Kosovo, war powers, and the multilateral future

University of Pennsylvania Law Review

Volumn 148, Issue 5, 2000, Pages 1673-1729

  Yoo, John C ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 23044517870     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (239)

1. See, e.g., LOUIS FISHER, PRESIDENTlAL WAR POWER 185-206 (1995);
2. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 3-5 (1993);
3. MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 80-84 (1990);
4. LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND FOREIGN AFFAIRS 109 (1990);
5. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 158-61 (1990);
6. Louis Fisher, Unchecked Presidential Wars, 148 U. PA. L. REV. 1637 (2000) [hereinafter Fisher, Unchecked Presidential Wars];
7. William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELL L. REV. 695, 699-700 (1997);
8. Jane E. Stromseth, Understanding Constitutional War Powers Today: Why Methodolog Matters, 106 YALE L.J. 845, 848-49 (1996) (book review).
9. I explore elsewhere the reasons why international legal scholars have been inconsistent concerning Kosovo. See John C. Yoo, The Dogs That Didn't Bark: Why Were International Legal Scholars MIA on Kosovo?, 1 CHI. J. INT'L L. (forthcoming 2000) (copy on file with the University of Pennsylvania Law Review) [hereinafter Yoo, Legal Scholars MIA].
10. See U.S. CONST. art. II, §§ 1-2.
11. Id. art. I, § 8.
12. See id. art. I, §§ 3, 4, 10.
13. See id. art. III, § 2.
14. See id. art. I, § 10.
15. I am not here arguing that modern practice itself can provide a constitutional justification for presidential warmaking in Kosovo. Rather, I am merely showing, descriptively, that Kosovo is consistent with the way the branches have conducted warmaking. Later, I will argue that the constitutional system of war powers is sufficiently flexible to permit this modern working system of war powers. See infra Part II.D.
16. See OFFICE OF THE LEGAL ADVISER, U.S. DEP'T OF STATE, THE LEGALITY OF UNITED STATES PARTICIPATION IN THE DEFENSE OF VIET-NAM (1966),
17. reprinted in 1 THE VIETNAM WAR AND INTERNATIONAL LAW 583, 597 (Richard A. Falk ed., 1968) (citing "at least 125 instances" of force without Congress's approval);
18. see also CONGRESSIONAL RESEARCH SERVICE, INSTANCES OF USE OF UNITED STATES ARMED FORCES ABROAD, 1789-1989 (Ellen C. Collier ed., 1989),
19. reprinted in THOMAS M. FRANCK & MICHAEL J. GLENNON, FOREIGN RELATIONS AND NATIONAL SECURITY LAW 650 (2d ed. 1993) (listing "215 times that the United States has utilized military forces abroad," some of which were "conducted solely under the President's powers as Chief Executive or Commander in Chief").
20. See John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV, 167, 178-79 (1996) [hereinafter Yoo, Original Understanding] ("Secretary of State Dean Acheson and Senate Majority Leader Scott Lucas both convinced Truman to rely on his Commander-in-Chief powers to support his actions . . . .").
21. Pub. L. No. 88-408, 78 Stat. 384 (1964).
22. There is substantial dispute among pro-Congress scholars concerning whether the Tonkin Gulf Resolution constituted sufficient legislative support for the Vietnam War. See John C. Yoo, Clio at War: The Misuse of History in the War Powers Debate, 70 U. COLO. L. REV. 1169, 1178 n.32 (1999) [hereinafter Yoo, Clio].
23. See War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1994)).
24. See id. §§ 3, 4(a).
25. See id. § 5(b). The Resolution provides the President with 30 additional days if necessary to permit a safe withdrawal. See id.
26. See Yoo, Original Understanding, supra note 10, at 181 (noting that Presidents Ford, Carter, and Reagan only "took note of," or acted in ways "consistent with," and simply rejected compliance with the WPR, respectively).
27. President Bush sent troops to Saudi Arabia within days of the August 2, 1990 Iraqi invasion of Kuwait, and engaged in a build-up that reached more than 430,000 troops by November 8, but did not receive a congressional resolution of support until January 12, 1991, more than five months after the first American deployment. American troops invaded Kuwait and Iraq shortly thereafter. See id. at 186-88.
28. When he signed Congress's joint resolution supporting the use of force to implement U.N. Resolution 678, H.R.J. Res. 77, 102d Cong. (1991) (enacted), Bush declared that "my signing this resolution does not[] constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution." Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 27 WEEKLY COMP. PRES. DOC. 48 (Jan. 14, 1991).
29. See Steven L. Myers, Full-Time U.S. Force in Haiti To Leave an Unstable Nation, N.Y. TIMES, Aug. 26, 1999, at Al (describing the withdrawal of American troops from Haiti).
30. See id. (noting that the Pentagon was drawing up plans to reduce the number of American troops in Bosnia from 6200 to 4000).
31. These facts are taken from Campbell v. Clinton, 52 F. Supp. 2d 34, 37 (D.D.C. 1999).
32. See id.
33. See id.
34. S. Con. Res. 21, 106th Cong. (1999).
35. See Campbell, 52 F. Supp. 2d at 37.
36. See Address to the Nation on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 WEEKLY COMP. PRES. DOC. 516, 517 (Mar. 24, 1999).
37. Id.
38. See H.R. Res. 130, 106th Cong. (1999) (supporting the American troops in the Balkans despite the "deep reservations" of some members of the House). After recognizing that President Clinton had sent American armed forces to operate against Serbia, the resolution merely declared that "the House of Representatives supports the members of the United States Armed Forces who are engaged in military operations against the Federal Republic of Yugoslavia and recognizes their professionalism, dedication, patriotism, and courage." Id.
39. See Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 WEEKLY COMP. PRES. DOC. 527, 527-28 (Mar. 26, 1999) [hereinafter Letter to Congressional Leaders (Mar. 26, 1999)] (explaining the justifications for the military strikes while fulfilling his duties "consistent with the War Powers Resolution").
40. Id. at 528.
41. See id.
42. See Yoo, Original Understanding, supra note 10, at 181-82.
43. Letter to Congressional Leaders (Mar. 26, 1999), supra note 29, at 528.
44. See Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 WEEKLY COMP. PRES. DOC. 602, 603 (Apr. 7, 1999). In addition to airstrikes, the President notified Congress that he had sent combat ground forces to Albania and Macedonia, ostensibly to engage in humanitarian relief operations. See id.
45. See H.R.J. Res. 44, 106th Cong. (1999).
46. See S. Con. Res. 21, 106th Cong. (1999).
47. See H.R. Con. Res. 82, 106th Cong. (1999).
48. See H.R. 1569, 106th Cong. (1999).
49. See 1999 Emergency Supplemental Appropriations Act, Pub. L. No. 106-31, tit. 11, ch. 3, 113 Stat. 57 (1999) (appropriating funding for operations "conducted against the Federal Republic of Yugoslavia (Serbia and Montenegro) during the period beginning on March 24, 1999, and ending on such date as NATO may designate, to resolve the conflict with respect to Kosovo").
50. See Letter to Congressional Leaders Reporting on Airstrikes Against the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 WEEKLY COMP. PRES. DOC. 989, 989 (May 25, 1999).
51. See Address to the Nation on the Military Technical Agreement on Kosovo, 35 WEEKLY COMP. PRES. DOC. 1074, 1074 (June 10, 1999).
52. See Letter to Congressional Leaders Reporting the Deployment of United States Military Personnel as Part of the Kosovo International Security Force, 35 WEEKLY COMP. PRES. DOC. 1107, 1108 (June 12, 1999).
53. See id. at 1107 (identifying Lieutenant General Sir Michael Jackson as the NATO commander of the international security presence in Kosovo).
54. See Campbell v. Clinton, 52 F. Supp. 2d 34, 39 (D.D.C. 1999).
55. See id. at 43 (noting that the "plaintiffs lack standing . . . [because the injury] is not sufficiently concrete and particularized").
56. See, e.g., Dellums v. Bush, 752 F. Supp. 1141, 1149-52 (D.D.C. 1990) (holding a challenge by Congressmen to deployment in Persian Gulf War unripe); Ange v. Bush, 752 F. Supp. 509, 511-15 (D.D.C. 1990) (holding a challenge by National Guard sergeant to raise a nonjusticiable political question).
57. Of course, the Court has addressed the question of how far the commander-in-chief power extends domestically. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-88 (1952) (holding that the President's constitutional powers do not extend to issuing seizure orders for private business property). Youngstown, however, did not review President Truman's authority to initiate and wage the Korean War without formal congressional authorization.
58. See generally MAX HILAIRE, INTERNATIONAL LAW AND THE U.S. MILITARY INTERVENTION IN THE WESTERN HEMISPHERE (1997);
59. Abraham D. Sofaer, The Legality of the United States Action in Panama, 29 COLUM. J. TRANSNAT'L L. 281 (1991);
60. Abraham D. Sofaer, Book Review, 92 AM. J. INT'L L. 586 (1998).
61. See generally Mark T. Uyeda, Presidential Prerogative Under the Constitution To Deploy U.S. Military Forces in Low-Intensity Conflict, 44 DUKE L.J. 777, 779-89 (1995) (defining low-intensity conflicts and commenting on their emergence in the modern era).
62. See, e.g., Walter Dellinger, After the Cold War: Presidential Power and the Use of Military Force, 50 U. MIAMI L. REV. 107, 109-10 (1995).
63. See, e.g., Letter to Congressional Leaders Reporting on the Deployment of United States Aircraft to Bosnia-Herzegovina, 1995 PUB. PAPERS 1279, 1280 (Sept. 1, 1995) (Bosnia);
64. The President's News Conference, 1994 PUB. PAPERS 1417, 1419 (Aug. 3, 1994) (relying upon U.N. resolutions to justify operations in Haiti);
65. Remarks and Exchange with Reporters on Bosnia, 1994 PUB. PAPERS 186, 186 (Feb. 6, 1994) (Bosnia).
66. See Address to the Nation, supra note 26, at 517 ("Our mission is . . . to demonstrate the seriousness of NATO's purpose . . . .").
67. Id. at 518.
68. The brief is reprinted in Bruce A. Ackerman et al., Ronald V. Dellums v. George Bush (D.D.C. 1990): Memorandum Amicus Curiae of Law Professors, 27 STAN. J. INT'L L. 257 (1991).
69. The professors included Abram Chayes and Laurence Tribe of Harvard, Bruce Ackerman and Harold Koh of Yale, Philip Kurland of Chicago, Gerald Gunther and John Hart Ely of Stanford, Lori Fisler Damrosch and Louis Henkin of Columbia, and William Van Alstyne of Duke. The letter is reprinted in Marian Nash (Leich), Contemporary Practice of the United States Relating to International Law, 89 AM. J. INT'L L. 96, app. at 127 (1995).
70. The points made in the letter are further expanded upon in Lori Fisler Damrosch, The Constitutional Responsibility of Congress for Military Engagements, 89 AM. J. INT'L L. 58 (1995).
71. Nash (Leich), supra note 55, app. at 127.
72. I suggest explanations for this resounding silence on the part of these scholars elsewhere in Yoo, Legal Scholars MIA, supra note 2.
73. See, e.g., Louis Fisher, Congressional Abdication: War and Spending Powers, 43 ST. LOUIS U. L.J. 931, 967-80 (1999) (discussing recent presidential foreign military initiatives and congressional disinclination to challenge them); ELY, supra note 1, at 47-67 (outlining the ways Congress can enforce the principles of the WPR or War Clause, but doubting that Congress will ever employ these methods); GLENNON, supra note 1, at 71-122 (supporting congressional reclamation of the "war power" based on constitutional allocation of authority between the executive and legislative branches); HENKIN, supra note 1, at 17-43 (advocating a reinvigoration of the principles of "dual democracy" to foreign affairs); KOH, supra note 1, at 117-49 (criticizing "congressional acquiescence" and "judicial tolerance" of presidential foreign affairs initiatives).
74. See, e.g., ELY, supra note 1, at 140 n.10; Raoul Berger, War-making by the President, 121 U. PA. L. REV. 29, 36-37 (1972).
75. ELY, supra note 1, at 5.
76. Id. at 3.
77. Harold Hongju Koh, Presidential War and Congressional Consent: The Law Professors' Memorandum in Dellums v. Bush, 27 STAN. J. INT'L L. 247, 249 (1991).
78. Fisher's companion essay suffers from this problem. He repeatedly refers to examples where Congress has authorized the President, by statute, to conduct military operations to support his notion that the Declare War Clause reserves to Congress the power to initiate hostilities. See, Fisher, Unchecked Presidential Wars, supra note 1, at note 76-96 and accompanying text Fisher fails to explain, however, why statutory authorization can satisfy the demands of the Clause, which would seem to require a congressional declaration of war, while appropriations cannot.
79. See Yoo, Original Understanding, supra note 10, at 214-17 (summarizing the practice of initiating hostilities prior to - or without - a formal declaration of war in the 17th and 18th centuries).
80. See 1 WILLIAM BLACKSTONE, COMMENTARIES *249-50.
81. See generally Yoo, Original Understanding, supra note 10, at 196-241.
82. Perhaps recognizing the difficulties in reading "declare" war so broadly, pro-Congress scholars like Lou Fisher have been shifting their arguments to a rather tortured interpretation of the Marque and Reprisal Clause. U.S. CONST. art. I, § 8, cl. 11. The Clause gives Congress the power not only to declare war but also the authority to "grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." These letters gave private individuals permission to recover, through military action, compensation for injuries suffered at the hands of the citizens of a foreign nation. Without a letter, such actions would constitute piracy, with one, military actions became a legitimate form of privateering under international law. See Yoo, Original Understanding, supra note 10, at 250-51. Fisher and others seize on the Clause as referring to "any use of force short of a declared war." Fisher, Unchecked Presidential Wars, supra note 1, at text preceding note 54; see also Jules Lobel, Covert War and Congressional Authority: Hidden War and Forgotten Power, 134 U. PA. L. REV. 1035, 1045 (1986) ("In eighteenth century America, the term . . . came to signify any intermediate or low-intensity hostility short of declared war."); Stromseth, supra note 1, at 854. These scholars, however, provide no evidence from the original understanding, nor do they provide any textual or structural reasons, for reading this technical provision in such a broad manner. While letters of marque and reprisal referred to one form of low-intensity conflict, these scholars fail to demonstrate that the framers generally understood marque and reprisal to refer to all forms of conflict short of a declared war. Fisher overlooks a recent work on the Clause which suggests that letters of marque and reprisal authorized a narrow form of for-profit commercial warfare, regulated by prize courts, distinct from government-directed military action aimed at strategic, tactical, or political goals.
83. See C. Kevin Marshall, Comment, Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64 U. CHI. L. REV. 953, 974-81 (1997).
84. U.S. CONST, art. I, § 10, cl. 3.
85. Id. art. II, § 2, cl.2.
86. See id.
87. Id. art. I, § 1.
88. This, of course, was the argument most famously made by Alexander Hamilton in defending President Washington's Neutrality Proclamation. See Pacificus No. 1, June 29, 1793, in 15 THE PAPERS OF ALEXANDER HAMILTON 33, 37-43 (Harold C. Syrett ed., 1969) ("The general doctrine then of our constitution is, that the EXECUTIVE POWER of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument.").
89. For a modern version of the argument, see Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 663-64 (1994) (arguing that the President alone is accountable for executing federal law). Calabresi and Prakash's thesis, like Hamilton's, has not received general acceptance.
90. See, e.g., Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996);
91. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 2 (1994) (alleging that the Framers envisioned strong congressional power). The debate between Calabresi and Prakash and their critics, however, revolves around whether the power of "administration" is fully executive in nature, rather than whether warmaking is executive or legislative.
92. See Fisher, Unchecked Presidential Wars, supra note 1, at text accompanying notes 52-53.
93. See 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 570, at 410-11 (Ronald D. Rotunda & John E. Nowak eds., Durham, Carolina Academic Press 1987) (1833).
94. Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 THE WRITINGS OF JAMES MADISON 312 (Gaillard Hunt ed., 1906).
95. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318-19 (Max Farrand ed., 1966) (1911).
96. 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 583 (Merrill Jensen ed., 1976) [hereinafter DOCUMENTARY HISTORY].
97. See Ronald D. Rotunda & John E. Nowak, Introduction to STORY, supra note 74, at v-xiv (providing Story's biographical details).
98. While those who rely upon Madison's 1794 Helvidius essays are at least four years closer to the ratification, they often do not make clear the context of the papers, which renders dubious their usefulness as evidence of the original understanding that obtained during the ratification. Not only did his remarks come six years after the ratification, but Madison was not trying to represent the Constitution's meaning to those who were to adopt it. Rather, in these essays, Madison was engaging in a fierce partisan debate with Alexander Hamilton over the Neutrality Proclamation and relations with Europe. Further, Madison does not appear to have been consistent on this point with his statements during the ratification, see infra text accompanying notes 98-101, which should make his comments in 1794 even less probative. Those who rely on Jefferson's comments about the war powers clauses suffer from similar methodological problems. See Fisher, Unchecked Presidential Wars, supra note 1, at text accompanying note 37; Stromseth, supra note 1, at 852-64 (relying on several of these post-ratification exchanges between and among the Framers). Jefferson was not even present in the United States during the Philadelphia Convention or the ratification process.
99. For a fuller discussion of the few pages of debate concerning the Federal Convention's change of the Declare War Clause, see Yoo, Original Understanding, supra note 10, at 256-69.
100. See Yoo, Clio, supra note 12, at 1183-85.
101. Id. at 1185.
102. See Fisher, Unchecked Presidential Wars, supra note 1, at text accompanying note 53.
103. See JONATHAN ELLIOT, 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 250-51 (William S. Hein & Co. 1996) (2d ed. 1891).
104. We have very sketchy records from the South Carolina convention, which was considered politically unimportant, unlike those in Pennsylvania, Massachusetts, Virginia, and New York.
105. See Yoo, Original Understanding, supra note 10, at 196-217.
106. See, e.g., BLACKSTONE, supra note 65, at *250; 2 HUGO GROTIUS, DE JURE BELLI AC PACIS LIBRI TRES [THREE BOOKS ABOUT THE LAW OF WAR AND PEACE] 633 (Francis W. Kelsey trans., 1925) (1646); EMMERICH DE VATTEL, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUES A LA CONDUITE ET AUX AFFAIRES DES NATIONS ET DES SOUVERAINS [THE LAWS OF NATIONS OR THE PRINCIPLES OF NATURAL LAW, APPLIED TO THE CONDUCT AND TO THE AFFAIRS OF NATIONS AND OF SOVEREIGNS 255 (Charles G. Fenwick trans., Carnegie Institution of Washington 1916) (1758).
107. BLACKSTONE, supra note 65, at *258.
108. See Yoo, Original Understanding, supra note 10, at 214-17.
109. These were: the Second Anglo-Dutch War (1665-1667), the Third Anglo-Dutch War (1672-1674), the War of the Grand Alliance (1689-1697), the War of the Spanish Succession (1702-1713), the War of the Quadruple Alliance (1718-1720), the War of the Austrian Succession (1739-1748), the Seven Years' War (1756-1763), and the American Revolution (1775-1783). See generally JEREMY BLACK, A SYSTEM OF AMBITION?: BRITISH FOREIGN POLICY 1660-1793 (1991). England declared war before hostilities only in 1689, at the start of the War of the Grand Alliance. This period also included numerous minor conflicts in which no declaration of war was issued. See id. at 214 n.252;
110. J.F. MAURICE, HOSTILITIES WITHOUT DECLARATION OF WAR 12-79 (London, Her Majesty's Stationery Office 1883) (detailing 107 instances of hostilities without a declaration of war between 1700-1798).
111. See BLACK, supra note 89, at 214-15.
112. See, e.g., DOUGLAS EDWARD LEACH, ARMS FOR EMPIRE: A MILITARY HISTORY OF THE BRITISH COLONIES IN NORTH AMERICA, 1607-1763, at 210, 340-41, 380-81 (1973) (describing military activities in 1754 and the declaration of war in 1756).
113. THE FEDERALIST NO. 25, at 165 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Publius was defending the Constitution's authorization of the maintenance of standing armies in peacetime because of the dangers of a surprise attack without a formal declaration of war. Id. ("The steady operations of war against a regular and disciplined army, can only be successfully conducted by a force of the same kind."). Other Federalists and Anti-Federalists shared Hamilton's judgment. See Brutus X, N.Y. J. (Jan. 24, 1787), reprinted in 15 DOCUMENTARY HISTORY, supra note 77, at 462-67; Marcus IV, NORFOLK & PORTSMOUTH J. (Mar. 12, 1788), reprinted in 16 DOCUMENTARY HISTORY, supra note 77, at 379-86.
114. See Yoo, Original Understanding, supra note 10, at 209-14.
115. See id. at 208-14.
116. See generally JOHN BREWER, THE SINEWS OF POWER: WAR, MONEY AND THE ENGLISH STATE, 1688-1783 (1989).
117. In this regard, Fisher, like other pro-Congress scholars, exaggerates the British monarch's war powers in order to make the Constitution's transfer of powers to Congress all the more intentional. If the Framers, Fisher argues, had intended to maintain the King's executive war powers in the President, they would have given the executive the powers to declare war, to issue letters of marque and reprisal, to raise armies, and to regulate the military. See Fisher, Unchecked Residential Wars, supra note 1, at text accompanying note 57. Fisher, however, mistakenly believes that the King possessed all of these powers at the time of the framing. By the turn of the seventeenth century, for example, the Crown had lost the power to raise armies without statutory authorization and Parliament had assumed the power to regulate the military in addition to its sole control over funding of the military. See Yoo, Original Understanding, supra note 10, at 213. The Constitution's sole alteration in the British allocation of war powers was to transfer to the legislature those powers involving the declaration of a nation's status and relationship with other nations under international law.
118. See Yoo, Original Understanding, supra note 10, at 219-21.
119. See id. at 221-28.
120. See id. at 228-34.
121. See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 446-53 (1969);
122. see also CHARLES C. THACH JR., THE CREATION OF THE PRESIDENCY, 1775-1789: A STUDY IN CONSTITUTIONAL HISTORY 34-35 (1922).
123. An effort to relocate war powers from the executive to the legislature would have been surprising, for as Professor William Treanor has put it, "[f]or [the Framers] to believe that such a decision was appropriate, there would have had to have been some concern causing them to turn against the great tide of constitutional history." Treanor, supra note 1, at 721; see also John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 COLUM. L. REV. 2218, 2224 (1999) [hereinafter Yoo, Treaties and Lawmaking]. Treanor believes, however, that the Framers' fear of fame-seeking provides sufficient ground to conclude that the Framers did attempt to act counter-cyclically on the issue of war powers. I have argued elsewhere that Treanor's level of analysis is far too general to support any concrete conclusions about the original understanding of war powers. See Yoo, Clio, supra note 12, at 1212.
124. ARTICLES OF CONFEDERATION art. IX (1777).
125. See FISHER, supra note 1, at 6 (arguing that the Constitution intentionally made the war powers a legislative power in contrast to England); Berger, supra note 59, at 33 (noting that the Articles dispensed with the executive); Arthur Bestor, Separation of Powers in the Domain of Foreign Affairs: The Original Intent of the Constitution Historically Examined, 5 SETON HALL L. REV. 527, 567-68 (1974) (noting that the Articles required two-thirds of the states to approve foreign affairs, especially those relating to military actions, in order to ensure legislative deliberation).
126. See JERRILYN GREENE MARSTON, KING AND CONGRESS: THE TRANSFER OF POLITICAL LEGITIMACY, 1774-76, at 303 (1987) (arguing that the Congress was the administrative and executive successor to the King);
127. Eugene R. Sheridan & John M. Murrin, Introduction to CONGRESS AT PRINCETON: BEING THE LETTERS OF CHARLES THOMSON TO HANNAH THOMSON, JUNE-OCTOBER 1783, at xxxiv-xxxviii (Eugene R. Sheridan & John M. Murrin eds., 1985) (explaining that Congress took "the powers of the imperial crown" in 1775-1776).
128. S.C. CONST. of 1778, art. XXXIII, reprinted in 6 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 3255 (Frances Newton Thorpe ed., 1909). In its temporary 1776 Constitution, South Carolina also included a provision that required the governor to receive the consent of both the state assembly and the council before making war or peace. See S.C. CONST. of 1776, art. XXVI, reprinted in 6 id. at 3247 ("That the president and commander-in-chief shall have no power to make war or peace, or enter into any final treaty, without the consent of the general assembly and legislative council.").
129. I have undertaken that task in Yoo, Original Understanding, supra note 10, at 241-86.
130. See McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705, 707 (1992) (discussing the concept of veto gates).
131. Patrick Henry, The Virginia Convention Debates (June 5, 1788), in 9 DOCUMENTARY HISTORY, supra note 77, at 964.
132. Id.
133. James Madison, The Virginia Convention Debates (June 14, 1788), in 10 DOCUMENTARY HISTORY, supra note 77, at 1282.
134. Id.
135. Id.
136. See, e.g., George Nicholas, The Virginia Convention Debates (June 14, 1788), in 10 DOCUMENTARY HISTORY, supra note 77, at 1281.
137. Fisher attempts to counter the weight of this evidence by arguing that the Constitution establishes a sharp distinction between offensive and defensive war. See Fisher, Unchecked Presidential Wars, supra note 1, at text accompanying notes 115-21. We agree that, at a minimum, the Declare War Clause reserves to Congress the power to place the United States in a state of total war under international law. We part ways, however, when Fisher reads the Declare War Clause to preclude the President from waging any type of offensive military operations and to limit executive warmaking authority solely to cases in which the United States or its forces are attacked. Fisher provides no reason why we must understand "war" to mean "all offensive uses of force." Fisher is imposing a modern notion of offensive/defensive war upon the different understandings of the framing generation. While some mentioned the idea during the confused Philadelphia Convention debate, none of the prominent actors in the ratification made this distinction in discussing war powers. This is telling, given that the Federalists had every reason to make any arguments that they could to downplay the scope of presidential powers. Much of Fisher's evidence falls short in demonstrating the understanding held by the Framers when they ratified the Constitution. In determining the original understanding of the meaning of "war," the observations of the Supreme Court almost 80 years after the ratification, see id. at notes 116-18 and accompanying text, do not seem relevant. Even the holdings of the Marshall Court or of lower federal courts in the early nineteenth century, cited by Fisher, do not provide support for his reading. None of these cases raised directly the question of which branch had the authority to initiate offensive military hostilities, nor can they be taken as signs of the original understanding, as they came after the Constitution was ratified.
138. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 260-379 (1980).
139. See supra text accompanying notes 111-14.
140. See STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 360-62 (1993) (describing legal and political context of Pacificus-Helividius exchange).
141. For a general discussion of the political and military background to the American and NATO intervention in Kosovo, see generally Editorial Comments: NATO's Kosovo Intervention, 93 AM. J. INT'L L. 824 (1999) (essays by Professors Henkin, Wedgwood, Chancey, Chinkin, Falk, Franck, and Reisman on Kosovo).
142. See, e.g., THOMAS ALAN SCHWARTZ, AMERICA'S GERMANY: JOHN J. MCCLOY AND THE FEDERAL REPUBLIC OF GERMANY passim (1991).
143. See DOD News Briefings (visited Apr. 21, 2000) 〈http://www.defense link.mil/news/Jun1999/t06111999_t0611asd.html〉; 〈http://www.defenselink.mil/ news/Jun1999/990611-J-0000K-002.jpg〉; 〈http://www.defenselink.mil/news/Jun1999 /990611-J-0000K.-003.jpg〉.
144. See David Kaye, Are There Limits to Military Alliance? Presidential Power to Place American Troops Under Non-American Commanders, 5 TRANSNAT'L L. & CONTEMPORARY PROBLEMS 399, 438-43 (1995) (describing U.N. and NATO presence in Bosnia and U.S. presence in Somalia).
145. See EDWARD LUTTWAK & STUART KOEHL, THE DICTIONARY OF MODERN WAR 466 (1991) (defining policy).
146. See JOINT CHIEFS OF STAFF, DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 349-350 (1987).
147. See id. at 262; LUTTWAK & KOEHL, supra note 123, at 442 (defining operational).
148. See JOINT CHIEFS OF STAFF, supra note 124, at 363; LUTTWAK & KOEHL, supra note 123, at 598 (defining tactical).
149. See Michael J. Glennon & Allison R. Hayward, Collective Security and the Constitution: Can the Commander in Chief Power Be Delegated to the United Nations?, 82 GEO. L.J. 1573, 1584-86 (1994) (discussing Americans serving under foreign command); Kaye, supra note 122, at 420-25 (explaining that non-American officers sometimes shared strategic and operational command in First World War);
150. see also DAVID F. TRASK, THE UNITED STATES IN THE SUPREME WAR COUNCIL 23-24 (1961) (discussing the establishment of the Supreme War Council);
151. Tasker H. Bliss, The Evolution of the United Command, FOREIGN AFF., Dec 15, 1922, at 29-30 (discussing unified command under General Foch).
152. See Kaye, supra note 122, at 425-28 (discussing the consolidation of British and American authority).
153. See id. at 428 (stating that American troops were not subjected to British Commanders' "coercive" authority); see also Richard M. Leighton, Allied Unity of Command in the Second World War: A Study in Regional Military Organization, 67 POL. SCI. Q. 399, 402, 425 (1952) (discussing the power to coerce).
154. See U.N. CHARTER art. 43.
155. See Glennon & Hayward, supra note 127, at 1574 (asserting that the superpower deadlock of the Cold War halted the development of collective security forces).
156. See generally DEAN ACHESON, PRESENT AT THE CREATION 402-13, 420-25, 445-55, 467-77 (1969) (Korea);
157. GEORGE BUSH & BRENT SCOWCROFT, A WORLD TRANSFORMED 302-492 (1998) (Persian Gulf).
158. In response, Congress considered legislation in 1996 to prohibit the expenditure of any funds for American armed forces that served under U.N. operational or tactical command. Section 3 of H.R. 3308, 104th Cong. (1996), required that "funds appropriated or otherwise made available for the Department of Defense may not be obligated or expended for activities of any element of the armed forces that after the date of the enactment of this section is placed under United Nations operational or tactical control." The bill defined U.N. "command" as command by an official acting on behalf of the U.N. in a peacekeeping or similar operation, where the senior military commander of the force is not an active duty U.S. military officer. Id.
159. See Memorandum from Alan J. Kreczko, Special Assistant to the President and Legal Adviser to the National Security Council, Placing of United States Armed Forces Under United Nations Operational or Tactical Control (May 8, 1996) 〈http://www.usdoj. gov/olc/mem_ops.htm〉.
160. Id.
161. Id.
162. Id. (emphasis omitted).
163. All officers of the United States are required to take an oath to support the Constitution. See U.S. CONST. art. VI, § 3. If the President could delegate authority to individuals who are not officers of the United States, they could wield federal power but without any responsibility to uphold and defend the Constitution.
164. OLC did not claim that Congress had given the President the statutory authority to appoint, or deputize, non-officers to U.S. military command in certain situations. Even if such a statutory authority exists, it would come into conflict with Article I, Section 9, Clause 7, which declares that: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title of any kind whatever, from any King, Prince, or foreign State. U.S. CONST. art. I, § 9. This section seems to create a rule that an officer of the United States cannot serve as an official in any foreign government, which might make perfect sense given the concerns that the Framers might have had about potentially conflicting loyalties to the United States. While Section 9 says that Congress can grant a person an exception to this rule on a case-by-case basis, it seems doubtful that Congress could enact a general rule waiving the constitutional provision in all cases whatsoever.
165. See generally John C. Yoo, New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause, 15 CONST. COMMENTARY 87, 116 (1998) [hereinafter Yoo, New Sovereignty].
166. The Appointments Clause declares that the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, to the Courts of Law, or in the Heads of Departments. U.S. CONST. art. II, § 2, cl. 2.
167. See John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 TEX. L. REV. 633, 638-39 (1993);
168. David A. Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation Process, 101 YALE L.J. 1491, 1502-12 (1992);
169. John C. Yoo, Criticizing Judges, 1 GREEN BAG 2d 277, 278 (1998).
170. See, e.g., Edmond v. United States, 520 U.S. 651, 663 (1997); Ryder v. United States, 515 U.S. 177, 180-84 (1995); Weiss v. United States, 510 U.S. 163, 169-76 (1994); Freytag v. Commissioner, 501 U.S. 868, 884 (1991); Buckley v. Valeo, 424 U.S. 1, 135 (1976).
171. See Buckley, 424 U.S. at 132.
172. See Edmond, 520 U.S. at 659; see also Printz v. United States, 521 U.S. 898, 922-23 (1997).
173. There can be little doubt that if the President delegates command over American troops to foreign or international officers, those officers will exercise substantial authority under federal law. Under the Code of Military Justice, an American soldier who refuses to obey the orders of a superior officer is subject to potentially severe penaides, including death or long-term imprisonment See 10 U.S.C. § 890(2) (1994) (disobeying a superior commissioned officer, during time of war, is punishable by death or other punishment as a court-martial may direct); 10 U.S.C. § 891(2) (1994) (disobeying a warrant, noncommissioned, or petty officer can be punished as court-martial shall direct); 10 U.S.C. § 892(1) (1994)(disobeying a lawful general order or regulation shall be punished as a court-martial shall direct); 10 U.S.C. § 892(2) (1994) (disobeying any other lawful order shall be punishable as court-martial may direct).
174. Ryder v. United States, 515 U.S. 177, 182 (1995) (quoting Freytag, 501 U.S. at 878).
175. See id. at 182-84 (noting that the Clause prevents diffusion of the appointment power).
176. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The Resident's Power to Execute the Laws, 104 YALE L.J. 541 (1994) (formalist);
177. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996) (functionalist);
178. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994) (functionalist).
179. See Calabresi & Prakash, supra note 149, at 593-99.
180. See supra text accompanying notes 136-37.
181. See, e.g., Morrison v. Olson, 487 U.S. 654, 691-92 (1988) (noting that "good cause" removal of the independent counsel still allows the President to retain authority over the counsel's duties); see also Lessig & Sunstein, supra note 149, at 106-16 (claiming that although there are numerous independent agencies, complete independence from the President would still raise constitutional problems).
182. One might respond to this argument by pointing out that if the President disapproves of the actions of the foreign commander, he or she may take back the power of command - in a sense, removing the foreign officer. This point, however, is not fully convincing. First, the question whether a delegation of power violates the non-delegation doctrine does not turn on whether Congress can terminate the delegation; Congress can always enact another statute to reverse an earlier delegation. Second, a presidential decision to undo a delegation of command may prove to be too little, too late, for an American military unit engaged in combat or in the midst of a dangerous situation as a result of a foreign commander's decisions.
183. See, e.g., Clinton v. New York, 524 U.S. 417, 442-47 (1998) (striking down the President's use of the Line Item Veto Act where its effect was to amend acts of Congress, thus violating the Presentment Clause); American Trucking Ass'n v. EPA, 175 F.3d 1027, 1033 (D.C. Cir. 1999) (per curiam).
184. See Mistretta v. United States, 488 U.S. 361, 371-79 (1989) (approving a congressional delegation of power where the goals were clearly set out, the purposes asserted, and the scope of the delegation was definitively confined).
185. See WOOD, supra note 101, at 344-62 (chronicling the development of popular sovereignty); Akhil R. Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1429-37 (1987) (examing constitutional debate on where sovereignty resided and its ultimate relocation from government to the people).
186. WOOD, supra note 101, at 78.
187. See Yoo, New Sovereignty, supra note 140, at 109. Forcing the President and Senate to share the appointments power opens up the selection and performance of public officials to public scrutiny, and thereby enhances responsibility and accountability in government. As Alexander Hamilton wrote in Federalist No. 77, because the executive had to send nominees to the Senate, "the circumstances attending an appointment, from the mode of conducting it, would naturally become matters of notoriety; and the public would be at no loss to determine what part had been performed by the different actors." THE FEDERALIST No. 77, at 461 (Alexander Hamilton) (Clinton Rossiter ed., 1961). If the branches approved an unsuitable nominee, both would suffer at the hands of the public. "If an ill appointment should be made," Hamilton wrote, "the executive for nominating and the senate for approving would participate though in different degrees in the opprobrium and disgrace." Id. In contrast, for a state such as New York where secrecy prevailed over appointments, "all idea of responsibility is lost." Id. at 11. A shared appointment power allows the people to carefully evaluate their agents as they are appointed, and to hold their representatives responsible should the appointees abuse the public trust. See Yoo, New Sovereignty, supra note 140, at 110-11. By forcing the government to conduct appointments in an open manner, the Constitution promotes government accountability, and ultimately representative democracy.
188. THE FEDERALIST NO. 77, at 461 (Alexander Hamilton) (Clinton J. Rossiter ed., 1961).
189. See supra text accompanying notes 125-33 (discussing the Normandy invasion as led by British Field Marshall Bernard Montgomery).
190. See supra notes 122-32 and accompanying text.
191. NATO's military structure for the occupation of Kosovo attempts to minimize the likelihood that U.S. troops will have to serve on a regular basis under foreign or international command. Each nation that has contributed troops to the NATO force - the United States, Great Britain, Germany, France, and Italy - bears primary control over a different geographic sector in Kosovo. The forces in each sector are commanded by a brigade commander from the same nation (thus, in the United States sector the troops are under the control of an American officer) who in turn reports to General Sir Michael Jackson, a British officer. General Jackson, who holds operational command, reports to the theater commander, Admiral Ellis, who in turn reports to General Wesley Clark, Supreme Allied Commander in Europe. See 〈http: //www.defenselink.mil/news/Jun1999/t06111999_t0611asd.html〉 This arrangement does not preclude the forces of one nation from engaging in operations in a sector under the control of another NATO country, and thus serving under the tactical command of a foreign officer.
192. John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955, 1968 & n.57 (1999) [hereinafter Yoo, Globalism and the Constitution].
193. See, e.g., Thomas M. Franck & Faiza Patel, Agora: The Gulf Crisis in International and Foreign Relations Law, UN Police Action in Lieu of War: "The Old Order Changeth," 85 AM. J. INT'L L. 63, 68 (1991). For a trenchant criticism of Franck and Patel, see Glennon & Hayward, supra note 127, at 1598 n.144.
194. See S.C. Res. 678 (Nov. 29, 1990), reproduced in United Nations: Security Council Resolutions Concerning Iraqi Agression, 29 I.L.M. 1565 (1990).
195. Franck & Patel, supra note 164, at 72.
196. See id. at 74.
197. See Michael J. Glennon, Agora: The Gulf Crisis in International and Foreign Relations Law, UN Police Action in Lieu of War: The Constitution and Chapter VII of the United Nations Charter, 85 AM. J. INT'L L. 74, 81 (1991). Professor Glennon expands on these views and applies them to more recent interventions in Glennon & Hayward, supra note 127, at 1595-1601.
198. See Michael J. Glennon, The Senate Role in Treaty Ratification, 77 AM. J. INT'L L. 257, 264 (1983).
199. See Frank & Patel, supra note 164, at 74.
200. LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 252 (2d ed. 1996).
201. This reading, however, conspicuously ignores Article I, Section 7's requirement that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," which requires bicameralism and presentment for the authorization of any expenditure of funds. U.S. CONST. art. 1, § 7.
202. See Yoo, Globalism and the Constitution, supra note 163, at 2082-86.
203. Alexander Hamilton, The Defence No. 36, HERALD (New York), Jan. 2, 1796, in 20 THE PAPERS OF ALEXANDER HAMILTON, supra note 72, at 4. Hamilton argued more fully that a treaty could legislate on any matter within Congress's Article I, Section 8 power, and that any effort to read the treaty power as limited by congressional authority would make it impossible for the nation to enter into treaties. See also The Defence No. 37, HERALD (New York), Jan. 6, 1796, in 20 THE PAPERS OF ALEXANDER HAMILTON, supra note 72, at 16-22.
204. See 20 THE PAPERS OF ALEXANDER HAMILTON, supra note 72, at 18-22.
205. Id. at 18.
206. Id.
207. For a more detailed explanation, see generally John C. Yoo, Globalism and the Constitution, supra note 163, and Yoo, Treaties and Lawmaking, supra note 102.
208. Yoo, Globalism and the Constitution, supra note 163, at 1955.
209. See id.
210. U.N. CHARTER art. 2 (4).
211. Id. art. 2(3).
212. Id. art. 2(7).
213. See id. art. 51.
214. Id. art. 42. Many have argued, however, that the Security Council cannot require nations to intervene under Article 42 unless it has at its disposal national military forces, pursuant to special agreements under Article 43. See Glennon, supra note 168, at 77-80 (collecting sources). No agreements between the U.N. and member nations under Article 43 ever took effect. This, however, only prevents the Security Council from requiring member nations to take military action, not from requesting that they do so voluntarily. The Charter also allows the Security Council to authorize police actions by regional organizations. See U.N. CHARTER art. 53 ("The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority.").
215. HENKIN, supra note 171, at 250.
216. See, e.g., Michael J. Glennon, Raising the Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80 NW. U. L. REV. 321, 325 (1985);
217. Louis Henkin, International Law As Law in the United States, 82 MICH. L. REV. 1555, 1567 (1984);
218. Jules Lobel, The Limits of Constitutional Power Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1179 (1985);
219. see also Agora: May the President Violate Customary International Law?, 80 AM. J. INT'L L. 913 (1986).
220. Henkin, supra note 187, at 1567; see also Louis Henkin, The President and International Law, 80 AM. J. INT'L L. 930, 937 (1986).
221. See, e.g., Glennon, supra note 187, at 325; Henkin, supra note 188, at 936-37.
222. See Lobel, supra note 187, at 1075.
223. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law As Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815, 817 (1997);
224. see also ALFRED RUBIN, ETHICS AND AUTHORITY IN INTERNATIONAL LAW 185-206 (1997);
225. Philip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665, 672-673 (1986);
226. Arthur M. Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205, 1269 (1988).
227. For some of the responses to Professors Bradley and Goldsmith, see Harold H. Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1827 (1998);
228. Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371, 371 (1997);
229. Beth Stephens, The Law of Our Land: Customary International Law As Federal Law After Erie, 66 FORDHAM L. REV. 393, 396-97 (1997).
230. Bradley and Goldsmith have responded to their critics several times. See Curtis A. Bradley & Jack L. Goldsmith III, Federal Courts and the Incorporation of International Law, 111 HARV. L. REV. 2260 (1998);
231. Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 FORDHAM L. REV. 319, 330 (1997);
232. cf. Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245 (1996).
233. I have argued elsewhere that the inclusion of treaties in Article VI places duties upon the political branches to take measures to execute them, but that they do not impose a constitutional duty upon the courts to execute treaties without implementing legislation. See generally Yoo, Globalism and the Constitution, supra note 163; Yoo, Treaties and Public Lawmaking, supra note 102.
234. In fact, it was telling that unlike previous conflicts, no prominent international law scholars stepped forward to criticize President Clinton's war in Kosovo as a violation of international law, and hence a violation of the Constitution, or to file a lawsuit on that basis.
235. U.S. CONST. art. VI, § 2.
236. See Yoo, Globalism and the Constitution, supra note 163, at 1971; Yoo, Treaties and Public Lawmaking, supra note 102, at 2239. Non-self-execution demonstrates, in fact, that treaty obligations often will not bind the President, which strongly indicates that customary international law cannot do so as well.
237. I discuss the problems with judicial intervention in war powers disputes at more length in Yoo, Original Understanding, supra note 10, at 194-96, 287-90, 300-02.
238. Professor Glennon, who has perhaps the most sensible view, applies the Youngstown framework to argue that presidents cannot act in this area of shared authority without congressional support. See Glennon, supra note 187, at 325.
239. One might make the argument that presidents cannot violate international law pursuant to a legislatively delegated power, but then one must argue that Congress cannot violate international law either.