Clinton, Kosovo, and the final destruction of the War Powers Resolution.

• Author: Corn, Geoffrey S.

In February of 1999, as the rhetoric of possible United States use of force against the Federal Republic of Yugoslavia began to reach a crescendo, Congressman Tom Campbell and thirty-eight other members of Congress sent the following letter to President Clinton:

February 19, 1999

Honorable William Jefferson Clinton President of the United States The White House Washington, D.C.

Dear Mr. President:

We have serious constitutional concerns about recent reports that you are planning military intervention in the Kosovo region of Yugoslavia, and again respectfully remind you that the Constitution requires you to obtain authority from Congress before taking military action against Yugoslavia.

As we stated in our letters of August 4, and October 2, 1998, military intervention by U.S. forces into the war-torn region of Kosovo in order to stop attacks by Serbian forces against civilians and halt the fighting with the Kosovo Liberation Army in an area the United States recognizes as sovereign Yugoslav territory cannot be construed as "defensive" action within your inherent authority as Commander-in-Chief. Rather it would involve military actions against territory and air space which has not been the source of an attack on the United States. This action falls within the exclusive powers and responsibilities of Congress under Article I, Section 8, of the Constitution--the war powers clause. No provision of the United Nations Charter or the North Atlantic Treaty can override the requirement of United States domestic law as set forth in the Constitution. In fact, Congress conditioned U.S. participation in both the U.N. and NATO on the requirement that Congress retain its constitutional prerogatives.

The Constitution compels you to obtain authority from Congress before taking military action against Yugoslavia. In earlier correspondence, dated January 15, 1999, your National Security Advisor cited previous uses of force in Bosnia and Somalia as examples of authority to conduct offensive military operations in this case. The examples are inapposite as none involve sending military forces into a foreign country's territory contrary to the will of the recognized government of that foreign country. Furthermore, past violations of constitutional duty form no justification for additional violations. Nor does consulting with a few Members of Congress satisfy the constitutional obligation to obtain the approval of Congress.(1)

With this proverbial "shot across the bow," Representative Campbell set the stage for what he probably believed would be a monumental constitutional showdown over the authority of the President to commit the armed forces of the United States to combat. What actually transpired was far less sensational than such a showdown would have been. Yet, although little public or press attention was paid to the constitutional debate surrounding Operation Allied Force--the combat operations directed against the Federal Republic of Yugoslavia(2)--Representative Campbell's action, and the political and legal response to it, had a potentially profound impact on the law related to the domestic legal authority to commit United States armed forces to combat. Specifically, while this action may or may not have brought about the downfall of the regime of Slobodan Milosevic, it may have provided the ammunition to bring about the final demise of the quarter-century old, oft-avoided, and generally misunderstood War Powers Resolution.

Over twenty-five years ago, the Congress of the United States passed, over the veto of then President Richard Nixon,(3) a joint resolution which was intended to restore the proper balance between the executive and legislative branches with regard to the decision to send United States forces into combat.(4) This law, which was codified as part of the United States Code, came to be known as the War Powers Resolution.(5) Since the date it came into force, the armed forces of the United States have conducted combat operations all over the world, ranging from the armed escort of foreign-flagged merchant ships reflagged with the U.S. colors for the purpose of gaining U.S. military protection, to massive air and ground operations against conventional enemy forces.(6) Looking back over this period, it is indisputable that the central component of the War Powers Resolution--the requirement that the President obtain express congressional authorization to conduct such operations(7) has been virtually meaningless.(8) In fact, it is probably only a slight exaggeration to state that the most significant effect of the War Powers Resolution has been to provide separation of powers scholars with an interesting subject to analyze and debate. Analysis of the actual operation of the Resolution in relation to these various combat operations reveals a consistent pattern of executive side-stepping,(9) legislative acquiescence,(10) and judicial abstention.(11) Many scholars have criticized this pattern of "nullifying" the intent of the Resolution.(12) However, few have analyzed the impact of this pattern on the constitutional validity of the Resolution. As a result of the most recent use of combat force by the United States, Operation Allied Force, this analysis can no longer be avoided.

Opponents of the War Powers Resolution have always insisted that it represented an unconstitutional intrusion into the power of the President as Chief Executive and Commander in Chief.(13) Indeed, this was the prime factor leading to President Nixon's veto of the Resolution.(14) Up until 1999, however, proponents of the constitutional validity of the Resolution could generally muster two theories to explain why they continued to persist in their views, despite the pattern of executive nullification. The first reason was essentially that repeated presidential abuse of the law did not undermine its validity--that an illegal presidential practice cannot, by virtue of repetition, be transformed into a legal one.(15) The second, and perhaps more persuasive, reason was that the Resolution had never conclusively been violated by a President.(16) This conclusion is reached by combining two propositions. First, that contrary to the express meaning of the Resolution, the "60 day clock"(17) provision has served as a de facto source of authority for Presidents to employ force.(18) Second, that no combat operation initiated by a President during this period extended beyond sixty days without express congressional authorization, thus satisfying the requirements of the Resolution.(19)

As this Article will demonstrate, contrary to the arguments of proponents of the continued validity of the Resolution, Operation Allied Force left an indelible mark on the history of war making under the Resolution. Operation Allied Force was the first combat operation to continue beyond sixty days without express statutory authorization, in apparent contravention of the War Powers Resolution.(20) Thus, it is an action that must be analyzed to assess whether the arguments surrounding the Resolution remain legitimate.

This Article proposes that analysis of the history of war making, with particular emphasis on Operation Allied Force and the war powers litigation it generated, establishes that the War Powers Resolution's requirement that the President conduct nondefensive combat operations(21) pursuant only to express legislative authorization(22) is unconstitutional. This conclusion, however, will not be based on the traditional theory that the Resolution impermissibly intrudes upon the exclusive power of the executive to initiate combat operations. In fact, it is premised on an interpretation of the Constitution that the power to initiate nondefensive combat operations is not an exclusive executive power, but a power shared between the executive and legislative branches.(23) This interpretation is reinforced by "historical gloss,"(24) and in light of Operation Allied Force, conclusively establishes that how the Congress and the President choose to cooperate in the exercise of this shared power is their choice. Thus, the requirement in the War Powers Resolution that only express legislative consent serve as constitutionally legitimate authorization for presidential combat initiatives(25) is an unconstitutional restriction on how future Congresses choose to manifest support for the President, and on what future Presidents can constitutionally rely upon to conclude that their initiatives are cooperative ventures.(26)

Part I of the Article will briefly review the concept of historical gloss in separation of powers analysis. The second part will highlight some significant pre-Resolution examples of the historical practice of flexible cooperation. Part III will illustrate the profound limitation placed on this flexibility by the War Powers Resolution. The fourth part will illustrate that post-Resolution practice continued to validate this historical practice, with particular emphasis on Operation Allied Force. Part V will analyze the constitutional significance of this practice. The conclusion will analyze the significant distinction between determining unconstitutionality based on this theory versus a theory of intrusion upon an exclusive executive power.

PART I: THE NATURE OF "HISTORICAL GLOSS"

In April of 1952, during the height of the conflict in Korea, President Truman issued an executive order(27) that triggered a landmark decision in the field of separation of powers and national security law.(28) His order to seize steel mills in the wake of a steel workers' strike, motivated by his desire to ensure the continued supply of arms and ammunition to U.S. forces engaged in conflict,(29) led to the case of Youngstown Sheet & Tube Co. v. Sawyer.(30) The Supreme Court struck down the executive order, rejecting an emergency executive power argument.(31) Four separate concurring opinions accompanied the opinion of the Court. Two of these concurring opinions, delivered...