International Law

The Libya UNSCR Helps the President’s Domestic Constitutional Arguments

By Jack Goldsmith
Friday, March 18, 2011, 7:04 AM

It looks like the Obama Administration is planning to deploy some form of U.S. military power in Libya without congressional authorization, perhaps soon.  Such a deployment would not be an obviously prudent move, in my opinion.  I am concerned in this post not with prudence, however, but with constitutional legality.  Many executive branch precedents support the president’s inherent authority under Article II to intervene in Libya without congressional approval, only some of which are mentioned in previous posts and in the citations in the linked opinions.  I want to focus here on why the administration’s constitutional arguments were given a boost by yesterday’s Libya UNSCR.  Below I briefly summarize the main executive branch legal opinions that have discussed the relevance of UNSCRs to the constitutional question.  UNSCRs have been invoked in support of presidential power in essentially two ways: (1) as implicating the Article President’s power to “take care to faithfully execute the law” – namely, the U.N. Charter; and, more often, (2) as support for the president’s authority as Commander in Chief to use force abroad to protect and preserve important U.S. interests in international peace and security, including the preservation of the U.N. system itself.

Korea.  This is the most powerful (and in some quarters, controversial) precedent.  The day after North Korea’s June 24, 1950 invasion of South Korea, the Security Council (with the Soviet Union absent) issued a resolution demanding an immediate ceasefire and a withdrawal of North Korean forces to the 38th parallel, and calling upon members of the United Nations “to render every assistance to the United Nations in the execution of this resolution.”  Two days later, it issued a second resolution calling upon “[m]embers of the United Nations to furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area.”  The Truman administration invoked these UNSCRs (among other things) as support for its unilateral deployment of troops to Korea.  One opinion, prepared by the State Department, argued (among other things) that the President as Commander in Chief has “full control over the use” of U.S. armed forces, and could deploy these forces, consistent with the Constitution, for the purpose of protecting the important U.S. interest of international peace and security, including its interest in the “continued existence of the United Nations as an effective international organization.”  A second opinion issued the following year (sorry, no link), prepared by “the executive departments” for Congress, argued that Truman was “acting lawfully and constitutionally in sending troops to Korea in response to the resolution of the United Nations” because the “President’s authority as Commander in Chief to send troops abroad may . . . be exercised in order to execute a treaty,” and because “the sending of troops to Korea . . . is appropriate to the carrying out of the purposes of . . . Charter of the United Nations.”  The opinion added: “The power to send troops abroad is certainly one of the powers which the President may exercise in carrying out such a treaty as . . . the United Nations Charter.”  See Joint Comm. of the Comms. on Foreign Relations and on Armed Services, 82d Cong., 1st Sess., Powers of the President to Send the Armed Forces Outside the United States (1951).

Vietnam.  Former Chief Justice William Rehnquist, when he headed the Office of Legal Counsel, wrote an opinion in support of Nixon’s authority to order bombing in the Cambodian sanctuaries, largely on the basis of the Gulf of Tonkin Resolution.  Rehnquist discusses the Korean War precedent, which he called “the high water mark of Executive action without express congressional approval,” as follows:

While [President Truman] relied upon the United Nations Charter as a basis for his action, as well as his power as Commander-in-Chief, his action stands as a precedent for Executive action in committing United States armed forces to extensive hostilities without any formal declaration of war by Congress.

The United Nations Charter as a result of its ratification by the Senate has the status of a treaty, but it does not by virtue of this fact override any constitutional provision. . . . If a Congressional declaration of war would be required in other circumstances to commit United States forces to hostilities of the extent and nature of those undertaken in Korea, the ratification of the United Nations Charter would not obviate a like requirement in the case of the Korean conflict.  While the issue of Presidential power which was the subject of the great debate in Congress was never authoritatively resolved, it is clear that Congress acquiesced in President Truman’s intervention in Korea.

Somalia.  In December 1992, President Bush sent U.S. Forces to Somalia without congressional authorization in order to assist the United Nations in preventing a humanitarian disaster there.  He did so following an UNSCR that authorized “all necessary means” to establish a secure environment for the delivery of humanitarian aid in Somalia.  Relying heavily on the Korea precedent, OLC chief Tim Flanigan concluded that President Bush was “entitled to rely on [the Somalia UNSCR], and on its finding that the situation in Somalia ‘constitutes a threat to international peace and security,’ in making his determination that the interests of the United States justify providing the military assistance that [the UNSCR] calls for.”  Attorney General William Barr added in a cover letter that the President could “reasonably and lawfully conclude that it is necessary to use United States military personnel to support the implementation of [the Somalia UNSCR] and other Security Council resolutions concerning Somalia.”

Bosnia.  OLC Chief Walter Dellinger wrote an opinion approving the legality of President Clinton’s 1995 decision to intervene in Bosnia.  No UNSCR supported the Bosnia intervention, but in a footnote Dellinger characterized the Korea precedent as follows:

The boldest claim of Executive authority to wage war without Congressional authorization was made at the time of the Korean War – a conflict that ultimately lasted for three years and caused over 142,000 American casualties.  Such sweeping claims of inherent Executive authority have been sharply criticized. (citations omitted.)  It is unnecessary to consider such broad assertions in the present case.

In an earlier opinion concerning an intervention in Haiti (1994), Dellinger did not mention the UNSCR there as a basis for domestic legal support.

Haiti (2004).  In 2004 President Bush sent U.S. troops to Haiti, first to protect the U.S. embassy in the face of political violence, and later, at the invitation of the Haitian government, and with the approval of the U.N. Security Council, to foster a peaceful and stable environment in the country then torn by rebellion.  As the head of OLC, I wrote am opinion that gave many grounds of support for the legality of the intervention.  One ground was the UNSCR.  After citing the Korea and Somalia precedents, the opinion stated: “in exercising his authority as Commander in Chief and Chief Executive, the President could choose to take the [UNSCR] into account in evaluating the foreign policy and national security interests of the United States that are at stake in Haiti.”

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Many of these executive branch precedents will likely be invoked in an OLC opinion approving a unilateral intervention in Libya.  They are not the final word on constitutionality, of course.  But nothing in Supreme Court precedent contradicts them.  And if history is any guide, courts are not likely to adjudicate a case that raises the legality of unilateral presidential uses of force abroad.  The statutory requirement under the War Powers Resolution for the President to withdraw troops from Libya would kick 60 (or 90) days after intervention if Congress has not approved the deployment in the interim.  We do know what the Obama administration will do at that point, if it comes.  But in the intervening period, only Congress can push back on the administration’s constitutional arguments if it believes it has constitutional prerogatives worth protecting.