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