18 Pages Posted: 12 Feb 2001
The strongest of all governmental powers is the power to engage in war; and the strongest challenge for constitutionalism is to bring the war power of the state under meaningful control. The 1787 Constitution allocated some military powers to the Congress and others to the President as part of the scheme of constitutional checks and balances. To this day, however, the distribution of authority between the branches remains contested and uncertain.
The Clinton Administration has had substantial opportunity to contribute to the evolution of constitutional practice concerning war powers, by virtue of numerous occasions of combat deployments, cruise missile strikes, and other forms of military engagement since January 1993. In broad outline, the constitutional practice of the Clinton Administration concerning war powers is similar to that of previous administrations in the sense that sweeping claims of executive authority have been tempered through pragmatic political accommodation. The legal opinions issued to explain the constitutional and statutory rationales for executive military initiatives embody some subtle differences from those of other administrations. This article compares the record of the Clinton Administration with those of its predecessors, after first briefly locating U.S. war powers practice in the context of crossnational comparisons.
The subject of the Clinton Administration and war powers can be addressed from a crossnational perspective, along the lines of the comparative constitutional research on war powers I have been pursuing in other writing. In relation to the military intervention in Kosovo, for example, how did President Clinton's exercise of executive power compare to the authority of the heads of state or heads of government in the other member states of the North Atlantic Treaty Organization ("NATO") that participated in the operation? Were other chief executives constitutionally authorized to commit their forces to a military campaign without reference to their national parliaments, as President Clinton effectively did, or are such decisions shared with parliament in the respective constitutional systems?
Crossnational comparisons show variations in the degree to which national parliaments participated in determining the nature of a given state's commitment to the NATO engagement in Kosovo. President Clinton was not the only NATO leader who initiated his country's participation in the Kosovo operation without obtaining explicit authorization from the legislative branch. In the parliamentary system of the United Kingdom, Prime Minister Tony Blair may assume support from the House of Commons without necessarily putting the matter to a formal vote. In France's mixed system, President Jacques Chirac operates under Gaullist premises that military decisions belong to the presidential domaine reserve with little scrutiny from the Assemblee Nationale. In other countries, however, parliamentary control is considered a fundamental constraint on executive war-making powers. Germany's postwar constitution broke with the past by renouncing war, but participation in collective defense or collective security organizations is constitutionally permitted, subject to parliamentary approval. Notably, as required by a decision of the German Federal Constitutional Court at an earlier stage of the Yugoslav conflict, the Bundestag had to act affirmatively to approve German involvement in the Kosovo campaign.
Polities in transition have looked to diverse constitutional models in developing their own approaches to executive-legislative relations with respect to war powers. The newest NATO members and NATO aspirants had their first tests of constitutional control of war powers in the post-cold war era with the Kosovo crisis. Hungary, a front-line state for this conflict, which borders on Yugoslavia and has close ties to ethnic Hungarians in the Vojvodina region of Serbia, submitted certain critical decisions for the affirmative authorization of the national parliament. Bulgaria and Romania, not yet NATO members but eager to prove themselves to be suitable partners, had parliamentary votes to approve opening their airspace to NATO planes.
The remainder of this article focuses on comparisons between the Clinton Administration and its predecessors: Does President Clinton's approach to war powers and other foreign policy problems cohere with that of previous Presidents, or has the present administration forged a new approach in these domains? This general question also addresses the theme of Dawn Johnsen's paper: To what extent has the executive branch under Clinton declined to comply with congressional enactments regarding war powers on the basis of an executive position that the law in question is unconstitutional?
Suggested Citation: Suggested Citation
Damrosch, Lori Fisler, The Clinton Administration and War Powers. Law and Contemporary Problems, Vol. 63, Nos. 1 & 2, Winter/Spring 2000. Available at SSRN: https://ssrn.com/abstract=256831 or http://dx.doi.org/10.2139/ssrn.256831