Presidential War Powers and Humanitarian Intervention

Abstract

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force?1 As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? What this Article suggests is that the concerns which drove the Founders to place limits on the President’s war powers, especially the fear that a glory-seeking chief executive would precipitously use the military in order to serve his own desire for fame, are not as serious when it comes to humanitarian intervention. Presidents are unlikely to significantly enhance their short-term popularity or historical legacies by using the military in this way. As a result, there is less reason to fear that they will be incautious in these situations. In addition, it is possible to establish standards by which to judge presidential action in this arena, placing another effective limit on the President. In light of the reduced risks, as well as the terrible costs of inaction in the face of grave human rights crises, we should accept some flexibility for the President to decide to intercede for humanitarian reasons. * LL.M. Georgetown University Law Center, J.D. University of Michigan. The author is an attorney with the federal government. The views expressed here are solely his own. 1. U.S. CONST. art, I, § 8, cl. 11.