Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

President Truman ordered U.S. military intervention in the Korean peninsula after forces from the Democratic People’s Republic of Korea (or North Korea) crossed the 38th parallel in June 1950 seeking to take over the portion of the peninsula under control of Republic of Korea (or South Korea).1 The hostilities eventually evolved into a large-scale conflict between North Korea and the People’s Republic of China, on one side, and South Korean and United Nations (UN) forces led by the United States, on the other.2 The UN Security Council authorized the UN-based military response,3 but President Truman did not seek congressional authorization for the military action under domestic law, and Congress did not enact a declaration of war or authorization for use of military force.4

After some Members of Congress questioned whether the President had domestic legal authority for intervention,5 the Department of State prepared a memorandum defending the conflict as an “international police action” to enforce the UN Security Council resolutions rather than a war.6 Citing a list of 85 instances in which past presidents deployed forces overseas without express congressional authorization, the memorandum argued that historical practice demonstrated that the Constitution does not require congressional permission for the President to use military force to protect American interests abroad.7 The listed incidents ranged from the pursuit of pirates to multi-year overseas missions, but none approached the scale of conflict reached in the Korean War, which involved over 5.7 million American military personnel and over 36,000 American casualties.8 The Truman Administration’s constitutional theory was never challenged in court, and Congress ultimately extended the draft and appropriated funds for the war effort.9

One aspect of President Truman’s plans to support the war by managing the defense industrial base did reach the Supreme Court. In Youngstown Sheet & Tube Co. v. Sawyer, which is examined in more detail in the discussion of Article II of the Constitution,10 the Supreme Court deemed the Truman Administration’s plans to avoid a labor strike’s effects by seizing and operating private steel mills to be without statutory or constitutional basis.11 In reaching its conclusion, the Supreme Court rejected the view, also asserted by President Roosevelt during World War II, that Presidents have constitutional power to contravene Congress’s economic legislation when a President believes following the law would diminish the United States’ war effort and contribute to a national catastrophe.12

After the Korean War, concerns that communist governments might commit acts of aggression in Formosa (now Taiwan) and the Middle East led Congress to pass and President Eisenhower to sign authorizations for use of military force permitting the President to take military action in those regions. The Formosa authorization, which was repealed in 1974,13 permitted the President to “employ the Armed Forces of the United States as he deems necessary for the specific purpose of securing and protecting Formosa, and the Pescadores against armed attack . . . .” 14 The Middle East authorization provides that the President may “undertake, in the general area of the Middle East, military assistance programs with any nation or group of nations of that area desiring such assistance.” 15 That resolution also provides, among other things, that “the United States is prepared to use armed forces to assist . . . nations requesting assistance against armed aggression from any country controlled by international communism,” provided that the U.S. actions are consistent with its treaty obligations and the Constitution.16

Footnotes

1

See, e.g., Korean War and Japan’s Recovery, >https://history.state.gov/milestones/1945-1952/korean-war (last visited Sept. 10, 2024).

2

See id.; 2 Am. Mil. Hist., The U.S. Army in a Global Era 223–26 (2d ed. 2005), .

3

S.C. Res. 82 (June 25, 1950); S.C. Res. 83 (June 27, 1950); S.C. Res. 84 (July 7, 1950).

4

See, e.g., Mary L. Dudziak, The Gloss of War: Revisiting the Korean War’s Legacy, 122 Mich. L. Rev. 149, 163–85 (2023) (providing an account of internal executive branch deliberations and communications in the lead up to American intervention in the Korean War).

5

See, e.g., 96 Cong. Rec. 9319–23 (1950) (Senator Robert Taft questioning whether the President had legal authority to embark on “a de facto war . . . without consulting Congress and without congressional approval” ).

6

U.S. Dep’t of State, Authority of the President to Repel the Attack in Korea (July 3, 1950), in H.R. Rep. No. 81-2495, at 65 (1950) (quoting James Grafton Rogers, World Policing and the Constitution: An inquiry into the powers of the President and Congress, Nine Wars and a Hundred Military Operations, 1789–1945, at 66–67 (1945)).

7

Id. at 64, 67–68. The State Department’s list had its roots in a 1912 memorandum discussing the President’s right to protect citizens in foreign countries. See . For a more current list of instances of U.S. armed forces overseas, see Barbara Salazar Torreon & Sofia Plagakis, Cong. Rsch. Serv., R42738, Instances of Use of United States Armed Forces Abroad, 1798–2023 (2023), >https://crsreports.congress.gov/product/pdf/R/R42738.

8

For background on the number of American personnel serving in past conflicts and the level of American casualties, see David A. Blum, Cong. Rsch. Serv., RL32492, American War and Military Operations Casualties’: Lists and Statistics (2020), >https://crsreports.congress.gov/product/pdf/RL/RL32492.

9

See Selective Service Extension Act of 1950, Pub. L. No. 81-599, 64 Stat. 318; Cong. Rsch. Serv., RS22455, Military Operations: Precedents for Funding Contingency Operations in Regular or Supplemental Appropriations Bills 3–4 (2006) (listing Korean War appropriations amounts); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 670–72 (1952) (Vinson, J., dissenting) (discussing appropriations and other legislation supporting the Korean war effort).

10

.

11

Youngstown Sheet & Tube Co., 343 U.S. at 585–88.

12

See id. at 585–85. For discussion President Roosevelt’s threat to ignore legislation, see § World War II and the Use of War Powers.

13

Pub. L. No. 93-475, 88 Stat. 1439 (1974).

14

Pub. L. No. 84-4, 69 Stat. 7 (1955).

15

Pub. L. No. 85-7, 71 Stat. 5 (1957).

16

Id.