Campbell v. Clinton: The 'Implied Consent' Theory of Presidential War Power is again Validated

• Author: Major Geoffrey S. Corn
• Pages: 05

202 MILITARY LAW REVIEW [Vol. 161

CAMPELL V. CLINTON: THE "IMPLIED CONSENT" THEORY OF PRESIDENTIAL WAR POWER

IS AGAIN VALIDATED

MAJOR GEOFFREY S. CORN1

1. Introduction

   In the recent dismissal of the case Campbell v. Clinton,2 the United States District Court for the District of Columbia adjudicated a constitutional challenge to the legal authority of the President to order the conduct of hostilities against Serbia.3 The case against the President was filed by twenty-six members of the House of Representatives.4 Judge Paul L. Friedman dismissed the case based on a lack of legislative standing.5 However, a close examination of his opinion indicates that the true focus of the decision was the absence of a ripe dispute between the Congress and the President. This subtle emphasis on the lack of ripeness once again validates the reliance on the "implied consent" of Congress to support the constitutional authority of the President to order the conduct of military hostilities.6

2. Background

   The case of Campbell v. Clinton7 began on 30 April 1999, when Representative Tom Campbell, along with sixteen other members of the House of Representatives, filed a complaint for declaratory relief in the D.C. Circuit Court.8 The complaint sought a declaration from the court that the President lacked constitutional authority for ordering continued combat operations. Accordingly, it alleged:

   The President of the United States is unconstitutionally continuing an offensive military attack by United States Armed Forces against the Federal Republic of Yugoslavia [FRY] without obtaining a declaration of war or other explicit authority from the Congress of the United States as required by Article I, Section 8, Clause 11 of the Constitution, and despite Congress' decision not to authorize such action.9

   This challenge was based exclusively on a violation of the Constitution. However, the plaintiffs also sought a declaration that unless the President received explicit authorization from Congress to continue combat operations, the War Powers Resolution10 mandated termination of such operations. "Additionally, [p]laintiffs seek a declaration that, pursuant to Section 1544(b) of the [War Powers] Resolution, the President must terminate the use of United States Armed Forces engaged in hostilities against the Federal Republic of Yugoslavia no later than sixty calendar days after

   [26 March] 1999."11

   In response to the lawsuit, the Department of Justice, on behalf of the President, filed a motion to dismiss based on a lack of standing.12 In a

   memorandum in opposition to the defendant's motion to dismiss,13 the

   plaintiffs submitted a detailed argument to support their original request for declaratory relief. They asserted that because the House of Representatives had voted 213 to 213 against a concurrent resolution authorizing air and missile strikes against Yugoslavia,14 not only had Congress explicitly declined to authorize the conflict, it had explicitly rejected support for the conflict. Thus, according to the plaintiffs, the President was acting against the express will of Congress in continuing to prosecute the war. According to the plaintiffs, this amounted to a clear violation of the Declaration Clause of the Constitution.15

   In the alternative, the plaintiffs also asserted that continuing hostilities beyond the sixtieth day of operations, absent an express authorization from Congress for such operations, amounted to a violation of the War Powers Resolution.16 The plaintiffs relied on the provisions of the War Powers Resolution that specifically mandates terminating hostilities sixty days after the hostilities were initiated, unless Congress has provided explicit legislative authority for continuation. According to the Resolution:

   The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.17

   This language indicates that except for the President's authority to "repel sudden attack," only a declaration of war or its functional legislative equivalent may be treated as war-making authorization from Congress. This requirement for an express authorization appears again in Section 1541, Congressional Action. In subsection (b), it allows an unauthorized deplo

   ment to continue beyond sixty days only when authorized by a declaration of war or specific statutory authorization.18 Finally, in Section 1547, "Interpretation of Joint Resolution," the following language appears:

   (a) Authority to introduce United States Armed Forces into hostilities or situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred-

   (1) from any provision of law (whether or not in effect before [7 November], 1973), including any provision contained in any Appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter . . . .19

   Seizing on this language, the plaintiffs asserted that neither the vote by Congress defeating a resolution calling for an immediate termination of all hostilities,20 nor the overwhelming passage of an appropriations bill specifically intended to fund the conflict through the fiscal year,21 satisfied the constitutional requirement that Congress authorize the conflict.22

   Because this was the first large scale conflict to ostensibly violate the cited provisions of the War Powers Resolution, this case provided the first truly significant invocation of that law to restrict a presidential war-making initiative.23

   On behalf of the President, the Justice Department filed a reply in support of the defendant's motion to dismiss.24 The Justice Department asserted three bases to support dismissal. First, that based on the "legislator standing" test established by Raines v. Byrd,25 the plaintiff legislators could not satisfy the legal standard for maintaining the challenge to the President.26 Second, the facts did not support the conclusion that the controversy between the Congress and the President was judicially "ripe."27

   Third, that because the evidence indicated cooperation between the Pres

   dent and Congress, the request for judicial intervention called for adjudication of a "political question."28

   Although the Justice Department asserted three alternate theories supporting the motion, the theories all relied on one critical fact: there was no "impasse" between the Congress and the Executive Branch.29 According to the filings, this lack of impasse was established by evidence that the Congress had taken measures to support the military operation against Yugoslavia:

   [C]ontrary to plaintiffs' allegation that a constitutional "impasse" exists, Congress has continued to consider and vote on legislation relating to the use of military force in the region of Kosovo, and recently expressed its support for the President's actions by providing billions of dollars in specific funds for the United States' military operations. In the face of such continued action by Congress in consultation with the President, plaintiffs cannot successfully argue that an impasse has been reached. . . .30

   This lack of "impasse" was the sine qua non underlying all three bases for dismissal. Regarding the "legislator standing" theory, the lack of impasse proved that continuing to wage the war was in no way a "complete nullification" of any vote cast by the plaintiffs.31 Regarding the ripeness theory, the lack of impasse proved that no...