Unforeseen Consequences: The Constitutionality of Unilateral Executive R2P Deployments and the Need for Congressional and Judicial Involvement

Abstract

The role that the Responsibility to Protect ("R2P") played in the United States' decision to intervene in Libya in 2011 received wide coverage in academic and policy circles. While the Executive Branch's legal justification for taking action in Libya without Congressional authorization was not premised solely on humanitarian grounds, R2P is a key plank in President Obama's foreign policy. Other commentators have discussed the role of R2P in international law, but a major domestic legal question remains: does the President have the power to unilaterally deploy military forces on R2P missions with no direct U.S. national security interests at stake? This Note argues that though past unilateral Executive deployments of military force were justified primarily on U.S. national security interests, due to (1) the evolution of the President's national security powers, and (2) the President's ability to define "the national interest," the Executive has the constitutional power to send U.S. military forces into harm's way on purely humanitarian missions without the consent of Congress. Yet unilateral deployments may produce unintended consequences, as seen in Africa and Syria after the Libyan intervention. In light of these events, this Note lays out a proposed solution to constrain the President's ability to conduct such unilateral missions: Congress must pass legislation to check the Executive's ability to conduct R2P deployments, and the judiciary must be willing to enforce such legislation.I. IntroductionIn 2011, President Barack Obama ordered the U.S. military to provide logistical and combat support for NATO forces to conduct a series of strikes against Colonel Muammar Quaddafi's regime in Libya without Congressional authorization.1 According to the Department of Justice's Office of Legal Counsel ("OLC") and State Department Legal Advisor Harold Koh, the President possessed the power to order the involvement of U.S. military forces in combat situations in Libya without Congressional approval because (1) important national security interests were at stake; and (2) this intervention did not rise to the threshold of a "war" for Constitutional purposes.2 The two important national security interests Koh cited were (a) maintaining the credibility of the United Nations ("U.N.") Security Council, and (b) preserving regional stability.3 While discussing what "preserving regional stability" meant, the President stated that a humanitarian crisis would ensue without U.S. intervention.4Keying in on the role that humanitarian purposes played in the U.S. decision to intervene in Libya and subsequent U.N. Security Council debates over the situation in Libya, scholars hailed or decried the Libyan intervention as the fruition of the Obama Administration's effort to promote the Responsibility to Protect (commonly, "R2P") Principle.5 R2P is shorthand for the emerging international consensus in favor of supporting humanitarian intervention when a state fails to protect its own people, thereby forfeiting its sovereign rights.6 While the exact role R2P played in decision-making around Libya is unknown to anyone outside of the Executive branch, the President's 2010 National Security Strategy is seen in the international community as an American endorsement of R2P.7Although Presidential War Powers have expanded since the framing of the Constitution, the adoption of the extra-territorial principle of the Responsibility to Protect by a U.S. President presents a new question of whether the Executive has the inherent constitutional authority to unilaterally deploy U.S. military forces in any role - e.g., logistical, advisory, combat, etc. - into a foreign conflict which poses no direct security risk to the United States, motivated by purely humanitarian grounds, and without Congressional authorization. The legitimacy of taking such an action is not uniformly accepted, and some U.S. Senators have publicly indicated that they do not believe the President has such power. …