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This memorandum proposes a strategy for ensuring that next week’s hearing on the
powers of the President to take the nation to war produces the most effective possible outcome.
The goal of this hearing should be to produce media headlines that the President must go to
Congress before directing military action against a foreign sovereign, including, for
example, North Korea.
Background
Americans and members of this Committee are concerned by heated recent rhetoric
suggesting that the United States may be nearing a military conflict with North Korea -- a
conflict that could have catastrophic consequences even notwithstanding the nuclear element.
This concern is exacerbated by the apprehension of many that such a conflict could be initiated
without a sufficient public debate and/or without the consent of the American people. The
Chairman has therefore rightly convened a series of hearings to consider what authority the
President does or does not have, and what role Congress should play, in exercising its oversight
powers over the area of war making. For these hearings to be effective, however, they must
deliver on concrete goals that reassert the Congressional role and make that role sufficiently clear
to the Executive branch that Congress is able to perform its constitutional functions.
The Founders divided war authorities between the President and Congress. The purpose
was to allow the President, as Commander-in-Chief, to defend the country against attack or other
emergency, but not initiate potential or actual hostilities without Congress’ assent to ensure
political accountability.
The Committee should be commended for taking steps to restore the Founders’
Constitutional design. To do that, however, will require more than simply holding hearings. The
hearings must drive a national conversation that restores the proper balance of authorities.
This hearing has the potential to mark a critical point in the national debate: the point at
which expert witnesses and the Members of this Committee make publicly clear that the
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President must go to Congress before directing military action against a foreign sovereign,
including, for example, North Korea.
This hearing provides an excellent opportunity to advance that goal. This memo includes
proposed questions for Committee members that will help to refine an understanding of how and
why Congress must exercise its authority in this context. The questions are also designed to
identify if there are areas where disagreement or a lack of clarity exist that might benefit from an
assertion of Congressional prerogative. This memo also includes suggestions to ensure that the
public is properly informed of the Committee’s work at this hearing to ensure that Congress
provides a meaningful check on the President’s ability to start a war.
The Constitution gives Congress an important role in decisions of war and peace. Yet in
recent decades, Administrations of both political parties have advanced an expanded view of
Presidential power that leaves little room for Congress.1 Article II of the Constitution, which
gives the President the power of Commander in Chief, has been invoked for a broadening array
of “national interests,” without a Presidential consultation with Congress or invocation of “war.”
The Executive Branch’s approach departs from the balance that the Framers struck. Yet until
recently, Congress has largely acquiesced in this approach and not asserted its own constitutional
authority and responsibility.
1. What role does the Constitution assign to Congress regarding decisions about
going to war? Why did the Founders entrust Congress, rather than the President,
with this authority?
2. What do you see as Congress’ role and responsibility in addressing issues of
national defense, including potential military threats?
3. Should the President engage and consult with Congress on issues affecting our
national defense? What level of engagement and consultation would you advise?
4. In particular, should the President seek authorization from Congress before
initiating hostilities against a foreign country?
5. What should Congress do, if anything, if the President doesn’t engage Congress
on issues of war-making and national defense, including potential military action?
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See, e.g., 2001 OLC Opinion (“In both the War Powers Resolution and the Joint Resolution, Congress has
recognized the President's authority to use force in circumstances such as those created by the September 11
incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat,
the amount of military force to be used in response, or the method, timing, and nature of the response. These
decisions, under our Constitution, are for the President alone to make.”); 2002 OLC Opinion (“Accordingly, we
believe that the President’s constitutional authority to undertake military action to protect the national security
interests of the United States is firmly established in the text and structure of the Constitution and in executive
branch practice. Thus, to the extent that the President were to determine that military action against Iraq would
protect our national interests, he could take such action based on his independent constitutional authority; no action
by Congress would be necessary.”); 2013 Statement of Pres. Obama (“I believe I have the authority to carry out this
[Syrian] military action without specific congressional authorization.”).
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B. The Need for Public Support to Succeed in Military Conflicts
One reason the Founders entrusted Congress with the power to declare war is because
they understood that our country could not be successful in conflict without the support of the
American people. As U.S. District Court Judge Christopher Cooper put it in a ruling earlier this
year about disclosure of the legal justification for the April 2017 Syria strikes, “Being closed off
from such a debate is itself a harm in an open democracy... Military strikes cannot be undone.”
As Presidents and Congresses of both parties have allowed for the erosion of Congress’s
constitutional role, it is important to ensure that officials from both branches still understand the
critical need for public support before our country engages in military conflict. Toward that end,
the Committee may wish to ask:
1. Do you agree that success on the battlefield requires the support of the American
people?
2. Do you agree that the American people have a right, through their elected
representatives, to make informed decisions about whether and when our nation
goes to war?
3. If the U.S. initiates military action against North Korea, what are some possible
consequences and what risks would this pose to the United States?
4. Do you agree that the American people have a right not to be taken into a
potentially nuclear conflict without an informed debate and decision by the
people’s representatives?
C. Legal Authority to Initiate Hostilities with Respect to North Korea
As a world leader, the United States must carry out military action in a lawful manner
under both our own domestic law framework and international law. Under domestic law,
congressional authorization is a necessary precursor to the President’s use of military force,
except in cases of self-defense. Under international law, use of force must be pursuant to a U.S.
Security Council resolution or in self-defense, such as defending against an imminent attack.
1. Does Congress have authority to decide whether or not the United States goes to
war with another foreign sovereign, such as North Korea?
2. Does the President require prior authorization from Congress before initiating
military action against a foreign sovereign, for example, North Korea?
3. What can Congress do to ensure that the President does not initiate a new war
without Congressional authorization?
4. If the President were to initiate military action against North Korea without
congressional authorization, what would that mean for preserving Congress’ role,
compared to the executive branch, in the war powers function? How should
Congress respond?
5. If the President initiated military action in the absence of an imminent threat, and
without a U.N. Security Council mandate, would would be the international legal
ramifications?
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Available Tools for Congress to Assert Its Constitutional Role
This hearing, and the others in this series, can play an important role in re-asserting
Congress’s constitutional role in decisions about war and peace. In order to continue to lead this
important public conversation on the proper role of the President, the Committee should follow
up the hearing in some of the following ways. Again, the goal of these actions would be to
continue to drive the message that the President must seek authority from Congress before
directing military action against a foreign sovereign, including, for example, North Korea.
● Consider issuing a joint, bipartisan public statement after the hearing to frame the
Committee’s view that in light of important legal and policy considerations the President
must seek authorization from Congress before taking military action against a foreign
sovereign, including North Korea.
● Submit questions for the record to the witnesses from this hearing and prior hearings to
ensure there is a strong legislative record on the legal and policy reasons why the
Constitution gives Congress the authority to start wars.
● Ensure that in any upcoming nomination hearings, nominees explain their views about
Congress’s role in decisions about taking the country to war, as well as go on the record
about what they would do if the President seeks to take an unlawful action.
● Hold additional hearings, including one with high-level Administration attorneys from
the State Department, Justice Department, and Defense Department to get a clear
understanding of the Administration’s views of its authority to start a war -- and to get
Administration lawyers to answer the Committee’s questions about Congress’s role in
this area.
● Conduct oversight of the Administration’s views of its legal authority to conduct strikes
against foreign sovereigns. As a key component of this, the Committee should request --
and, if needed, subpoena -- secret Administration legal memos and talking points about
its strikes against the Syrian government, as well as any such documents about its
purported legal authority to go to war in North Korea.
● Consider legislation to emphasize that the President alone cannot start a war against
another foreign sovereign.