President Trump’s snap decision in March to gamble on summit diplomacy with Kim Jong Un blurred some of the long-standing partisan lines on foreign policy. Pundits on Fox News and many Republicans in Congress, dropping some of the usual conservative objections to high-level engagement with hostile regimes, praised Trump’s willingness to meet with the North Korean leader and engaged in some premature speculation about Nobel prizes.

Congressional Democrats, in turn, have expressed cautious support for Trump’s diplomatic outreach, while also questioning the administration’s preparedness and occasionally seizing the political opportunity to criticize Trump from his right flank.

But even as the politics remain unsettled, it is clear that Congress will play a role if plans for a Trump-Kim summit move forward, and if the administration engages in a sustained negotiating process with North Korea on denuclearization. In addition to performing its oversight functions, Congress may eventually have a role to play in implementing sanctions relief, appropriating funds, or backing a peace agreement as diplomacy moves forward.

On the other hand, if the failure of diplomacy means a return to last year’s heightened tensions and threats of military action, there could be an intensified debate on Capitol Hill about the possible use of military force on the peninsula.

Capitol Hill’s past role

Not long after the Agreed Framework on North Korea’s nuclear program was signed in 1994, Republicans gained control of the House and Senate in a midterm election wave, setting the stage for tensions between the Clinton administration and a Congress skeptical of the agreement.

Although the Agreed Framework’s status as an executive agreement rather than a treaty sidestepped the need for Congressional approval, its provisions obliging the U.S. to provide energy assistance to North Korea meant that its implementation would be subject to Congressional appropriations authority. Because of ongoing disputes over these appropriations, the Agreed Framework’s status remained in a state of jeopardy for much of its existence, leading to delays in the delivery of heavy fuel oil shipments to North Korea.

Clashes between the Congressional and Executive branches on how to deal with North Korea were not quite as pronounced during the administrations of George W. Bush and Barack Obama, but nonetheless played a significant role in shaping policy. Starting in the early 2000s, Congress began pushing for human rights concerns to play a more prominent role in U.S. policy toward North Korea, leading to the passage of the North Korea Human Rights Act in 2004.

In 2007-08, as the Bush administration pivoted away from the more hawkish North Korea policy of its first term, it experienced some pushback from conservatives in Congress over the return of frozen funds from Banco Delta Asia to North Korea and Pyongyang’s removal from the State Sponsors of Terrorism list. Growing bipartisan impatience with the Obama administration’s approach to North Korea led to the 2016 passage of the North Korea Sanctions and Policy Enhancement Act (NKSPEA), which obligated the Executive branch to impose a broad range of new sanctions on North Korea and third-country violators of UN sanctions.

In the first year of the Trump administration, Congress broadly supported the economic side of the “maximum pressure” campaign, including significant new North Korea sanctions measures in the Countering America’s Adversaries through Sanctions Act, which was approved last summer. Some members of Congress also pressed the Trump administration to go even further in the application of secondary sanctions, calling for action against major Chinese banks for reportedly facilitating illicit trade with North Korea. However, Trump’s bellicose threats against North Korea drew strong rebukes from Democrats as well as some Republicans in Congress.

Any deal with North Korea would likely some kind of Congressional approval | Photo: Blue House

Oversight and agenda setting

At a minimum, regardless of whether diplomacy with North Korea moves forward or if the U.S. reverts to a track of maximum pressure, Congress will no doubt continue to exercise an oversight role through the usual mechanisms such as hearings, requirements for reports on various aspects of administration policy, or fact-finding delegations abroad. Members of Congress will try to set expectations for what constitutes success, and – depending on how talks progress – may try to shape the agenda for talks by calling for an enhanced focus on North Korea’s human rights abuses, or its chemical and biological weapons programs, or a host of other issues.

Some members could also call for the Trump administration to put certain goodwill gestures on the table, such as the resumption of remains recovery missions or the organization of reunions between Korean-Americans and their family members in North Korea.

It is also possible that Congress will pass legislation to provide more institutionalized oversight of negotiations with North Korea and to allow legislators a vote on whatever deal might emerge, roughly along the lines of the 2015 Iran Nuclear Agreement Review Act. Senator Robert Menendez, the top Democrat on the Senate Foreign Relations Committee, has recently promised to introduce such a bill, saying that it would “help this administration avoid the traps that Kim might seek to set.”

The unusual political dynamics of the Trump administration’s North Korea outreach make it difficult to predict whether the Republican leadership in Congress would be willing to support such legislation, though a Democratic sweep of this year’s midterm elections might make passage in 2019 more likely.

Sanctions

In the absence of new oversight legislation, the Trump administration will have some wiggle room to provide North Korea with limited sanctions relief as part of a phased approach to denuclearization. For example, in return for initial North Korean actions on denuclearization, the U.S. could work with the UN Security Council to temporarily lift caps or restrictions on North Korea’s exports of key commodities like coal or its imports of fuel and machinery. Such actions would not require the U.S. to lift its existing unilateral sanctions, but only to exercise discretion in how they are enforced.

The Trump administration would also have some leeway in amending the Treasury Department’s North Korea Sanctions Regulation and in waiving the imposition of certain sanctions on a case-by-case basis, but full suspension or removal of the comprehensive sanctions imposed under NKSPEA would require the White House to certify that North Korea has reached certain benchmarks established by Congress. For the suspension of sanctions, these include North Korean progress toward:

  • Compliance with relevant UN Security Council resolutions on its nuclear program;
  • Improvements in conditions in its prison camps and in the distribution and monitoring of humanitarian aid;
  • Accounting for and repatriating abductees and people unlawfully held captive; and
  • Taking steps toward financial transparency and verifiably ceasing the counterfeiting of U.S. currency.

The statutory requirements for termination of sanctions sets an even higher bar, requiring the President to certify that North Korea has made “significant progress” toward the complete, irreversible, and verifiable dismantlement of its WMD and ballistic missile programs, as well as toward the establishment of “an open, transparent, and representative society.”

While the White House retains the discretion to decide how progress on these issues is defined, as nuclear negotiations move forward there will no doubt be some voices in Congress pressing the Trump administration to make sure that these non-nuclear issues – particularly North Korean human rights – are included on the agenda, and that sanctions relief is tied to significant North Korean action on these fronts. Depending on how talks proceed, Congress might also potentially play a role in providing more tailored sanctions relief than current law allows for.

The complete suspension or removal of the comprehensive sanctions enacted under NKSPEA would necessarily come at the end of a long and difficult diplomatic road, but the lifting of other, more narrowly targeted sanctions measures could also give Capitol Hill the opportunity to weigh in with a vote earlier on.

For example, the White House might need to ask Congress to take action to waive certain restrictions on non-humanitarian assistance to North Korea relatively early in a negotiation process, in order to allow U.S. agencies to take part in the dismantlement of North Korean nuclear facilities. Additionally, if the U.S. decides to once again remove North Korea from the State Sponsors of Terrorism list, Congress has the statutory authority to pass a resolution blocking this removal.

On the other hand, if diplomacy falters and the U.S. returns to the track of maximum pressure, Congress may move to pass additional sanctions legislation; the House already passed such a bill last October, with action currently pending in the Senate. U.S. sanctions policy toward North Korea has already become sweeping enough that the passage of new laws is arguably less relevant than how the enforcement of current ones, but new legislation could nonetheless provide Washington with additional tools to strong-arm third countries into cutting economic ties with North Korea.

Congress had been broadly supportive of Trump’s policy of “maximum pressure” | Photo: Government of Japan

Peace and non-aggression

If the U.S. and North Korea agree to replace the Armistice Agreement with a peace regime – either as a bilateral agreement or through a multilateral mechanism – it would not necessarily take the form of a treaty requiring ratification from Congress. The Truman administration never asked Congress for a declaration of war against North Korea, instead sending U.S. troops to fight in the Korean War under the aegis of the UN Command. A U.S. executive agreement with North Korea and other parties to end the state of war, coupled with an appropriate UN Security Council resolution, would likely be sufficient to end the conflict in a formal sense.

Nonetheless, Congressional approval of a peace treaty or a peace regime agreement – presumably one which incorporates a formal security assurance to Pyongyang, such as a non-aggression clause – might help convince North Korea of its durability. As the Trump administration’s policy toward the Iran deal shows, and as North Korea learned from the experience of the Agreed Framework, U.S. agreements with adversarial states can have a short shelf life after the administration which negotiated them leaves office. (It is hard to say, however, how much weight North Korea might give to the notion of U.S. foreign policy being bound by the passage of a law or ratification of a treaty.)

Additionally, given JCPOA critics’ insistence that the Iran deal should have been sent as a treaty to the Senate, perhaps the Trump administration and its allies in Congress would want a peace agreement with North Korea to take the form of a formal treaty, to differentiate its approach from that of the Obama administration’s diplomacy with Iran. If the Republican rank-and-file in Congress continue to support Trump on his North Korea outreach, passage of such a treaty might actually be politically viable.

Use of military force

Should the U.S. and North Korea fail to make headway in talks on denuclearization and peace, it’s likely that talk of war will begin to rear its ugly head again. Particularly hawkish members of Congress, like Senator Lindsey Graham, could once again lead the vanguard in warning of the administration’s propensity to take military action to resolve the North Korean nuclear issue. At the next rung of the escalatory ladder, it is possible that some Trump allies could introduce an Authorization for the Use of Military Force resolution against North Korea, ostensibly to strengthen the administration’s hand in conducting coercive diplomacy in extremis. Debate on an AUMF resolution, however, could very well lead to a strong public backlash, and the public failure of such a resolution could gravely weaken the Trump administration’s case for military action.

On the other side of the spectrum, the renewed threat of a conflict on the Korean peninsula could provide momentum to legislation aimed at preventing the Trump administration from launching a preventative war. Bills prohibiting funding for any military action against North Korea in the absence of an imminent threat have already been introduced in the House and Senate, and would certainly gain momentum if threats of military action are put back on the table.

At a more tactical level, some Members might make an effort to keep the enormously high potential costs of conflict in the public eye – for example, by requesting unclassified reports on casualty and cost estimates from the Defense Department, and making sure these numbers are regularly cited on cable news programs.

What comes next

There is a long history of Congress clashing with the White House on North Korea policy, typically with Capitol Hill acting as a voice of skepticism during periods of U.S. engagement with Pyongyang. The dynamics of the Congressional-Executive relationship, however, might be a little different this time around.

Whether a Singapore summit takes place or not, if the Trump administration engages in a structured, ongoing process of negotiations with North Korea, it could find support on Capitol Hill through an unusual coalition of Republican loyalists and Democrats concerned about the alternatives under consideration. If negotiations collapse, however – especially if fault for their collapse could be assigned to the White House, and threats of U.S. military action resume – the Congressional approach to North Korea policy could turn much more contentious.

The views expressed in this article are solely those of the author and do not represent those of their employer.

Edited by Oliver Hotham

Featured image: Wikimedia Commons