Kosovo, War Powers, and the Multilateral Future

Abstract:     
Aside from his impeachment, President Clinton's most noteworthy impact on the Constitution has been in the area of war powers. President Clinton's air war against Serbian military and civilian targets in spring and summer of 1999, while broader in scale and destructiveness, was only the latest in a pattern set by similar military interventions over the last eight years in places such as Bosnia, Afghanistan, the Sudan, Iraq, Haiti, and Somalia. In none of these cases did the Clinton administration receive 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. President Clinton refused to acknowledge that the War Powers Resolution bound his discretion to act.

This paper discusses 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.

Second, this Essay examines 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 addresses 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: whether the President gains any constitutional authority vis-a-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.

Accepted Paper Series