In his classic 1973 book The Imperial Presidency,historian Arthur Schlesinger Jr. warned that theAmerican political system was threatened by “aconception of presidential power so spacious andperemptory as to imply a radical transformation ofthe traditional polity.” America’s rise to globaldominance and Cold War leadership, Schlesingerexplained, had dangerously concentrated power inthe presidency, transforming the Framers’ energeticbut constitutionally constrained chief executiveinto a sort of elected emperor with virtuallyunchecked authority in the international arena.

As William Jefferson Clinton came to power inJanuary 1993, there was some reason to hope thatthe imperial presidency would be scaled back.Clinton, after all, was the first post–Cold War pres-ident and a member of a political party that had inthe wake of the Vietnam War striven to restrainpresidential aggrandizement in foreign policy.

Such hopes proved illusory. Throughout hisadministration, President Clinton has adopted aview of his executive power that is positivelyNixonian in its breadth and audacity. The adminis-tration insists that the Comprehensive Test BanTreaty still binds the United States under interna-tional law, even though the Senate explicitlydeclined to ratify that agreement. Administration

officials likewise insist that the Anti–BallisticMissile Treaty is still in effect even though one ofthe contractual parties (the Soviet Union) no longerexists. The administration has attempted to imple-ment provisions of the Kyoto Protocol on the envi-ronment while continuing to refuse even to submitthe treaty to the Senate for ratification. Thoseactions demonstrate that President Clinton hasroutinely abused the treaty power.

In addition to the abuse of the treaty power, thepresident has repeatedly usurped the congressionalwar power. In Haiti, Iraq, Sudan, and Bosnia, theClinton administration displayed its contempt forthe constitutional process and asserted a unilateralpower to wage war without congressional approval.The most flagrant example was the 78-day air warconducted against Serbia in 1999 despite Con-gress’s adamant refusal to approve the action.

As we approach the end of President Clinton’ssecond term, the imperial presidency is as uncon-strained and as menacing as it has been at anytime since the Vietnam War. Bold congressionalaction is needed to reclaim legislative authorityover the war power and the treaty power. Onlythen will America have an executive branch thatcomports with republican principles of govern-ment and the original constitutional design.

Arrogance of Power RebornThe Imperial Presidency and Foreign Policy in

the Clinton Yearsby Gene Healy

_____________________________________________________________________________________________________

Gene Healy is a graduate of the University of Chicago Law School and an attorney practicing in Washington, D.C.

Executive Summary

No. 389 December 13, 2000

Introduction

Odd as it might now seem, opponents ofthe imperial presidency had reasons for cau-tious optimism upon William JeffersonClinton’s accession to the presidency inJanuary 1993. The first Democrat elected tothe nation’s highest office in 12 years, the newpresident belonged to a political party thathad since Watergate and the Vietnam Warsought to rein in the executive’s ability to con-duct foreign policy without congressionalauthorization and oversight. The imperialpresidency’s major raison d’être had vanishedwith the collapse of Soviet Communism in1989–91. During the Cold War, executive warmaking in Korea, Vietnam, and elsewhere hadbeen rationalized as necessary to contain anenemy of unprecedented strength and men-ace: the Soviet Union. That enemy had van-ished by the time President Clinton tookoffice. In addition, various factors in the newpresident’s personal and political backgroundsuggested that one might expect a retrench-ment of the Caesar principle in foreign affairs.

Clinton had come of age, literally andpolitically, during the Vietnam War, a warthat he had vehemently opposed. In hisyouthful letter to Arkansas ROTC comman-der Col. Eugene Holmes, Clinton explained:“I worked for two years in a very minor posi-tion on the Senate Foreign RelationsCommittee. I did it for the experience and thesalary but also for the opportunity, howeversmall, of working every day against a war Iopposed and despised with a depth of feelingI had reserved soley [sic] for racism inAmerica.”1 As Clinton later explained, hisopposition to American involvement inVietnam rested in part on the fact that it wasan “undeclared war.”2

Moreover, as the letter to Holmes indicat-ed, the new president had begun his politicalcareer by working for Sen. J. WilliamFulbright (D-Ark.), chairman of the SenateForeign Relations Committee and the imper-ial presidency’s most forceful critic duringthe Vietnam era. Early in his career, Fulbright

was a rather conventional Southern hawkand a reliable supporter of presidential pre-rogative in foreign affairs. As chairman of theForeign Relations Committee, he evenhelped President Lyndon B. Johnson shep-herd through Congress the Gulf of TonkinResolution, which Johnson then treated as adeclaration of war on North Vietnam, licens-ing whatever military action the presidentdeemed necessary.

By 1966, when then–Georgetown under-graduate Bill Clinton came to work forFulbright, the senator had utterly broken withthe administration’s war policy.3 Angered bywhat he saw as presidential deceit aboutVietnam, Fulbright had concluded that theconflict in Vietnam was “a civil war—one thatwe really had no business getting involvedwith.”4 Fulbright’s reexamination of theVietnam War led him to a broader critique ofAmerica’s increasingly imperialistic foreignpolicy. As he wrote to President Johnson:“Greece, Rome, Spain, England, Germany andothers lost their preeminence because of a fail-ure to recognize their limitations, or, as I call it,the arrogance of power. . . . My hope is that thiscountry, presently the greatest and mostpowerful in the world, may learn by the mis-takes of its predecessors.”5 In his book of thesame name, Fulbright later described the“arrogance of power” as “the morality ofabsolute self-assurance, fired by the crusad-ing spirit.”6 That hubristic certitude com-bined with imperial overreach, Fulbrightargued, brought with it a contempt for con-stitutional process and republican forms ofgovernment. If America’s slide toward empirecontinued, Fulbright warned:

Whatever lip service might be paid totraditional forms, our Governmentwould soon become what it isalready a long way toward becoming:an elective dictatorship, more or lesscomplete over foreign policy andover those vast and expanding areasof our domestic life which in one wayor another are related to or depen-dent upon the military establish-

2

During the ColdWar, executivewar making in

Korea, Vietnam,and elsewhere

had been ration-alized as neces-

sary to contain anenemy of

unprecedentedstrength and

menace.

ment. If, in short, America is tobecome an empire, there is very littlechance that it can avoid becoming avirtual dictatorship as well.7

Upon Fulbright’s death in 1995, PresidentClinton reflected on the time he’d spent as ayoung man working for the senator: “If ithadn’t been for him, I don’t think I’d be heretoday.”8 But whatever influence Fulbrightmay have had on the upward trajectory of hisyoung protégé’s political career, as president,Clinton seems to have absorbed little ofFulbright’s critique of the modern presiden-cy. Whereas Fulbright advocated a constitu-tionally constrained chief executive, Clintonasserted a presidential prerogative to wagewar without congressional authorization.Whereas Fulbright viewed the Senate as anequal partner in the treaty-making process,Clinton refused to accept the Constitution’smandate that no treaty is binding withoutthe approval of two-thirds of the senatorspresent.9 In this, Clinton, more than anypresident in the post-Vietnam era, resembledFulbright’s aggrandizing adversaries: LyndonJohnson and Richard M. Nixon. As a reviewof the administration’s record will show, bythe end of the Clinton era, the imperial pres-idency is stronger and more menacing than ithas been at any time since the Vietnam War.

Recoiling from a forceful denunciation ofthe United Nations earlier this year by Sen.Jesse Helms (R-N.C.), Secretary of StateMadeleine Albright told the UN SecurityCouncil on January 24: “Let me be clear. Onlythe president and the executive branch canspeak for the United States.”1 0 That, inessence, is the Clinton administration’s viewof the president’s role in the foreign relationsarena: the executive alone determinesAmerica’s international commitments anddiplomatic posture with respect to othernations. And, although dissenting viewsfrom particular senators—or even the Senateitself—are perhaps to be tolerated, thoseviews certainly can have no impact on thepresident’s unilateral authority to “speak forthe United States.”

The Clinton administration’s view that theexecutive’s authority to conduct foreign rela-tions is unilateral and expansive has been par-ticularly pronounced with respect to the treatypower. The administration has announcedthat the Comprehensive Test Ban Treaty,which was voted down by the Senate, is bind-ing on the United States. The administrationasserts that the Anti–Ballistic Missile Treatyremains in force, despite the fact that the othersignatory to that treaty, the Soviet Union, hasvanished and the Senate has not ratified ABMagreements with the Soviet Union’s successorstates. And the administration refuses to sub-mit the Kyoto agreement on the reduction ofgreenhouse gases to the Senate for ratifica-tion, choosing instead to explore the possibili-ty of implementing that agreement withoutthe advice and consent of the Senate. Suchimperious unilateralism is a far cry from whatthe Framers of the Constitution had in mind.They wholeheartedly rejected the idea thatonly the executive branch could “speak for theUnited States.” Instead, they viewed the Senateand the president as partners in the formationof binding agreements with other countries.

The Treaty Power: The Original

UnderstandingArticle II, section 2, of the Constitution

provides that the president “shall have Power,by and with the Advice and Consent of theSenate, to make Treaties, provided two thirdsof the Senators present concur; and he shallnominate, and by and with the Advice andConsent of the Senate, shall appointAmbassadors.” Section 3 also empowers thepresident “to receive Ambassadors.” Thus, inthe arena of diplomatic relations, the presi-dent has three powers, only one of which isunilateral: the power to receive ambas-sadors.1 1 In the making of treaties and theappointment of ambassadors, he sharespower with the Senate, and the Senate’spower here is more than ministerial or per-functory. As constitutional historian Raoul

3

By the end of theClinton era, theimperial presi-dency is strongerand more menac-ing than it hasbeen at any timesince the VietnamWar.

Berger put it: “The Framers borrowed thewords ‘advice and consent’ from parliamen-tary practice. They were words of art, reach-ing deep into history, which were descriptiveof participation in lawmaking.” He continues,“When . . . those words were employed in the‘treaty’ phrase, they connoted full participa-tion in the making of a treaty, as the historyof the treaty clause clearly demonstrates.”1 2

Berger’s argument is borne out by JamesMadison’s notes of the Constitutional Con-vention. Indeed, the convention’s Committeeof Detail initially recommended that theSenate alone “shall have the power to maketreaties.” When that proposal was initiallyput forward, Madison suggested to the con-vention that “it was proper that the presidentshould be an agent in Treaties.”1 3That is, thepresident should play a role, but not anexclusive or even a dominant role, in themaking of treaties. That recommendationwas eventually adopted and approved by theconvention.

Discerning the intent of a multimemberbody, of course, is always a messy business.Moreover, the people, through their state leg-islatures, ratified not Madison’s notes of theconvention but rather the document that theconvention generated. For those and otherreasons, originalist constitutional scholarsrightly give the greatest interpretive weight tothe text of the Constitution.14 But if the textis ambiguous, Thomas Jefferson’s advice isapt: the meaning of a constitutional provi-sion can best be discerned “in the explana-tions of those who advocated it” upon whichthe ratifiers relied.1 5 In that respect, theFederalist Papers, as highly public explicationsof the Constitution’s meaning, are invalu-able—especially because they were written byFramers. The discussions of the treaty powerin the Federalist Papers unequivocally demon-strate that the president does not have uni-lateral power to bind the United States toagreements with foreign governments.

In Federalist 69 Alexander Hamilton refut-ed the argument that the treaty power con-ferred monarchical powers on the office ofthe president. Whereas the British king was

“the sole and absolute representative of thenation in all foreign transactions,” theAmerican president would merely share inthe treaty power, needing to secure the adviceand consent of the Senate. Thus, “there is nocomparison between the intended power ofthe President and the actual power of theBritish sovereign. The one can perform alonewhat the other can only do with the concur-rence of a branch of the legislature.” InFederalist 75, Hamilton elaborated on therationale for dividing the treaty powerbetween two branches of the federal govern-ment: “However proper or safe it may be ingovernments where the executive magistrateis an hereditary monarch, to commit to himthe entire power of making treaties, it wouldbe utterly unsafe and improper to intrustthat power to an elective magistrate of fouryears duration.” Why “unsafe and improp-er”? The answer lies in the Framers’ cautious,skeptical view of human nature; Hamiltoncontinues, “The history of human conductdoes not warrant that exalted opinion ofhuman virtue which would make it wise in anation to commit interests of so delicate andmomentous a kind, as those which concernits intercourse with the rest of the world, tothe sole disposal of a magistrate created andcircumstanced as would be a President of theUnited States.”

The Treaty Power: TheClinton Administration’s

UnderstandingDespite the clarity of the constitutional

text and the historical record, the executivepower to make treaties as interpreted by theClinton administration has more in com-mon with the monarchical view that theFederalist Papers argued against than it haswith the limited and divided power that theFramers envisioned. The former perspec-tive—manifestly unconstitutional—is reflect-ed unmistakably in the administration’sactions with regard to the ComprehensiveTest Ban Treaty.

The executivepower to make

treaties as inter-preted by the

Clinton adminis-tration resembles

the monarchicalview that the

Federalist Papersargued against.

4

The CTBTSigned by the president in 1996, the

CTBT would, if ratified, bind the UnitedStates to refrain indefinitely from under-ground testing of nuclear weapons. (Above-ground testing has been banned by treatysince 1963.) The following year PresidentClinton sent the treaty to the Senate for rati-fication, where it stalled for two years in theForeign Relations Committee—primarilybecause of the vehement opposition of thechairman, Senator Helms. But by 1999, whenSenate Majority Leader Trent Lott (R-Miss.)scheduled a vote on the CTBT, the adminis-tration, fearing that the treaty did not havethe votes, strenuously opposed bringing it tothe floor. The administration’s fears wereaccurate. On October 13, 1999, the CTBTwas voted down; at 51 to 48, it failed even togain a simple majority, much less the two-thirds required by Article II for ratification.

And yet—astoundingly—the administra-tion asserted that, despite the Senate’s rejec-tion of the CTBT, the treaty still had the forceof law. In a letter dated October 18, 1999,Secretary of State Albright wrote to a host offoreign ministers of other signatory nationsto say that, “despite this setback, I want toassure you that the United States will contin-ue to act in accordance with its obligations asa signatory under international law.”1 6

Secretary Albright was mistaken: theUnited States has no obligations as a signa-tory to the treaty. Under the Constitution,the United States has no obligation to abideby a treaty that the Senate has rejected.International law cannot penetrate thesphere of U.S. sovereignty except through theprocesses delineated in the Constitution. Asthe Supreme Court noted in Reid v. Covert, a1957 case discussing the limitations of thetreaty power: “The United States is entirely acreature of the Constitution. Its power andauthority have no other source.”1 7

What possible constitutional source canthe administration rely on for SecretaryAlbright’s proposition that the president canbind the United States to international agree-ments that the Senate decisively rejected?

Perhaps the administration rests its extrava-gant claim, as other aggrandizing adminis-trations have rested similar claims in thepast, on Article II’s stipulation that “the exec-utive Power shall be vested in a President.”But if the grant of “executive power” inArticle II were broad enough to do whatAlbright suggests, then the treaty power’srequirement of advice, consent, and ratifica-tion would be mere surplusage—nullified atthe will of the president.

Certainly the president is well within hisconstitutional authority to maintain a mora-torium on underground nuclear testing. It isentirely proper and advisable that he do so.No one would suggest that the failure of theCTBT requires the United States to resumetesting. But the proposition that the presi-dent has the authority to bind the UnitedStates to international agreements in perpe-tuity and unilaterally can find no constitu-tional warrant. Such a broad conception ofpresidential power would be “utterly unsafeand improper.”

The ABM TreatyThe president’s handling of the ABM

Treaty, signed with the former USSR and rat-ified by the Senate in 1972, further showcas-es this administration’s disturbingly broadconception of executive power in foreignaffairs. That treaty was designed to codify thelogic of mutual assured destruction and toprevent the arms race between the superpow-ers from escalating because of the potentiallydestabilizing impact of defensive systems.The ABM Treaty barred either signatorynation from deploying a national missiledefense (NMD) system. In the post–ColdWar era, however, the strategic environmentundergirding the need for the ABM Treatyhas fundamentally changed. Moreover, theother signatory to the agreement, the SovietUnion, no longer exists. Yet, despite that fact,the president continues to insist that thetreaty remains binding on the United States.

As a matter of international law, the ABMTreaty is no longer binding on the UnitedStates. It became void because of the impos-

5

Astoundingly, theadministrationasserted that,despite theSenate’s rejectionof the CTBT, thetreaty still hadthe force of law.

sibility of performance when the other signa-tory to the agreement, the Soviet Union, dis-solved into 15 successor states in 1991. Whena signatory nation to an international agree-ment dissolves, its treaty obligations dissolvewith it unless there is a successor state that(1) succeeds to its predecessor’s internationallegal personality and (2) can perform itstreaty obligations according to the agree-ment’s original terms. In a comprehensivememorandum of law from the Washington,D.C., law firm of Hunton & Williams, theauthors make a compelling case that theobligations enshrined in the ABM Treaty areparticular to the Soviet Union and cannot becarried out by Russia, the other former Sovietrepublics, or any combination thereof.1 8

The Clinton administration implicitly rec-ognized that fact when it attempted in 1997 torenegotiate the ABM Treaty with several of theSoviet Union’s successor states. In New York,on September 26, 1997, Secretary Albrightsigned a series of agreements with Russia,Ukraine, Belarus, and Kazakhstan that pur-port to multilateralize the ABM Treaty,extending its obligations to the republics thatmade up the former Soviet Union. In a letterto Rep. Benjamin A. Gilman (R-N.Y.), chair-man of the House Committee onInternational Relations, explaining theSeptember agreements, President Clintonadmitted that “neither a simple recognition ofRussia as the sole ABM successor (whichwould have ignored several former Sovietstates with significant ABM interests) nor asimple recognition of all [New IndependentStates] as full ABM Treaty successors wouldhave preserved fully the original purpose andsubstance of the Treaty, as approved by theSenate in 1972.”19 The president indicated hisintention to submit the September agree-ments to the Senate for ratification, in accor-dance with the Constitution; but, he contin-ued, “If however, the Senate were to fail to actor to disagree and disapprove the agreements,succession arrangements will simply remainunsettled. The ABM Treaty itself would clearlyremain in force.”

The president seemed oblivious to, or

unconcerned by, the contradiction implicitin those two statements. If new agreementsare necessary to preserve the ABM Treaty’ssubstance, how could the Senate’s rejectionof the new agreements be legally ineffectual?In a response letter, Gilman and Helmsdeclared that, “if it is unclear as a matter oflaw whether Russia or any other country thatemerged from the Soviet Union is todaybound by the ABM Treaty, then it alsoshould be unclear whether the United Statesis so bound.”20 As Gilman and Helms saw it,without Senate ratification of the multilater-al agreements, the ABM Treaty would poseno obstacle to the development of an NMDsystem. To date, the president has not sub-mitted the September agreements to theSenate for ratification.

Is NMD a good idea? There are reasons tobelieve it isn’t. It might end up at best an enor-mous, ineffectual boondoggle or at worst adangerously destabilizing initiative. Despitethe expenditure of more than $60 billion onthe development of NMD technology, it is farfrom clear that NMD is technologically feasi-ble.2 1Given new developments in the technol-ogy of terror, even a functioning NMD mightbe a sort of 21st-century Maginot Line, pro-viding a false sense of security but easilybypassed. More disturbing still is the fact thatmany of NMD’s most vocal proponents viewit as a sort of offensive weapon—a means ofperpetuating America’s role as global police-man.22 Since that role is a major source of ter-rorist and rogue state enmity toward theUnited States,23 NMD may exacerbate the veryproblem it seeks to solve.

Ultimately, whether NMD is a good ideais quite beside the point. The ABM Treaty isno longer in force. If President Clinton wantsto replace it with a series of multilateralagreements, he needs to secure the advice andconsent of the Senate. His attempt to bypassthe Senate on such an important matter ispresumptuous and unconstitutional.

The Kyoto ProtocolAs with the CTBT and the ABM Treaty, the

administration’s actions with respect to the

6

The ABM Treatyis no longer in

force. If PresidentClinton wants toreplace it with a

series of multilat-eral agreements,

he needs to securethe advice andconsent of the

Senate.

Kyoto Protocol, an international agreementaimed at the reduction of greenhouse gases,suggest a dangerous disregard for the constitu-tional requirements attendant to treaty mak-ing. The Kyoto Protocol, the negotiations forwhich concluded on December 10, 1997, wasdevised as a means of implementing the UNFramework Convention on Climate Change,which the Senate ratified in 1992. The KyotoProtocol is problematic for many reasons, notthe least of which are the unresolved scientificquestions about global warming, and theextent of human responsibility for that phe-nomenon, as well as the diminishing likelihoodthat developing nations—which produce anincreasingly large share of carbon dioxide emis-sions—will agree to it. Mindful of those con-cerns, in July 1997 the Senate passed—by a 95-0vote—the Byrd-Hagel resolution, whichexpressed reservations about the yet unsignedKyoto agreement. In its resolution, the Senatedeclared that it would not ratify any agreementthat imposed excessive costs on the U.S. econo-my and that did not include restrictions ondeveloping nations. Ignoring the concernsexpressed in the Byrd-Hagel resolution, theadministration in December 1997 acceded toan agreement that, if approved by the Senate,would bind the United States to reducing CO2emissions to 7 percent below 1990 levels by2012. On November 12, 1998, nearly a yearafter the Kyoto Protocol was negotiated,administration representatives signed it.

Pursuant to the terms of the UNFramework Convention on Climate Change,out of which the Kyoto Protocol emerged, noprotocol would become legally binding on asignatory state until ratified. Thus, accordingto the agreement and, more important,according to Article II of the Constitution,ratification by the Senate is a preconditionfor such an agreement to be legally binding.24

To date, despite repeated entreaties bySenators Helms and Lott and others, theadministration has refused to submit theKyoto Protocol to the Senate for ratification.Instead, the administration has exploredways to implement the agreement outsidethe constitutional process.

George Mason University law professorWilliam H. Lash III cites a number of mea-sures taken by the administration with thehope of “creeping towards Kyoto.” Accordingto Lash, starting in October 1997

the EPA targeted $6.3 billion over afive-year period to reduce green-house gas emissions by providingincentives to consumers and busi-nesses. In the FY 1999 budget, $3.6billion in tax credits over five yearsare directed towards Kyoto compli-ance goals. . . . Such market distort-ing subsidies are designed to pro-mote the agenda of the unratifiedtreaty by shifting market behavior.2 5

Rep. David McIntosh (R-Ind.), chairmanof the House Subcommittee on NationalEconomic Growth, Natural Resources, andRegulatory Affairs, worries that strongermeasures may be on their way. McIntosh hasasserted that he has reviewed not yet publiclyavailable documents from the administra-tion’s Council on Environmental Qualitythat show that the administration is contem-plating the implementation of the Kyotoagreement “through the backdoor.”According to McIntosh, the contemplatedmeasures include (1) annual increases on fueleconomy standards for cars, (2) fees and taxeson less fuel efficient cars, (3) heightened per-formance standards for power facilities, and(4) a host of taxes targeted at reducing car-bon dioxide emissions.2 6

Indeed, the EPA has asserted that it isempowered to take such measures even in theabsence of Senate ratification of the KyotoProtocol. In congressional testimony givenMarch 11, 1998, EPA administrator CarolBrowner claimed that the EPA already had theauthority to regulate carbon dioxide emis-sions. Challenged by members of Congressabout the basis for her assertion, Browner hadthen–EPA general counsel Jonathan Z.Cannon produce a legal opinion on the sub-ject. The Cannon memo asserts that the CleanAir Act—a statute aimed at reducing “air pol-

7

The administra-tion has exploredways to imple-ment the KyotoProtocol outsidethe constitutionalprocess.

lutant[s]”—can be read broadly enough toallow the EPA to regulate CO2. Cannondefined “air pollutant” as “any physical, chem-ical, biological, or radioactive substance ormatter that is emitted into or otherwise entersthe ambient air.”2 7

Does the Clean Air Act allow regulation ofa ubiquitous gas that is not only benign butalso essential to life on earth? Common sensewould say no as would normal tools of statu-tory interpretation, administrative law, andthe Constitution’s nondelegation doctrine.28

The EPA’s interpretation of its own authorityis more staggering even than the FDA’sattempt to regulate cigarettes as a “medicaldevice” and would be likely to fail in thecourts for the same reason.

Thankfully, to date, the administration’sability to implement the Kyoto Protocol with-out ratification has been constrained by con-gressional resistance. Representative McIntoshhas held hearings on the matter, and Sen. ThadCochran (R-Miss.) has striven to block fundsfor energy efficiency programs aimed at reduc-ing CO2. However, the administration’s sweep-ing assertion of authority demonstrates thatcontinual vigilance is necessary.

The UnauthorizedAppointment of

Amb. James HormelIn its treatment of the CTBT, the ABM

Treaty, and the Kyoto Protocol, the Clintonadministration has shown itself ominouslydismissive of the constitutional requirementfor senatorial advice and consent. But withthe appointment of Amb. James Hormel, amatter of comparatively minor diplomaticsignificance, that dismissiveness manifesteditself in even stronger form: as outright con-tempt for the Senate’s constitutional role.

In October 1997 President Clinton nomi-nated James Hormel, heir to the Hormel foodfortune and a major Democratic contributor,to be ambassador to Luxembourg. Hormel, aformer dean of the University of Chicago LawSchool and delegate to the UN Human

Rights Commission, is openly homosexual.That fact raised the ire of conservative reli-gious groups, such as the Family ResearchCouncil, which claimed that Hormel hadbeen involved with groups critical of theCatholic Church. Though Hormel’s nomina-tion was approved by the Senate ForeignRelations Committee, the Senate leadershiprefused to bring the nomination to the floor.

Whatever the merits, or lack thereof, of theChristian Right’s opposition to Hormel’sappointment, one thing was clear beyondcavil: Hormel could not and did not garnerratification by the Senate. But PresidentClinton was not about to let a constitutionalcommand stand in the way of social progress.The president seized on the recess appoint-ments clause to do an end run around the rat-ification process. On June 4, 1999, whileCongress was in recess, President Clinton gaveHormel the job that the Senate had deniedhim. As Press Secretary Joe Lockhart put it:“This came down to a couple of senators whothought [Hormel] shouldn’t be ambassadorto Luxembourg because he’s gay. And thePresident thinks that’s wrong and discrimina-tory, and that’s why he moved ahead.”2 9

The Constitution’s recess appointmentsclause, which appears in Article II, section 2,reads: “The President shall have Power to fillup all Vacancies that may happen during theRecess of the Senate, by granting Commis-sions which shall expire at the End of theirnext Session.” As congressional scholar IlonaNickels notes, the original rationale behindthe recess appointments clause was to circum-vent “a practical problem,” namely, that “theearly Senate would routinely be in recess fromMarch through December.”3 0 The clause wasemphatically not designed to allow the presi-dent to bypass the Senate with regard to nom-inations that did not survive the confirmationprocess. In fact, before President GeorgeWashington made the first recess appoint-ments, he wrote to the Senate leadership ask-ing for its permission.31

But such solicitude for the Senate andrespect for the Constitution are not theClinton administration’s style. With the

8

The presidentseized on the

recess appoint-ments clause to

do an end runaround the ratifi-

cation process.

Hormel appointment, President Clintonrepeated the tactics he used to appoint BillLann Lee to the post of assistant attorneygeneral for civil rights after the Senate’srefusal to confirm him in 1998. In Lee’s case,the president misused the Vacancies Act (afederal statute designed to allow temporaryappointments pending Senate confirmation)and the recess appointments clause to allowLee to serve for the rest of the administra-tion’s tenure, despite concerns over his sup-port of racial quotas that led the Senate torefuse its consent. The president chose aninteresting turn of phrase to describe hisdecision to bypass the Senate on the Leeappointment: “I have done my best to workwith the United States Senate in an entirelyconstitutional way. But we had to get some-body into the Civil Rights Division, . . . so Idecided we needed to go on and do what Ithought was right for the country.”3 2 Thatbrazen formulation sums up the administra-tion’s attitude toward the rule of law: theConstitution certainly has its place, but ittakes second place to what the presidentthinks is “right for the country.” And if thepresident’s objective can’t be achieved in amanner that’s “entirely constitutional,” wellthen, blame senatorial partisanship, invoke“progress,” and, as Lockhart put it, “moveahead.” The president’s shameful handlingof the Hormel appointment demonstratesthat, in the arena of foreign affairs, theClinton administration is constrained not byconstitutional processes but by what it can-not get away with.3 3

The War Power: TheOriginal Understanding

Over the past eight years, PresidentClinton’s disdain for constitutional processeshas manifested itself in his abuse of authorityas commander in chief of the U.S. armedforces. In affairs of state, no more momentousdecision can be made than the decision to goto war. For that reason, in a democratic repub-lic, it is essential that the decision to go to war

be made by the most broadly representativebody: the legislature. That, of course, is whereour Constitution lodges the power to declarewar. As Madison put it, “In no part of the con-stitution is more wisdom to be found, than inthe clause which confides the question of waror peace to the legislature, and not to the exec-utive department.”3 4

That the power to initiate hostilitiesbelongs to Congress and Congress alone isevident from the intent of the Constitution’sFramers, the text of the Constitution, andthe contemporary understanding of thosewho ratified the Constitution.3 5

The Framers’ IntentIn the Constitution as the Framers

designed it, the president lacks the authorityto initiate military action. In the Framers’view, absent a congressional declaration ofwar, the president’s war powers would bepurely reactive; if the territory of the UnitedStates or U.S. forces were attacked, the presi-dent could respond. Barring that, he couldnot act without congressional authorization.Madison’s notes of the deliberations at theConstitutional Convention amply demon-strate that.

On August 17, 1787, the Convention con-sidered the recommendation of theCommittee of Detail that the legislature bevested with the sole power “to make war.”Only one delegate, South Carolina’s PierceButler, spoke in favor of granting thatauthority to the executive. His proposal wasnot warmly received. “Mr. [Elbridge] Gerry[of Massachusetts] never expected to hear ina republic a motion to empower theExecutive alone to declare war.” For his part,George Mason of Virginia “was agst. givingthe power of war to the Executive, becausenot to be trusted with it. . . . He was for clog-ging rather than facilitating war.”36

However, the delegates did take seriously theobjection, raised by Charles Pinckney of SouthCarolina, that the House of Representatives wastoo large and unwieldy, and met too infre-quently, to supervise all the details attendant tothe conduct of a war. For this reason, “Mr.

9

In a democraticrepublic, it isessential that thedecision to go towar be made bythe most broadlyrepresentativebody: thelegislature.

M[adison] and Mr. Gerry moved to insert‘declare,’ striking out ‘make’ war; leaving to theExecutive the power to repel sudden attacks.”Roger Sherman of Connecticut “thought [theproposal] stood very well. The Executive shd. beable to repel and not to commence war.”3 7Themotion passed.

The Constitutional TextThe document that emerged from the

Convention reflects an important, but limited,role for the president in war making. The con-stitutional text vests the bulk of the powersassociated with military action with Congress.Among the enumerated powers grantedCongress in Article I, section 8, of theConstitution are the powers “to declare War,grant Letters of Marque and Reprisal, and makeRules concerning Captures on Land andWater.” Other important war-making powersinclude the power “to raise and support Armies,but no Appropriation of Money to that Useshall be for a longer Term than two years” andthe power “to provide for calling forth theMilitia to execute the Laws of the Union, sup-press Insurrections and repel invasions.”

In contrast, the grant of war-related pow-ers to the executive is exceedingly slender:“The President shall be Commander in Chiefof the Army and Navy of the United States,and of the Militia of the several States, whencalled into the actual Service of the UnitedStates.”38

Significantly, several of the enumeratedpowers allocated to Congress involve thedecision to initiate military action. Viewed inthat light, the marque and reprisal clause andthe militia clause inform our understandingof Congress’s authority to declare war. Forexample, a letter of marque and reprisal is alegal device (long fallen into disuse) empow-ering private citizens to take offensive actionagainst foreign governments. Since militaryattacks carried out by American citizensmight well be considered acts of war by for-eign powers, and accordingly could embroilthe United States in hostilities, theConstitution vests the important decision togrant that power in the most deliberative

body: the legislature. Similarly, with the mili-tia clause, Congress is empowered to decidewhen domestic unrest has reached the pointat which military action is required.

By way of contrast, the grant of authorityto the executive in the commander in chiefclause is entirely supervisory and reactive.The president commands the Army and theNavy, should Congress choose to createthem, and leads them into battle, shouldCongress choose to declare war. He com-mands the militia to suppress rebellions,should the militia be “called into the actualService of the United States.” In this, asHamilton noted in Federalist 69, the presidentacts as no more than the “first General” ofthe United States.3 9

Contemporary UnderstandingThe generation that ratified the

Constitution understood that Congressalone can authorize the nation to go to war.As Constitutional Convention delegateJames Wilson explained to the Pennsylvaniaratifying convention: “This system [if adopt-ed] will not hurry us into war; it is calculatedto guard against it. It will not be in the powerof a single man, or a single body of men, toinvolve us in such distress; for the importantpower in declaring war is vested in the legis-lature at large.”4 0Hamilton, himself a propo-nent of a strong executive, reassured NewYorkers that the president, however strong hemight be, would not have the monarchicalpower to unilaterally lead the nation to war:Though the president’s authority as com-mander in chief of the armed forces would be“nominally the same as the king of GreatBritain, [it would be] in substance much infe-rior to it. It would amount to nothing morethan the supreme command and direction ofthe military and naval forces . . . while that ofthe British king extends to the declaring ofwar and to the raising and regulating of fleetsand armies.”41

Two early judicial decisions well illustratethe original understanding that Congress, andonly Congress, could initiate hostilities bydeclaring war. In Talbot v. Seeman, Chief Justice

10

That the power toinitiate hostilities

belongs toCongress and

Congress alone isevident from the

intent of theConstitution’s

Framers, the textof the Consti-

tution, and thecontemporary

understanding ofthose who

ratified theConstitution.

John Marshall declared that, “the whole powersof war being, by the Constitution of the UnitedStates, vested in Congress, the acts of that bodyalone can be resorted to as our guides.”42

Marshall’s view is strong evidence of contempo-raneous understanding, given that he had beena participant in the Virginia RatifyingConvention. The views of Supreme CourtJustice William Paterson, who had served as aNew Jersey delegate to the ConstitutionalConvention are also authoritative. In UnitedStates v. Smith (1806), Paterson unequivocallyheld that, under the Constitution, Congressholds sole authority over the question of warand peace. In Smith, the defendant, U.S. Armycolonel William S. Smith, stood accused of vio-lating a federal statute by aiding a rogue expe-dition against the Spanish province of Caracas.In his defense, Colonel Smith attempted to callthe secretary of state and the secretary of theNavy to show that the expedition “was begun,prepared and set on foot with the knowledgeand approbation of the president of the UnitedStates.” Justice Paterson, riding circuit, heldthat the secretaries could resist the subpoenas,their testimony being irrelevant: “The presidentof the United States cannot control the statute,nor dispense with its execution, and still less canhe authorize a person to do what the law for-bids. . . . Does he possess the power of makingwar? That power is exclusively vested inCongress.”43

The War Power: TheClinton Administration’s

UnderstandingOn matters of war and peace, then, the

Constitution could hardly be clearer. GeorgeWashington, who presided over theConstitutional Convention, put the mattersuccinctly: “The Constitution vests the powerof declaring war in Congress; therefore noexpedition of importance can be undertakenuntil after Congress shall have deliberatedupon the subject, and authorized such a mea-sure.”4 4As a man who came of age during theVietnam War, and as a member of a political

party that has striven since that war to regaincongressional control of foreign policy,President Clinton might have been expectedto have hewn closer to the original under-standing of the war power than had previouspresidents. Instead, he has repeatedly andbrazenly violated the original understanding,asserting an unchecked, unilateral presidentialauthority to wage war. As constitutional schol-ar Louis Fisher has noted: “The ClintonAdministration [has taken] the position thatwhenever the president decides something isin the national interest, he can do it. That’s anextraordinary definition. I don’t know of anypresident in the past who has talked thatway.”4 5Those are strong words; however, as areview of President Clinton’s conduct as com-mander in chief will show, the administra-tion’s record bears them out entirely.

Early InterventionsThis section begins by surveying two of

President Clinton’s earliest unauthorizedmilitary operations: Haiti and Bosnia. Theywere preludes to Clinton’s undeclared war inKosovo and his surprise missile strikes onSudan, Afghanistan, and Iraq during theyearlong impeachment crisis. The Kosovointervention represents the broadest post-Vietnam assertion of executive war-makingauthority, while the “anti-terrorism” strikeson Sudan, Afghanistan, and Iraq representthe most disturbing exercise of that authori-ty. For those reasons, each deserves specialattention.

Haiti. The administration’s 1994 incur-sion into Haiti gave Americans an earlyglimpse of President Clinton’s approach towar making and constitutionalism. Unlikethe Somalia intervention, which Clinton hadinherited from his predecessor, GeorgeBush,46 the Haiti entanglement was entirelyClinton’s project.

In September 1991, Haitian military lead-ers overthrew Haitian president Jean-BertrandAristide. Under sustained international pres-sure, including a UN embargo, junta leaderRaoul Cedras on July 30, 1993, signed theGovernors Island agreement, which was to

11

Clinton hasrepeatedly andbrazenly violatedthe originalunderstanding ofthe war power,asserting anunchecked, uni-lateral presiden-tial authority towage war.

allow Aristide to resume the presidency byOctober 30 of that year. President Clintonoffered to send 350 troops to Haiti to helpease the transition by “professionalizing” theHaitian military and building infrastructure.The first detachment of troops landed suc-cessfully, but the second was blocked onOctober 12, 1993, by a group of armed civil-ians apparently backed by the Cedras regime.

The next day, in response to the Cedrasregime’s apparent determination not to com-ply with the Governors Island agreement, theUN Security Council voted to restore eco-nomic sanctions against Haiti. Shortly there-after, President Clinton informed Congressthat U.S. naval forces had begun enforcingthe UN embargo. That was, in itself, an act ofwar, which the Constitution reserves toCongress exclusively. Clinton implicitly rec-ognized that when, in an October 14 pressconference, he refused to use the word“blockade” to describe the actions that wouldbe carried out by the Navy:

Q: Would you support a blockade?Clinton: I strongly support enforc-ing the sanctions and—Q: Wait, wait, wait—Clinton: I want to answer that. I sup-port strongly enforcing these sanc-tions.Q: Is that a yes or a no?Clinton: Well, the word blockade is aterm of art in international lawwhich is associated with a declara-tion of war, so I . . . I have to be care-ful in using that word.4 7

The belief that acts of war become such onlywhen the president so identifies them is arecurring theme in the Clinton administra-tion’s foreign policy.

Clinton did order a blockade and, whenmet with further intransigence, stepped uphis rhetorical attack on the Haitian junta,threatening a U.S. invasion. Clinton alsowarned Congress against interfering withwhat he saw as his authority to decidewhether to commit troops. In response to a

proposal by then–Senate Minority LeaderRobert Dole (R-Kan.) to restrict the presi-dent’s ability to invade Haiti without con-gressional approval, Clinton admonished: “Iwould strenuously oppose such attempts toencroach on the president’s foreign policypowers. . . . The president must make the ulti-mate decision” about whether to use U.S.armed forces.48

In odd contrast with his apparent viewthat congressional authorization of an inva-sion was optional, President Clinton seemedto view UN approval as a necessary prerequi-site. He sought and obtained authorizationfor an invasion from the UN SecurityCouncil on July 31, 1994. However, Clintonrefused to seek authorization from Congress.In a news conference on August 2, 1994,President Clinton said, “I have not agreedthat I was constitutionally mandated to get[congressional approval].”4 9

By early September, Clinton stood readyto launch a 20,000-troop invasion. In a heat-ed September 15 address to the nation, hedenounced the Cedras regime for “executingchildren, raping women, and killing priests.”Clinton announced that he had called up themilitary reserves and ordered two aircraft car-riers to the vicinity. “Your time is up,”Clinton declared, “leave now, or we will forceyou from power.”50

In the weeks leading up to the plannedinvasion, opinion polls showed that any-where from 60 to 73 percent of Americansopposed such action.5 1 Those poll resultsundoubtedly contributed heavily toClinton’s refusal to seek congressionalauthorization for the invasion. As Legal Timescolumnist Stuart Taylor noted on September19, in a column written as the zero hourapproached, if Clinton invaded, “it would bethe first time a president has launched aninvasion without seeking congressional con-sent solely because he couldn’t get it.”5 2

As it turned out, forcible entry was madeunnecessary, and large-scale violence averted,by last-minute diplomatic efforts. Theadministration sent a negotiating team ledby former president Jimmy Carter, Sen. Sam

12

In odd contrastwith his apparentview that congres-sional authoriza-

tion of an invasion was

optional, Clintonseemed to view

UN approval as anecessary

prerequisite.

Nunn (D-Ga.), and Gen. Colin Powell. Thedelegation secured the Cedras clique’s agree-ment to step down, and American troopsentered without opposition.

But the violence to the Constitution hadalready been done by Clinton’s assertion thathe was not “constitutionally mandated” to getcongressional approval for a 20,000-troopinvasion of a tiny island nation that represent-ed no threat, imminent or otherwise, toAmerica’s security. Indeed, his assertion ofunilateral presidential war-making authoritylacked even the constitutional fig leaf of theneed for surprise with which PresidentsReagan and Bush had justified their respectiveinvasions of Grenada and Panama.

Clinton offered no justification for hisview that the president could commit U.S.forces to war without so much as a by-your-leave to Congress. That unenviable task fellto Walter Dellinger, then head of the JusticeDepartment’s Office of Legal Counsel. Afterthe crisis had passed, and peaceful deploy-ment of U.S. forces had begun, Dellinger con-cocted a series of post hoc rationales for theplanned invasion of Haiti. In response to arequest from Senator Dole and others,Dellinger, on September 27, 1994, released aletter attempting to legally justify theplanned undeclared war in Haiti.

The Dellinger letter gave three groundsfor the president’s ignoring the constitution-al mandate to secure a declaration of war:first, the president had received prior con-gressional authorization in the form of adefense appropriations bill; second, the WarPowers Resolution granted the president theauthority unilaterally to carry out militaryactions of short duration; and third, theplanned invasion was not a “war” in the con-stitutional sense.

Each rationale was specious. First, theappropriations bill in question had expiredbefore the president’s action and did notauthorize the president to engage U.S. forcesin hostilities. Nor could an appropriationsbill substitute for the constitutional prereq-uisite of a declaration of war. Second, theWar Powers Resolution, passed in 1973 to

restrain executive war making, expresslystates that it must not be “construed asgranting any authority to the President withrespect to the introduction of United StatesArmed Forces into hostilities.” Furthermore,Congress could not delegate away its author-ity to declare war any more than it couldproperly delegate away its power to tax.Finally, the third rationale, that a planned20,000-troop invasion was not a “war” in theconstitutional sense, was baseless. Dellinger’sargument rested largely on the idea that theplanned invasion was to be undertaken at the“request of the recognized democraticallyelected government.” As a group of law pro-fessors including Yale’s Bruce Ackerman andHarvard’s Laurence Tribe dryly noted in aresponse letter, “Presumably, at the outset ofWorld War II, General [Charles] de Gaullecould not have nullified the Constitution’srequirement of congressional approval by‘inviting’ the United States to invade occu-pied France.”5 3

But the Dellinger letter, issued when theClinton presidency was comparatively youngand timid, rested on far narrower groundsthan would be asserted for military interven-tions later on.

Bosnia. Armed conflict in the fragmentingmultiethnic state of Yugoslavia heated up dur-ing Bill Clinton’s first campaign for president.In April 1992, civil war erupted in the break-away republic of Bosnia-Herzegovina, andinsurgent Serbian forces seized more than 70percent of the nascent state’s territory. Thebloody conflict was accompanied by extensivecivilian casualties and “ethnic cleansing.”

In August 1992, the UN Security Counciladopted a resolution calling on all nations totake “all measures necessary” to deliverhumanitarian relief to Sarajevo, the Bosniancapital. In the early days of the Clintonadministration, U.S. planes participated inthat effort, airlifting nonmilitary relief sup-plies to Muslims surrounded by Serbianforces in Bosnia. From this point forward,U.S. involvement gradually escalated towardactual hostilities, despite the lack of congres-sional authorization.

13

Clinton’s asser-tion of unilateralpresidential war-making authoritylacked even theconstitutional figleaf of the needfor surprise.

On March 31, 1993, the Security Councildeclared a ban on military flights overBosnia. On April 12, 1993, Clinton allowedU.S. planes operating under NATO com-mand to enforce the Security Council ban.Shortly thereafter, U.S. troops enteredMacedonia as part of a UN peacekeepingforce whose stated purpose was to preventthe war from spreading.

On January 11, 1994, at the NATO sum-mit in Brussels, alliance leaders threatenedairstrikes against Serbian positions aroundSarajevo. That threat was soon carried out,with U.S. planes shooting down severalSerbian fighters and bombing Serbian posi-tions around Gorazde and a Serbian airfieldin Croatia.

Clinton made no attempt to secure congres-sional authorization for those attacks. Instead,he reported U.S. military involvement as a faitaccompli to Congress, noting that U.S. forces“participate in these actions pursuant to [his]constitutional authority to conduct U.S. for-eign relations and as Commander in Chief.”5 4

In mid-1995 NATO launched another seriesof airstrikes against Bosnian Serb targets, andcorresponding Croatian and Muslim forces’gains helped spur negotiations toward a peaceaccord. The resulting Dayton Accords providedfor a multinational peacekeeping force inBosnia that would contain a large number ofAmerican soldiers. Prior to the implementationof the accords, the U.S. House of Representa-tives voted against the deployment of U.S.forces, while the Senate voted against a resolu-tion opposing the deployment.

Again, Clinton treated congressionalapproval as nonobligatory. On December 15,1995, he ordered the deployment of 22,000U.S. ground troops to Bosnia. As heexplained in a letter to Congress, the decisionwas taken pursuant to his “constitutionalauthority to conduct the foreign relations ofthe United States and as Commander inChief and Chief Executive.”55

The Clinton Administration’s War onSerbia

Although the foreign interventions out-

lined above were significant, and the presi-dent’s refusal to seek prior congressionalauthorization flagrant and unlawful, it wasPresident Clinton’s war on Serbia in 1999that brought into boldest relief this adminis-tration’s staggering view of executive war-making authority. For that reason, theadministration’s conduct during that warbears detailed examination.

Throughout 1998 and early 1999, theUnited States and its NATO allies appliedstrong diplomatic pressure against the FederalRepublic of Yugoslavia (Serbia andMontenegro), seeking resolution to civil con-flict in the formerly autonomous region ofKosovo. Despite their efforts, in January 1999that conflict heated up, with Yugoslav forceskilling several dozen Kosovar Albanians.Shortly thereafter, peace negotiations began inRambouillet, France. The Serbian governmentrefused to sign the Rambouillet Accords,which would have allowed an internationalforce with diplomatic immunity to operateunimpeded throughout all of Yugoslavia. OnMarch 24, after the failure of a last-ditch effortby Amb. Richard Holbrooke to secure Serbianagreement to Rambouillet, President Clintonannounced that U.S. armed forces, operatingin conjunction with NATO, had begunairstrikes and missile strikes againstYugoslavia. Two days later, President Clinton,in letters to the Speaker of the House and thepresident pro tem of the Senate, justified hisactions with a familiar refrain: U.S. armedforces were ordered into battle “pursuant to[the president’s] constitutional authority toconduct U.S. foreign relations and asCommander-in-Chief and Chief Executive.”

The air war carried out over Serbia fromMarch 24, 1999, to June 10, 1999, represent-ed the largest commitment of Americanfighting men and materiel since the PersianGulf War. The U.S.-led NATO air forces flewa total of 37,465 sorties during the conflict,an average of 486 missions per day.56 And yet,throughout the conflict, administration offi-cials steadfastly refused to admit that thepresident had unilaterally engaged theUnited States in war.

14

It was PresidentClinton’s war on

Serbia in 1999that brought intoboldest relief thisadministration’s

staggering view ofexecutive war-

making authority.

It Depends on What Your Definition of “War” Is.The president’s evasive answers during his1998 grand jury testimony have entered popu-lar consciousness as paradigms of lawyerlylanguage games—especially his statement: “Itdepends on what the definition of ‘is’ is.” Asthe war against the regime of Serbian presi-dent Slobodan Milosevic went on, the presi-dent’s cabinet secretaries and spokespeopleplayed similar language games on far weighti-er matters of war and peace. Cruise missilesand cluster bombs rained down on Serbia, yetadministration officials assiduously avoidedcalling the war a war. Euphemism and evasive-ness were the order of the day for Clintonappointees charged with explaining Americaninvolvement in Serbia. Thus, Secretary ofDefense William Cohen, in a press conferenceon April 1, 1999, refused to use the “W” wordin referring to the three American soldiers cap-tured by the Serbs:

Q: Do you consider them prisonersof war?Cohen: At this point their status isthat of being illegally detained, andso they are illegal detainees at thispoint.

Gen. Henry Shelton also followed the admin-istration’s line even when discussing the pos-sibility of American casualties: “There is nosuch thing as a risk-free military operation.”5 7

Rep. Tom Campbell (R-Calif.) describedhis frustration in attempting to secure astraight answer from administration officialsabout the legal status of U.S. operations inSerbia and Kosovo. Campbell asked Secretaryof State Albright:

“Well, if this isn’t war, what is it?”And she said, “It’s an armed con-flict.” So I asked [Assistant] Secretary[of State Barbara] Larkin, “Well,what’s the difference?” She couldn’ttell me, but she said her attorneywould. So the attorney finally said,“It becomes war when you call itwar.”5 8

But it was perhaps White Housespokesman Joe Lockhart, his verbal agilityhoned by the crucible of impeachment, whoprovided the most enlightening insights intothe Clinton administration’s definition of“war.” The existence or nonexistence of“war,” it seems, turns entirely on the intent ofthe aggressor. Lockhart offered a definitionof “war” as subjective in its own right asClinton’s definition of sexual relationsbefore the Starr grand jury:

Q: Does this situation constitutewar?Lockhart: No. And we believe thatthe United States objectives here arenot offensive or aggressive in aim,and constitute the limited use offorce to meet clear objectives. We cer-tainly do not consider ourselves to beat war with Serbia or its people.5 9

In an earlier press conference, Lockhartexplained how the administration had arrivedat its oddly subjective definition of war:

Q: Is the President ready to call this alow-grade war?Lockhart: No. Next question.Q: Why not?Lockhart: Because we view it as aconflict.Q: How can you say that it’s not war?Lockhart: Because it doesn’t meetthe definition as we define it.60

That does Lewis Carroll one better; inThrough the Looking Glass, Carroll had HumptyDumpty declare that, “when I use a word, itmeans what I choose it to mean.” TheClinton administration’s view is that actionsmean what the administration decides theymean; cruise missiles, cluster bombs, andcivilian casualties don’t constitute war untilsomeone in power lets the magic word slip.From the Clinton administration’s stand-point, there was a compelling policy rationalebehind the verbal legerdemain of Lockhart,Albright, Cohen, and others. The administra-

15

Cruise missilesand clusterbombs raineddown on Serbia,yet administra-tion officialsassiduouslyavoided callingthe war a war.

tion clearly recognized that there were legalconsequences to calling a war a war.Representative Campbell recognized that aswell, which is why he attempted to force theissue on the floor of the House and in feder-al court.6 1

Campbell v. Clinton. On April 28, 1999, theHouse voted no on declaring war, 427 to 2;no on authorizing the use of ground troops,249 to 180; and no on authorizing the presi-dent to continue airstrikes, 213 to 213.Reacting to the votes, National SecurityCouncil spokesman David Leavy said: “TheHouse is obviously struggling to find itsvoice. It voted ‘No’ on declaring war, ‘No’ onsending in ground troops, and it tied onwhether to support an air campaign. Theysent a mixed message as to what their stanceis. But we’ve got to press ahead. There’s broadsupport for this campaign among theAmerican people, so we sort of just blew by”the House votes.6 2 For the record, as Leavymust know, a tie vote means that the mea-sure failed to pass; thus, the House’s messagewas far from “mixed.” But his statement isindicative of this administration’s view ofconstitutional constraints: they’re optional,to be “[blown] by” when inconvenient.

Two days after that series of rejections forthe administration, Campbell and 16 othermembers of Congress filed suit against thepresident under the War Powers Resolution.63

That resolution, passed in 1973 over PresidentRichard Nixon’s veto, attempts to institution-alize a mechanism for restraining executivewar making. In essence, it provides that, if thepresident introduces U.S. armed forces intohostilities or “situations where imminentinvolvement in hostilities is clearly indicatedby the circumstances,” he must remove thoseforces within 60 days absent a congressionaldeclaration of war, specific statutory autho-rization for the action, or a situation in whichCongress is physically unable to meet becauseof an armed attack on the United States. Until1999 the War Powers Resolution had neverfound much favor with Republican conserva-tives. In fact, on June 7, 1995, the House hadvoted down a bill introduced by Rep. Henry

Hyde that would have repealed the WarPowers Resolution. In endorsing the measure,then-Speaker Newt Gingrich urged the HouseRepublicans to “increase the power ofPresident Clinton. . . . I want to strengthen thecurrent Democratic President because he isPresident of the United States.”64

Campbell, however, was not interested in“increas[ing] the power of President Clinton”;he wanted to restrain the president’s abilityunilaterally to wage war. As Campbell put it, “Icame of age during Vietnam; [like that war,]this war is unconstitutional and I should doeverything I can to stop an unconstitutionalwar as early as I can.”65

Unfortunately, Representative Campbell’slawsuit ran aground against judicial timidity.On June 8, 1999, Judge Paul L. Friedman of theU.S. District Court for the District of Columbiadismissed Campbell v. Clinton, holding that theplaintiffs lacked standing. That decision wasaffirmed on appeal by the D.C. Circuit Court ofAppeals on February 18, 2000.

As is often the case in interbranch disputes,the court in Campbell v. Clinton was loath tostep between Congress and the president toresolve the disputed issue. Generally speaking,there is a sound practical reason for that reluc-tance. Advised by a Western dignitary to goeasy on Eastern bloc Catholics because of theinfluence of the pope, Joseph Stalin is said tohave replied, “The Pope! How many divisionshas he got?” Analogously, the exercise of judi-cial review has always been tempered by thepossibility that the political branches mightrefuse to obey the Court, giving a version ofStalin’s answer: “How many divisions does theSupreme Court have?” The judiciary’s power isthus limited not only by the Constitution butalso by real-world conditions quite apart fromthe text of the document. Accordingly, federalcourts have developed various judicial escapehatches, such as the political question doctrineand heightened scrutiny for standing, thatallow them to husband their power by avoid-ing the resolution of interbranch fights.

But that sort of timidity was not necessaryhere. The plaintiffs were not asking JudgeFriedman to issue an injunction grounding

16

The Clintonadministration’s

view is that cruisemissiles, cluster

bombs, and civil-ian casualties

don’t constitutewar until

someone inpower lets the

magic word slip.

the bombers or ordering the troops home;rather, they were seeking a declaratory judg-ment that the president did not have theauthority to wage war on Serbia absent con-gressional authorization. Campbell and hisfellow plaintiffs would then use that decisionto motivate Congress to take action.

Nonetheless, Judge Friedman sought toavoid the issue by holding that the plaintiffs’injury was “not sufficiently concrete or partic-ularized” legally to entitle them to bring suit.Citing Raines v. Byrd, a 1997 case in which theSupreme Court denied legislative standing tochallenge the line-item veto act, Friedmanheld that the plaintiffs were required todemonstrate that there was a “true ‘constitu-tional impasse’ or ‘actual confrontation’between the legislative and executive branch-es” before the plaintiffs could garner stand-ing. For example, “If Congress had directedthe President to remove forces from theirpositions and he had refused to do so . . . thatlikely would have constituted an actual con-frontation sufficient to confer standing onlegislative plaintiffs.” But in seeking to avoidthe constitutional issue, Friedman actuallyresolved it and resolved it incorrectly. IfCongress is required to act (over the president’sveto?) to stop the president from waging war,then it does not have the power “to declareWar”; rather, it has a limited ability to vetothe president’s power to declare war. Thatturns the constitutional war power on itshead.

The Collapse of the Anti-War Left. The judicia-ry was not alone in shirking its civic duty dur-ing the constitutional crisis brought aboutby President Clinton’s undeclared wars. Thepolitical left had long been the most depend-able source of anti-war sentiment and oppo-sition to the imperial presidency. But duringthe war over Kosovo and the months leadingup to it, American liberals largely abandonedtheir traditional opposition to presidentialwars.6 6

Liberal-leaning newspapers that hadhelped turn public sentiment against the warin Vietnam showed little interest in challeng-ing the Clinton administration’s purportedly

humanitarian crusades. The New York Times,the paper that had been such a thorn in theside of the Nixon administration during theVietnam War, hardly saw fit to mentionPresident Clinton’s violation of the WarPowers Resolution and the Constitution inwaging war against Serbia.6 7And, despite aneditorial expressing concern at the lack ofjustification for the earlier Sudan airstrikes,the Washington Post relegated its most detailedcoverage of the first “Wag the Dog” bombingto its “Style” section, next to horoscopes,comics, and celebrity puff pieces.68

That moral climb-down occurred inCongress as well. Of the House Democraticcaucus, only Gene Taylor (D-Miss.) voted todeclare war; everyone else who supported thepresident’s action and voted against the dec-laration in effect declared that the presidentcan bomb other countries without a declara-tion of war. Among those congressmen weresuch anti-war stalwarts as John Conyers (D-Mich.), Charles Rangel (D-N.Y.), BernieSanders (I-Vt.), and Henry Gonzalez (D-Tex.).The fact that Conyers and Gonzalez support-ed the war was particularly ironic. Less than10 years previously, Representative Gonzalezhad introduced a resolution to impeachGeorge Bush for waging the Persian GulfWar without a declaration, even though,unlike President Clinton, Bush had at leastsecured a joint resolution supporting hisactions.69 For his part, Representative Conyershad introduced an article of impeachmentagainst Richard Nixon for the secret bombingof Cambodia. That article, which did notmake it into the final articles of impeachment,read in part: “On and subsequent to March 17,1969, [President Nixon] authorized, ordered,and ratified the concealment from theCongress of the facts and the submission tothe Congress of false and misleading state-ments concerning the existence, scope andnature of American bombing operations inCambodia in derogation of the power of theCongress to declare war.” (Emphasis added.)When is unauthorized war making not animpeachable offense? For Conyers andGonzalez and many of their liberal Democratic

17

During the warover Kosovo andthe months lead-ing up to it,American liberalslargely aban-doned their tradi-tional oppositionto presidentialwars.

colleagues, the answer, apparently, is this:when you like the president who is wagingthe war.

Why Executive UsurpationMatters

The Clinton administration has espouseda view of executive war-making authoritythat is as unconditional and unconstrainedas that claimed by any president in Americanhistory. In the Haiti campaign, the adminis-tration asserted the authority to carry out alarge-scale invasion without a prior declara-tion of war, despite the fact that exigent cir-cumstances, such as the need for surprise,were not present.70 In Kosovo, the adminis-tration asserted the authority to wage thelargest and most destructive military cam-paign since the Gulf War, despite Congress’soutright refusal to grant such authority.

For some commentators, it’s not immedi-ately clear why that should be troubling. Thepolicy reasons that proponents of an unfet-tered executive invoked during the Cold Warcan be said to have survived that war’sdemise. The chief executive is still, as propo-nents of presidential prerogative like to pointout, the highest national officer elected bythe nation as a whole and is better situatedthan is Congress to respond quickly to inter-national crises.

But when the Framers gave Congress theauthority to declare war, they did not focussolely on considerations of expediency. Theyalso took human nature and the dangers ofunchecked power into account. In his“Helvidius” letters, arguing with Hamilton,Madison stated his view that, had the powerto declare war been vested in the executive,“the trust and the temptation would be toogreat for any one man.”7 1 Two Clintonadministration interventions, smaller inscale than, and prior to, the war in Serbiaillustrate Madison’s point.

President Clinton’s eve-of-impeachmentdecision to bomb Iraq came shortly after helearned that he did not have the votes to pre-

vail. In that respect, the bombing was of apiece with the August 1998 “anti-terror”attacks on Sudan and Afghanistan, whichcame three days after the president’s grandjury testimony and in the midst of a mediafirestorm over his televised nonapology.Given the chronology, many Americanscould not help but wonder whether the pres-ident was applying a literal version ofClausewitz’s dictum that war is the continu-ation of politics by other means. And indeed,the closer we look at those actions, the hard-er it becomes to put that suspicion aside.

Sudan and AfghanistanOn August 20, 1998, without warning,

American armed forces fired Tomahawk cruisemissiles at targets in Sudan and Afghanistan.As its justification, the Clinton administrationstated that it had “convincing evidence” thatthe targeted sites—a pharmaceutical factory inSudan and terrorist “training facilities” inAfghanistan—were linked to Osama Bin Laden,an Islamic terrorist the administration believedwas behind the August 7 bombings of theAmerican embassies in Nairobi, Kenya; andDar es Salaam, Tanzania.

The administration declined to share that“convincing evidence” with the public. Littleis known about the administration’s justifi-cations for selecting the Afghan targets. Butwhen questions were raised about the bomb-ing of the target in Sudan, the administra-tion was forced to back off rather quicklyfrom several assertions of fact on which ithad based the attack.7 2 First, the Clintonadministration claimed that the factorydestroyed in Sudan did not produce anymedicines; rather, it was a heavily guardedchemical weapons plant. It soon becameclear, however, that the factory madepainkillers and other drugs and repackagedimported pharmaceuticals for resale inSudan. It was in fact the major producer ofmedicine in that Third World country andwas visited regularly by foreign dignitariesand representatives of the World HealthOrganization. Westerners intimately familiarwith the plant, including a British engineer

18

In Kosovo, theadministration

asserted theauthority to wage

the largest andmost destructive

military cam-paign since the

Gulf War, despiteCongress’s out-right refusal to

grant suchauthority.

who served as technical manager during theplant’s construction, emphatically deniedthat it was used for the manufacture ofchemical weapons.

Second, the administration claimed that asoil sample collected outside the factory con-tained EMPTA, a chemical precursor to nervegas. Independent tests conducted by thechair of the chemistry department at BostonUniversity confirmed that no nerve-gas pre-cursors were present in the soil around thefactory. As the report put it, “To the practicallimits of scientific detection, there was noEMPTA” in soil samples taken from aroundthe factory.7 3To date, the CIA has refused torelease or subject to independent testing thesample it claims to have relied on.

Finally, Secretary of Defense Cohenasserted that Osama Bin Laden was finan-cially linked to the plant, but the availableevidence fails to establish that the plant’sowner, Salah Idris, had any connection withBin Laden. Idris’s property had beendestroyed—and his assets seized—on that pre-text. When Idris filed suit, however, the U.S.government summarily issued an orderunfreezing his assets instead of coming for-ward with its evidence in open court.7 4

Iraq: Operation Desert FoxThe course of the Clinton administration

has been punctuated by fairly regular bomb-ings of Iraq, some of which, like the June1993 missile attack on Baghdad in retalia-tion for an alleged Iraqi plot to assassinateformer president Bush, have been widelyreported in the press, others of which havetaken place below the media radar screen. Inthe former category is President Clinton’seve-of-impeachment missile strike on Iraq.The timing and circumstances of that attackare every bit as suspicious as those surround-ing the strikes on Sudan and Afghanistan.

In late October 1998, Saddam Husseinannounced that he would no longer cooperatewith ongoing UN Special Commission(UNSCOM) arms inspections for chemical,biological, and other weapons of massdestruction. The administration announced

its determination to ensure that the inspec-tions would continue. In this effort it had thesupport of the international community totake military action. The UN Security Councilvoted to condemn Saddam’s actions.Surprisingly, even Russia and China withdrewtheir opposition to the use of force to restorearms inspections. Thus, by mid-November,the stage was set for punitive airstrikes on Iraq.(Of course, the president did lack a declarationof war, but by this point there was no reason toexpect him to take that constitutional com-mand any more seriously than he had previ-ously.) However, just as the airstrikes wereabout to take place, President Clinton reversedcourse and called a halt to military action.

A little over a month later, it was becomingincreasingly clear that, despite Republicanlosses in the midterm elections, the presidentwas not going to be able to avoid impeach-ment. At that point, the administration seizedon a report by UNSCOM chairman RichardButler that the Saddam regime was not fullycomplying with UN arms inspections. As theHouse prepared to debate impeachment, andthe Security Council was about to meet to dis-cuss the UNSCOM report, President Clintonordered airstrikes on Iraq. Whereas inNovember the president had enjoyed the sup-port of the UN Security Council, includingRussia and China, and the tacit, if not consti-tutionally expressed, support of Congress, byDecember he had support from none of thosesources.

What made it imperative that airstrikes belaunched precisely on December 16? As withSudan and Afghanistan, the administration’sexplanations left much to be desired. Thecentral complaint mentioned in the Butlerreport, and highlighted by the president inhis airstrike announcement, was that, whenUN weapons inspectors showed up at the rul-ing Baath Party headquarters in Baghdad tosearch for ballistic missile components, theIraqis would allow only four inspectors toenter.7 5 Because of such intransigence, thepresident explained, “We had to act, and actnow.” Why? Because “without a stronginspections system, Iraq would be free to

19

When questionswere raised aboutthe bombing ofthe target inSudan, theadministrationwas forced toback off fromseveral assertionsof fact on whichit had based theattack.

retain and begin to rebuild its chemical, bio-logical, and nuclear weapons programs—inmonths, not years.” And given that “theMuslim holy month of Ramadan” wouldbegin that weekend, “for us to initiate mili-tary action during Ramadan would be pro-foundly offensive to the Muslim world.”7 6

At least two things about that explanationstrike one as curious. First, the bombing didnot conclude until Saturday, December 19,after the start of Ramadan. Did Clintonthink the Muslim world would be profound-ly offended if bombing were “initiated” dur-ing Ramadan but untroubled by the fact thatit continued into the holy month? Second, andmore important, if continuation of the UNinspections regime was essential to preventthe development of Iraqi weapons of massdestruction “in months, not years,” why thendid the administration pursue a policydesigned to put an end to any weaponsinspections whatsoever? For an entire year, asa direct result of the December airstrikes, notonly were there no international arms con-trol inspections in Iraq, there was no plan inplace for resuming such inspections. InDecember 1999, the UN Security Councilfinally created a new arms inspection com-mission, but it still remains unclear whetherIraq will allow the inspectors to enter.7 7

The frailty of the president’s rationale forbombing, coupled with the timing of the act,inevitably gives rise to suspicion. That suspi-cion was described most succinctly by ScottRitter, the former UNSCOM arms inspectorwho had quit over what he described as theadministration’s lack of seriousness aboutUNSCOM’s mission: “You have no choicebut to interpret this as ‘Wag the Dog.’”7 8

Pundits across the political spectrumrejected the “Wag the Dog” scenario as dis-tressingly cynical. In an op-ed, “Hard Faces ofPartisanship,” Washington Post columnistDavid Broder professed to be shocked thatSenate Majority Leader Lott would questionthe timing of President Clinton’s attack onIraq.7 9 William Safire could not “bring[him]self to think” that a U.S. presidentwould “stoop to risking lives to cling to

power.”8 0 And in the Chicago Tribune, colum-nist Stephen Chapman called speculationabout the president’s motives “preposter-ous,” a hallucination from “Oliver Stoneland.”81 But the Framers didn’t think thatsuch suspicions were irrational. Indeed, theFramers designed a Constitution to preventsuch “paranoid fantasies” from becoming areality.

What Is to Be Done?

How can Congress reclaim what theConstitution grants it: the power to declarewar? The War Powers Resolution offers littlehope. Since its inception, it has run agroundon presidential intransigence and judicialunwillingness to enforce it. Moreover, byallowing the president the ability unilaterallyto place U.S. forces into hostilities for at least60 days, the act cedes more power to himthan the Constitution allows. But there aretwo constitutional measures available to aCongress determined to recapture authorityover the war power. One was suggested mostrecently by former White House counselAbner Mikva, a dedicated supporter of thepresident: bold use of the appropriationspower. As Mikva wrote in Legal Times early inthe Kosovo conflict: “If Congress doesn’twish the president to engage in a particularmilitary initiative, it simply cuts off the fundshe needs to do so. This is how the EnglishParliament used to control the militaryadventures of English kings, and it worksequally well under our system. Congress, notthe president, has the key to the Treasury.”8 2

The other avenue open to Congress is theimpeachment power. In a justly celebrated1990 law review article, Stanford law profes-sor John Hart Ely argues that impeachmentis the proper remedy for unauthorized warmaking: “A serious and willful violation ofthe separation of powers [such as an unde-clared war] constitutes an impeachable ‘highcrime or misdemeanor.’”8 3 Of PresidentNixon’s secret bombing in Cambodia, Elyconcluded:

20

Did Clinton thinkthe Muslim world

would be offend-ed if bombing

were “initiated”during Ramadan

but untroubledby the fact that itcontinued into the

holy month?

I’d have impeached him for it. Surelyit would have been a more worthyground than the combination of athird-rate burglary and a style thestylish couldn’t stomach. As Con-gressman William Hungate put it:“It’s kind of hard to live with yourselfwhen you impeach a guy for tappingtelephones and not for making warwithout authorization.”8 4

With the notable exception ofRepresentative Campbell and a handful ofothers in Congress, the possibility of suchcongressional profiles in courage is hardlyapparent in Congress as currently constitut-ed. Congress burned once for shutting downthe federal government will be loath to cutoff appropriations when U.S. troops are inharm’s way. And after the dramatic failure toremove the president from office, Congressin the future is likely to balk at the prospectof impeaching a president for abuse of hisauthority as commander in chief.

Congressional courage of the kind neededto reclaim the war power will not be forth-coming unless American citizens demand it.Unless Americans rediscover their reverencefor constitutional limits, and vote according-ly, the slide toward empire will continue.Judge Learned Hand put it best: “Liberty liesin the hearts of men and women; when it diesthere, no constitution, no law, no court cansave it. No constitution, no law, no court caneven do much to help it.”8 5

Conclusion

In the twilight days of his presidency, lastspring, William Jefferson Clinton respondedheatedly to a reporter’s question aboutimpeachment and how it fits into his legacy:“Let me tell you: I am proud of what we didthere, because I think we saved theConstitution of the United States.”86

Reverence for the Constitution is certainly tobe applauded in a chief executive, and a pas-sionate desire to “save” our national charter all

the more so. But an aspirant savior of theConstitution might choose firmer groundthan a narrow interpretation of that docu-ment’s impeachment clause. The entire nationcan—and did—debate for a year about whether“high crimes and misdemeanors” include per-jury and obstruction of justice. But when itcomes to the treaty power and the war power,the Constitution itself cuts off much of thedebate: treaties are void without the ratifica-tion of the Senate, and wars are illegal withouta congressional declaration. Article II, section2, and Article I, section 8, will bear no otherinterpretation. But during the last eight years,neither provision has gotten much deferencefrom the president who “saved” the Constitution.

The men who midwifed the birth of thenational government rejected executive abso-lutism in foreign affairs. They knew too muchof history and of human nature to do other-wise. When Hamilton wrote in the FederalistPapersthat “the history of human conduct doesnot warrant that exalted opinion of humanvirtue” that would allow Americans to entrustone man with the power to control the nation’sforeign affairs, he spoke to the lived experienceof a generation that had fought to free itselffrom a king.8 7 Our experience over the pasteight years has given us little reason to adopt amore “exalted opinion of human virtue.”Indeed, President Clinton’s abuses of presiden-tial authority reaffirm the founding genera-tion’s skeptical view of human nature. AsJefferson put it, “In questions of power, then, letno more be heard of confidence in man, butbind him down from mischief by the chains ofthe Constitution.”88 The Clinton years haveunderscored our need to reforge those chains. Ifrepublican government is to survive, the imper-ial presidency cannot. Restoring the country’schief executive to its limited, constitutional roleis a difficult task, but a necessary one, for thoseAmericans who think that the Constitutionand the Republic are worth saving.

Notes1. William Jefferson Clinton, Letter to Col. EugeneHolmes, December 3, 1969, quoted in the New

21

Congressionalcourage of thekind needed toreclaim the warpower will not beforthcomingunless Americancitizensdemand it.

York Times, February 13, 1992, p. A25.

2. On August 10, 1992, then-candidate Clinton saidof the letter to Colonel Holmes, “Well if you read thewhole letter . . . I was talking about there—we werefighting with a draft in an undeclared war, and Ithink at least Congress ought to have to declare awar . . . before drafting large numbers of people.”CBS, This Morning, CBS News transcripts, August 10,1992. A cynic might note that this explanation leavesopen the question of whether undeclared wars areacceptable if fought by a volunteer army, a questionthat Clinton would later, through his actions,answer in the affirmative.

3. As Fulbright later said: “The biggest lesson Ilearned from Vietnam, is not to trust governmentstatements. I had no idea then that you could nottrust [the] government.” Jonathan Alter, “Remem-brance: Sen. J. William Fulbright, 1905–1995,”Newsweek, February 20, 1995, p. 76.

4. Quoted in Richard H. Curtiss, “U.S. Obituarieson Senate Leader J. William Fulbright Omit HisMideast Views,” Washington Report on Middle EastAffairs, April–May 1995, www.washington-report.org/backissues/0495/9504049.html.

5. Quoted in Alter, p. 76.

6. J. William Fulbright, The Arrogance of Power(New York: Random House, 1966), pp. 245–46.

7. Quoted in Arthur Schlesinger Jr., The ImperialPresidency (Boston: Houghton Mifflin, 1973),pp. 298–99.

8. Quoted in Alter, p. 76.

9. U.S. Constitution, art. II, sec. 2.

10. Quoted in Dafna Linzer, “Albright DisavowsHelms’ Statement,” Washington Times, January 25,2000.

11. As Hamilton noted in Federalist 69, this power“is more a matter of dignity than of authority. . . . Itwas far more convenient . . . than that there shouldbe a necessity of convening the legislature . . . uponevery arrival of a foreign minister.”

12. Raoul Berger, Executive Privilege: A ConstitutionalMyth (Cambridge, Mass.: Harvard University Press,1974), p. 122. Emphasis in original.

13. Quoted in Leonard Levy, Original Intent and theFramers of the Constitution (New York: Macmillan,1988), p. 38. Emphasis added.

14. Antonin Scalia, A Matter of Interpretation (Princeton,N.J.: Princeton University Press, 1997), pp. 16–18.

15. Quoted in Berger, p. 138.

16. Quoted in Bill Gertz, “Albright Says U.S. Bound byNuke Pact,” Washington Times, November 2, 1999, p. A1.

17. 354 U.S. 1, 5–6 (1957).

18. David B. Rivkin, Jr., Lee A. Casey, and Darin R.Bartman, “The Collapse of the Soviet Union andthe End of the 1972 Anti–Ballistic Missile Treaty:A Memorandum of Law,” www.heritage.org/nationalsecurity/legalbrief/legalbrief.html.

19. Quoted in ibid.

20. Quoted in Craig Cerniello, “Administration,Congress Continue Debate over Membership, Futureof ABM Treaty,” Arms Control Today, May 1998,www.armscontrol.org/ACT/may98/cc3my98htm.

21. Most recently, the Pentagon’s chief weaponstester conceded that missile defense tests con-ducted thus far have “significant limitations,”given that the Pentagon knows the type of rocketlaunching the target as well as the nature of thetarget, where the missile is coming from, andwhen it is being launched. See “Time InvestigationShows That This Week’s $100 Million SpaceShield Test Is All but Fixed,” Time, July 2, 2000,www.time.com/time/pr/missiles.html.

22. For example, Robert Kagan of the CarnegieEndowment for International Peace and theWeekly Standard supports NMD because “nothingis more likely to push the United States toward anisolationist foreign policy than our increasingvulnerability to missile attack.” Robert Kagan, “AReal Case for Missile Defense,” Washington Post,May 21, 2000. See also George Will, “MissileDefense Charade,” Sacramento Bee, June 11, 2000(arguing that NMD is necessary so that theUnited States can defend Taiwan, Kuwait, andSouth Korea without risking missile attack).

23. See Ivan Eland, “Protecting the Homeland:The Best Defense Is to Give No Offense,” CatoInstitute Policy Analysis no. 306, May 5, 1998,www.cato.org/pubs/pas/pa-306es.html.

24. See “Global Climate Change: Selected LegalQuestions about the Kyoto Protocol,” Congression-al Research Service Report for Congress 98-349,November 24, 1998.

25. William H. Lash III, “Kyoto Climate TreatyAdvocates Act to Circumvent Senate Approval,”Legal Opinion Letter, Washington Legal Founda-tion, April 2, 1999.

26. David McIntosh, “Will the AdministrationImplement the Kyoto Protocol through the Back

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Door?” Nonline News Center, October 9, 1998,http://www.nonline.com/procon/topics/1998/November/16Nov-10.asp.

27. Theresa Sotto, “House Members Assert EPACannot Regulate CO2 under the Clean Air Act,”Weathervane, March 20, 2000, www.weathervane.rff.org/features/feature090.html.

28. See Deborah Simpson and Steven Simpson,“The Power to Make Law: Can the EPA RegulateC O2 under the Clean Air Act?” Institute forResearch on the Economics of Taxation, Studiesin Social Cost, Regulation and the Environment,no. 2, September 1999; and Legal Affairs Com-mittee, “CO2: A Pollutant?” Report to the Nation-al Mining Association Board of Directors,October 12, 1998.

29. Quoted in Joanne Kenen, “With CongressAway, Clinton Names Ambassador,” PhiladelphiaInquirer, June 6, 1999.

30. Ilona Nickels, “Capitol Questions,” www.cspan.org/questions.

31. Steven J. Duffield and James C. Ho, “TheIllegal Appointment of Bill Lann Lee,” TexasReview of Law & Politics 2 (1998): 335.

32. Quoted in ibid.

33. Indeed, in the closing months of his adminis-tration, Clinton has used the recess appointmentsclause to appoint three more ambassadors with-out Senate approval. All three were big-dollar con-tributors to the Democratic Party. See SeanScully, “Clinton Quietly Installs 3 Envoys,”Washington Times, August 29, 2000, p. A1.

34. James Madison, Writings of James Madison, vol. 6,ed. Gaillard Hunt (New York: Putnam’s, 1906), p. 74.

35. See, especially, Berger; Levy; and Francis D.Wormuth and Edwin B. Firmage, To Chain the Dog ofWar (Dallas, Tex.: Southern Methodist UniversityPress, 1986).

36. Debates in the Federal Convention of 1787, asReported by James Madison, August 18, vol. 3 ofElliot’s Debates, ed. James McClellan and M. E.Bradford (Richmond, Va.: James River Press, 1989),pp. 451–52.

37. Ibid. Emphasis in original.

38. Quoted in Wormuth and Firmage, pp. 27–28.

39. Alexander Hamilton, James Madison, andJohn Jay, The Federalist Papers, ed. Clinton Rossiter(New York: Mentor, 1961), p. 418.

40. Quoted in Jonathan Elliot, ed., The Debates in theSeveral State Conventions, on the Adoption of the FederalConstitution as Recommended by the General Conventionat Philadelphia in 1787, 2d ed., vol. 2 (Washington: U.S.Congress, 1836), p. 528.

41. Federalist 69, quoted in Hamilton, Madison,and Jay, p. 418. Emphasis in original.

42. 5 U.S. (1 Cranch) 1, 28 (1801).

43. Quoted in Wormuth and Firmage, pp. 27–28.

44. Quoted in Stuart Taylor Jr., “A Betrayal of theConstitution,” Legal Times, September 19, 1994, p. 25.

45. Quoted in Jason Sherman, “Clause and Effect,”Armed Forces Journal, September 1998, p. 14.

46. See Ted Galen Carpenter, “Setting a DangerousPrecedent in Somalia,” Cato Institute ForeignPolicy Briefing no. 20, December 28, 1992.

47. White House Briefing, Federal News Service,October 14, 1993.

48. Quoted in Ruth Marcus and Helen Dewar,“Clinton Tells Congress to Back Off,” WashingtonPost, October 19, 1993.

49. Quoted in Congressional Record, August 5,1994, 140, S10,663.

50. Quoted in George J. Church, “DestinationHaiti,” Time, September 26, 1994.

51. Ibid.

52. Taylor. Emphasis in original.

53. Dellinger’s letter and the law professors’response are reprinted in American Journal ofInternational Law 89 (January 1995): 122–30.

54. 30 Weekly Compilation of PresidentialDocuments 2417.

55. 31 Weekly Compilation of PresidentialDocuments 2144.

56. Nick Cook, “A War of Extremes,” Jane’s DefenceWeekly, www.janes.com/defence/news/kosovo/jdw990707_01_n.shtml.

57. Charles Lane, “TRB: Something to Declare,” NewRepublic, May 17, 1999, www.tnr.com/archive/0599/051799/trb051799.html. Emphasis added.

58. Quoted in Jake Tapper, “Declaring War onUndeclared War,” Salon, May 6, 1999, www.salonmag.com/news/Feature/1999/05/06/war.

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59. USIS Washington File, “Transcript: WhiteHouse Daily Briefing,” April 19, 1999, www.usinfo.org/wf/990419/epf101.htm.

60. Quoted in Lane.

61. For Campbell’s account of his legal battle withthe administration, see Tom Campbell, “Kosovo—An Unconstitutional War,” Mediterranean Quarterly11, no.1 (Winter 2000): 1–7.

62. Quoted in Tapper.

63. Fourteen more members joined the suit afterit was filed.

64. Quoted in “Separation of Powers and ForeignPolicy,” Panel discussion held at Federalist Society’s1999 National Lawyers’ Convention, November11–13, 1999, www.fed-soc.org/foreign-fedv3i3.htm.

65. Quoted in E. Michael Myers, “Ghosts ofVietnam Led Rep. Campbell to Force BalkanVotes,” The Hill, May 5, 1999, p. 7.

66. Interestingly, the historian who popularizedthe phrase “the imperial presidency,” Democraticpartisan Arthur Schlesinger Jr., announced thedeath of the imperial presidency early on in theimpeachment drama: “The fall of the SovietUnion completed the revolt against the abuse ofPresidential power. Because it was the creation ofinternational crisis, the imperial Presidency col-lapsed once that crisis came to an end.” ArthurSchlesinger Jr., “So Much for the ImperialPresidency,” New York Times, August 3, 1998. Asthis paper attempts to show, contra Schlesinger,reports of the demise of the imperial presidencyhave been greatly exaggerated.

67. Fairness and Accuracy in Reporting, “New YorkTimes Ignores Violation of the War Powers Act,”May 28, 1999, www.fair.org/activism/war-powers.html.

68. Vernon Loeb, “A Dirty Business,” WashingtonPost, July 25, 1999, p. F1.

69. Resolution of Impeachment of President George Bush,H.R. 34, January 17, 1991, http://thomas.loc.gov/.

70. Which is not to concede that those particularexigent circumstances obviate the need for a dec-laration of war. They merely underscore that theadministration here went further even thanReagan did with Grenada and Bush with Panama.

71. Madison, p. 174.

72. Odder still were the circumstances surround-ing the decision to launch the attack. Apparently,the four service chiefs of the Joint Chiefs of Staff

were not informed of the raid. Gen. Henry Shelton,chairman of the Joint Chiefs, was presented withthe decision as a fait accompli and was ordered notto inform the other members. See Tracy Connor,“Top U.S. Brass Kept Out of Loop on Missile Raid:Mag,” New York Post, October 5, 1998.

73. James Risen and David Johnston, “ExpertsFind No Arms Chemicals at Bombed SudanPlant,” New York Times, February 9, 1999, p. A3.

74. See Vernon Loeb, “U.S. Unfreezes Assets ofSaudi Who Owned Plant Bombed in Sudan,”Washington Post, May 4, 1999; and “What TerroristLink?” Editorial, Washington Post, May 7, 1999.

75. Robert Novak, “Wagging Saddam,” CreatorsSyndicate, December 21, 1998. When the presi-dent described that incident in his address to thecountry, however, he did not give the full story,stating merely that Iraq had “shut off access tothe headquarters of its ruling party.” “Transcript:President Clinton Explains Iraq Strike,”http://www.cnn.com/ALLPOLITICS/stories/1998/12/16/transcripts/clinton.html.

76. Quoted in Kim Wilsher, “Moon Rose andRamadan and Final Blitz Began,” Mail on Sunday,December 20, 1998, p. 7.

77. “Despite Baghdad’s Opposition, U.N. StillPlanning Arms Inspections,” May 24, 2000,CNN.com, http://cnn.org/2000/WORLD/meast/05/24/un.iraq/index.html.

78. Quoted in Christopher Francescani, “Whistle-Blow Inspector: It’s Wag the Dog,” New York Post,December 17, 1998.

79. David Broder, “Hard Faces of Partisanship,”Washington Post, December 19, 1998.

80. William Safire, “On Impeachment Eve,” NewYork Times, December 17, 1998, p. A33.

81. Stephen Chapman, “Bombing of IraqExpanding the Limits of Cynicism,” ChicagoTribune, December 20, 1998.

82. Abner Mikva, “If Congress Really Wants toStop the Kosovo War, It Can,” Legal Times, May 3,1999, p. 23.

83. John Hart Ely, “The American War inIndochina, Part II: The Unconstitutionality of theWar They Didn’t Tell Us About,” Stanford LawReview 42 (May 1990): 1133.

84. Ibid., p. 1093.

85. Learned Hand, The Spirit of Liberty (New York:Knopf, 1952), p. 144.

24

86. Quoted in Terence Hunt, “Clinton Won’t Ask forPardon,” Detroit News, April 13, 2000, http://detnews.com/2000/nation/0004/13/04140014.html.

87. It’s true that Hamilton later recanted many ofthe views on presidential power that he expressedin the Federalist Papers. In his 1793 debates withMadison under the nom de plume “Pacificus,”Hamilton argued for broad executive latitude inforeign affairs. Madison answered his argumentsunder the name “Helvidius,” arguing for the lim-ited view of executive power under which the

Constitution was ratified. As John Quincy Adamsjudged it, Madison “scrutinized the doctrines ofPacificus with an acuteness of intellect never per-haps surpassed,” refuting them with quotes fromHamilton himself. See Berger, pp. 135–38.

88. Quoted in David Mayer, The ConstitutionalThought of Thomas Jefferson (Charlottesville:University Press of Virginia, 1994), pp. 2–3. Mayercites Paul Leicester Ford, ed., The Writings ofThomas Jefferson (New York: G. P. Putnam’s,1892–99), vol. 7, p. 304.

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