from The Water's Edge

TWE Remembers: Truman’s Decision to Intervene in Korea

A UN convoy crossing the 38th parallel. National Archives
A UN convoy crossing the 38th parallel. National Archives

June 27, 2020

A UN convoy crossing the 38th parallel. National Archives
A UN convoy crossing the 38th parallel. National Archives
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Seventy years ago today, President Harry Truman ordered the U.S. military to aid South Korea in repulsing an invasion from North Korea. The decision had geopolitical consequences that are still felt to this day. The decision was equally momentous for its impact on America’s constitutional practice. Truman acted without seeking congressional authorization either in advance or in retrospect. He instead justified his decision on his authority as commander in chief. The move dramatically expanded presidential power at the expense of Congress, which eagerly cooperated in the sacrifice of its constitutional prerogatives.

Truman’s decision hardly fit the framers’ vision of how the war power would be exercised. When Pierce Butler of South Carolina proposed at the Constitutional Convention to vest the war power with the president, no one seconded the motion and a fellow delegate exclaimed that he "never expected to hear in a republic a motion to empower the Executive alone to declare war.” James Wilson, a leading voice at the convention, assured the Pennsylvania state ratifying convention that the new Constitution “will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress.” Alexander Hamilton offered similar reassurances in Federalist 69. The president’s role as commander in chief “would amount to nothing more than the supreme command and direction of the military and naval forces” while Congress would possess the powers of “DECLARING of war and…RAISING and REGULATING of fleets and armies.” 

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The framers’ restricted vision of presidential war-making powers carried over into practice. In 1810, James Madison, a man who knew something about original intent, dismissed as unconstitutional a Senate-passed bill that would have delegated to him the authority to order the Navy to protect American merchant ships against attacks from British and French raiders. His reasoning? Only Congress could take the country from peace to war. Nearly forty years later, President James Buchanan wrote that “without the authority of Congress the President can not fire a hostile gun in any case except to repel the attacks of an enemy.” Just nine years before Truman unilaterally decided to defend Korea, President Franklin Roosevelt asked Congress to declare war on Japan even though the Japanese had bombed Pearl Harbor—an attack that clearly met Buchanan’s (and the framers’) standard of when a president could act without soliciting congressional approval.

Truman clearly believed that time was essence, and with the memory of Munich hovering in the background, that the United States had to counter communist aggression. But he couldn’t argue he didn’t have time to go to Congress or that Congress couldn’t act quickly. Congress was in session when North Korea invaded and almost certainly would have endorsed his decision. And Truman knew from experience that Congress could act swiftly. FDR asked for a declaration of war against Japan the day after Pearl Harbor. Congress provided it within hours.

Truman also couldn’t argue that he hadn’t been reminded that the Constitution gave the war power to Congress. Sen. Robert A. Taft of Ohio, one of the leading Republicans on Capitol Hill at the time, took to the Senate floor on June 28 to argue that “there is no legal authority for what he [Truman] has done.” Nor could Truman argue that the Korean conflict didn’t constitute war in a constitutional sense, even if he did downplay the significance of his decision. (At a press conference on June 29, Truman denied the country was at war, prompting a journalist to ask, “would it be correct…to call this a police action?” Truman answered simply, “Yes.”) The framers understood the difference between full-scale and limited wars—or what they would have called “perfect” versus “imperfect” wars. Over the years, Congress had authorized many small-scale conflicts. The Supreme Court had even ruled that Congress’s war power encompassed both large and small-scale conflicts and that when Congress authorized limited wars the president could not go beyond what Congress permitted. And, of course, the Korean War was “limited” only in the sense that it was smaller in scope than the two world wars.

Truman would argue that he was obligated to act because the UN Security Council had called on UN members to repel the attack and that his decision was in keeping with past practice. He in fact had decided to intervene in Korea before the UN Security Council voted, and he couldn’t assume the Council would vote as it did. (Had the Soviets not boycotted the meeting for unrelated reasons, they would have blocked action.) More important, he was not legally obligated or empowered to respond to the UN’s call. The Senate’s approval of the UN Charter and Congress’s subsequent passage of the UN Participation Act of 1945 were explicitly predicated on agreement that UN membership did not override Congress’s war power. (Precisely that fear had helped torpedo Senate approval of the Treaty of Versailles a quarter century before.) The list of supposed precedents of unilateral presidential actions, which were presumed somehow to have put a “gloss” on constitutional meaning, was unimpressive. As a leading legal scholar at the time noted, the list consisted of “fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border and the like.”

Truman in the end acted because he believed, contrary to what the framers envisioned and the historical record showed, that as commander-in-chief he had the authority to order U.S. troops into combat. Indeed, when asked after he left office whether he still would have intervened in Korea had the UN Security Council failed to approve a response, he answered: “No question about it.”  

More on:

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Truman was able to establish the precedent that presidents can take the country to war,  though, because members of Congress were unwilling, Taft’s complaints notwithstanding, to defend their constitutional power from executive encroachment. Truman met with fourteen leading members of Congress on Tuesday, June 27, shortly after he ordered the U.S. military to move toward combat status. According to Secretary of State Dean Acheson’s telling, lawmakers responded to the news that the United States would come to the aid of South Korea with a “general chorus of approval” while saying nothing about taking the issue to Capitol Hill. When Truman met with congressional leaders again three days later, moments after he committed U.S. ground troops to the war, Senate Minority Leader Kenneth Wherry (R-NE), who had not attended the first meeting, argued that Truman should have gone to Congress. Senator Alexander Smith (R-NJ) then suggested, but didn’t insist, that the president still seek congressional approval. Truman promised to consider the request. As the meeting ended, Representative Dewey Short (R-MO), the ranking Republican on the House Armed Services Committee, endorsed Truman’s decision to act unilaterally.

Acheson subsequently recommended that Congress pass a resolution to “commend”—but not “authorize”—the action the United States—not the president—had taken in Korea. However, Acheson argued that Congress, rather than the president, should initiate the process. Truman raised Acheson’s recommendation and a draft resolution the State Department had prepared with Senator Scott Lucas (D-IL) in a meeting on July 3. The Senate Democratic leader had no appetite to take up any resolution. He argued that “that the president had very properly done what he had to do without consulting the Congress” and that “many members of Congress had suggested to him that the president should keep away from Congress and avoid debate.” Truman gladly followed the advice.

The refusal of Lucas and other lawmakers to force a vote was hardly the first time that Congress sacrificed its constitutional prerogatives in the service of immediate political needs. In doing so, however, it helped greatly expand the boundary of presidential power. To be sure, Truman’s immediate successors were more impressed by how the Korean War consumed his presidency than by the authority he asserted in entering it. Dwight Eisenhower and Lyndon Johnson both saw Truman’s experience showing the need, as the saying went, to get Congress in on the takeoffs in foreign policy if they wanted it around for the crash landings. So whether it was the crises over Dien Bien Phu and Formosa, or the Gulf of Tonkin incident, their initial instincts were to turn to Congress for resolutions to bless their authority to act. (After his experience in Vietnam, Johnson lamented that he had “failed to reckon on one thing: the parachute: I got them on the takeoff, but a lot of them bailed out before the end of the flight.”)

The fears that drove Eisenhower and LBJ eventually receded. What remained—particularly in the legal briefs prepared over the years by White House lawyers for Democratic and Republican presidents alike—was the contention that Truman showed that presidents can go to war on their own initiative. Members of Congress have long to sought to put that genie back in the box. They have largely failed, as the Kosovo War, the Libyan intervention, and the Yemen War all attest. Powers easily given away are exceedingly difficult to reclaim.

Noah Mulligan and Anna Shortridge contributed to the preparation of this post.

 

 

 

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