New York City Bar Association Sends Letter to President Trump Regarding Presidential Authority to Initiate War Against North Korea

In a letter to President Trump, the New York City Bar Association called attention to the requirements of the U.S. Constitution, federal legislation, and international law with respect to the commencement of war, and, in particular, to the strict limits of the Constitution and laws imposed on the power of the President to unilaterally commit the nation to war.

Stating that, “in the absence of an actual or imminent attack on the United States (or in some circumstances on its allies), the President has no authority to commence a war in ‘anticipatory self-defense’ (sometimes incorrectly called a ‘preemptive’ war) on another nation without prior Congressional approval.”

Further, “[A]lthough the challenges posed to world peace by the current leadership of North Korea are real, bellicose threats and displays of military prowess by that nation do not constitute the type of imminent attack that might justify unilateral Presidential action to order a military attack against that country.”

Noting that while some scholars argue that the President may initiate military action without Congressional approval when authorized by the U.N. Security Council in accordance with the Charter of the United Nations, “any such contention is irrelevant in the present case because the Security Council has taken no action to authorize military action against North Korea either under present circumstances or under the terms of the 1953 Armistice Agreement that ended the Korean War.”

The letter concludes that “absent an actual or imminent attack on the U.S., the President is required to seek prior Congressional authorization for military action against North Korea notwithstanding the bellicose nature of North Korea’s rhetoric and its development and deployment within its own territory of nuclear weapons and long-range missiles.”

Read the letter here.

About the Association
The New York City Bar Association (www.nycbar.org), since its founding in 1870, has been dedicated to maintaining the high ethical standards of the legal profession, promoting reform of the law and access to justice, and providing service to the profession and the public. The Association, through its 24,000 members, continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.