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-ŕ-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.
Under this model of war powers, President Clinton’s decision to commit American forces to hostilities in Kosovo met constitutional requirements. As the Constitution makes the President the Commander-in-Chief, and as military forces were funded and authorized without any congressional prohibition as to their use, President Clinton had full constitutional authority to initiate military hostilities in the Balkans. Further, Congress had an adequate opportunity to review the merits of the war, due to its plenary control over funding. Congress voted to authorize the supplemental appropriations necessary to conduct military operations in Kosovo, and in that context it debated the merits of the war itself. If Congress had disagreed with the intervention, all it had to do was do nothing. The federal courts properly stayed out of the matter, as they have neither competence nor any call to intercede, as both branches have more than sufficient powers at their disposal to defend their prerogatives. President Clinton did not wage war by secretly diverting funds appropriate from one purpose and shifting them to the war, nor did he defy any judicial orders or even any Kosovo-related legislation.
One might respond that it is unreasonable to expect Congress to use its appropriations powers to cut off troops in the field. Surely members of Congress will not take actions that might be interpreted as undermining the safety and effectiveness of the military, once committed and in the midst of hostilities. We should not mistake a failure of political will, however, for a violation of the Constitution. Congress undoubtedly possessed the power to end the Kosovo war, it simply chose not to. Affirmatively providing funding for a war, or at the very least refusing to cut off previous appropriations, represents a political determination by Congress that it will provide minimal support for a war, but that ultimately it will leave it to the President to receive the credit either for success or failure.
Indeed, the conclusion seems almost inescapable that Congress, despite the dormancy of the Declare War Clause, has given some blanket form of approval for wars such as Kosovo. Even after the end of the Cold War, Congress has continued to authorize standing armed forces capable of conducting large-scale military operations against sophisticated foes. It also has funded weapons systems that allow the United States to engage in a wide variety of interventions, from quick, surgical cruise missile attacks to power projection by carrier groups to invasions by heavy armored forces. By continually providing long-term funding for a permanent military capable of such operations, Congress has given the executive the means to send the troops immediately into combat overseas. And by not taking the easy step of placing conditions on their use, as it often does with domestic spending programs, Congress implicitly has given its approval for their use, without further legislative consent. Indeed, by keeping the funds flowing once hostilities in Kosovo had begun, Congress ratified the executive’s assumption of the initiative in war. The decision to go to war in Kosovo operated well within the boundaries set by the constitutional text and the understanding of war powers originally held by its ratifiers.
In a sense, the debate over the constitutionality of Kosovo is as old as the Constitution itself. The American political system has struggled over the question of executive war powers ever since Alexander Hamilton and James Madison squared off in the Pacificus-Helvidius debates over the Neutrality Proclamation. This Essay has attempted to demonstrate that the understanding of war powers present at the Constitution’s creation allows for the practice of war powers as it has over the last two centuries. Kosovo, however, provokes questions that go beyond the usual struggle between the executive and the legislative in managing war. Kosovo involves perhaps the most important issue facing the American public law system as it enters the next century: how the Constitution will adapt to the increasing globalization of political, economic, and social affairs. As this section will explain, American intervention in Kosovo via multilateral organizations is but an example of broader developments in economic, environmental, and security affairs. In each of these areas, problems that have become increasingly transnational in scope have called for regulatory solutions from international institutions, rather than solely though national self-help.
It will be the task of the first President of the 21st Century to oversee the process by which the United States and its Constitution will come to terms with globalization. Kosovo provides an early example of the constitutional issues that will arise with increasing frequency as governmental power comes to be exercised by international institutions. In the Kosovo operation, for example, the Clinton administration apparently delegated federal authority to non-U.S. officers, it suggested that treaty obligations provided justification for the intervention, and it acted inconsistently with international law. Future military and non-military cooperation with other nations may raise similarly difficult questions about the domestic legal authority of international organizations, the relationship between treaties and constitutional authority, and the relationship between international and domestic law. This section will begin to address these issues by describing globalization and its effects on the American legal system, addressing the ability of American troops to serve in multilateral operations, and discussing the President’s authority in regard to treaty obligations and international law.
It is commonplace to hear that globalization is disrupting different aspects of everyday life. Markets and corporate operations today easily stretch across national borders. Advances in technology, communications, and transportation have allowed events abroad to impact domestic markets and institutions more quickly and more profoundly than in the past. Environmental problems that were once domestic, such as pollution, have become international in scope. Certain forms of crime, such as the distribution of illegal drugs and money laundering, now stretch across national borders. Even issues vital to national security, such as the proliferation of nuclear, biological, and chemical weapons, have expanded to include the activities of many nations. These problems, which were once viewed as wholly within the powers of individual nations to address, often now require international solutions to be fully comprehensive and effective. Correspondingly, policy initiatives have created new forms of international cooperation that include multiple parties, that create independent international organizations, and that pierce the veil of the nation-state and seek to regulate individual private conduct. Kosovo is an example of this development in international regulation and public law, and as such, it demonstrates the constitutional difficulties that may afflict other efforts to enforce public policy through international organizations, rather than domestic organs of government.
We can conceive of these developments in economics, the environment, and security as the decline interdependence sovereignty, what political scientists Stephen Krasner has described as the ability of a nation to regulate transactions and affairs that cross its borders.[93] While globalization and its attendant effects have not gone unnoticed by political scientists, economists, sociologists, and international lawyers, the pressure that the increasing internationalization of life has placed upon domestic legal sovereignty – the control of a nation’s governmental authority by its own constitutional and legal processes – has received less, perhaps insufficient, attention. In order to deal with problems and activities that have become global in scope, nations at the end of the 20th Century have sought to cooperate through a variety of formal international institutions and treaties.[94] For example, the United Nations governs war and peace and establishes a mechanism for co-operation in maintaining international security.[95] NATO obliges the United States to send its men and women into battle to protect our allies.[96] The General Agreement on Tariffs and Trade,[97] as recently strengthened by the World Trade Organization Agreement,[98] along with the North American Free Trade Agreement[99] regulates American trade, which now comprises at least 25 percent of U.S. gross national product. Various human rights conventions establish the minimum level of individual liberties that the United States owes its citizens.[100] Other agreements regulate the environment and conserve wildlife,[101] while contemplated treaties would require the United States to protect biodiversity and to limit its energy use and industrial pollution.[102]
While perhaps necessary to meet international goals, these novel arrangements and institutions create difficulties because of their intrusiveness into what was once under the exclusive preserve of the domestic political and legal system. Examples include: arms control, in which a recent treaty called for on-site inspections of chemical manufacturing facilities by international inspectors;[103] international economics, in which the WTO and NAFTA agreements establish standards of conduct for domestic manufacturers and create new dispute resolution mechanisms;[104] environmental law, in which international agreements increasingly set substantive norms once created by domestic legislation;[105] and human rights treaties, which surpass domestic legislation and constitutions in regulating the duties that a state owes its citizens.[106] In the next century, the American legal system must determine how or whether it will allow governmental sovereignty to be transferred to international policymakers, consistent with the Constitution.
Events in Kosovo serve as a prime example of the sharpening tension between the demands of international cooperation and the domestic legal system. Kosovo potentially presented problems of regional, or even international scope. Historically, the Balkans have been a tinderbox for broader European wars that have called upon American intervention to restore peace and stability. American and European policymakers feared that conduct that would once have been considered domestic only in nature now threatened to cause wider disruptions to European security. Serbia’s course of repression, for example, produced a stream of refugees that might destabilize neighboring countries, and ultimately our European allies. Widespread human rights violations not only offended European and international norms, but might even have provoked intervention by regional powers, raising the possibility of conflict between greater powers and even NATO allies.
Responses to this transnational problem seemed to require a multilateral solution. No individual European nation had the military or political wherewithal to attack Serbia to end its aggression. It was equally unlikely that the United States would unilaterally intervene so far from home, in a nation with close cultural and historical ties with its former Cold War enemy, where its direct national interests were hard to define. Operating through the multilateral structure of NATO allowed member nations to gather their collective resources to address the commons security risk posed by events in Kosovo. Multilateralism allowed the NATO nations, particularly the United States, to submerge the identification of any single nation’s interest as dominant in the operation. NATO presented a less threatening front to nations, such as Russia, that sympathized with Serbia and might have feared an intervention so close to its own borders. Kosovo signaled the transformation of NATO from a defensive alliance, whose primary goals were to contain Soviet expansionism and to promote European reconstruction,[107] to a multilateral organization that engaged in pro-active operations to pre-empt threats to regional security.
Notwithstanding the benefits of multilateral action, intervention in Kosovo raises difficult questions concerning the interaction of international organizations with domestic constitutional structures. One significant issue is whether the President can send American troops to serve under foreign command. During the Kosovo operation, for example, overall command of the intervention remained in the hands of General Wesley Clark, an American officer, who served both as NATO’s Supreme Allied Commander Europe (SACEUR) and as commander-in-chief of the U.S. European Command. Although he answered not just to President Clinton, but also to the Secretary General of NATO and the heads of NATO’s member nations, Clark’s dual roles meant that strategic command of US forces rested in the hands of an American general. American troops, however, could serve under Clark’s various subordinates, some of whom were non-U.S. officers, such as British General Michael Jackson, who commanded the 16,000 NATO troops stationed in Macedonia during the air war, and then led the NATO ground forces that essentially have occupied Kosovo. In other deployments ordered by President Clinton, such as those in Somalia and Bosnia, American forces attacked military targets at the instruction of non-U.S. commanders acting under the authority either of NATO or the U.N.[108]
It appears that President Clinton’s willingness to send American troops into combat under non-U.S. officers is for the most part unprecedented. Before analyzing the constitutional nature of the administration’s approach to multilateral operations, it is useful first to distinguish among four different levels of military command. First is policy command, which refers to policies that guide the conduct of international relations and military strategy.[109] Second, these policies establish the objectives for strategic command, which represents the plans developed by the Joint Chiefs of Staff and the Secretary of Defense to achieve national policy.[110] Third, strategic plans guide officers who exercise operational command over corps and divisions, who are charged with supervising subordinate officers, organizing forces, and directing their missions, but who do not actually issue orders directly to troops.[111] Fourth, those officers that directly control troops, who employ units in combat and determine their specific use, exercise tactical command.[112]
American experience in modern alliance warfare suggests that while the political branches have allowed the transfer only of certain levels of command to non-U.S. officers, they have reserved most forms of command solely for American military officers. President Woodrow Wilson and General John Pershing, for example, resisted efforts during World War I to incorporate American troops immediately into British and French units. Throughout the conflict, President Wilson maintained policy command, General Pershing retained operational command, and subordinate American officers exercised tactical command of the American Expeditionary Force. In response to Germany’s last-ditch offensive in March 1918, however, the allied political leadership delegated strategic command to French General Foch, although American officers from General Pershing on down retained operational and tactical command.[113] During World War II, President Roosevelt and General George Marshall decided to develop both policy and strategic plans jointly with the British Prime Minister and the British chiefs of staff.[114] Although officers of different nationalities might exercise operational command -- British Field Marshal Bernard Montgomery led the Normandy invasion, under the command of the Supreme Allied Commander in Europe, General Dwight Eisenhower -- tactical command of units generally remained in the hands of their national commanders. Only American officers exercised the authority to both coerce and discipline American units and troops.[115]
Postwar conflicts do not appear to have changed this practice. Although the United Nations Charter called for the creation of a U.N. military force composed of national units placed at the Security Council’s policy, strategic, and operational command,[116] the ideal of an international military force died with the advent of the Cold War.[117] Like other major military powers, the United States never concluded the necessary agreements to place designated units under U.N. command and control. In the two large-scale military conflicts sanctioned by the U.N., the Korean War and the Persian Gulf War, American generals exercised strategic command over the allied military, while American officers maintained operational and tactical command over American troops. As purely American interventions, the use of force in places such as Vietnam, Grenada, and Panama did not raise questions of multilateral command.
Bucking this history, the Clinton administration for the first time assigned American troops to the operational and tactical command of non-U.S. officers. Responding to congressional efforts to stop this new policy,[118] the administration claimed a broad constitutional power in the President to delegate military command authority to any person. In an opinion by the Office of Legal Counsel of the U.S. Department of Justice (OLC), the administration claimed that congressional proposals to prohibit foreign command of U.S. troops violated the President’s Commander-in-Chief and foreign affairs powers.[119] According to OLC, the Commander-in-Chief Clause “commits to the President alone the power to select the particular personnel who are to exercise tactical and operational control over U.S. forces.”[120] To prevent the President from “acting on [his] military judgment concerning the choice of commanders,” even if that commander is an agent of the United Nations, would impermissibly violate both his Commander-in-Chief power and his constitutional ability to conduct diplomacy.[121] Because “U.N. peacekeeping missions involve multilateral arrangements that require delicate and complex accommodations of a variety of interests and concerns, including those of the nations that provide troops or resources,” OLC argued, a mission’s success may depend on the commander’s nationality or on the “degree to which the operation is perceived as a U.N. activity,” and not that solely of the United States.[122]
While it identifies and addresses the heart of the issue, the Clinton administration’s justification fails to convince, primarily because it constructs a boundless principle that fails to account for historical practice. According to OLC, the President’s Commander-in-Chief power allows him to select anyone at all to lead American troops into potentially life-or-death situations, even non-U.S. officials. OLC appears to maintain that the President has complete discretion over the decision; he need not even believe that delegating all aspects of command authority is necessary for reasons of national security. OLC’s opinion also seems to contemplate that the President could delegate command to any individual, regardless of their relationship or not to the federal government --- under OLC’s reasoning, the President could place a Senator or Supreme Court Justice in command, any state official, or even private individuals, in addition to international officials, foreign officials, or even foreign private citizens.
Further, OLC’s argument runs up against the unbroken historical practice of previous Commanders-in-Chief. Presidents apparently have never agreed to delegate either policy or tactical command to non-U.S. officers. Indeed, in only one instance, under the specter of an allied collapse in World War I, has a President transferred strategic command outside the U.S. military command structure. Event though Presidents have granted operational control to foreign commanders, they have circumscribed that delegation by reserving coercive and disciplinary authority over American troops for American commanders only. OLC’s approach, however, would allow the President to vest even tactical control over American forces to foreign commanders, would permit foreign commanders to exercise coercive and disciplinary authority over American soldiers, and would even allow for the amalgamation of American soldiers into foreign or international military units --- something that no President has ever dared before.
Most importantly, the Clinton administration’s legal justification for its recent multilateral command policy fails to respect the Constitution’s limitations on the transfer of federal power to entities that are not directly responsible to the American people. In a different context, I have outlined the constitutional difficulties with delegating governmental power outside of the national government.[123] First, placing American troops under foreign command seems inconsistent with the Supreme Court’s recent jurisprudence interpreting the Appointments Clause.[124] While much academic writing on the Clause has focused on the relative roles of the President and Senate in appointing judges,[125] the Court has articulated the Clause’s broader function in ensuring that federal power is exercised only by federal officers accountable to the people’s elected representatives.[126] As first stated by the Court in Buckley v. Valeo, the Appointments Clause requires that those exercising substantial authority under federal law must undergo appointment according to the Clause’s terms.[127] According to the Court’s subsequent opinions, this rule prevents Congress from transferring executive law enforcement authority to individuals not responsible to the President or his subordinates.[128] The transfer of military command, pursuant to NATO or U.N. obligations, threatens this principle by allowing the President or the treatymakers to transfer executive power to individuals independent of presidential control.
Furthermore, the Appointments Clause plays more than a separation of powers role in maintaining the balance between the Congress, the treatymakers, and the President. As Chief Justice Rehnquist has written for the Court, “The Clause is a bulwark against one branch aggrandizing its power at the expense of another branch, but it is more: it ‘preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power.’”[129] According to the Court, the Clause prevents the diffusion of federal power by limiting its exercise only to those who undergo the appointment process. The Framers, the Justice believed, centralized the appointments power because they feared the vesting of power in officeholders who were not accountable to the electorate, as had occurred during the colonial period.
A centralized appointments process prevents the national government, as a whole, from concealing or confusing the lines of governmental authority and responsibility so that the people may hold the actions of the government accountable. Allowing the transfer of command authority to non-U.S. officers threatens this basic principle of government accountability. International or foreign officials have no obligation to pursue American policy, they do not take an oath to uphold the Constitution, nor can any American official hold them responsible for their deeds. Transferring military command to such individuals undermines the Clause’s purpose in promoting a certain level of government accountability, because it transfers federal power to those who lie outside the power of the people to monitor and control.
Second, the Constitution’s creation of a unitary executive militates against the delegation of command authority to foreign commander. Whether one agrees with the formalist or functionalist side in the debate over the separation of powers,[130] transferring power outside of the federal government is in fundamental conflict with the concept of unified executive power. For formalists, any exercise of federal authority by an individual who is not a member of the executive branch, and thus is not removable by the President, violates the separation of powers because it prevents the President from fully controlling the implementation of federal law.[131] Once the President delegates authority to a foreign commander, he cannot issue orders to that commander, backed up by the threat of removal and discipline, as he could to an American officer, even though that foreign official may issue directives to subordinate American soldiers. In fact, as the Clinton administration has noted, the independence of such foreign commanders from American control is crucial to the success of their missions. One of the very purposes of multilateralism is to create the impression that a military operation falls under the aegis of a neutral international organization, and hence does not represent the interests of a single nation. While functionalists may be willing to accept some conditions on the removal power, they have not endorsed the delegation of federal power to those who are completely insulated from presidential control.[132] Further, functionalists could object to foreign command of American troops because it would undermine accountability in government. Voters cannot hold either the President or Congress accountable if command decisions are made by those who are not members of either branch.
Third, the non-delegation doctrine reinforces the limitations imposed by the Appointments Clause and the unitary executive on the delegation of command authority outside of the American military. Recent decisions by the Supreme Court and the U.S. Court of Appeals for the D.C. Circuit suggest that the federal courts have begun to take the non-delegation doctrine more seriously than in the past.[133] As formulated by the Court, the doctrine prohibits Congress from delegating its enumerated power to another branch unless it has stated an objective, prescribed methods to achieve it, and articulated intelligible standards to guide administrative discretion.[134] These standards provide the courts, Congress, and the public with some objective factors to review whether the power is being exercised within the limits of the delegation. Transfer of military command to foreign or international officials threatens the purposes of this rule. If the President delegates command authority over American troops entirely outside of the federal government, neither Congress nor the public can determine whether foreign or international commanders are exercising their authority according to American standards, nor can they enforce their policy wishes through the usual legal or political methods open when power is delegated within the executive branch.
A brief examination of the original understanding supports this reading of the Constitution’s promotion of government accountability. Rejecting the idea that sovereignty resided in a King, or even in the government, the revolutionaries located sovereignty in the people, for whom government officials served as their agents.[135] One of the colonists’ chief complaints against the British was the rule of imperial officials, who were appointed by a King and government in which they had no representation. “There is,” John Adams wrote in 1776, “something very unnatural and odious in a Government 1000 leagues off. A whole government of our Choice, managed by Persons whom We love, revere, and confide in, has charms in it for which Men will fight.”[136] The ideal of popular sovereignty, which infused the revolutionary and ratification periods, conceived of all government servants as ultimately answerable to the people. In drafting a new system of government, the Framers sought to advance this principle by dividing the appointments power between the President and Senate, to prevent either a single individual or a legislative faction from abusing appointments to their personal or group advantage.[137]
Forcing the President and Senate to share the appointments power opens up the selection and performance of public officials to public scrutiny, and thereby enhances responsibility and accountability in government. As Alexander Hamilton wrote in Federalist No. 77, because the executive had to send nominees to the Senate, “the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors.”[138] If the branches approved an unsuitable nominee, both would suffer at the hands of the public. “If an ill appointment should be made,” Hamilton wrote, “the president for nominating and the senate for approving would participate though in different degrees in the opprobrium and disgrace.”[139] In contrast, a state such as New York where secrecy prevailed over appointments, “all idea of responsibility is lost.”[140] A shared appointment power allows the people to carefully evaluate their agents as they are appointed, and to hold their representatives responsible should the appointees abuse the public trust.[141] By forcing the government to conduct appointments in an open manner, the Constitution promotes government accountability, and ultimately representative democracy.
Delegation of military command to foreign or international officers undermines these principles. Under recent Clinton administration initiatives, individuals who have not undergone the executive branch, congressional, and public scrutiny that attends appointments, and are not responsible to the American political system, enjoy the authority to issue orders to American soldiers in life-threatening situations. Independent of the executive branch, foreign commanders need not obey presidential directives, need not follow American laws and regulations, and cannot be removed or disciplined by the President. If Congress or the people disagree with military policy, or they disapprove of the execution of a military operation, they have no political avenue to oversee the officials who are in command. They cannot demand that the President remove an official for incompetence, failure to obey orders, or disagreement over policy. This runs counter to the Appointments Clause’s basic goal of guaranteeing that the people have a voice in the selection of officials who exercise federal powers, and of allowing the people, through the political system, to hold their elected representatives accountable for “an ill appointment.”
To be sure, previous presidents have allowed command to flow through foreign commanders, particularly those allied with the United States in World Wars I and II. The precise structure, however, assumed by those forms of cooperation, preserved rather than undermined principles of government accountability. It appears that no Commander-in-Chief before President Clinton has delegated policy or tactical command, nor has any President allowed a non-U.S. officer to coerce or discipline American troops. It also appears that strategic command over American troops has been clearly exercised by a non-U.S. officer only once. When Presidents have delegated command, it has usually been at the operational level. Operational command, however, does not raise the same problems posed by tactical or policy command. It does not vest foreign officers with the power to actually issue directives to American soldiers that have the force of law behind them. Rather, American military officers, in consultation with American political and military leaders --- who still retain policy and strategic command --- can still determine whether to comply with those orders at the tactical level.
In this regard, the delegation of operational command resembles the relationship of American domestic law to certain international norms. International organizations and conventions can place legal obligations upon the United States, such as a WTO panel finding that American environmental regulations violate GATT national treatment rules, or they can even call upon the United States to meet some non-binding, aspirational goal. The United States still remains free, however, to choose how to implement its international obligations, or even whether to violate them and suffer retaliation. In either case, it is officers of the United States who will make the decisions and exercise the power of federal law to enforce them. Similarly, if non-U.S. commanders possess operational command, but do not have the authority to coerce or discipline American troops who disobey their orders, they exercise no greater power than any other international organization whose rulings the United States is free, as a matter of domestic law, to adopt or reject. American commanders at the policy and strategic levels still may countermand any order, and American officers at the tactical level are responsible for implementing, or not, orders of non-U.S. commanders. American officers still retain the authority of federal law in coercing and disciplining American troops. The decision, therefore, whether and how to harmonize the actions of the American government with international requirements still rests with officers of the United States, who are appointed pursuant to the Appointments Clause and remains accountable in the American political system.
In raising the prospect that non-U.S. officers may receive tactical command, the Clinton administration threatens to introduce an unprecedented approach to American military intervention in the next century. In seeking to submerge appearances of American unilateralism within broader multilateral organizations, President Clinton has sought to place American forces at the disposal and command of foreign or international officials. While this may be necessary in order to achieve the goals of working through an independent, neutral international organization, it creates significant tension with American constitutional principles of government accountability and popular sovereignty, as promoted by the Appointments Clause, the unitary executive, and the non-delegation doctrine. One approach that might resolve this potential conflict between international cooperation and American constitutionalism is for Presidents and military leaders to transfer only strategic or operational command to non-U.S. officers. Retaining policy and tactical command, combined with the right to coerce and discipline soldiers, would ensure that control over the exercise and enforcement of federal law would remain in individuals responsible to the American government, as required by the Constitution.
Beyond the issue of military command, Kosovo raises issues of constitutional dimension concerning the relationship between international organizations and law, on the one hand, and American domestic law and institutions, on the other. Although the Clinton administration failed to provide a legal justification for its use of military force in the Balkans, the President referred to American obligations to NATO as one of the primary reasons for the war. The absence of international law commentators from the debate notwithstanding, some foreign relations law scholars in the past have suggested that fulfilling our treaty obligations could provide the President with the constitutional authority to use force without further congressional authorization.[142] Such claims raise two significant foreign relations law questions: whether the President can use treaty obligations to conduct wars without congressional cooperation, and whether the President can take the United States into war in violation of international law. Practice during the Kosovo war indicates, contrary to the claims of many international law scholars, that the President gains little additional constitutional authority when acting pursuant to treaty, but that he remains free to violate international law in the national interest. If the Presidents of the next century intend to involve the United States more deeply into multilateral military operations, these questions will arise with greater frequency as future Commanders-in-Chief make war more often pursuant to treaties and the demands of international organizations.
This Essay’s vision of war powers suggests that the President need not rely upon treaty obligations in order to conduct wars without congressional authorization. One would not have gotten this impression, however, from the previous debates among international lawyers. In the aftermath of the Persian Gulf War, for example, several prominent international law commentators argued about the relevance to domestic war powers of the U.N. Security Council Resolution authorizing the use of force against Iraq. Professor Thomas Franck, for example, has maintained that if the Security Council issues a resolution authorizing military intervention, then the President has the independent constitutional authority to send American troops into hostilities. “Such compliance with international law is not prohibited,” Professor Franck and Faiza Patel write, “indeed it is required --- by the Constitution.”[143] In the case of the Persian Gulf War, according to Professor Franck, once the Security Council issued Resolution 678, the President had the authority, indeed had the constitutional obligation, to attack Iraq. Professor Michael Glennon, for one, takes the opposite tack. He responds that even if Resolution 678 imposed a mandatory obligation on member nations, a United Nations obligation cannot alter the domestic allocation of war powers.[144] Because Professor Glennon is one of the many academics who believes that Congress must authorize all uses of force, he argues that a treaty obligation cannot trump the Constitution. Under this view, a treaty obligation would count for little more than, as Professor Eugene Rostow once famously said, a note from one’s mother.
The text and history of the constitutional allocation of war powers indicate that this argument is beside the point. Because the President already has the domestic constitutional authority to initiate military hostilities without any authorizing legislation, he need not rely upon treaty obligations for legal justification. President Clinton did not require the U.N.’s permission to send troops into Haiti or Somalia or to send the air force into combat in Bosnia, because his Commander-in-Chief and executive powers already gave him sufficient constitutional power to do so. This is not to say, of course, that the treaty demands of the United Nations or of our allies should not affect the President’s decisionmaking concerning the use of force. It should be made clear, however, that treaties exert an impact in the realm of international politics and foreign policy, rather than in constitutional law. Even if treaties had some constitutional emanations on war decisionmaking, the President’s power both to implement treaties (due to his Article II, Section 3 duty to faithfully execute the laws), or to terminate treaties unilaterally allows him to override or obey any treaty obligation at will.
A more interesting and difficult question is what impact treaties should have, if any, upon the other domestic actors in the struggle over the use of force. Even though treaties may provide no constitutional boost on the President’s discretion as Commander-in-Chief, some still may believe that they should exert a pull upon Congress in support of presidential warmaking. Under Professor Franck’s theory, for example, a President armed with a Security Council Resolution could claim that Congress had the constitutional responsibility to fund any use of force authorized by the U.N. or NATO. Similarly, according to Professor Henkin, “Congress is internationally obligated, and has the power under the Constitution, to enact laws necessary and proper to carry out the obligations and responsibilities of the United States under the [U.N.] Charter.”[145] If treaties are laws of the land, then until they are repealed, these scholars argue, Congress has a constitutional duty to fulfill their terms even if it disagrees with executive foreign policy or the objectives behind the treaty.
Such claims can trace their roots back to Alexander Hamilton. In 1796, Jeffersonians claimed that Congress could doom the controversial Jay Treaty by refusing to enact implementing legislation. Hamilton responded that because the Supremacy Clause made treaties the law of the land, the House had no right to consider the treaty on the merits or to refuse to enact necessary legislation. Wrote Hamilton, “each house of Congress collectively as well as the members of it separately are under a constitutional obligation to observe the injunctions of a [treaty] and to give it effect. If they act otherwise they infringe the constitution; the theory of which knows in such case no discretion on their part.”[146] To make treaties dependent on legislative execution, Hamilton concluded, would render the treaty power hollow.[147] “[T]here is scarcely any species of treaty which would not clash, in some particular, with the principle of those objections,” Hamilton declared. “[T]he power to make treaties granted in such comprehensive and indefinite terms and guarded with so much precaution would become essentially nugatory.”[148] Hamilton’s theory would require Congress to automatically fund presidential warmaking, if those wars were undertaken pursuant to valid treaty obligations – which Hamilton argued in 1791 were for the executive branch to determine.
This approach – essentially the theory underpinning the doctrine of self-executing treaties – is inconsistent with the balance struck by the Constitution between the treaty and the legislative powers.[149] Both the British constitutional struggles of the seventeenth and eighteenth centuries, and the events of the framing and ratification of the Constitution, indicate that the Framers understood the legislative power to serve as a crucial check upon the executive’s control over foreign affairs generally, and the treaty power specifically.[150] The framers saw a tension between the Supremacy Clause’s efforts to make treaties binding on the nation and Article I’s vesting of all federal legislative power in Congress. They resolved this problem by explicit analogy to the British model, which allocated legislative authority to Parliament and treaty-making power to the executive. Treaties continued to be executive in nature, as they were under the British constitution, but they could not exercise the legislative authority granted to Congress in Article I. While the executive would enjoy the freedom to manage international relations through the treatymaking power, the Framers believed that the legislative power – with its monopoly over the regulation of domestic affairs – would provide a crucial constitutional and political check on executive power and policies.[151] As Parliament had done vis-ŕ-vis the Crown, Congress might use its legislative and spending powers to frustrate or even counteract treaty obligations, independent of the wishes of the treatymakers.
Article I’s vesting of legislative power in Congress gives it a blocking role in treatymaking. In withholding implementing legislation or funding, it can prevent a treaty from taking domestic effect. In light of this understanding of the Constitution, Congress remains free to exercise its funding authority as it sees fit, regardless of the President’s claims that he is upholding treaty requirements. Even if the U.N. or NATO directed its member nations to intervene militarily, and even if these directives were considered valid treaty obligations that amounted to the law of the land, Congress has the constitutional discretion to use its funding and legislative powers to prevent the executive from fulfilling those duties. While refusing to fund actions necessary to fulfill our treaty obligations might violate international law, it does not violate the Constitution. In invoking our obligations under NATO, therefore, the President may have provided a political justification for the Kosovo war, but not one that could have constitutionally compelled Congress to approve or support the intervention. Congress’s refusal to provide authorization for the war, and its debate on the merits of funding it, indicate that international law scholars’ views on the treaty power found little purchase during consideration of the Kosovo war.
American intervention renewed a second, long-running debate --- whether the President has a constitutional duty to obey international law. Kosovo appears to have answered this question, in that President Clinton violated international law --- without domestic objection --- by attacking a sovereign nation without Security Council approval. Under the U.N. Charter, which guarantees the sovereignty and independence of its member states, it appears that the attack upon Serbia violated international law. Article 2(4) of the Charter decrees that members shall “refrain . . . from the threat or use of force against the territorial integrity or political independence of any state.”[152] Article 2(3) calls upon nations to settle their international disputes “by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and Article 2(7) declares that nothing in the Charter “shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” Unless one can make out the difficult claim that Serbian activities rose to the level of genocide, it initially seems that the tragedies in Kosovo represented domestic matters internal to Yugoslavia, whose resolution the Charter rules out the use of force.
A state may still use force, in keeping with the Charter, under two conditions. First, if a nation is attacked in violation of Article 2(4),[153] it may act in self-defense. Second, a nation may use force against another nation if acting pursuant to Security Council authorization. Under Article 42, the Security Council may call on member nations to engage in “demonstrations, blockade, and other operations by air, sea, or land forces” that it thinks “necessary to maintain international peace and security.”[154] Under Article 39, the Security Council may issue recommendations that ask member nations to voluntarily take military action to restore international peace. Unless a nation is acting in self-defense, the U.N. Charter appears to require that the Security Council must authorize all other uses of force.
If this interpretation of the U.N. Charter is correct, then the United States cannot engage in military hostilities unless attacked or unless authorized by the Security Council. As Professor Henkin has argued: “By adhering to the Charter, the United States has given up the right to go to war at will.”[155] Under this approach, the Clinton administration’s military attack upon Serbia violated international law. The United States and its allies attacked the civilian and military assets of another sovereign nation. They did not receive either a Security Council decision under Article 42 to engage in a police action, or an authorization under Article 39 to use force to restore international peace and security. It is difficult to claim, with a straight face, that American intervention in Kosovo was necessary for purposes of national self-defense. American-led attacks in Kosovo and Serbia, therefore, violated international law.
Under the view promoted by many foreign relations law scholars, the President’s violation of international law should have made Kosovo presumptively unconstitutional. For example, many leading commentators argue that the President has a constitutional duty to enforce customary international law.[156] International law – either through treaty or as federal common law – is part of the “Laws of the Land” under Article VI’s Supremacy Clause. Article II’s requirement that the President enforce the laws, according to these scholars, means that international law must be obeyed by the President. A President may not violate international law, just as he cannot violate a statute, unless he believes it to be unconstitutional. As Professor Henkin has written: “There can be little doubt that the President has the duty, as well as the authority, to take care that international law, as part of the law of the United States, is faithfully executed.”[157] While some admit that certain forms of constitutional or statutory authority might allow the President to violate international law,[158] others go farther in claiming that the President cannot violate certain forms of international law regardless of his domestic authority.[159] These differences aside, many foreign relations scholars seem to agree that the federal courts ought to exercise judicial review and invalidate executive action that contravenes international law.
Although the inclusion of customary international law as federal common law is open to potentially crippling doubts,[160] such arguments might be on firmer ground when it comes to treaties, which are explicitly mentioned in the Supremacy Clause.[161] If foreign relations law scholars were correct about the binding nature of even customary international law on the executive branch, then certainly courts could enjoin the President from violating a more concrete form of international law – namely the U.N. Charter – that had been adopted through the treaty process. Nonetheless, Kosovo demonstrates that international law imposed little restraint upon presidential action, and that federal courts were not about to enforce treaty obligations so as to restrict the Commander-in-Chief power.[162] What was striking in the American public debate over Kosovo was the almost complete absence of any arguments, especially from international law scholars, that the war’s apparent violation of international law should pose any domestic legal difficulties for President Clinton.
Kosovo demonstrates why these theories are flawed. The constitutional text nowhere brackets presidential or federal power within the confines of international law. When the Supremacy Clause discusses the sources of federal law, it only enumerates the Constitution, “the Laws of the United States which shall be made in Pursuance thereof,” and treaties, not international law. As I have argued elsewhere, even the inclusion of treaties in the Supremacy Clause does not render treaties automatically self-executing in federal court, not to mention self-executing against the executive branch.[163] Constitutional text aside, allowing the federal courts to rely upon international law and treaty obligations to enjoin presidential warmaking would raise deep structural problems. Relying upon international law and treaty obligations to block presidential warmaking would undermine the President’s control over foreign relations, his plenary power over the military, and even his freedom to participate in the making of international law. Allowing international law and treaties to interfere with the President’s war power would expand the federal judiciary’s authority into areas where it has little competence, where the Constitution does not textually call for its intervention, and where it risks defiance by the political branches.[164] At the level of democratic theory, conceiving of international law as a restraint on presidential warmaking would allow norms of questionable democratic origin to constrain actions validly taken under the U.S. Constitution by popularly accountable national representatives.
Some might argue, however, that if the President is acting pursuant to an inherent constitutional authority, he may violate international law. Kosovo might not directly raise the question of the relationship between the President and international law, then, because President Clinton was acting pursuant to his Commander-in-Chief powers. While this had been the past suggestion of Professor Henkin, it is not the view shared by scholars such as Professors Glennon, Franck, and Jules Lobel, who appear to believe that Presidents cannot unilaterally defy international law.[165] Such efforts, however, to save the primacy of international law demonstrate the internal contradictions of this general approach. The President always must act pursuant to some authority either directly granted by the Constitution, or delegated to him by Congress. Otherwise he is acting ultra vires and without legal authority of any kind. To say that the Commander-in-Chief Clause provides the President with the power to violate international law is to admit that virtually any valid presidential action can violate international law, whether it be taken pursuant to the executive power clause, the President’s sole organ power, or the war power.[166] Unfortunately for many international law scholars, Kosovo provides a clear demonstration of the manner in which Presidents are not constitutionally or legally bound by international law.
From the standpoint of the separation of powers, Kosovo verifies that international law amounts to nothing more than a constitutional placebo. It neither helps nor hurts the relative roles of any of the branches, no matter how much they might believe in it. As demonstrated by the Clinton administration’s bombing of Serbian targets without U.N. sanction, international law places no constraints upon the President’s exercise of his Commander-in-Chief or executive war powers. The constitutional text and structure seems to indicate that the executive branch enjoys the constitutional freedom to exercise its foreign affairs powers consistent with, or in conflict with, international norms. Yet, international law provides no special constitutional impetus to presidential warmaking either. Even when they rely upon NATO or U.N. treaty obligations, Presidents ought to receive no special deference from Congress when it considers whether to support a military intervention. The text and original understanding of the Constitution permits Congress to use its plenary legislative and funding powers to check the executive’s conduct of foreign policy. In Kosovo, Congress performed this function by considering the merits of the war in the course of funding it.
Once we have removed international law from the mix, the central constitutional issue raised by Kosovo boils down to the familiar debate about the allocation of war powers between President and Congress. American international law scholars, who remained strangely silent during the conflict, had argued during past postwar conflicts that Presidents could not use military force without ex ante congressional authorization. Neither President Clinton, nor Congress, nor the federal courts, however, conducted themselves during Kosovo as if this were the operating principle. Rather, in keeping with recent historical practice, the President exercised the initiative to begin military hostilities, subject to Congress’s control over the purse, which it used to consider the merits of the intervention. I believe that this outcome finds support both in the text, structure, and history of the Constitution, which displays no clear effort to undo the warmaking relationship between the executive and legislative branches that prevailed in the Anglo-American political system of the 18th Century. Under this understanding, the Clinton administration’s decision to use military force in Kosovo without a declaration of war or other statutory authorization fell within the formal boundaries established by the Constitution, as they would have been understood by the Framers.
War powers analysis only begins to address the most novel constitutional issue to arise from the Kosovo war. Kosovo now is the most prominent example of the growing efforts to develop multilateral solutions to the problems posed by globalization. In order to establish international institutions capable of neutral, yet effective action, the Clinton administration appears to believe it necessary to transfer public authority to foreign or international commanders who are not officers of the United States. Such multilateralism is in substantial tension with principles of government accountability and popular sovereignty, as promoted by the Appointments Clause, the unitary executive, and the non-delegation doctrine. Recent historical practice, however, suggests methods in which the United States can cooperate with other nations through international institutions without compromising the constitutional structures that safeguard representative government at home.
Unfortunately, the Clinton administration’s performance in Kosovo failed to strike the proper balance between international cooperation and democratic government demanded by the Constitution. Since Kosovo was but an early step in what likely will be an ongoing process in the next century, the next Presidents will have the opportunity to provide greater respect to the principle that only American officials can exercise federal authority over American citizens. Regardless of the approach and justifications provided by the current administration, it seems certain that this same basic issue will arise in a variety of different guises, as nations engage in new forms of international cooperation in order to regulate truly global problems and conduct. In that respect, perhaps one of the most important constitutional issues that the next presidential election may determine will be how the nation reconciles military and regulatory multilateralism with domestic constitutionalism. Kosovo need not provide the precedent on that score for the future.
* Professor of Law, University of California at Berkeley School of Law (Boalt Hall); Olin Foundation Faculty Fellow, 1998-99. I would like to thank the Boalt Hall Fund, the University of California at Berkeley’s Committee on Research, and the Olin Foundation for financial support.
[1] See, e.g., Louis H. Fisher, Presidential War Power (1995); John H. Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993); Michael J. Glennon, Constitutional Diplomacy (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs (1990); Harold H. Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair (1990); William M. Treanor, Fame, the Founding, and the Power to Declare War, 82 Cornell L. Rev. 695 (1997); Jane E. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 Yale L.J. 845 (1996) (book review).
[2] U.S. Const., art. II, §§ 1-2.
[3] Id. art. I, § 8.
[4] Id. art. III, § 2
[5] Id. art. I, § 10.
[6] See Office of the Legal Adviser, U.S. Dep’t of State, The Legality of United States Participation in the Defense of Viet-Nam (1966), reprinted in 1 The Vietnam War and International Law 583, 597 (Richard A. Falk ed., 1968); see also Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1789-1989 (Ellen C. Collier ed. 1989), reprinted in Thomas M. Franck & Michael J. Glennon, Foreign Relations and National Security Law 650 (2d ed. 1993).
[7] John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167, 178-79 (1996) [hereinafter Yoo, Original Understanding].
[8] There is substantial dispute among pro-Congress scholars concerning whether the Tonkin Gulf Resolution constituted sufficient legislative support for the Vietnam War. See John C. Yoo, Clio at War: The Misuse of History in the War Powers Debate, 70 U. Colo. L. Rev. 1169, 1178 n. 32 (1999) [hereinafter Yoo, Clio].
[9] War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 codified at 50 U.S.C. §§ 1541-48 (1994).
[10] Id. at §3; §4(a).
[11] Id § 5(b). The Resolution provides the President with 30 additional days if necessary to permit a safe withdrawal. Id.
[12] President Bush sent troops to Saudi Arabia within days of the August 2, 1990 Iraqi invasion of Kuwait, and engaged in a buildup that reached more than 430,000 troops by November 8, but did not receive a congressional resolution of support until January 12, 1991, more than five months after the first American deployment. American troops invaded Kuwait and Iraq shortly thereafter. See generally Yoo, Original Understanding, supra note 7, at 186.
[13] When he signed Congress’s joint resolution supporting the use of force to implement U.N. Resolution 678, H.J. Res. 77, Pub. L. No. 102-1, Bush declared that “my signing this resolution does not constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.” Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 27 Weekly Comp. Pres. Doc. 48 (Jan. 14, 1991).
[14] Steven L. Myers, Full-Time U.S. Force in Haiti To Leave an Unstable Nation, N.Y. Times, Aug. 26, 1999, at A1.
[15] Id.
[16] These facts are taken from Campbell v. Clinton, 52 F. Supp. 34, 39 (D.D.C. 1999).
[17] S. Con. Res. 21, 106th Cong. (1999).
[18] Address to the Nation on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 516 (Mar. 24, 1999).
[19] Id.
[20] H.R. Res. 130, 106th Cong. (1999).
[21] Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 527 (Mar. 26, 1999).
[22] Id.
[23] Id.
[24] See Yoo, Original Understanding, supra note 7, at 181-82.
[25] Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 602 (Apr. 7, 1999). In addition to airstrikes, the President notified Congress that he had sent combat ground forces to Albania and Macedonia, ostensibly to engage in humanitarian relief operations.
[26] H.R. J. Res. 44, 106th Cong. (1999).
[27] S. Con. Res. 21, 106th Cong. (1999).
[28] H.R. Con. Res. 82, 106th Cong. (1999).
[29] H.R. 1569, 106th Cong. (1999).
[30] Emergency Supplemental Appropriations Act, Pub. L. No. 106-31, 113 Stat. 57 (1999).
[31] Letter to Congressional Leaders Reporting on Airstrikes Against the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 989 (May 25, 1999).
[32] Address to the Nation on the Military Technical Agreement on Kosovo, 35 Weekly Comp. Pres. Doc. 1074 (June 10, 1999).
[33] Letter to Congressional Leaders Reporting the Deployment of United States Military Personnel as Part of the Kosovo International Security Force, 35 Weekly Comp. Pres. Doc. 1107 (June 12, 1999).
[34] Id.
[35] Campbell v. Clinton, 52 F. Supp.2d 34, 39 (D.D.C. 1999).
[36] Id. at 43.
[37] See, e.g., Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) (challenge by Congressmen to deployment in Persian Gulf War unripe); Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990) (challenge by National Guard sergeant to orders deploying him to Persian Gulf held to be a non-justiciable political question).
[38] Of course, the Court has addressed the question of how far the Commander-in-Chief power extends domestically. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Youngstown, however, did not review President Truman’s authority to initiate and wage the Korean War without formal congressional authorization.
[39] See generally, Mark T. Uyeda, Presidential Prerogative Under the Constitution to Deploy U.S. Military Forces in Low-Intensity Conflict, 44 Duke L.J. 777 (1995).
[40] See, e.g., President’s News Conference, Pub. Papers (Aug. 3, 1994) (Haiti); Remarks and Exchange with Reporters, Pub. Papers (Feb. 6, 1994) (Bosnia); Letter to Congressional Leaders on Bosnia, Pub. Papers (Sept. 1, 1995) (Bosnia).
[41] Address to the Nation on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 516 (Mar. 24, 1999).
[42] Id.
[43] The professors were Abram Chayes and Laurence Tribe of Harvard, Bruce Ackerman and Harold Koh of Yale, Philip Kurland of Chicago, Gerald Gunther and John Hart Ely of Stanford, Lori Fisler Damrosch and Louis Henkin of Columbia, and William Van Alstyne of Duke. The letter is reprinted at 89 Am. J. Int’l L. 127 (1995). The points made in the letter are further expanded upon in Lori F. Damrosch, The Constitutional Responsibility of Congress for Military Engagements, 89 Am. J. Int’l L. 58 (1995).
[44] Id.
[45] The brief is reprinted at 27 Stan J. Int’l L. 257 (1991).
[46] Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987), aff’d, No. 87-5426 (D.C. Cir. 1988).
[47] Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff’d, 720 F.2d 1355 (D.C. Cir. 1983) (per curiam), cert. denied, 467 U.S. 1251 (1984); Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), aff’d on other grounds, 770 F.2d 202 (D.C. Cir. 1985).
[48] See, e.g., Louis Fisher, Congressional Abdication: War and Spending Powers, 43 St. Louis Univ. L.J. 931, 967-80 (1999); Ely, supra note 1, at 47-67; Glennon, supra note 1, at 35-70; Henkin, supra note 1, at 17-43; Koh, supra note 1, at 117-49.
[49] Ely, supra note 1, at 5.
[50] Id. at 3.
[51] Harold H. Koh, Presidential War and Congressional Consent: The Law Professors’ Memorandum in Dellums v. Bush, 27 Stan. J. Int’l L. 247, 249 (1991); see also Koh, supra note 1, at 47-67, 76-77.
[52] U.S. Const. Art. I, § 10, cl. 3.
[53] U.S. Const. Art. II, § 2.
[54] See id.
[55] U.S. Const. Art. I, § 1.
[56] This, of course, was the argument most famously made by Alexander Hamilton in defending President Washington’s Neutrality Proclamation. See Pacificus No. 1, June 29, 1793, XX Papers of Alexander Hamilton ___ (“The general doctrine of our Constitution, then, is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument”). For a modern version of the argument, see Steven Calabresi & Saikrishna Prakash, The President’s Power to Execute the Laws, 104 yale L.J. 541, 663-64 (1994). Calabresi and Prakash’s thesis, like Hamilton’s, has not received general acceptance. See, e.g., Martin Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996); see also Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. U. L. Rev. 1346 (1994); Abner Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123 (1993); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994); Peter Strauss, Formal and Functional Approaches to Separation-of-Powers Questions – A Foolish Inconsistency?, 72 Cornell L. Rev. 488 (1987). The debates between Calabresi and Prakash and their critics, however, seem to revolve around whether the power of “administration” is fully executive in nature, rather than whether warmaking is executive or legislative.
[57]
2 The Records of the Federal Convention of 1787,
at 318 (Max Farrand ed., 1911).
[58] 2 Documentary History of the Ratification of the Constitution, at 583 (Merrill Jensen ed., 1976) [hereinafter Documentary History].
[59] Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 The Writings of James Madison, at 312 (Gaillard Hunt ed., 1906)
[60] See 3 Joseph Story, Commentaries on the Constitution of the United States § 570 (Ronald D. Rotunda & John E. Nowak eds., Carolina Academic Press 1987) (1833).
[61] See Yoo, Clio, supra note 8, at 1181-91.
[62] See Ronald D. Rotunda & John E. Nowak, Introduction to Story, supra note 60, at v, v-xiv (providing Story’s biographical details).
[63] See Yoo, Clio, supra note 8, at 1183-85.
[64] See Martin S. Flaherty, History “Lite” in Modern American Constitutionalism, 95 Colum. L. Rev. 523 (1995).
[65] See Yoo, Original Understanding, supra note 7, at 196-217.
[66] See, e.g., 2 Hugo Grotius, De Jure Belli ac Pacis Libri Tres 633 (Francis W. Kelsey trans., 1925) (1646); See Emmerich de Vattel, The Laws of Nations or the Principles of Natural Law 255 (Charles G. Fenwick trans., 1916) (1758); Blackstone, supra note Error! Bookmark not defined., at *258.
[67] Blackstone, supra note Error! Bookmark not defined., at *258.
[68] See Yoo, Original Understanding, supra note 7, at 214-17.
[69] These were: the Second Anglo-Dutch War (1665-67), the Third Anglo-Dutch War (1672-74), the War of the Grand Alliance (1689-97), the War of the Spanish Succession (1702-13), the War of the Quadruple Alliance (1718-20), the War of the Austrian Succession (1739-48), the Seven Years’ War (1756-63), and the American Revolution (1775-83). England declared war before hostilities only in 1689, at the start of the War of the Grand Alliance. This period also included numerous minor conflicts in which no declaration of war issued. Id. at 214 n. 252.
[70] Id. at 214-15.
[71] See, e.g., Douglas E. Leach, Arms for Empire: A Military History of the British Colonies in North America, 1607-1763, at 210, 380-81, 340-41 (1973).
[72] The Federalist No. 25 (Alexander Hamilton), reprinted in 15 Documentary History, supra note 58, at 62. Publius was defending the Constitution’s authorization of the maintenance of standing armies in peacetime because of the dangers of a surprise attack without a formal declaration of war. Other Federalists and Anti-Federalists shared Hamilton’s judgment. See Brutus X, N.Y. J. (Jan. 24, 1787), reprinted in 15 Documentary History, supra note 58, at 462-67; Marcus IV, Norfolk & Portsmouth J. (Mar. 12, 1788), reprinted in 16 Documentary History, supra note 58, at 384-86.
[73] See Yoo, Original Understanding, supra note 7, at 208-14.
[74] Id. at 208-14.
[75] See generally, John Brewer, The Sinews of Power: War, Money and the English State, 1688-1783 (1989).
[76] Yoo, Original Understanding, supra note 7, at 219-21.
[77] Id. at 221-28.
[78] Id. at 228-34 (discussing New York, Massachusetts, and New Hampshire constitutions).
[79] See Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 446-53 (1969); see also Charles C. Thach, Jr., The Creation of the Presidency, 1775-1789: A Study in Constitutional History 34-35 (1922).
[80] An effort to relocate war powers from the executive to the legislature would have been surprising, for as Professor William Treanor has put it, “[f]or [the framers] to believe that such a decision was appropriate, there would have had to have been some concern causing them to turn against the great tide of constitutional history.” William M. Treanor, Fame, The Founding, and the Power to Declare War, 82 Cornell L. Rev. 695, 721 (1997); see also Yoo, Treaties and Public Lawmaking, supra note , at 8. Treanor believes, however, that the Framers fear of fame-seeking provides sufficient ground to conclude that the framers did attempt to act counter-cyclically on the issue of war powers. I have argued elsewhere that Treanor’s level of analysis is far too general to support any concrete conclusions about the original understanding of war powers.
[81] Articles of Confederation art. 9 (1777).
[82] See Fisher, supra note 1, at 6; Arthur Bestor, Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined, 5 Seton Hall L. Rev. 527, 568 (1974); Raoul Berger, War-Making by the President, 121 U. Pa. L. Rev. 29, 33 (1972).
[83] See Jerrilyn G. Marston, King and Congress: The Transfer of Political Legitimacy, 1774-76, at 303 (1987); Eugene R. Sheridan & John M. Murrin, Introduction to Congress at Princeton: Being the Letters of Charles Thomson to Hannah Thomson, June-October 1783, at xxxiv-xxxviii (Eugene R. Sheridan & John M. Murrin eds., 1985).
[84] See S.C. Const. of 1778, art. XXXIII, reprinted in 6 The Federal and State Constitutions, Colonial
Charters, and Other Organic Laws 3255 (Frances N. Thorpe ed.,
1909). In its temporary 1776
Constitution, South Carolina also included a provision that required the
governor to receive the consent of both the state assembly and the council
before making war or peace. See S.C.
Const. of 1776, art. XXVI, reprinted
in 6 id. at 3247.
[85] I have undertaken that task in Yoo, Original Understanding, supra note 7, at 241-86.
[86] See McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705 (1992) (discussing concept of vetogates).
[87]Patrick Henry, The Virginia Convention Debates (June 5, 1788), reprinted in 9 Documentary History, supra note 59, at 964.
[88]Id.
[89] 10 Documentary History, supra note 58, at 1282.
[90] Id.
[91] Id.
[92] See, e.g., 10 id. at 1281 (comments of George Nicholas).
[93] I am using here the terminology of Stephen Krasner, Sovereignty: Organized Hypocrisy (1999).
[94] See generally, Abram & Antonia H. Chayes, The New Sovereignty (1995).
[95] Charter of the United Nations, 59 Stat. 1031, entered into force Oct. 24, 1945.
[96] North Atlantic Treaty, entered into force Aug. 24, 1949, 34 U.N.T.S. 243.
[97] General Agreement on Tariffs and Trade, 55 U.N.T.S. 194, 1947.
[98]
Multilateral Trade Negotiations: Final
Act Embodying the Results of the Uruguay Round of Trade Negotiations, entered
into force Jan. 1, 1995, 33 I.L.M. 1125.
[99] North American free Trade Agreement, 32 I.L.M. 289, entered into force Jan. 1, 1994.
[100] See, e.g., Convention for the Protection of Human Rights and Fundamental Freedoms, entered into force Sept. 3, 1953, 213 U.N.T.S. 221; International Covenant on Civil and Political Rights, opened for signature, Dec. 19, 1966, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, opened for signature Jan. 3., 1976, 993 U.N.T.S. 3.
[101] Vienna Convention for the Protection of the Ozone Layer, 26 I.L.M. 1516; Montreal Protocol on Substances that Deplete the Ozone Layer, 30 I.L.M. 537; Convention on Long-Range Transboundary Air Pollution, 18 I.L.M. 1442; International Convention for the Regulation of Whaling, 161 U.N.T.S. 72; Agreement on the Conservation of Polar Bears, 27 U.S.T. 3918; Convention for the Conservation of Antarctic Seals, 29 U.S.T. 441.
[102] Rio Declaration on the Environment and Development, 31 I.L.M. 874; Framework Convention on Climate Change, 31 I.L.M. 849; Convention on Biological Diversity, 31 I.L.M. 818.
[103] See generally John Yoo, The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause, 15 Const. Commentary 87 (1998) (criticizing on-site inspection regime of Chemical Weapons Convention) [hereinafter Yoo, New Sovereignty].
[104] Some have criticized the GATT and WTO decisions invalidating American domestic environmental legislation in favor of free trade rules. Others have criticized the WTO for allowing non-Article III tribunals to adjudicate claims arising under federal law. See Jim C. Chen, Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review under the United States-Canada Free Trade Agreement, 49 Wash. & Lee L. Rev. 1455 (1992); Alan B. Morrison, Appointments Clause Problems in the Dispute Resolution Provisions of the United States-Canada Free Trade Agreement, 49 Wash. & Lee L. Rev. 1299 (1992). But cf. Harold H. Bruff, Can Buckley Clear Customs, 49 Wash. & Lee L. Rev. 1309 (1992) (defending international dispute settlement); William J. Davey, The Appointments Clause and International Dispute Settlement Mechanisms: A False Conflict, 49 Wash. & Lee L. Rev. 1315 (1992) (same).
[105] See Patricia W. Birnie & Alan E. Boyle, International Law and the Environment (1992); Abram & Antonia Chayes, The New Sovereignty 184-89 (1995). See, e.g., Montreal Protocol on Substances That Deplete the Ozone Layer, 26 I.L.M. 1541, entered into force Jan. 1, 1989 (establishing a schedule for the retirement of substances that deplete the ozone layer); Convention on International Trade in Endangered Species of Wild Fauna and Flora, art. 2, 27 U.S.T. 1087 (1973), entered into force July 1, 1975 (banning trade for commercial purposes in species threatened with extinction); Convention on the Wetlands of International Importance Especially as Waterfowl Habitat, 996 U.N.T.S. 245 (1971), entered into force Dec. 21, 1975 (protecting wetlands).
[106] See Restatement (Third) of the Foreign Relations Law of the United States pt. VII (1987) (declaring that “how a state treats individual human beings, including its own citizens, in respect of their human rights, is not the state’s own business alone”). See International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Exec. Doc. 95-2 (1978), 999 U.N.T.S. 171; (defining political rights); International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Exec. Doc. 95-2, 993 U.N.T.S. 3 (guaranteeing rights of equal treatment in economic and social spheres); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, S. Exec Doc. 95-2, 660 U.N.T.S. 195 (prohibiting hate speech).
[107] See Thomas A. Schwartz, America’s Germany (1993).
[108] See David Kaye, Are There Limits to Military Alliance?: Presidential Power to Place American Troops Under Non-American Commanders, 5 Transnat’l L. & Contemporary Problems 399, 438-43 (1995).
[109] Edward Luttwak & Stuart Koehl, The Dictionary of Modern War 466 (1991).
[110] Joint Chiefs of Staff, Department of Defense Dictionary of Military and Associated Terms 350 (8th ed. 1987).
[111] Id. at 262, Luttwak & Koehl, supra note 109, at 442.
[112] Joint Chiefs of Staff, supra note 110, at 363; Luttwak & Koehl, supra note 109, at 598.
[113] See Kaye, supra note 108, at 420-25; Michael J. Glennon & Allison R. Hayward, Collective Security and the Constitution: Can the Commander in Chief Power Be Delegated to the United Nations?, 82 Geo. L.J. 1573, 1584-86 (1994); see also Tasker H. Bliss, The Evolution of the United Command, Foreign Aff. 1, 29-30 (1922); David F. Trask, The United States in the Supreme War Council 23-24 (1961).
[114] Kaye, supra note 108, at 425-28.
[115] Id. at 428; see also Richard M. Leighton, Allied Unity of Command in the Second World War: A Study in Regional Military Organization, 67 Pol. Sci. Q. 399, 402, 425 (1952).
[116] U.N. Charter art. 43.
[117] Glennon & Hayward, supra note 113, at 1574.
[118] In response, Congress considered legislation in 1996 to prohibit the expenditure of any funds for American armed forces that served under U.N. operational or tactical command. Section 3 of H.R. 3308, 104th Cong., 2d Sess (1996), required that “funds appropriated or otherwise made available for the Department of Defense may not be obligated or expended for activities of any element of the armed forces that after the date of the enactment of this section is placed under United Nations operational or tactical control.” The bill defined U.N. command as command by an official acting on behalf of the U.N. in a peacekeeping or similar operation, where the senior military commander of the force is not an active duty U.S. military officer.
[119]
Memorandum for Alan J. Kreczko, Special Assistant to the President and Legal
Adviser to the National Security Council, Placing of United States Armed Forces
Under United Nations Operational or Tactical Control, May 8, 1996,
http://www.usdoj.gov/olc/mem_ops.htm.
[120] Id. (citations omitted).
[121] Id.
[122] Id. (emphasis omitted).
[123] See generally Yoo, New Sovereignty supra note 103.
[124] The Appointments Clause declares that the President:
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
U.S. Const. art. II, Sect. 2, cl. 2.
[125] See John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 Tex. L. Rev. 633 (1993); David A. Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation Process, 101 Yale L.J. 1491 (1992); John C. Yoo, Criticizing Judges, 1 Green Bag 2d 253 (1998).
[126] See, e.g., Edmond v. United States, 107 S. Ct. 1573 (1997); Ryder v. United States, 115 S. Ct. 2031 (1995); Weiss v. United States, 114 S. Ct. 752 (1994); Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991); Buckley v. Valeo, 424 U.S. 1 (1976).
[127] Buckley, 424 U.S. at 129.
[128] See Edmond, 117 S. Ct. at 1579; see also Printz v. United States, 117 S. Ct. 2365, 2378 (1997).
[129] Ryder v. United States, 115 S. Ct. 2031, 2035 (1991) (quoting Freytag, 501 U.S. at 878).
[130] See, e.g., Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725 (1996) (functionalist); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541 (1994) (formalist); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994) (functionalist).
[131] See Calabresi & Prakash, supra note 130, at 593-99.
[132] Morrison v. Olson, 487 U.S. 654, 691-92 (1988).
[133] See, e.g., Clinton v. New York, 119 S. Ct. ___ (1998); D.C. Circuit Case.
[134] Mistretta v. United States, 488 U.S. 361, 371-75 (1988).
[135] See Akhil R. Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1429-37 (1987); Gordon S. Wood, Creation of the American Republic, 1776-1787 (1969).
[136] Quoted in Wood, supra note 135, at 78.
[137] See Yoo, New Sovereignty, supra note 103, at 109.
[138] The Federalist No. 77, in 17 Documentary History, supra note 58, at 10.
[139] Id.
[140] Id. at 11.
[141] See Yoo, New Sovereignty, supra note 103, at 110-11.
[142] See, e.g., Thomas M. Franck & Faiza Patel, Agora: The Gulf Crisis in International and Foreign Relations Law, UN Police Action in Lieu of War: “The Old Order Changeth,” 85 Am. J. Int’l L. 63 (1991). For a trenchant criticism of Franck and Patel, see Glennon & Hayward, supra note 113.
[143] Franck & Patel, supra note 142, at 72.
[144] Michael J. Glennon, Agora: The Gulf Crisis in International and Foreign Relations Law, UN Police Action in Lieu of War: The Constitution and Chapter VII of the United Nations Charter, 85 Am. J. Int’l L. 74 (1991); Professor Glennon expands on these views and applies them to more recent interventions in Glennon & Hayward, supra note 113.
[145] Louis Henkin, Foreign Affairs and the Constitution 250 (2d ed. 1996).
[146] The Defence No. 36, N.Y. Herald, Jan. 2, 1796, in 20 Papers of Alexander Hamilton 4 (Harold C. Syrett ed., 1962). Hamilton argued more fully that a treaty could legislate on any matter within Congress’s Article I, Section 8 power, and that any effort to read the treaty power as limited by congressional authority would make it impossible for the nation to enter into treaties. See also The Defence No. 37, N.Y. Herald, Jan. 6, 1796, in 20 id. at 16-22.
[147] 20 id. at 18-22.
[148] 20 id. at 18.
[149] For a more detailed explanation, see generally John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999) [hereinafter Yoo, Globalism and the Constitution]; John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 Colum. L. Rev. 2210 (1999) [hereinafter Yoo, Treaties and Lawmaking].
[150] Yoo, Globalism and the Constitution, supra note 149, at ___.
[151] Id. at ___.
[152] U.N. Charter art. 2(4).
[153] Id. art. 51
[154] Id. art. 42. Some have argued, however, that the Security Council cannot require nations to interven under Article 42 unless it has at its disposal national military forces, pursuant to special agreements under Article 43. No agreements between the UN and member nations under Article 43 ever took effect. This, however, only prevents the Security Council from requiring member nations to take military action, not from requesting that they do so voluntarily. The Charter also allows the Security Council to authorize police actions by regional organizations. Id. art. 53.
[155] Henkin, supra note 145, at 250.
[156] See, e.g., Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984); Michael J. Glennon, Raising the Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U. L. Rev. 321 (1985); Jules Lobel, The Limitsof Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071 (1985); see also Agora: May the President Violate Customary International Law?, 80 Am J. Int’l L. 913 (1986).
[157] See Henkin, supra note 156, at 1567; see also Louis Henkin, The President and International Law, 80 Am. J. Int’l L. 930, 936 (1986).
[158] See, e.g., Glennon, supra note 156, at 325 (arguing that only when President acts pursuant to statutory authorization may he violate international law); Henkin, supra note 157, at 936-37 (President “perhaps” might violate international law pursuant to Commander-in-Chief power).
[159] Lobel, supra note 156, at 1075.
[160] See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997); see also Alfred Rubin, Ethics and Authority in International Law (1997); Philip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665 (1986); Arthur M. Weisburd, The Executive Branch and International Law, 41 Vand. L. Rev. 1205 ((1988). For some of the responses to Professors Bradley and Goldsmith, see Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professor Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law After Erie, 66 Fordham L. Rev. 393 (1997); Harold H. Koh, 110 Harv. L. Rev. (1998). Bradley & Goldsmith have responded to their critics several times. See Curtis A. Bradley & Jack L. Goldsmith, 110 Harv. L. Rev. (1998); Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L. Rev. 319 (1997).
[161] I have argued elsewhere that the inclusion of treaties in Article VI places duties upon the political branches to take measures to execute them, but they do not create a constitutional duty for the courts to execute treaties without implementing legislation. See generally Yoo, Globalism and the Constitution, supra note 149; Yoo, Treaties and Public Lawmaking, supra note 149.
[162] In fact, it was telling that unlike previous conflicts, no prominent international law scholars stepped forward to criticize President Clinton’s war in Kosovo as a violation of international law, and hence a violation of the Constitution, or to file a lawsuit on that basis.
[163] See Yoo, Globalism and the Constitution, supra note 149, at ___; Yoo, Treaties and Public Lawmaking, supra note 149, at ___. Non-self-execution demonstrates, in fact, that treaty obligations often will not bind the President, which strongly indicates that customary international law cannot do so as well. Further, the practice of the President to ignore or violate treaty obligations, as apparently occurred in Kosovo, also shows that treaties must be non-self-executing.
[164] I discuss the problems with judicial intervention in war powers disputes at more length in Yoo, Original Understanding, supra note 7, at 194-96, 287-90, 300-02.
[165] Professor Glennon, who has perhaps the most sensible view, applies the Youngstown framework to argue that Presidents are without authority to act in this area of shared authority without congressional support. Glennon, supra note 156, at 325.
[166] One might make the argument that Presidents cannot violate international law pursuant to a legislatively delegated power, but then one must argue that Congress cannot violate international law either.