Authorization for Continuing Hostilities in Kosovo

• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Citation: Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327, 00-29 (Op. O.L.C. Dec 19, 2000)
• Decision Date: 19 December 2000
• Docket Number: 00-29
• Parties: Authorization for Continuing Hostilities in Kosovo

24 Op. O.L.C. 327

Authorization for Continuing Hostilities in Kosovo

No. 00-29

United States Department of Justice

December 19, 2000

RANDOLPH D. MOSS Assistant Attorney General Office of Legal Counsel.

Authorization for Continuing Hostilities in Kosovo

Pub L No. 106-31, the emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration of sixty days under section 5(b) of the War Powers Resolution.

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

This memorandum memorializes and explains advice we provided to you in May of 1999 regarding whether Pub. L. No. 106-31, 113 Stat. 57 (May 21, 1999), the emergency supplemental appropriation for military operations in Kosovo, constituted authorization for continuing hostilities after the expiration of sixty days under section 5(b) of the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1994)) (the "WPR"). This Office advised that the appropriation did constitute such authorization. Subsequently, the district court for the District of Columbia and the Court of Appeals for the D.C Circuit decided a lawsuit brought against the President by thirty-one members of Congress, who claimed that the President had violated the Constitution and the WPR by involving the United States in hostilities in Kosovo without congressional authorization. Neither the district court nor the court of appeals reached the merits of the plaintiffs' claims. The district court dismissed the suit for lack of standing, Campbell v. Clinton, 52 F.Supp.2d 34 (D.D.C. 1999), and the D.C. Circuit affirmed the dismissal, also on standing grounds, 203 F.3d 19 (D.C. Cir.) cert, denied, 531 U.S. 815 (2000).

Section I of this memorandum summarizes the relevant provisions of the WPR, including section 8(a)(1), which provides that authorization may not be inferred from appropriation laws that do not specifically refer back to the WPR. Section II shows that the relevant case law, historical practice, and basic principles of constitutional law lead to the conclusion that appropriation laws may authorize military combat. Section III shows that section 8(a)(1) does not bar later Congresses from authorizing military operations through appropriations (an interpretation that would be unconstitutional), but instead has the effect of creating a background principle that may inform the interpretation of later Acts of Congress. Section IV shows that by enacting Pub. L. No. 106-31, Congress intended to enable the President to continue U.S. participation in Operation Allied Force. Finally, Section V presents this Office's conclusion that, even taking account of the background principle established by section 8(a)(1), Pub. L. No. 106-31 authorized the President to continue military operations in Kosovo.^[1] [ 328]

1. The War Powers Resolution and Authorization of Hostilities

The WPR is framework legislation that sets forth procedures for reporting and authorizing hostilities. The statute begins with a congressional declaration of purpose:

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

50 U.S.C. § 1541(a).^[2] This section summarizes the most important provisions of the statute.

The "core" of the WPR "resides in sections 4(a)(1) and 5(b)." John Hart Ely, War and Responsibility 48 (1993).^[3] Section 4(a)(1) of the WPR requires the President to submit a report to Congress whenever, "[i]n the absence of a declaration of war " United States Armed Forces are introduced "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." 50 U.S.C. § 1543(a)(1). Section 5(b) requires the President to ' 'terminate any use of the United States Armed Forces with respect to which [a] report [under section 4(a)(1)] was submitted (or required) [within 60 days thereafter]" unless the Congress takes certain enumerated actions to authorize continuing combat or "is physically unable to meet as a result of an armed attack upon the United States." 50 U.S.C. § 1544(b). The 60 day period may be extended [ 329] for an additional 30 days if the President certifies to Congress that "unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in bringing about a prompt removal of such forces." Id. Thus, when a report under section 4(a)(1) is filed (or required to be filed), section 5(b)'s 60 day (or, in appropriate circumstances, 90 day) "clock" begins to run.^[4]

Under section 5(b), Congress may, within the 60 day period, authorize continuing hostilities after that period by any one of three methods: (1) by a declaration of war; (2) by enacting a "specific authorization for such use of United States Armed forces"; or (3) by "extend[ing] by law such sixty-day period." 50 U.S.C. § 1544(b). The section thus functions essentially as a burden-shifting device. As Judge Joyce Hens Green has observed:

[T]he automatic cutoff after 60 days was intended to place the burden on the President to seek positive approval from the Congress, rather than to require the Congress positively to disapprove the action, which had proven so politically difficult during the Vietnam war. To give force to congressional power to declare war, Presidential warmaking would not be justified by congressional silence, but only by a congressional initiative ....

Crockett v. Reagan, 558 F.Supp. 893, 899 (D.D.C. 1982), qff'd, 720 F.2d 1355 (D.C. Cir. 1983).^[5] In addition to requiring the President to seek approval for continuing hostilities, section 5(b) is also designed to hold Congress responsible for the ultimate decision over war and peace.^[6] [ 330]

By its terms, the statute contemplates possible mechanisms for authorizing hostilities other than a declaration of war. The decision as to which legal vehicle to choose is within Congress's power: it is well established that "it is constitutionally permissible for Congress to use another means than a formal declaration of war to give its approval to a war." Mitchell v. Laird, 488 F.2d 611, 615 (D.C. Cir. 1973). See also Montoya v. United States, 180 U.S. 261, 267 (1901) ("We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch a military force for their subjugation, is sufficient to constitute a state of war."); Berk v. Laird, 317 F.Supp. 715, 722 (E.D.N.Y. 1970) (noting that plaintiffs memorandum of law had listed 159 instances of the use of U.S. forces abroad from 1798 to 1945, of which only six involved formal declarations of war by either side), aff'd sub nom., Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971); Hamilton v. McClaughry, 136 F. 445, 449 (D. Kan. 1905) ("A formal declaration of war ... is unnecessary to constitute a condition of war."); United States v. Castillo, 34 M.J. 1160, 1164 (N.M.C.M.R. 1992) ("Congress may assent to the waging of war by means other than a formal declaration of war, and what form it chooses to record that assent is within its discretion to decide."). Moreover, in the period since the WPR was enacted, Congress has explicitly authorized hostilities under the statute without declaring war.^[7] Congress has in fact often authorized hostilities by legislative measures other than formal "declarations of war" since the days of the early republic.^[8] Indeed, at the time of the Founding, formal [ 331] "declarations" of war were increasingly rare in state practice, ^[9] and prominent legal theorists known to the Founders had analyzed other legal devices for authorizing war.^[10] Moreover, whatever their view of the scope of the President's authority to conduct hostilities, scholars agree that Congress could authorize conflict through measures other than a formal declaration of war.^[11]

Finally, section 8(a) of the WPR elaborates on the "specific authorization" option:

Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred — [ 332] (1) from any provision of law . . . including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter.

50 U.S.C. § 1547(a)(1).

Like section 5(b), section 8(a) implicitly recognizes that Congress may authorize hostilities by means other than a declaration of war. Because it purports to allow Congress to authorize hostilities through appropriation statutes that specifically invoke the WPR, section 8(a) further recognizes that appropriation statutes may, under some circumstances, authorize hostilities.

II. Appropriations and Authorization of Military Combat

The Supreme Court has recognized that, as a general matter appropriation statutes may "stand[] as confirmation and ratification of the action of the Chief Executive." Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116 (1947). Congress may also "amend substantive law in an appropriations statute, as long as it does so...