Kosovo, War Powers, and the Multilateral Future
By John C. Yoo*
I.
American Intervention in Kosovo..
A. War Powers in Constitutional Text
and Practice
II.
Kosovo and the Constitutional Allocation of War Powers
A. War Powers and the
Constitutional Text and Structure
B. The Dubious Historical Claims of
Pro-Congress Scholars
C. The Original Understanding of
War Powers
III.
Multilateralism and the Constitutional Future
A. Globalization and the American
Legal System
B. Sovereignty and Multilateralism:
The Case of Military Command
C. The President, Treaty
Obligations, and International Law
Aside from getting himself impeached but not removed, President William J. Clinton’s most noteworthy impact on the Constitution has been in the area of war powers. When it comes to using the American military, no president in recent times has had a quicker trigger finger. In March, 1999, for example, President Clinton ordered 31,000 American servicemen and women to engage in air operations against Serbia, the largest and most powerful province of the former Yugoslavia, to prevent the “ethnic cleansing” of Albanians living in Kosovo. As part of an operation sponsored by the North Atlantic Treaty Organization (NATO), 7,000 American ground troops then entered Kosovo on June 10, 1999, after NATO bombing had forced Serbia to withdraw its forces. It is unclear how long American troops will remain, as NATO’s goals include not just ending war but building a new nation in Kosovo.
While broader in scale and destructiveness, President Clinton’s Kosovo operation followed a pattern set by similar military interventions over the last eight years. Since December 1995, some 20,000 American troops have implemented a U.N.-brokered peace plan in Bosnia, another former province of the former Yugoslavia. American war planes continue to enforce a no-fly zone in Iraq, and on occasion American cruise missiles and bombs have attacked Iraqi military assets. In the summer of 1998, President Clinton again used cruise missiles, this time to hit suspected terrorist targets in Sudan and Afghanistan. In 1994, President Clinton sent 16,000 American troops to Haiti, under the auspices of the U.N., to oversee its transition to democratic government. In 1993, President Clinton expanded the goals of the 28,000 American troops in Somalia, originally deployed by President Bush for humanitarian reasons, but then withdrew them after the deaths of soldiers in combat. On President Clinton’s watch, American troops also have participated in U.N. peacekeeping missions in dangerous places such as Macedonia and Rwanda.
In none of these cases did the Clinton administration seek congressional authorization for its decisions to use force abroad. In fact, the President has justified his military interventions more often on the need to uphold our obligations to the United Nations or NATO, than upon congressional approval. Although on several occasions Congress refused to authorize the use of force, President Clinton argued that he had the sole constitutional power as Commander-in-Chief to send American servicemen and women into harm’s way. While he often signaled that he would welcome congressional support, he also made clear that he would implement his military plans without it. President Clinton further refused to acknowledge that the War Powers Resolution bound his discretion to act. Arguably, the Clinton administration’s use of the military in several long-term interventions has rendered the War Powers Resolution a dead letter.
This Essay will discuss the constitutional implications of the Clinton administration’s war power activities. First, it will explain that President Clinton’s claim of unilateral executive war power, while at times rhetorically overbroad, can find support in the Constitution’s text and original understanding. In creating a flexible system of war powers, the Constitution allows the President to exercise significant initiative in war matters, while providing Congress with the ample authority to check presidential adventurism by refusing to fund military operations. Congress had a full opportunity to prevent President Clinton from deploying the armed forces in Kosovo. It simply chose, as a political matter, not to. Events have proven legal academics, the vast majority of whom believe that Congress must authorize all offensive uses of force,[1] wrong yet again in describing reality or in proving consistent in their normative judgments.
Second, this Essay will examine the increasingly multilateral nature of the American use of force. Kosovo and other Clinton-era operations, in which American military forces participate as part of multinational forces under international mandate, may prove to be the model for the future. This Essay will address whether the Constitution imposes any limitations on the President’s ability to send American troops to serve under international command. It then will turn to two other questions raised by Kosovo involving the relationship between international law and presidential power: whether the President gains any constitutional authority vis-à-vis Congress when using force pursuant to treaty, and whether the President may violate international law in the course of ordering the military to intervene abroad. Kosovo shows, I conclude, that the President is free to pursue the goals of multilateral organizations, even to the point of waging war without congressional authorization or of violating international law. Nonetheless, the Constitution places limits on the federal government’s ability to cooperate with international organizations, particularly in its restrictions on delegating authority under federal law to non-U.S. officers, and in Congress’s discretion to use the legislative power to block presidential foreign policy.
This Section will discuss the constitutional issues that have surrounded the Clinton administration’s use of force abroad. It will begin by briefly sketching out the constitutional allocation of powers and recent practice by the three branches of government. As events in Kosovo may set the paradigm for future multilateral military interventions, I will focus my comments on its details. Section II will examine whether the administration’s unilateral decisions to use force can find support in the Constitution, and it will respond to scholarly criticism of recent executive warmaking. Section III will discuss the constitutional implications of the multilateral nature of future American intervention.
While the constitutional text divides the warmaking power between the President and Congress, it does not clearly vest the power to initiate hostilities in either branch. Article II vests in the President the Commander-in-Chief power, the power to send and receive ambassadors, and all of the other executive power of the United States.[2] Article I grants Congress the authority “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” to raise and fund the military, and to organize the military.[3] Congress also enjoys other foreign affairs powers, such as the authority to regulate international commerce, to enact immigration laws, and to pass laws to punish piracy. The federal courts have no special role in warmaking, aside from their jurisdiction over cases arising under the Constitution, treaties, and federal laws, and controversies involving ambassadors, admiralty and maritime, and diversity suits with foreign states or citizens.[4] Finally, Article I, Section 10 of the Constitution wholly excludes the states from matters involving war, unless they receive congressional permission or are threatened with invasion.[5]
Around this formal distribution of constitutional powers, a modern system of warmaking has arisen that has allowed the President the initiative in starting military hostilities. Although pro-Congress scholars base their claims on Congress’s sole possession of the power to declare war, Congress has used that authority only five times in the nation’s history. Meanwhile, Presidents have committed forces to combat at least 125 times in the Republic’s 210 year history, although most of these interventions were either small in scale or had received legislative support.[6] Since World War II Presidents have expanded upon this practice by sending the armed forces into several major conflicts without congressional authorization. In the Korean War, President Truman consciously chose to rely upon his Commander-in-Chief and executive powers to send troops,[7] and in Vietnam President Johnson at best only received the ambiguous Tonkin Gulf Resolution as a sign of congressional support.[8]
Post-Vietnam efforts by Congress to control presidential warmaking by statute have met with little success. In 1973, Congress enacted the War Powers Resolution (WPR), which prohibits the president from introducing the American military into hostilities, whether actual or imminent, without either a declaration of war, specific statutory authorization, or an attack on the United States or its forces.[9] The Resolution requires a President to consult with Congress before sending the armed forces into hostilities and to report to Congress within 48 hours of sending the military into hostilities.[10] Sixty days after the report, the President must terminate the intervention.[11]
Presidents have never acknowledged the WPR’s constitutionality, and their recent actions seem to have ignored its terms. Presidents Ford and Carter never expressly recognized the Resolution’s binding force, and President Reagan refused to comply with the Resolution when he ordered the use of force in Lebanon, Grenada, Libya, and the Persian Gulf. Like the presidents before him, President Bush sent messages notifying Congress of military interventions in Panama and the Persian Gulf that were “consistent with” the Resolution, but that did not obey it. During the Gulf War, President Bush dispatched troops to the Middle East for well longer than permitted by the WPR’s 60-day clock.[12] Even as he asked for a congressional sign of support, President Bush argued that he already had the constitutional authority to implement U.N. Security Council Resolution 678, which asked all member states to use “all necessary means” to force Iraqi troops out of Kuwait.[13]
Use of force under the Clinton administration has only further undermined the WPR. In 1994, pursuant to U.N. mandate, President Clinton planned a military intervention in Haiti, in the face of a unanimous Senate resolution declaring that he had no authorization to do so. Stating that he had sufficient constitutional authority anyway, Clinton then sent 20,000 American troops to supervise transition to a democratic government in violent conditions. Five years later, those troops are only now finishing the wind-down of their deployment.[14] In 1993, the administration began its long involvement in the Balkans by sending American warplanes to enforce a no-fly zone over Bosnia-Herzegovina. That same year, the President dispatched American troops to Macedonia as part of a U.N. peacekeeping operation. In February 1994, 60 American warplanes conducted airstrikes against Serbian targets in order to bring about an end to the conflict in Bosnia, again pursuant to U.N. authorization. In December 1995, President Clinton ordered the deployment of 20,000 American troops to Bosnia to implement a peace agreement; at least 6,000 American servicemen and women remain there today.[15] In addition to the Balkans, President Clinton has engaged in several limited uses of force against Iraq (twice), and against terrorist targets in Afghanistan and the Sudan, mostly through the use of airstrikes by warplanes and cruise missiles. In all of these crises, the administration acted without statutory authorization, often in the face of House or Senate resolutions opposing the intervention, and instead claimed support from the U.N. or NATO. Troops have participated in several of these operations well beyond the time limits demanded by the WPR, with little congressional sanction or efforts at enforcement.
This pattern of executive initiative and legislative acquiescence, which has rendered the WPR a dead letter, culminated in the American intervention in Kosovo. A province of the former Yugoslavia, Kosovo was inhabited both by ethnic Albanians and Serbs.[16] While under communist control, Kosovo gained substantial autonomy within the Yugoslavian federal structure, with the result that Albanians assumed the overwhelming majority of the population. Under Slobodan Milosevic, however, Yugoslavia in the late 1980’s eliminated Kosovo’s independent status and imposed a harsh authoritarian rule. In 1998, Serbia launched a crackdown in Kosovo that killed dozens of Albanians and led thousands of others to flee. By spring, 1999, NATO-led efforts to broker a diplomatic peace between Albanian Kosovars and the Serbian government failed.
In March, 1999,
Serbian military forces began a broad offensive aimed at driving the Albanian
population out of the province. Most
Albanians went into hiding, fled to neighboring countries, or were killed or
detained. On March 23, after the
Clinton administration’s special envoy left Belgrade with no hope for a
negotiated settlement, the Senate passed, by a vote of 58 to 41, a concurrent
resolution authorizing the President to “conduct
military air operations and missile strikes in cooperation with our NATO allies
against the Federal Republic of Yugoslavia (Serbia and Montenegro).”[17] On March 24, American warplanes, in conjunction
with other NATO forces, began attacking Serbian forces in Kosovo. In a nationally televised address, President
Clinton argued that airstrikes were necessary to protect innocent Albanians, to
prevent the conflict from spreading to the rest of Europe, and to act with our
European allies in maintaining peace.[18] President Clinton declared that the
military’s mission would be “to demonstrate NATO’s seriousness of purpose,” to
“deter an even bloodier offensive against innocent civilians in Kosovo,” and
“to seriously damage the Serbian military’s capacity to harm the people of
Kosovo.”[19] American
air and missile operations went beyond Serbian military units in Kosovo to
include military, strategic, and civilian targets within Serbia itself, such as
air defense, electrical, communications, and government facilities.
Hewing to the pattern set during previous
administrations, presidential initiative in warmaking produced congressional
funding support, but nothing more. On
the same day that airstrikes began, the House of Representatives passed a
resolution by 424 to 1 that declared its support for American troops, but
refused to authorize the use of force.[20] On March 26, President Clinton sent a
message to the President pro tempore of the Senate and the Speaker of the House
informing them of the American air strikes against Serb forces.[21] Reciting Serbian atrocities against the
Albanian Kosovars, he claimed that the Milosevic regime had violated both the
U.N. charter, U.N. Security Council resolutions, and NATO resolutions. The President justified his unilateral
decision to use American forces to attack another sovereign nation on his
“constitutional authority to conduct U.S. foreign relations and as Commander in
Chief and Chief Executive.”[22] While he welcomed congressional
demonstrations of support, President Clinton made clear that he did not need
congressional authorization.[23] Following the examples of Presidents Reagan
and Bush, President Clinton described the report as “consistent” with, rather
than “pursuant to,” the WPR to demonstrate refusal to recognize the WPR’s
constitutionality or to comply with its terms.[24] In a follow up letter on April 7, President
Clinton refused to set an end date for American intervention and instead
predicted that military operations would intensify until Milosevic ended his
offensive against the Albanian Kosovars, stopped the repression, and agreed to
a peace accord.[25]
As the war continued throughout April and May, Congress considered a series of proposals that bore on war powers. On April 28, the House of Representatives first rejected, by a vote of 427 to 2, a joint resolution declaring war upon the Federal Republic of Yugoslavia.[26] It then rejected, by a tie 213-213 vote, the March 23 Senate resolution authorizing the use of force.[27] The House also defeated, by a 290 to 139 vote, a concurrent resolution that would have required the President to remove all American troops from Yugoslavia operations.[28] The House then passed a bill that barred the use of any funds for the deployment of American forces in Yugoslavia without specific congressional authorization,[29] which the Senate refused to enact. On May 20, Congress doubled the Administration’s request for emergency funding for Yugoslavia war operations, to the tune of $11.8 billion, but without authorizing the war.[30] On May 25, President Clinton reported to Congress that he had deployed even more aircraft and combat ground troops to the region to support deep strike operations in the Yugoslavia theater of operations.[31]
Conclusion of the Kosovo conflict highlighted the WPR’s impotence in constraining presidential decisionmaking. Bombing attacks against Serbian targets both in Kosovo and in Serbia proper did not end until June 10, 1999, 79 days after the war first began and 19 days after the Resolution’s 60-day clock had ended.[32] As part of the peace terms accepted by Serbia, NATO sent 50,000 troops, 7,000 of them American, into Kosovo to maintain peace and security during the transition to Kosovar self-government.[33] Although an American, General Wesley Clark, directed the bombing campaign, American troops in the peacekeeping force serve under both American and non-American NATO commanders, under the ultimate authority of a British general.[34] Congress has refused to give statutory authorization for the insertion of American troops, which will have been deployed to the region for more than 180 days by January, 2000. Congress, however, agreed to provide supplementing appropriations for a long-term military presence in Kosovo.
As they consistently have throughout the postwar period, the federal courts refused to adjudicate the constitutionality of the President’s unilateral use of force or his violation of the WPR’s terms. During the Kosovo bombing campaign, twenty-seven House members sued President Clinton on the ground that he had usurped Congress’s power to declare war and infringed the WPR by conducting air strikes without congressional authorization.[35] Dismissing the action, the District Court for the District of Columbia found that the legislators did not have Article III standing to challenge the President’s action because Congress, as a whole, had not acted to terminate the intervention.[36] Campbell v. Clinton followed in the wake of earlier decisions of D.C. district court, including two opinions rendered during the Persian Gulf War that had found similar challenges non-justiciable.[37] Judicial reluctance to enter the fray is in keeping with historical practice, as the Supreme Court has never agreed to reach the merits of any challenge to presidential warmaking authority abroad.[38]
Kosovo may represent a paradigm shift, one that the Clinton administration has accelerated if not set in motion, in the nature of the American way of war. During the Reagan and Bush administrations, the United States often intervened unilaterally, quickly, and generally in pursuit of purely American interests. American invasions in Grenada and Panama, for example, occurred without any significant multilateral participation, were executed within the 60-day War Powers Resolution period, and did not receive Security Council approval. While still significantly American in force structure, military organization, and political leadership, intervention during the Clinton years has been anything but unilateral. In Bosnia and Kosovo, American forces participate as part of an international military structure, sometimes under foreign command. Military operations are no longer short. Deployments in Haiti and Bosnia have proceeded for years, rather than weeks. American troops will most likely be stationed in Kosovo for months, if not years. The goals of war have changed as well. During the Cold War, the United States engaged the military primarily in nation-state to nation-state conflicts, where the goal was both military and political victory. Under President Clinton, however, the nation has become involved more often in what is known as “low intensity conflict,” in which civilian leaders have employed military force for more diffuse objects, such as rebuilding nations, enforcing international peace or the status quo, and imposing costs on a hostile regime, that fall short of total military and political victory.[39]
Under this new paradigm, the approval of the U.N. or other international organizations has become the foundation upon which justifications for intervention are built. In sending troops to Haiti and Bosnia, for example, President Clinton expressly relied upon the need to carry out U.N. Security Council resolutions as support, rather domestic legal mandates.[40] Although he could not rely upon the Security Council for approval of the Kosovo bombings, President Clinton still justified the intervention by appealing to our NATO obligations.[41] As he declared when announcing the bombing campaign, “America has a responsibility to stand with our allies when they are trying to save innocent lives and preserve peace, freedom, and stability in Europe.”[42] While the Clinton administration has yet to fully explain the legal significance of international authorization, it may believe that the President’s authority to interpret and execute treaty commitments may buttress his constitutional authority to send American troops abroad. At the level of domestic law, however, the Clinton administration’s refusal to seek affirmative congressional authorization conduct may have been consistent with historical practice, but it is still open to constitutional question. For future American participation in multilateral intervention to rest on a firm footing, the American legal system first must determine whether President Clinton’s decision to use force in Kosovo is consistent with the Constitution.
To date, the Clinton administration has failed to provide a justification, under either constitutional or international law, for the war in Kosovo. This section will begin to fill this gap. First, it will examine the reasons why most academics, if they were to be consistent, would conclude that Kosovo was an unconstitutional war. It will then critique these theories for incorrectly interpreting the constitutional text, structure, and history. It will conclude by discussing the reasons that justify the constitutionality of the President’s use of force in the Balkans.
Surprisingly, legal academics fell silent during the Kosovo intervention. As far as I can tell, no leading scholar in the fields of constitutional law, foreign relations law, or international law publicly questioned, in opinion pieces, law review articles, or litigation, the constitutionality of the Kosovo conflict. This absence of criticism is puzzling, even embarrassingly inconsistent, because it is hard to see how the American use of force in Kosovo was different, in any meaningful way, from previous military conflicts. During Reagan and Bush-era interventions, law professors were anything but shy in voicing their opinions on the constitutionality of presidential warmaking. Before the intervention in Haiti, for example, 10 prominent law professors sent a public letter to Walter Dellinger, assistant attorney general for the Office of Legal Counsel, chastising him should he justify the intervention.[43] Even though the U.N. Security Council had issued a resolution authorizing a Haiti operation, these professors declared: “in our judgment, that resolution does not absolve Congress of its constitutional obligation to approve military action or the President of his constitutional obligation to seek and obtain that approval.”[44] Shortly before the Persian Gulf War began, a similar group of law professors filed an amicus brief in court that argued that the conflict would violate the Constitution if it did not receive affirmative congressional authorization.[45] Law professors even assisted congressmen in filing suit to block, of all things, the Reagan administration’s efforts to protect re-flagged Kuwaiti oil tankers,[46] and to stop military assistance to groups and nations in central America fighting communist forces.[47]
In their scholarly works, these foreign relations law scholars generally agree that unilateral presidential warmaking, without congressional authorization, violates the Constitution. Commentators such as Louis Fisher, John Hart Ely, Michael Glennon, Louis Henkin, and Harold Koh have argued that the three branches of government have failed in their constitutional obligations by allowing this pattern and practice to continue.[48] As they conceive it, the Constitution bars the President from initiating offensive wars (but not defensive ones), unless Congress affirmatively authorizes the use of force. Further, federal courts have the duty to enforce this shared allocation of the war power. These scholars rest their arguments almost wholly on two interrelated claims. First, they claim, the text of the Declare War Clause vests Congress with the authority to decide on the initiation of all forms of military hostilities. Under the Declare War Clause, Congress has control over formal, total war; the Marque and Reprisal Clause provides Congress with power over smaller-scale conflicts. Second, pro-Congress scholars assert, the Framers intended to transfer this power from the executive to the legislature because they feared that a multi-member legislature would be less prone to excessive warmaking than a single executive.
These scholars make little room for doubt in their conclusions. As Professor Ely declares, “there is a clarity of the Constitution on this question.”[49] While he admits “the ‘original understanding’ of the document’s Framers and ratifiers can be obscure to the point of inscrutability,” he abruptly declares that “in this case, . . . it isn’t.”[50] On behalf of the ten law professors who opposed the Persian Gulf War, Professor Koh adamantly maintains that “the Constitution did not permit the President to order U.S. armed forces to make war without meaningfully consulting with Congress and receiving its affirmative authorization.”[51] Under this unbending approach, Kosovo clearly failed constitutional standards. President Clinton committed 31,000 troops to an air war that lasted 79 days, well in excess of the limitations of the War Powers Resolution. He then sent 7,000 more troops for a long-lasting ground deployment in Kosovo itself. Congress never declared war, nor did it issue any kind of statutory authorization. Although Congress provided funding for the war and expressed its support for the troops, critics of presidential warmaking authority have never accepted such actions as sufficient legislative authorization for military hostilities.
These scholars are mistaken both on Kosovo and on the Constitution’s allocation of war powers. In my opinion, the constitutional text, structure, and history indicate that the pro-Congress view errs in demanding a fixed process for warmaking, one that places the initiative in the legislature. A more rigorous attention to the sources indicates that the Framers did not intend the Constitution to establish a single, correct method for going to war. Rather, the Constitution vests the political branches with different powers related to war, which the President and Congress may use to cooperate or, at times, to struggle for control over foreign policy. Instead of a fixed method, the Constitution’s allocation of warmaking authority yields a flexible system that can change to meet international challenges. During times of relative peace, Congress can use its authority over funding and the raising of the military to play a leading role in foreign policy. In times of emergency or national danger, however, the President can seize the initiative in warmaking. The flexibility of the constitutional framework for warmaking becomes clear when compared to, for example, the Constitution’s finely-wrought procedures for enacting a statute, or, to turn to foreign affairs, for approving a treaty. If the Constitution imposed the strict process that liberal foreign affairs scholars demand, we could have expected the Framers to have employed the more detailed mechanisms and language they used elsewhere.
Taken in context, the constitutional text, structure, and history allows the stable system of war powers that the political branches have worked out over the last half century. Constitutional text, for example, does not compel the conclusion that Congress must approve all uses of force by statute. Pro-Congress proponents too simplistically read the power “To declare War” to mean the power to make war, and they read the Commander-in-Chief and executive power clauses too narrowly to provide only for command over the troops in the field once war has been authorized. Such an anachronistic approach superimposes the modern meaning of declaring war, which we have come to associate with commencing military hostilities because of World Wars I and II, upon the eighteenth century text.
A holistic examination of the text yields other possibilities. Other constitutional provisions, for example, suggest that the Framers did not equate “declare” with authorize or commence. Article I, Section 10 declares that states, without the consent of Congress, may not “keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with . . . a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of Delay.”[52] In prohibiting the states from becoming involved in war, the Constitution says that states may not “engage” in war, while Congress only enjoys the power to “declare” war. If the Framers had intended to vest Congress with a broad warmaking power, aside from operational command over forces in the field, then we would expect them to have used the broader “engage” language, rather than the narrower “declare.”
Provisions beyond the Declare War Clause further indicate that if the Framers had intended to impose a strict, Congress-first, warmaking process, they would have used different language. Again, Article I, Section 10 proves suggestive. If the Framers had wanted to condition presidential warmaking on congressional authorization, they simply could have borrowed the federalism provision of Section 10, and replaced the states with the President. Articles I or II could have included a clause that declared that “the President shall not engage the United States in War, without the consent of Congress.” Article II, Section 2 similarly implies that if the Framers had wanted to require congressional participation in the decision on war, they knew how to draft the requisite language. Article II, Section 2 declares that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”[53] The same Section also requires senatorial consent in the making of judicial and ambassadorial appointments.[54] Pro-Congress scholars cannot explain why, if the Framers had wanted to slow down the process of going to war, they did not adopt a parallel phrase: the President “shall have Power, by and with the Advice and Consent of Congress, to make War.” Instead, critics of presidential power require us to believe that the Framers sought such a goal, but chose to use obtuse, even inept language to do so. Other textual provisions, however, reinforce the notion that when the Framers wanted to make legislative participation a constitutional sine qua non in the exercise of certain executive powers, they knew how. If pro-Congress scholars were right, the Framers should have borrowed the ready examples of constitutional draftsmanship that they themselves used when they wanted to divide powers among the branches.
Constitutional structure lends further support to the idea that the Framers understood war powers to be flexible, and that they expected it to be shaped by the interaction of the political branches within broad constitutional guidelines. Unsurprisingly, the central feature of much of the Constitution’s structural provisions involve the passage of legislation, it’s subject matter, and its potential reach. Inability to enact legislation that directly regulated individuals and private conduct had posed perhaps the greatest obstacle to the success of the Articles of Confederation. Yet, fearful of centralized government power, the framers sought to make the passage of legislation difficult. As a result, the constitutional structure establishes a detailed, finely-wrought method for public lawmaking. It allows a number of players in the system -- the House, Senate, President and even the courts -- to block the creation and implementation of legislation. Compare this to the relevant provisions governing warmaking. We find no clear, detailed process governing the relevant roles of the political branches in deciding on war – certainly none that rises to the same level of specificity and clarity for making statutes or even treaties. Rather, the Constitution briefly distributes different war-related powers in both Articles I and II, without describing how they are to interact.
Further, warmaking affected by other grants of power and constitutional structures that do not come into play in the process of public lawmaking. The institutional center of gravity in the legislative process clearly rests with Congress, which not only acts as the starting point for legislation, but may also override a presidential veto. It is Congress that is vested with “All legislative Powers herein granted.”[55] Warmaking, by contrast, is the quintessential executive power, in that it calls for action, energy, and dispatch in execution, rather than the formulation of rules that govern the conduct of private individuals. Unlike legislation, where even the President’s veto is granted in Article I, warmaking provision rest in both Articles I and II. Unlike Congress’s limited grant of legislative power in Article I, Article II vests the President with all of the federal executive power. Aside from any powers not specifically excepted from the President, such as those in Article II, Section 2 involving treaties and appointments, Article II’s vesting clause reserves all other executive power to the President.[56] In this way, the Constitution allows for the expansion of executive authority, rather than pinning the President to a narrow set of authorities. Not only does this structure suggest that the Declare War Clause ought to be read narrowly, it also allows for substantial flexibility in the manner in which the branches decide to go to war. What the constitutional structure does not do, however, is provide support for the arguments of pro-Congress scholars who would read the vesting of executive power in the President so narrowly as to be invisible, and to read the Declare War Clause so broadly as to encompass most of the war power.
With the textual foundations of their argument so weak, pro-Congress scholars place the weight of the claims upon the original understanding. In particular, they maintain that the Framers consciously intended to change the system that had prevailed in Great Britain, where the Crown enjoyed all of the war power. According to these scholars, the Framers vested Congress with the power to decide on the use of force because they thought that legislatures – because of their larger numbers -- were inherently less prone to war. Most war powers scholars rely upon four pieces of evidence in reaching this conclusion: the decision by the Constitutional Convention to change Congress’s power from “make” war to “declare” war;[57] a speech by James Wilson during the Pennsylvania ratifying convention that the Constitution’s allocation of war powers was designed to “not hurry us into war”;[58] a letter from James Madison from Thomas Jefferson that the Constitution “vested the question of war in the Legislature”;[59] and Joseph Story’s observation that vesting Congress with the power to declare war would inhibit the ability of one person to start war.[60]
Severe methodological problems corrupt the historical approach of many pro-Congress scholars.[61] In brief, these scholars use sources in an anachronistic manner that can treat statements as distant as 45 years after the ratification as if they expressed the understanding of the Framers who actually had drafted and adopted the Constitution. For example, while Joseph Story may have believed that the power to declare war included the power to decide to begin a military conflict, his views could not possibly have influenced or demonstrated a common understanding by the ratifiers: Story’s book appeared almost a half-century after the ratification -- Story himself was only eight years old during the Philadelphia Convention.[62] Story may have been a prodigy, but he was no Mozart. While Madison’s letter seems to agree with Story, pro-Congress scholars usually fail to mention that the letter appeared in 1798, not 1789, and was written in private, unlike Madison’s essays as Publius. Even if one were to treat the secret proceedings of the Philadelphia Convention – which could only propose but not adopt the Constitution – as authoritative, its decision to amend Congress’s power from make to declare war actually cuts against the pro-Congress reading. This change demonstrates that the framers understood that the broader power of making war existed, and that they decided explicitly to take that power away from Congress and replace it with the narrower power of declaring war. Only James Wilson’s single statement, made during a state ratifying convention, actually came publicly from a significant Framer during the ratification process itself. Wilson, however, is only one person, and he may have been referring only to the type of formal wars between broad alliances that had beset Europe during the eighteenth century.[63] Wilson was not necessarily equating a declaration of war with the first steps toward total war, nor was he addressing low intensity conflict, or what eighteenth-century writers called “imperfect” war. When these sources are examined more closely, it appears that pro-Congress scholars have practiced what Martin Flaherty has aptly described as “history lite,” because they have failed to place the primary sources in their appropriate political, legal, and constitutional context.[64]
Approaching history, with a deeper appreciation of the context surrounding the Constitution’s framing, produces a very different picture than the one painted by pro-Congress scholars. In order to reconstruct the allocation of war powers as originally understood by the Constitution’s ratifiers, we must examine the institutional history of warmaking during the period leading up to the Framing. Three elements of the historical context suggest that late-eighteenth-century Americans would have understood the Constitution to create a flexible warmaking system, one in which the President had the authority to initiate hostilities, subject to Congress’s power over the purse. First, American knowledge of the practical workings of the British constitution indicates that they would not have understood the Declare War power to have borne the immense significance given to it by pro-Congress scholars. Rather, British history suggests that the Framers would have expected the deeper structural relationship between the executive and legislative branches would govern war. Second, American experience during the colonial and early national periods indicates that they sought to continue, rather than consciously break from, the traditional Anglo-American system of war powers. Third, statements during the ratification process lend strong support to the thesis that the framers did not understand the Constitution to represent a sharp break with the customary institutional allocation of war powers. If anything, several Federalist leaders believed that the Constitution would duplicate the basic outlines of the British war powers system, rather than erase them.
We ought to pay close attention to the British constitutional system of the eighteenth century because, as once and former subjects of the British Empire, the Framers operated within its intellectual, constitutional, and legal context. Not only did the British constitution provide concepts and phrases, such as “Commander-in-Chief,” “executive power,” and “Declare War,” that the Framers imported directly into their new plan of government, but recent British political history provided a track record of how the distribution of these powers would work out in practice. A review of this legal and political context indicates that it is unlikely that a typical Framer would have understood the power to declare war as equivalent to the domestic authority to initiate military hostilities.[65] Rather, the power to declare war only gave Congress the authority to transform hostilities into a “perfect” war under international law. In other words, the power to declare war was almost a judicial one, in which Congress issued its declaration that the legal state between the United States and another nation had switched from peace to war. In other respects, the American constitution left the allocation of war powers relatively untouched.
Several sources suggest that we ought to read the power to declare war no farther than the authority to define the nation’s legal relationships, under international law, with other countries. First, the international and British legal authorities of the seventeenth and eighteenth centuries, such as Grotius, Vattel, and Blackstone, discussed a declaration of war as a form of notice, which notified both enemy nations and one’s own citizens that the laws of war were to apply.[66] Once a nation had declared war, both enemy states and neutrals knew that the nation’s actions were now governed by the rules of war; its citizens and forces legally could undertake hostile acts forbidden in peacetime. War vested what would normally be lawless private acts with the sanction of the state. As Blackstone observed, a declaration of war was necessary “not so much that the enemy may be put upon his guard . . . but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society.”[67] None of the important legal writers of the period believed that a declaration of war was necessary for domestic constitutional purposes, in the manner claimed by critics of executive warmaking.
Second, practice under the British constitution indicates that the British did not believe a declaration of war to be an indispensable precursor for military hostilities. In the two most significant military conflicts of the two centuries before the Revolution, Britain’s entry into the Thirty Years’ War in 1624 and the Seven Years’ War against France from 1756-1763, the Crown did not declare war until at least a year had passed after the start of military hostilities.[68] In the period between the Restoration and the American Revolution, Great Britain engaged in eight significant conflicts,[69] but declared war before or at the start of hostilities only once.[70] Rather than domestic authorization for military operations, these declarations served their main purpose in international law by listing grievances against the other nation, demanding a remedy, and defining the war’s international legal status. Indeed, the conflict that would have been freshest in the Framers’ minds, the Seven Years’ War, is particularly instructive. As early as July, 1754, American colonials had joined British troops in attacking French positions in North America, leading to the British defeat in which George Washington first distinguished himself, even though the King would not declare war until May, 1756.[71] As Alexander Hamilton observed during the ratification, “the ceremony of a formal denunciation of war has of late fallen into disuse.”[72] It seems evident from British political history that the British and Americans of the framing generation would not have considered the power to declare war as encompassing the very different power, under domestic constitutional law, that pro-Congress scholars attribute to it.
Eighteenth-century Americans would not have considered transfer of the declare war power to be a monumental shift in the balance of powers because the basic principles of Anglo-American constitutionalism already recognized the legislature’s ample authority to check executive warmaking. Years of political strife under the Stuarts, the Civil War, and the Glorious Revolution had made clear that the Crown could conduct no military operations without Parliament’s political and financial cooperation.[73] Parliament’s check, however, did not take the form of authorizing legislation, but through its plenary control over the funding of the military and its wartime operations. British history during the period leading up to the Revolution indicates that Parliament was able to use its power of the purse to win a functional veto over decisions of war and peace.[74] As one historian has described it, Parliaments creation, and control over, the financial system became “the sinews of power” that made possible England’s military and political rise in the eighteenth century.[75] An American legislature would not need the power to declare war to contain the executive’s military initiatives, because the lessons of British constitutional history taught that the power of the purse would give Congress sufficient controls.
American experience under the colonial and early national charters buttressed the understandings generated by the British system. Under the colonial charters, royal governors exercised formal authority over the commencement of military hostilities, subject to the assemblies’ plenary control over appropriations.[76] When they rebelled, the revolutionaries could have taken warmaking authority away from their executives to their legislatures. They did not. Retained the general allocation of war powers, the drafters of the revolutionary state constitutions instead experimented with the fragmentation of the executive’s institutional unity.[77] When these efforts proved chaotic, some states adopted constitutions – widely admired by those who would lead the ratification fight – that re-centralized power in a single executive.[78] As historian Gordon Wood has told the story, American leaders sought to temper the tyranny of the majority by restoring the powers of the executive branch and resurrecting its unity and independence.[79] That recent political history set the backdrop for the Framers’ understanding of the Constitution.[80]
Two specific points about the early national period are worth noting. First, the Articles of Confederation, drafted in 1777 and ratified in 1781, provided the Continental Congress with “the sole and exclusive right and power of determining on peace and war.”[81] As the only national constitution that the until 1787, the Articles set a baseline for comparison and interpretation. Some have argued that the Articles’ vesting of the war power in Congress demonstrates a re-conception of war as a legislative function.[82] This conclusion errs in mistaking the Continental Congress for a legislature. As historians have recognized, the Continental Congress served primarily as an executive body, which assumed the functions formerly the responsibility of the Crown.[83] In fact, the Continental Congress lacked those powers – such as the power to directly regulate individual conduct – that we normally associate with a legislature. If anything, vesting the war power in the Continental Congress indicates that the framers continued, throughout the early national period, to view warmaking as primarily an executive function.
Second, the state constitutions, as the next most important public law documents of their day, provide another significant context against which to evaluate the Framers’ work. While almost all of the revolutionary state constitutions maintained the traditional allocation of war powers between executive initiative and legislative control over finances, one state, South Carolina, took a different path. In its 1778 Constitution, South Carolina declared that “the governor and commander-in-chief shall have no power to commence war, or conclude peace, or enter into any final treaty” without legislative approval.[84] If the Framers held a common understanding that war powers had become legislative in function, then South Carolina’s declaration would have been unnecessary. If “declare” commonly meant “initiate” or “commence,” as pro-Congress scholars would have it, we would not have expected South Carolina to use “commence.” Most importantly, if the Framers had intended to adopt a legislature-dominated system of war powers, they simply should have followed South Carolina’s example. Instead, the South Carolina constitution suggests that the Framers did not choose to transfer the initiative in warmaking from the executive to Congress.
The final source of historical context that should guide interpretation of war powers is the constitutional ratification process. To be sure, the subject of war powers did not consume the attention of the framers as did, for example, questions of federalism. While this Essay is not the place to conduct an extensive review of the ratification,[85] one state ratifying convention ought to receive close attention: Virginia. As home to many of the political leaders of the day, Virginia was perhaps the vetogate through which the Constitution had to pass in order for the new nation to survive.[86] Led by the fiery oratory of Patrick Henry, Anti-Federalists in the state attacked the Constitution for centralizing military powers of a dictatorial nature in the President. “If your American chief, be a man of ambition, and abilities, how easy is it for him to render himself absolute!” Henry exclaimed.[87] “The army is in his hands, and, if he be a man of address, it will be attached to him; and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design . . . .”[88] In response, Federalists relied upon the separation of powers and the legislature’s control over war finances, not the Declare War Clause. Leading the ratification fight in Virginia, for example, Madison predicted that Congress would enjoy the same powers over warmaking as did Parliament: “The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”[89] Federalists had every incentive to raise the Declare War Clause as an important check on the executive’s powers, but they did not. Instead, they argued, as did Madison, that “[t]he purse is in the hands of the Representatives of the people. They have the appropriation of all monies.—They have the direction and regulation of land and naval forces. They are to provide for calling forth the militia . . . .”[90] Meanwhile, “the President is to have the command; and, in conjunction with the Senate, to appoint the officers.”[91] Other leading Federalists echoed Madison’s reliance upon the legislature’s traditional funding powers as the primary check on the President’s initiative in matters of war.[92]
A more careful examination of the relevant historical context, therefore, shows that the framers did not understand the proposed Constitution to demand anything like the massive transfer of warmaking authority claimed by pro-Congress scholars. Instead, the ratifiers of the Constitution adhered to the traditional Anglo-American approach to the distribution of war powers, in which the legislature used its sole control over funding to check and balance the executive’s authorities over military affairs. Rather than a strict procedure for going to war, the Constitution’s text and its original understanding establish a system in which the branches pursue their policies concerning war by relying on their plenary constitutional powers. If the two branches agreed on foreign policy aims, then the Constitution allows for effective and swift cooperation. If the branches are in conflict, then they can use their powers to stymie and check each other until a political consensus is reached. Instead of a realm of finely-tuned processes governed by rules and judicial review, the exercise of war powers has developed in the realm of politics within the broad constitutional bounds established by the Framers.