No Unconstitutional War with North Korea Act of 2020

II 116TH CONGRESS 2D SESSION S. 4020 To prevent an unconstitutional war with North Korea. IN THE SENATE OF THE UNITED STATES JUNE 22, 2020 Mr. MARKEY (for himself, Ms. WARREN, Mr. MERKLEY, and Mr. SANDERS) introduced the following bill; which was read twice and referred to the Committee on Foreign Relations A BILL To prevent an unconstitutional war with North Korea. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘No Unconstitutional 4 War with North Korea Act of 2020’’. 5 SEC. 2. FINDINGS. 6 Congress makes the following findings: 7 (1) The President is currently prohibited from 8 initiating a war or launching a first strike without 9 congressional approval under the United States Con- 10 stitution and United States law. 11 VerDate Sep 11 2014 23:09 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4020.IS S4020 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 4020 IS (2) The Constitution, in Article I, Section 8, 1 grants Congress the sole power to declare war. 2 (3) George Washington, in a letter to William 3 Moultrie dated August 28, 1793, wrote, ‘‘The con- 4 stitution vests the power of declaring war in Con- 5 gress; therefore no offensive expedition of impor- 6 tance can be undertaken until after they shall have 7 deliberated upon the subject and authorized such a 8 measure.’’ 9 (4) In Examination Number 1 of the Hamilton 10 Papers, dated December 17, 1801, Alexander Ham- 11 ilton wrote, ‘‘ ‘The Congress shall have the power to 12 declare war’; the plain meaning of which is, that it 13 is the peculiar and exclusive duty of Congress, when 14 the nation is at peace, to change that state into a 15 state of war.’’ 16 (5) James Madison wrote, in Madison Papers, 17 Helvidius, Number 4, dated September 14, 1793, 18 ‘‘The power to declare war, including the power of 19 judging the causes of war, is fully and exclusively 20 vested in the legislature . . . the executive has no 21 right, in any case, to decide the question, whether 22 there is or is not cause for declaring war.’’ 23 (6) Section 2(c) of the War Powers Resolution 24 (50 U.S.C. 1541(c)) states that ‘‘the constitutional 25 VerDate Sep 11 2014 23:09 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4020.IS S4020 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 4020 IS powers of the President as Commander-in-Chief to 1 introduce United States Armed Forces into hos- 2 tilities, or into situations where imminent involve- 3 ment in hostilities is clearly indicated by the cir- 4 cumstances, are exercised only pursuant to (1) a 5 declaration of war, (2) specific statutory authoriza- 6 tion, or (3) a national emergency created by attack 7 upon the United States, its territories or posses- 8 sions, or its armed forces’’. 9 (7) On April 12, 2018, then-Director of the 10 Central Intelligence Agency, Mike Pompeo, testified 11 before the Committee on Foreign Relations of the 12 Senate that he believed the President had the au- 13 thority to send United States military forces into ac- 14 tion even if none of the qualifications of section 2(c) 15 of the War Powers Resolution are met. 16 (8) On February 13, 2020, a bipartisan major- 17 ity in the Senate directed the President to remove 18 Armed Forces from hostilities against Iran or any 19 part of its government or military, unless otherwise 20 explicitly authorized by Congress, following passage 21 of a similar measure in the House of Representa- 22 tives on January 9, 2020. 23 (9) The United States has approximately 24 28,500 members of the Armed Forces stationed in 25 VerDate Sep 11 2014 23:09 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4020.IS S4020 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 4020 IS Korea, and over 100,000 United States citizens in 1 total, all of whom would be placed in grave danger 2 if an active military conflict on the Korean Penin- 3 sula were to erupt. 4 SEC. 3. PROHIBITION ON UNCONSTITUTIONAL MILITARY 5 STRIKES AGAINST NORTH KOREA. 6 (a) PROHIBITION OF AUTHORIZED MILITARY FORCE 7 IN OR AGAINST NORTH KOREA.—Except as provided in 8 subsection (b), no Federal funds may be obligated or ex- 9 pended for any use of military force in or against North 10 Korea unless Congress has— 11 (1) declared war; or 12 (2) enacted specific statutory authorization for 13 such use of military force after the date of the en- 14 actment of this Act that meets the requirements of 15 the War Powers Resolution (50 U.S.C. 1541 et 16 seq.). 17 (b) EXCEPTION.—The prohibition under subsection 18 (a) shall not apply to a use of military force that is con- 19 sistent with section 2(c) of the War Powers Resolution. 20 (c) RULE OF CONSTRUCTION.—Nothing in this sec- 21 tion may be construed— 22 (1) to prevent the President from using nec- 23 essary and appropriate force to defend United States 24 allies and partners if Congress enacts specific statu- 25 VerDate Sep 11 2014 23:09 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4020.IS S4020 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 4020 IS tory authorization for such use of force consistent 1 with the requirements of the War Powers Resolution 2 (50 U.S.C. 1541 et seq.); 3 (2) to relieve the executive branch of restric- 4 tions on the use of force, reporting, or consultation 5 requirements set forth in the War Powers Resolution 6 (50 U.S.C. 1541 et seq.); or 7 (3) to authorize the use of military force. 8 SEC. 4. SENSE OF CONGRESS IN SUPPORT OF DIPLOMATIC 9 RESOLUTION TO GROWING TENSIONS WITH 10 NORTH KOREA. 11 It is the sense of Congress that— 12 (1) a conflict on the Korean peninsula would 13 have catastrophic consequences for the American 14 people, for members of the United States Armed 15 Forces stationed in the region, for United States in- 16 terests, for United States allies the Republic of 17 Korea and Japan, for the long-suffering people of 18 North Korea, and for global peace and security more 19 broadly, and that actions and statements that in- 20 crease tensions and could lead to miscalculation 21 should be avoided; and 22 (2) the President, in coordination with United 23 States allies, should explore and pursue every fea- 24 sible opportunity to engage in talks with the Govern- 25 VerDate Sep 11 2014 23:09 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4020.IS S4020 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 4020 IS ment of North Korea on concrete steps to reduce 1 tensions and improve communication, and to reinvig- 2 orate high-level negotiations aimed at achieving a 3 diplomatic agreement consistent with the June 12, 4 2018, Joint Statement of President Donald J. 5 Trump of the United States of America and Chair- 6 man Kim Jong Un of the Democratic People’s Re- 7 public of Korea at the Singapore Summit. 8 Æ VerDate Sep 11 2014 23:09 Jul 08, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\S4020.IS S4020 pbinns on DSKJLVW7X2PROD with BILLS