Peace Powers: Could the President End the Korean War Without Congress?

Abstract

The Korean War never actually ended. Although largescale hostilities have been suspended for decades under an armistice agreement, a peace agreement was never signed, and there remains a tense posture in which the United States, North Korea, and South Korea continue to prepare themselves for resumed hostilities at any time. The Trump administration indicated a willingness to enter into a peace agreement with North Korea to formally end the war and but did not follow through, and other prior American presidents had also failed to secure normalized relations with North Korea. South Korean President Moon Jae-in continues to advocate fiercely for a formal peace agreement between the warring parties, and given the recent change of political leadership within the United States, the issue is sure to arise again.

But if a U.S. president were to one day succeed in concluding a binding international peace agreement to formally end the Korean War, what should be the role of Congress? Just as the proper division of war powers between the executive and legislative branches of government are hotly contested, so too do the powers to end war and declare peace remain a subject of debate. As a matter of policy, it may be preferable to utilize the most solemn procedure available under U.S. law, the Article II treaty process, for a peace agreement to end the Korean War. Short of that, a congressional-executive agreement could also be used to signal that each of these branches of the American government are committed to forging a new relationship with North Korea and recognizing an end of the war. Nonetheless, there are many reasons that a President may determine that it is more strategic, expedient, or otherwise preferable to act unilaterally. For example, there may be complex political dynamics in Congress that threaten to slow, hamper, or outright impede peace efforts. If that is the case, this Article argues that there is nothing in the text, case law, or past practice under the Constitution that would prohibit the President from ending the Korean War through a sole executive agreement.

Keywords: Korea, North Korea, South Korea, peace, war powers, Constitution, constitutional law, international law, treaty, Article II, Korean War, treaties