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

Abstract

The role that Responsibility to Protect (R2P) played in United States' decision to intervene in Libya in 2011 received wide coverage in academic and policy circles. While 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 role of R2P in international law, but a major domestic legal question remains: does President have 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) evolution of President's national security powers, and (2) President's ability to define the national interest, Executive has constitutional power to send U.S. military forces into harm's way on purely humanitarian missions without consent of Congress. Yet unilateral deployments may produce unintended consequences, as seen in Africa and Syria after Libyan intervention. In light of these events, this Note lays out a proposed solution to constrain President's ability to conduct such unilateral missions: Congress must pass legislation to check Executive's ability to conduct R2P deployments, and judiciary must be willing to enforce such legislation.I. IntroductionIn 2011, President Barack Obama ordered 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 Department of Justice's Office of Legal Counsel (OLC) and State Department Legal Advisor Harold Koh, President possessed power to order 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 threshold of a war for Constitutional purposes.2 The two important national security interests Koh cited were (a) maintaining credibility of United Nations (U.N.) Security Council, and (b) regional stability.3 While discussing what preserving regional stability meant, President stated that a humanitarian crisis would ensue without U.S. intervention.4Keying in on role that humanitarian purposes played in U.S. decision to intervene in Libya and subsequent U.N. Security Council debates over situation in Libya, scholars hailed or decried Libyan intervention as fruition of Obama Administration's effort to promote Responsibility to Protect (commonly, R2P) Principle.5 R2P is shorthand for 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 exact role R2P played in decision-making around Libya is unknown to anyone outside of Executive branch, President's 2010 National Security Strategy is seen in international community as an American endorsement of R2P.7Although Presidential War Powers have expanded since framing of Constitution, adoption of extra-territorial principle of Responsibility to Protect by a U.S. President presents a new question of whether Executive has 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 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 President has such power. …