Bill Clinton on the President’s Constitutional Authority to Enforce International LawSeptember 22, 2013 # 3:04 pm # Armed Conflict, Education, Foreign Policy, Human Rights, International Law, International Organizations, Supreme Court # No Comment
On Fareed Zakaria this morning, former President Bill Clinton discussed the authority of the president to use force without Congressional authorization. In response to a question, Clinton indicated that the president did not need to get Congressional authorization because Syria had violated international law by using chemical weapons.
This strikes me as a remarkable claim: that the President can use military force without Congressional approval to enforce a violation of international law.
Setting aside the question of whether there is a right under international law for a state to use force to unilateral enforce putative violations of international law, does the President have the authority under U.S. constitutional law to use military force to enforce international law without Congressional authorization?
Needless to say, I believe are circumstances where the President can use force without Congressional authorization. These include:
- As a response to an attack on the United States, Territories and Possessions, and its armed forces. Even section 2(c) the War Powers Resolution affirms this.
- For short, uses of force where there is minimal exposure to U.S. troops. These would include hostage rescues and certain retaliatory strikes. (Indeed, I would put what was being contemplated in Syria in this category.)
Of course, in both those cases, it is possible that the antecedent action was indeed a violation of international law. But is a violation of international law in and of itself enough to give the president the constitutional authority to use force?
During the Korea War, the Truman Administration argued that the President did not need Congressional authorization in part because of a Security Council Resolution on Korea. One document published in the State Department Bulletin in July of 1950 argued:
The President, as Commander in Chief of the Armed Forces of the United States, has full control over the use thereof. He also has authority to conduct the foreign relations of the United States. Since the beginning of United States history, he has, upon numerous occasions, utilized these powers in sending armed forces abroad. The preservation of the United Nations for the maintenance of peace is a cardinal interest of the United States. Both traditional international law and article 39 of the United Nations Charter and the resolution pursuant thereto authorize the United States to repel the armed aggression against the Republic of Korea.
This is a bit unclear, but it suggests that the President has the authority to use force under constitutional law when it is enforcing the international legal prohibition against aggression.
But what about the president’s authority to use force to enforce international law more generally?
Over the years, representatives of the Executive Branch have consistently argued that the President can use force to promoted “American interests.” Indeed, Robert Jackson. when he was Roosevelt’s Attorney General issued an opinion in 1941 in which he argued that the president could deploy troops “on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests.” (emphasis added)(40 Op. Att’y Gen. 58, 62 (1941)) It could certainly be argued that promoting international law was an “American interests.”
But I am troubled that such a vague concept as “American interests,” as determined presumably by the President, could provide the legal basis for the use of military force by the President without Congressional authorization. I would similarly be troubled if promoting “international law” were to be advanced as a legal claim that would support the President’s authority to use force without Congressional approval.