Academic journal article Presidential Studies Quarterly

The Law: The Clinton Theory of the War Power

Academic journal article Presidential Studies Quarterly

The Law: The Clinton Theory of the War Power

Article excerpt

President Bill Clinton frequently has engaged in unilateral acts of executive war making in defiance of the war clause of the Constitution, which vests in Congress the sole and exclusive authority to initiate hostilities on behalf of the American people. His use of U.S. military power has ranged from the infliction of air and missile strikes against taregets in Afghanistan and Sudan, to global hot spots in Iraq and Bosnia. Most recently, in what amounts to one of the most flagrant acts of usurpation of the war power in the history of the republic, Clinton ordered in concert with NATO allies a massive air and missile assault against the Federal Republic of Yugoslavia in an effort to halt Slobodan Milosevic's slaughter of ethic Albanians. The attack, which ranks as the most intensive and sustained military campaign conducted by the United States since the Vietnam War, may well have been justified on moral and policy grounds, but it nevertheless required authorization by Congress. The distinctive feature of Clinton's most recent act of usurpation, and what sets it apart from previous acts of usurpation, is that his military acts against Yugoslavia have brought to a new pitch the piercing violation of the fundamental requirement of the war clause--authorization of hostilities by both houses of Congress. It is regrettably true, of course, that for the past half century, successive presidents have engaged in unilateral acts of war making without authorization from Congress, and it is true as well that on those occasions, Congress took no action to preserve its powers from naked usurpation by the executive branch.(1) But Clinton's "presidential war" against Yugoslavia marks the first time in our history that a president has waged war in the face of a direct congressional refusal to authorize the war.(2)

Clinton's action marks the further erosion of the war clause, the near removal of a landmark power, by the introduction of arbitrary executive power, an act that the Framers sought to preclude by means of a written Constitution that limited government authority by assigning specified responsibilities to each branch, dividing authority, and imposing restraints on power. Viewed in historical perspective, Clinton's actions are in a category with Harry Truman's war against Korea and his seizure of the steel mills, as well as Richard Nixon's assertion of an absolute executive privilege. Claims of illimitable power ring hollow in a constitutional order that is at pains to cabin governmental power at every turn. But parchment alone is no match for an executive who is determined to exert power that has not been granted. The war clause, it appears, has become a "dead letter."(3)

The Clinton administration has offered a variety of constitutional arguments, in different contexts, as justification for its unilateral actions, but as we shall see, they are unsubstantial and shatter on analysis. On occasion--in Somalia, Afghanistan and Sudan Clinton has engaged in acts of war without bothering to adduce a constitutional rationale. When he has troubled to supply justification, the strategy, if not the reasoning, has been clear, and it has been punctuated by obfuscation. Clinton's attorneys have contended that the Constitution is vague and ambiguous in its textual assignment of foreign affairs powers and that, incredibly, it is not even clear on the repository of the authority to "&dare war." On other occasions, he has maintained in terms and tones strikingly reminiscent of the imperial chords struck by Lyndon Johnson and Richard Nixon that his is the final voice on matters of war and peace.

Clinton's contentions have disfigured the war clause. We shall examine his various assertions, but let us consider a rather seamless version of the Clinton theory of the war power. According to the Clinton administration, the Framers of the Constitution gave the president a unique role in foreign affairs. As the "sole organ" of American foreign policy, he has the authority to define, manage, and conduct the nation's foreign affairs. …

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