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The Libya UNSCR Helps the President’s Domestic Constitutional Arguments

Friday, March 18, 2011

It looks like the Obama Administration is planning to deploy some form of U.S. military power in Libya without congressional authorization, perhaps soon.  Such a deployment would not be an obviously prudent move, in my opinion.  I am concerned in this post not with prudence, however, but with constitutional legality.  Many executive branch precedents support the president’s inherent authority under Article II to intervene in Libya without congressional approval, only some of which are mentioned in previous posts and in the citations in the linked opinions.  I want to focus here on why the administration’s constitutional arguments were given a boost by yesterday’s Libya UNSCR.  Below I briefly summarize the main executive branch legal opinions that have discussed the relevance of UNSCRs to the constitutional question.  UNSCRs have been invoked in support of presidential power in essentially two ways: (1) as implicating the Article President’s power to “take care to faithfully execute the law” – namely, the U.N. Charter; and, more often, (2) as support for the president’s authority as Commander in Chief to use force abroad to protect and preserve important U.S. interests in international peace and security, including the preservation of the U.N. system itself.

Korea.  This is the most powerful (and in some quarters, controversial) precedent.  The day after North Korea’s June 24, 1950 invasion of South Korea, the Security Council (with the Soviet Union absent) issued a resolution demanding an immediate ceasefire and a withdrawal of North Korean forces to the 38th parallel, and calling upon members of the United Nations “to render every assistance to the United Nations in the execution of this resolution.”  Two days later, it issued a second resolution calling upon “[m]embers of the United Nations to furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area.”  The Truman administration invoked these UNSCRs (among other things) as support for its unilateral deployment of troops to Korea.  One opinion, prepared by the State Department, argued (among other things) that the President as Commander in Chief has “full control over the use” of U.S. armed forces, and could deploy these forces, consistent with the Constitution, for the purpose of protecting the important U.S. interest of international peace and security, including its interest in the “continued existence of the United Nations as an effective international organization.”  A second opinion issued the following year (sorry, no link), prepared by “the executive departments” for Congress, argued that Truman was “acting lawfully and constitutionally in sending troops to Korea in response to the resolution of the United Nations” because the “President’s authority as Commander in Chief to send troops abroad may . . . be exercised in order to execute a treaty,” and because “the sending of troops to Korea . . . is appropriate to the carrying out of the purposes of . . . Charter of the United Nations.”  The opinion added: “The power to send troops abroad is certainly one of the powers which the President may exercise in carrying out such a treaty as . . . the United Nations Charter.”  See Joint Comm. of the Comms. on Foreign Relations and on Armed Services, 82d Cong., 1st Sess., Powers of the President to Send the Armed Forces Outside the United States (1951).

Continue reading Jack Goldsmith at Lawfare