1: fact go to Congress. That's what happened with the Vietnam War,
Speaker 1: with the two Iraq wars and so forth. There have
Speaker 1: been a few notable exceptions to this, including most notably
Speaker 1: the original Korean War. Also, President Obama did not get
Speaker 1: congressional authorization for his war against Wibia or for the
Speaker 1: war against ISIS, which is currently still ongoing. Uh. So,
Speaker 1: I think, uh, the norm has significantly frayed in the
Speaker 1: last several years. And I was very critical of President
Speaker 1: Obama at the time, and as we're a lot of people, uh,
Speaker 1: And should Trump try to use those precedents to start
Speaker 1: a war in North Korea anywhere else, I think that
Speaker 1: would be a very bad thing. Even though Trump could
Speaker 1: potentially say, well, if Obama could do it, why can't
Speaker 1: die you suggested that Trump would be able to get
Speaker 1: away get away with it, and I think those are
Speaker 1: your word. Is there a way in which if it's
Speaker 1: if it does seem clear that he is uh going
Speaker 1: beyond what he's authorized to do? Is there any role
Speaker 1: for the courts? Is anything Congress can can do at
Speaker 1: that point? Or um as a practical matter, can the
Speaker 1: president get away with it? I think whether he gets
Speaker 1: away with it depends, in large pardon whether Congress and
Speaker 1: public opinion decide to support it. So if Congress wants
Speaker 1: to prevent any precipitous action by the president on his own, UH,
Speaker 1: they can, for example, make it clear that they oppose it.
Speaker 1: They can pass a resolution to that effect. UH. And similarly,
Speaker 1: the public both politically leads and the rest of us
Speaker 1: the general public, also has a role to play. Ultimately,
Speaker 1: this is an area where the courts rarely get involved. UH.
Speaker 1: The way constitutional constraints work here is usually true political norms. UH.
Speaker 1: If a president senses that taking a particular action will
Speaker 1: be politically very dangerous for him, in most cases, he
Speaker 1: won't do so. Do Obviously, in the case of this president,
Speaker 1: his political judgment sometimes isn't all that good. But in general. Uh,
Speaker 1: Presidents do try to avoid doing things that they believe
Speaker 1: are likely to blow up in their faces. UH So,
Speaker 1: if Congress, if civil society, if commentators like herself take
Speaker 1: a strong stance that makes it less likely that this
Speaker 1: president or any president will start a war that isn't
Speaker 1: constitutionally authorized, We're gonna have to leave it there. I
Speaker 1: want to thank our guest, Elia Summon, professor at George
Speaker 1: Mason University's Anthony and Scalia Law School, talking about whether
Speaker 1: Donald Trump would have to go to Congress to get authorization.
Speaker 1: Uh and in the ament of a conflict with North Korea,