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53 Houston Law Review 1065 (2016)


The use of military force to respond to a foreign humanitarian crisis raises profound legal questions, especially when force is not authorized by the U.S. Congress or the U.N. Security Council. President Clinton's use of air strikes in Kosovo, President Obama's use of air strikes in Libya, and his threat of force following Syrian President Assad's use of chemical weapons against the Syrian people all responded to powerful humanitarian needs-but serious questions about their legality remain. Drawing upon these case studies, Professor Harold Koh proposes a framework that would find some such interventions lawful, even without congressional or Security Council authorization-and even for periods that exceed the sixty-day limit Congress has imposed through the War Powers Resolution. Professor Koh's proposal would expand presidential war powers and diminish congressional constraints.

Professor Koh and I agree on many fundamentals: the basic scope of the President's constitutional authority to initiate the use of force, the constitutionality of the sixty-day clock, the government's duty to explain the legal basis for its major actions, and the vital need for U.S. leadership to address humanitarian crises including, in extreme circumstances, the lawful use of military force. This Article contends, however, that Koh's proposed legal standards do not satisfy the U.S. Constitution's framework of shared war powers as implemented by Congress, an analysis aided by application of Justice Robert Jackson's three-zone Youngstown framework. Most important, I believe Koh misreads the War Powers Resolution to exempt humanitarian interventions that otherwise clearly would constitute "hostilities." A humanitarian motivation no more exempts a use of force than would a counterterrorism motivation.

This Article concludes by looking beyond the legality of humanitarian interventions to the general standards and processes that guide government lawyers who advise the Executive Branch. During the Obama Administration, extreme partisan obstruction has prevented congressional action on important issues. Unilateral presidential action within the President's authority can be an appropriate response, but not so the calls to loosen standards to allow presidential action of "reasonable" or "plausible" legality. The George W. Bush Administration's excessive assertions of war powers to justify unlawful counterterrorism policies reveal the potential risks of a lowered standard, as well as of a shift toward greater presidential war powers. Short-term challenges even as compelling as humanitarian crises and terrorism must not blind us to the long-term costs of undermining rule-of-law values and our constitutional balance of powers.