International law and constitutional interpretation: the commander in chief clause reconsidered.

AuthorWuerth, Ingrid Brunk

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the war and foreign affairs powers of the President. International law can itself function as a second-order interpretive norm, in many ways similar to other forms of congressional authorization or executive branch practice. But because it is mediated in unique ways--by other countries and within our own domestic political system--international law is an especially compelling way to resolve problems with judicial competence and changes over time. International law also makes a powerful contribution to an originalist understanding of the Commander in Chief Clause: the Constitution explicitly vested control over war-related questions of international law with Congress, not the President.

TABLE OF CONTENTS INTRODUCTION I. THE COMMANDER IN CHIEF CLAUSE: INTERPRETIVE DIFFICULTIES A. Originalism B. Changes Over Time C. Judicial (In)Competence D. International Law II. INTERNATIONAL LAW AND SECOND-ORDER NORMS A. Treaties B. Executive Agreements and Customary International Law C. Conclusion III. INTERNATIONAL LAW AND ORIGINALISM A. The Text: Commander in Chief B. The Text: Congress C. Congress, the Commander in Chief and International Law 1. War Prosecution and Separation of Powers 2. Gaps and Changes D. Synthesis of Parts II and III CONCLUSION INTRODUCTION

The Commander in Chief Clause is widely understood as a particularly difficult area of constitutional interpretation. (1) Congress is vested with several powers related to the initiation and prosecution of war, and the relationship between these powers and those of the president as commander in chief remains contested. For decades, debate has centered on the president's independent power to initiate hostilities in light of Congress's power under the Declare War Clause. This issue generated both the War Powers Resolution and a massive corpus of academic writing. (2) Today, however, in the wake of September 11, 2001, the money question is the scope of the president's power to prosecute war.

The Bush administration has relied heavily on the Commander in Chief Clause as the constitutional basis for a host of controversial actions. (3) Indeed, the initial legal response to September 11 was apparently predicated on the president's unilateral wartime authority, which envisioned little role for Congress. (4) Since then, the Supreme Court has reaffirmed a strong role for Congress in setting the scope of the president's powers and analyzed issues related to congressional authorization in great detail. (5) But even where the Court has struck down the president's actions as inconsistent with--or beyond--such authorization, it has largely eschewed general discussions of how the president's war powers are to be distinguished from those of Congress. The June 2006 decision in Hamdan v. Rumsfeld is just the most recent example. (6) And in most cases, the Supreme Court does not reach these issues at all, because it upholds the president's actions as consistent with authorization provided by Congress. As a result, it is unclear even what methodological approach the Court would use to demarcate the president's power from that of Congress. Questions about the president's war-prosecution power thus remain unanswered. Current examples include whether the president is bound by the McCain Amendment governing the treatment of detainees, (7) whether Congress could limit the president's use of cluster bombs, (8) and whether the president could convene military commissions in emergency situations without the sanction of Congress. (9)

Somewhat surprisingly, perhaps, given the uncertainty in this area, there seems to be a relatively widespread and longstanding view that international law is relevant to understanding the scope of the president's war powers. (10) Even government lawyers and scholars otherwise skeptical of international law in constitutional interpretation concede its relevance, at least in passing, in the war powers and foreign affairs contexts. (11) Moreover, many Supreme Court cases that have considered the president's war powers, including the most recent ones, (12) have discussed international law, and the Court has never upheld an exercise of war powers by the president that it concluded violated international law. Finally, lower courts have, without much explanation, explicitly relied on international law in interpreting the president's constitutional power as commander in chief. (13) Despite this, there has been little theoretical attempt to examine international law as a tool of constitutional interpretation for the Commander in Chief Clause, and there has been no attempt to relate international law to other methods of interpretation.

The role of international law becomes more comprehensible once one appreciates the challenges involved in applying conventional interpretive methodologies. Originalism gives at least partially unsatisfactory answers, (14) because both war and the presidency have changed over time, and judges are poorly equipped to make military or strategic judgments. (15) These difficulties have pushed courts toward second-order interpretative norms, such as congressional authorization and past executive branch practice, that mediate direct friction between the president and the courts and help capture changes over time. Second-order interpretative norms thus draw Congress and previous executive branches into constitutional interpretation.

This Article argues that international law is, and has been, attractive to courts, lawyers, and scholars struggling with the Commander in Chief Clause because it can function as a second-order interprenve norm, thereby aiding in the resolution of many of the difficulties associated with the Clause. International law can partially resolve problems with judicial competence and changes over time by allowing judges to gauge the scope of presidential power based not on their own "idiosyncratic judgments" (16) about military necessity but rather on a form of lawmaking in which tradition and widespread practices, including those of the United States, play a key role. Thus, international law provides strong benchmarks against which courts can evaluate functional (17) claims about presidential power, and it can work to reduce judicial discretion in a difficult area of constitutional interpretation.

International law is a unique and especially valuable second-order interpretive norm for other reasons as well. Customary international law and executive agreements binding on the United States are themselves particularly strong forms of executive branch practice, because they embody norms so significant that the executive branch was willing to commit to them internationally. When he acts consistently with these sources of international law, the president's claim to constitutional authority is strengthened; inconsistency with international law, on the other hand, can cut against the president's claim to authority. Article II treaties require both an external commitment to other nations and a robust form of domestic interbranch cooperation, because, unlike statutes, they cannot be concluded over the objection of the president, and they require a supermajority of the Senate for approval. (18) The president's power to act contrary to a treaty should accordingly be narrower than his power to act contrary to a statute. Any functional claims made by the president are deeply undercut by his (or his predecessor's) willingness to bargain away the power in question and by the thick form of interbranch accommodation necessary to enact a treaty.

There is a final reason to use international law to interpret the Commander in Chief Clause: originalism. The contemporary assumption that Congress has little role in war prosecution neglects the significance of the Marque and Reprisal Clause and the Capture Clause of the Constitution. (19) These textual grants of authority, frequently ignored by scholars outside the context of war initiation, are analyzed here in terms of their significance for war prosecution in eighteenth-century international law, particularly during the Revolutionary War. This analysis shows that the Constitution deliberately gave Congress control over the development and interpretation of important war-related questions of international law, even at the expense of the president's power to make strategic decisions about the deployment of force.

Part I of this Article lays out in more detail the interpretive difficulties associated with the Commander in Chief Clause and specifies the features of international law that make it an appealing tool. Part II considers international law's unique advantages as a second-order interpretative norm by analyzing treaties, customary international law, and sole executive agreements. To the extent that these sources of international law are binding on the United States, they are mediated not only by the participation of other nations but also by our own political branches. Relying on these sources can complement and, in some cases, improve upon the Court's current analysis of congressional authorization and executive branch practice. Part III considers congressional and presidential authority over international law and war prosecution as it was understood at the framing and concludes that the Constitution assigned...

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