II 

115TH CONGRESS 

1ST SESSION S. 2016 

To prevent an unconstitutional strike against North Korea. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 26, 2017 

Mr. MARKEY introduced the following bill; which was read twice and referred 

to the Committee on Foreign Relations 

A BILL 

To prevent an unconstitutional strike against North Korea. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘No Unconstitutional 

5 Strike Against North Korea Act of 2017’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 

8 (1) The President is currently prohibited from 

9 initiating a war or launching a first strike without 

10 congressional approval under the United States Con11 stitution and United States law. 


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1 (2) The Constitution, in article I, section 8, 

2 grants Congress the sole power to declare war. 

3 (3) George Washington, in a letter to William 

4 Moultrie dated August 28, 1793, wrote, ‘‘The con5 stitution vests the power of declaring war in Con6 gress; therefore no offensive expedition of impor7 tance can be undertaken until after they shall have 

8 deliberated upon the subject and authorized such a 

9 measure.’’. 

10 (4) In Examination Number 1 of the Hamilton 

11 Papers, dated December 17, 1801, Alexander Ham12 ilton wrote, ‘‘ ‘The Congress shall have the power to 

13 declare war’; the plain meaning of which is, that it 

14 is the peculiar and exclusive duty of Congress, when 

15 the nation is at peace, to change that state into a 

16 state of war.’’. 

17 (5) James Madison wrote, in Madison Papers, 

18 Helvidius, Number 4, dated September 14, 1793, 

19 ‘‘The power to declare war, including the power of 

20 judging the causes of war, is fully and exclusively 

21 vested in the legislature . . . the executive has no 

22 right, in any case, to decide the question, whether 

23 there is or is not cause for declaring war.’’. 

24 (6) Section 2(c) of the War Powers Resolution 

25 (50 U.S.C. 1541(c)) states that ‘‘the constitutional 


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1 powers of the President as Commander-in-Chief to 

2 introduce United States Armed Forces into hos3 tilities, or into situations where imminent involve4 ment in hostilities is clearly indicated by the cir5 cumstances, are exercised only pursuant to (1) a 

6 declaration of war, (2) specific statutory authoriza7 tion, or (3) a national emergency created by attack 

8 upon the United States, its territories or posses9 sions, or its armed forces’’. 

10 (7) The American people, United States allies 

11 in Asia, and the entire world have been deeply trou12 bled by escalating tensions on the Korean peninsula. 

13 (8) Recent polling demonstrates that more than 

14 two-thirds of people in the United States believe that 

15 the United States should attack North Korea only if 

16 North Korea attacks first. 

17 (9) The United States has approximately 

18 28,500 members of the Armed Forces stationed in 

19 Korea who would be placed in grave danger if an ac20 tive military conflict were to erupt. 

21 (10) On August 14, 2017, Chairman of the 

22 Joint Chiefs of Staff, Marine Corps General Joseph 

23 Dunford stated, ‘‘The United States military’s pri24 ority is to support our government’s efforts to 


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1 achieve the denuclearization of the Korean Peninsula 

2 through diplomatic and economic pressure.’’. 

3 (11) On August 10, 2017, Defense Secretary 

4 James Mattis stated that armed conflict with North 

5 Korea ‘‘would be catastrophic’’. 

6 SEC. 3. PROHIBITION ON UNCONSTITUTIONAL MILITARY 

7 STRIKES AGAINST NORTH KOREA. 

8 (a) IN GENERAL.—None of the funds appropriated 

9 or otherwise made available to the Department of Defense 

10 or to any other Federal department or agency may be used 

11 to launch a military strike against North Korea or intro12 duce the Armed Forces into hostilities in North Korea be13 fore the date on which Congress declares war on North 

14 Korea or enacts an authorization described in subsection 

15 (b). 

16 (b) AUTHORIZATION OF MILITARY STRIKES.—An au17 thorization described in this subsection is an authorization 

18 that meets the requirements of the War Powers Resolution 

19 (Public Law 93–148; 50 U.S.C. 1541 et seq.) and that 

20 is enacted after the date of the enactment of this Act. 

21 (c) EXCEPTIONS.—The prohibition under subsection 

22 (a) shall not apply with respect to the introduction of the 

23 Armed Forces into hostilities to repel a sudden attack on 

24 the United States, its territories or possessions, the United 

25 States Armed Forces, or United States allies or to the deVerDate Sep 11 2014 01:12 Oct 28, 2017 Jkt 079200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2016.IS S2016

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1 ployment of United States Armed Forces to rescue or re2 move United States personnel. 

3 (d) RULE OF CONSTRUCTION.—Nothing in this sec4 tion may be construed to relieve the executive branch of 

5 the restrictions on the use of force or the reporting re6 quirements stated in the War Powers Resolution (Public 

7 Law 93–148; 50 U.S.C. 1541 et seq.). 

8 SEC. 4. SENSE OF CONGRESS IN SUPPORT OF A DIPLO9 MATIC RESOLUTION TO GROWING TENSIONS 

10 WITH 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 in16 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 in20 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 fea24 sible opportunity to engage in talks with the Govern25 ment of North Korea on concrete steps to reduce 


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1 tensions and improve communication, and to initiate 

2 negotiations designed to achieve a diplomatic agree3 ment to halt and eventually reverse North Korea’s 

4 nuclear and missile pursuits and to move toward 

5 denuclearization and a permanent peace in the Ko6 rean peninsula. 

Æ 


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