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(Cite as: 22 U. Dayton L. Rev. 125)

University of Dayton Law Review

Fall, 1996




Robert Hansford Hoskins

Copyright (C) 1996 by the University of Dayton Law Review; Robert Hansford




I. INTRODUCTION ........................................................ 125

II. BACKGROUND .......................................................... 126

A. The Case of Army Spc. Michael New ................................ 126

B. The Constitutional Basis for Presidential and Congressional War

Powers ............................................................ 128

C. The President's Commander-in-Chief Power and Congress ............ 130

D. Foreign Affairs and the Courts ................................... 133

III. ANALYSIS ............................................................ 135

A. The Argument Against Placing U.S. Soldiers Under U.N. Commanders . 136

1. Concerns that U.S. Sovereignty is Being Sacrificed .............. 136

2. Is Foreign Command of U.S. Troops Unconstitutional? ............. 138

B. The Constitutionality of the President Placing U.S. Military

Forces Under Foreign Command ...................................... 140

1. Policy Rationale for Redefining U.S. Participation in U.N.

Actions ........................................................... 140

2. Permissible Deployment of Prohibited Delegation? ................ 141

C. U.N. Command of U.S. Troops and the Courts ....................... 142

1. The Court's Analysis if Congress Does Not Pass Legislation

Concerning the Foreign Command of U.S. Troops ..................... 143

2. The Court's Analysis if Congress Passes Legislation Prohibiting

the Foreign Command of U.S. Troops ................................ 145

IV. CONCLUSION .......................................................... 146


In October 1995, bills were introduced in both houses of Congress forbidding

the placement of U.S. soldiers under foreign command and, in particular,

prohibiting U.S. troops from wearing the insignia of the United Nations (U.N.)

on their uniforms. [FN1] At least one soldier, United States Army Specialist

Michael New, fully supports the proposed legislation. New, a decorated Army

medic and Desert Storm veteran, refused to wear the U.N. blue beret and insignia

of the U.N. upon being ordered to do so as part of the U.S. contingent of the

U.N.'s peace-keeping operation in Macedonia. [FN2] New's *126 refusal to obey a

direct order, and his subsequent court-martial, served as the impetus of the

aforementioned legislation and rekindled a nation- wide debate questioning

presidential authority to place U.S. troops under the command of the U.N.

The Clinton administration defends its policy regarding U.S. troops in

Macedonia by citing the broad powers that Presidents have historically enjoyed

in their constitutional role as Commander-in-Chief. [FN3] Opponents of the

President's policy, however, claim that President Clinton, like many of his

predecessors, has exceeded the bounds of his authority as Commander-in-Chief by

placing U.S. troops under foreign command. [FN4] This Comment utilizes the case

of Army Spc. Michael New as a back-drop to examine the constitutionality of

placing U.S. troops directly under U.N. commanders. Section II of this Comment

outlines New's case and addresses the scope of the President's Commander-in-

Chief powers under the Constitution. [FN5] Section III discusses the arguments

opposing and supporting the constitutionality of placing U.S. soldiers under

foreign command and predicts how the issue would be resolved by the judiciary

should it come before the courts. [FN6] Finally, Section IV concludes that the

President does not exceed the bounds of the Constitution by placing U.S. troops

under the operational command of the U.N.


A. The Case of Army Spc. Michael New

On August 21, 1995, the Army informed Spc. Michael New that he and the rest of

his unit were being deployed to Macedonia as part of a U.N. peacekeeping

mission. [FN7] The soldiers were further informed that they were to wear the

uniform of the U.N. on this mission [FN8] and that they would be serving under

foreign officers who were under U.N.'s command. [FN9] At this time, New *127

informed his Army superiors that he felt uncomfortable with the prospect of, as

he saw it, being "involuntarily impressed into the military service of a foreign

government." [FN10] New's Army superiors responded to his statements by

threatening to court-martial him if he violated the given order and by referring

him to an Army attorney. [FN11] When Spc. New reported to formation on October

10, 1995 without the blue beret or insignia of the U.N., he was charged with

violating the order of a senior officer [FN12] and was arraigned before a

military judge in Wurzburg, Germany. [FN13]

New defended his actions on two grounds. First, New contended that President

Clinton's unilateral order making U.S. troops available for U.N. operations in

Macedonia was illegal; second, he claimed that the order to assume the uniform

of the U.N. was a technical violation of Army regulations concerning proper

military dress. [FN14] New maintained that his unit was being sent to Europe not

as part of a U.N. Chapter VI peace observation, which requires no Congressional

approval, but as part of a peace enforcement action under Chapter VII, which

requires prior Congressional approval. [FN15] According to the twenty-two year

old soldier, the deployment order was also a breach of New's oath and enlistment

order. [FN16] New argued that while his military oath obligated him to defend

the U.S. and its Constitution, an involuntary assignment to a foreign or

international entity exceeded the scope of his obligation to the U.S. Army.


A few days before the start of Spc. New's court-martial, a military judge

ruled that the order to wear the U.N. uniform was legal and that New would not

*128 be allowed to present evidence regarding the legality of the order at his

court-martial. [FN18] A seven-member military jury found New guilty of

disobeying a superior's direct order [FN19] and discharged Michael New from the

Army. [FN20] New's attorneys noted that they planned to appeal the decision in

both military and civilian courts. [FN21]

New's defiant stand received national attention and rekindled the debate

concerning the use of U.S. troops in multinational forces. Moreover, New's case

became a rallying cry for many Congressional conservatives who have questioned

both the country's involvement in foreign conflicts and the foreign policy of

the current President. [FN22] Both houses of Congress introduced bills

prohibiting U.S. troops from either being placed under foreign command or from

wearing the uniform of the U.N. [FN23] Two 1996 Republican Presidential

hopefuls, Bob Dole and Pat Buchanan, voiced support for Michael New, with

Buchanan going so far as to commit to pardoning New as his first act as

President should he win the 1996 Presidential election. [FN24] New also garnered

the support of isolationists who consider the U.N. an attempt to create a one-

world-government [FN25] and view New's situation as another example of

governmental abuse of power. [FN26]

B. The Constitutional Basis for Presidential and Congressional War Powers

The Executive branch has traditionally defended the President's ability to

place troops under foreign command by referencing the broad powers *129 accorded

to the President as Commander-in-Chief within the war powers of the

Constitution. The Constitution prescribes an inherent tension between the

Executive and Legislative branches of government in matters of foreign affairs

through its ambiguous delegation of authority among the two branches. [FN27] The

Constitutional framers had a solid conception of what specific power to vest in

the Legislative branch, but they were divided and unsure about the role of the

Presidency. [FN28] While they saw the need for a single individual to command

the military [FN29] and to meet foreign diplomats, [FN30] the framers feared the

tyrannical tendencies of a single executive office. [FN31] Thus, while the

President was given the power to negotiate treaties and to lead U.S. military

forces, [FN32] the framers granted Congress the sole power to declare war,

[FN33] to make laws regulating commerce with foreign nations, to ratify treaties

and to raise and fund armies to safeguard against the creation of tyranny.


Although the Commander-in-Chief's responsibilities that the framers extended

to the President were intended only to convey command of military forces, [FN35]

U.S. Presidents have traditionally used their constitutional authority to expand

their power. [FN36] The ability of the President to curry public opinion, *130

to serve a leading role in foreign affairs, and to command the military has

enabled the Executive branch to steadily acquire authority. [FN37] Nonetheless,

Presidents have continually looked to the Constitution for legitimacy. In

reality, however, presidential pre-eminence in foreign affairs relies more on

powers that "lie in or between the lines of the Constitution" than on the powers

actually enumerated therein. [FN38]

C. The President's Commander-in-Chief Power and Congress

Congressional and judicial deference have also contributed to the growth and

legitimacy of presidential power. [FN39] Although "Presidential assertions of

the right to use the armed forces for purposes short of war" [FN40] have been an

on-going controversy between the Executive and Legislative branches, Presidents

have established precedent to send troops without congressional approval, at

least when Congress has been silent on the issue, by doing so over 200 times.

[FN41] Congress quickly recognized the importance of the President's daily

control of foreign affairs and his ability to rapidly deploy forces in military

actions short of war. [FN42] This recognition allowed the Executive to establish

a foothold from which to expand his power. [FN43]

For example, in both the Korean and Vietnam wars, Congress ratified U.S.

entrance into the conflicts after the President had already committed U.S.

forces. President Truman maintained that the U.N. treaty obligated the U.S. to

send troops to Korea; accordingly, Truman claimed that he did not require the

prior approval of Congress to commit U.S. forces. [FN44] In Vietnam, President

Lyndon Johnson referenced the Southeast Asia Collective Defense Treaty [FN45]

obligations, along with a dubious military engagement in the Tonkin Gulf, to

solicit a blank-check from Congress to fund military activities in that region.

[FN46] *131 These examples of the unilateral commitment of troops by the

President illustrate his traditional ability to combine his power as Commander-

in-Chief with congressional deference to engage the country in large and

protracted military engagements without acquiring a congressional declaration of

war. [FN47] Presidential power is at its zenith during times of crisis when the

President can use his power as Commander-in-Chief to rationalize a variety of

actions which may not otherwise be supported by the Constitution. [FN48]

Congressional deference to the President in event of such crisis, or at least

its failure to raise a legal challenge to the President's action, has further

enabled the Executive branch to expand its war powers responsibilities and, in

the minds of many, allowed the President to alter the constitutionally mandated

balance of war powers. [FN49]

In the mid 1970s, Congress enacted the War Powers Resolution, ostensibly to

re-establish the proper balance of power between Congress and the President.

[FN50] In the wake of having been led by the President into unpopular military

engagements in Korea and Vietnam, Congress passed the War Powers resolution to

"fulfill the intent of the framers of the Constitution ... and insure that the

collective judgement of both the Congress and the President will apply to the

introduction of United States Armed Forces into hostilities." [FN51] The War

Powers Resolution requires the President to consult with Congress before sending

U.S. military forces into hostilities, to send a report to Congress within sixty

days of commencing military actions, and to cease a military operation if

Congress fails to authorize such action within sixty days of its inception.


In practice, the War Powers Resolution has done little to adjust the balance

of power between the President and Congress. During certain brief *132 military

engagements, Presidents have nullified Congressional participation by sending a

short report to Congress after already committing troops. [FN53] In other

instances, the President has simply ignored congressional requests for reports

pursuant to the War Powers Resolution. [FN54] Sometimes the President has sought

Congressional approval after already committing U.S. troops, knowing that

Congressional disapproval would cause the country to lose international

credibility. [FN55]

In an effort to restore a more equitable balance of foreign policy power,

legislation has been introduced in Congress proposing to strengthen

congressional influence over U.N. peace operations. [FN56] The extent to which

Congress will be able to assert a larger role in the use of U.S. military forces

abroad is uncertain. Any renewed efforts to assert congressional power will face

many of the same problems encountered by the War Powers Resolution. At the

moment when military intervention seems imminent, Congress tends to acquiesce to

presidential appeals to patriotism rather than strongly assert its role, thereby

losing the opportunity to effect a balance of power with the President in

foreign affairs. [FN57] Thus, Congress must draft legislation in such a *133 way

as to allow the President enough power to properly address an international

crisis, giving flexibility while maintaining Congress's ability to assert its

constitutional role in foreign affairs even in times of war. [FN58]

D. Foreign Affairs and the Courts

In the few justiciable cases [FN59] that involve the foreign affairs power of

the President or Congress, courts have normally shown great deference to the

political branches. [FN60] Courts often consider the effect that a ruling may

have on international relations or national security and defer to political

bodies which are more adept in those areas. [FN61] The Constitution grants broad

powers to both the Legislative and Executive branches, yet the Supreme Court has

been willing to afford undefined powers to the Executive branch as the country's

representative among the "family of nations." [FN62]

Courts have never invalidated an act of Congress relevant to an issue of

foreign affairs. [FN63] The courts have, however, been slightly more willing to

question certain presidential acts. [FN64] Apparently many of the founding

fathers fears of the tyrannical potential of the presidency have been shared by

members of the judiciary. [FN65] Given the President's ability to act quickly,

[FN66] courts fear that permitting "the Executive to proceed unencumbered by

judicial review would work a radical allocation of constitutional power." [FN67]

If courts allow the President to act without restraint, the President would

usurp the courts' role as the ultimate arbiter of the Constitution and redefine

the allocation of power within government. [FN68]

*134 The Supreme Court first recognized Congress' right to regulate

presidential prerogative in military engagements short of war in the early

1800s. [FN69] Further, the Court has recognized the ability of a President to

utilize broad powers as Commander-in-Chief in time of war regardless of whether

war has been declared. [FN70] Thus, during times of national crisis, Presidents

have suspended habeas corpus, [FN71] mobilized some of the country's facilities

to enforce the laws of the nation, [FN72] created new governmental agencies,

[FN73] and seized privately owned industrial plants to support the war effort.


In United States v. Curtiss-Wright Export Corp., [FN75] a case involving the

President's Commander-in-Chief powers, the Supreme Court afforded the President

almost unlimited authority in the realm of foreign relations. [FN76] The Supreme

Court espoused an expansive view of Executive powers by recognizing the "plenary

and exclusive power of the President as the sole organ of the federal government

in the field of international relations." [FN77] The Court again showed great

deference to the President by validating the imprisonment of Japanese citizens

during the second World War in Korematsu v. United States. [FN78] Although many

consider Korematsu a regrettable decision, [FN79] the case manifests the power

that the President has been able to accumulate as Commander-in-Chief during

times of war.

The Supreme Court later qualified its view of presidential power in Youngstown

Sheet & Tube Co. v. Sawyer. [FN80] Youngstown addressed President *135 Truman's

effort to exercise his authority as Commander-in-Chief to seize and operate

striking steel mills that he considered necessary to national defense during the

Korean War. [FN81] Therein, the Court held that the President's unilateral

efforts to seize private industry were beyond the scope of his power as

Commander-in-Chief. [FN82] Although Congress may have had the authority to take

possession of private property in this matter, according to the Court, the

President was not granted such power either within the Constitution or "implied

from the aggregate of his powers under the Constitution." [FN83]

Although Youngstown did not lead to a significant reduction of presidential

power, Justice Jackson's concurring opinion provided the basic three

compartments within which presidential authority is evaluated. [FN84] First,

when the President acts pursuant to a congressional act, his authority is

greatest. [FN85] Second, when the President acts in light of congressional

silence or denial of authority, presidential authority rests solely on his

constitutionally delegated authority. [FN86] Within the test's second

compartment, however, there exists a "zone of twilight" in which the President

and Congress may have concurrent authority. [FN87] Depending on the event or

authority at issue, congressional silence or acquiescence may invite the

President to assume responsibility. [FN88] Finally, when the President acts

against the express or implied wishes of Congress, his power is at its weakest.

[FN89] When the President acts contrary to Congress, his power will be validated

only if the Constitution exclusively grants such authority to the President.



President Clinton is not the first American President to place U.S. troops

under foreign command. [FN91] In May, 1994, however, President Clinton became

*136 the first President to issue a policy statement authorizing the foreign

command of U.S. troops through Presidential Decision Directive-25 (PDD- 25).

[FN92] This Section outlines the arguments both criticizing and supporting the

foreign command of U.S. troops. [FN93] Further, this Section predicts how the

judiciary would rule on this issue, should it come before a court. [FN94]

A. The Argument Against Placing U.S. Soldiers Under U.N. Commanders

The court-martial of Spc. Michael New received world-wide attention and became

a rallying cry for those critical of the foreign command of U.S. troops. Some

critics of the presidential policy allowing the foreign command of U.S. troops

argue that it manifests the subjugation of U.S. interests to those of the U.N.

and unfairly risks American lives for causes in which the U.S. has no direct

concern. [FN95] Others contend that the President violates the Constitution by

delegating command of U.S. troops to foreigners. Whether this criticism has been

motivated by real concerns regarding the legality of foreign command,

isolationist sympathies, or partisan politics, advocates of the presidential

policy supporting foreign command in some instances will need to overcome legal

challenges and forceful criticism if they wish to weave the ability to place

U.S. troops under foreign command into the tapestry of American foreign policy.

1. Concerns that U.S. Sovereignty is Being Sacrificed

Since its inception, the U.N. has been the focus of criticism from

isolationists within the U.S. [FN96] Critics of the U.N. fear that the active

support *137 and participation of the U.S. in the U.N. is a threat to American

sovereignty, [FN97] a fear exacerbated by the increase in U.N. activity during

the last few years. [FN98] Although U.S. participation in the U.N. Desert Storm

operation against Iraq was widely accepted by the American people, subsequent

U.S. military participation in U.N. operations in Somalia and Haiti received

little popular support. [FN99] "[T]he American people's tolerance for casualties

varies directly with their perception that a concrete national interest is at

stake, and not merely a broad humanitarian goal." [FN100] Accordingly, U.S.

participation in the Macedonia peacekeeping effort has often been criticized.

[FN101] Therefore, when Michael New refused to serve as a soldier under the

U.N., critics hailed his actions "as a triumph of conscience over the new world

order." [FN102]

When Michael New joined the U.S. Army, he did not commit to serving the U.N.

According to his phalanx of supporters, placing New under foreign command

violated his military oath. [FN103] Foreign command antagonists also complain

that foreign command of U.S. troops puts soldiers in a situation in which the

military training and ethics of the soldier's commander may conflict with his

own. [FN104] Thus, U.S. soldiers under foreign command are placed in a position

where it is more likely that a direct order from a foreign commander conflicts

with the U.S. military code of conduct. [FN105]

Several proposals have been introduced in Congress lionizing Spc. New and

condemning the foreign command of U.S. troops [FN106] since PDD-25 was signed.

[FN107] Although there was an initial flurry of activity surrounding the *138

introduction of these bills, none of the proposed legislation appears poised to

actually challenge the policies enumerated in PDD-25. [FN108] Rather, Congress

appears to prefer using its traditional province over the "power of the purse"

to enforce its foreign policy concerns instead of directly challenging the

expanded scope of the President's Commander-in-Chief authority. [FN109]

2. Is Foreign Command of U.S. Troops Unconstitutional?

Those critical of placing U.S. troops under foreign command allege that such

action is clearly unconstitutional. [FN110] Since the Constitution grants

command authority to the President alone, [FN111] the Constitution could

feasibly be interpreted to indicate that the delegation of command authority to

another, especially a foreign power, is illegal. [FN112] Consequently, critics

consider President Clinton's assertion that he is delegating operational control

but retaining command control a distinction without a difference; one that fails

to mask an unconstitutional assignment of authority that threatens U.S.


Critics also deny the precedential value of instances where U.S. troops served

under foreign command in the past. Some consider these instances "exceptions to

the rule, expedients undertaken in the very gravest circumstances of world war.

Such instances do not alter the Constitution's clear requirement that only

officers of the United States may command U.S. troops; that document cannot be

amended by its own violation." [FN113] Critics therefore contend that the

foreign command of U.S. troops is illegal under a *139 literal interpretation of

the Constitution and question the policy of involving the U.S. in an

organization like the U.N.

There is also a legal question surrounding President Clinton's authority to

send troops to Macedonia unilaterally. The U.N. operation in Macedonia,

UNPROFOR, [FN114] has been explicitly referred to as a Chapter VII peace

enforcement operation, which would require prior congressional approval, in

several U.N. Security Council resolutions. [FN115] "[A]s early as July 9, 1993

[however], President Clinton asserted ... that the Macedonia operation was

mandated under 'Chapter VI' of the United Nations Charter." [FN116] Chapter VI

operations are "Characterized by noncombatant 'observers' of signed ceasefires

or peace treaties [and] do not require congressional approval." [FN117]

Nonetheless, some congressional critics maintain that the references to the

requirement for "combat equipped" troops and deployment to a "combat

environment" by the U.S. Army during New's court-martial are indicative of a

Chapter VII action. [FN118]

The inability of the U.N. to involve U.S. troops without the consent of the

President allows that his constitutional authority to deploy troops will not be

compromised. [FN119] Some hypothesize a constitutional issue may arise after

U.S. forces are involved in an Article 43 enforcement action. [FN120] Ending a

U.N. military action commenced under Article 43 of the U.N. Charter "requires a

substantive Security Council decision that can be vetoed by any one of the five

permanent members." [FN121] Since another country from the U.N. Security Council

can veto a U.S. motion to withdraw U.S. troops, the President could be in a

position where he can no longer withdraw U.S. troops independently. [FN122]

Consequently, this hypothesis alleges, the President would cede his

constitutional authority to command troops by placing them under U.N. command.


*140 B. The Constitutionality of the President Placing U.S. Military Forces

Under Foreign Command

The Clinton administration declared its policy on reforming multilateral

peacekeeping operations within PDD-25. [FN124] PDD-25 announced the policy

reasons supporting an active U.N. and the need to place U.S. troops under U.N.

commanders in certain circumstances. [FN125] The Clinton administration

supported the foreign command provisions within PDD-25 by pointing to prior

instances where Presidents have utilized broad Commander-in- Chief powers to

place U.S. troops under foreign command. [FN126] Supporters of the foreign

command provision within PDD-25 further defend its legality by noting that the

President would merely cede operational control of U.S. troops in certain

situations rather than ceding ultimate command of those forces. [FN127]

1. Policy Rationale for Redefining U.S. Participation in U.N. Actions

Recognizing the recent increase in the number of international peacekeeping

operations that warranted U.S. involvement since the end of the Cold-War,

[FN128] the Clinton administration, in PDD-25, posited that the new world order

and the reinvigorated role of the U.N. in world affairs [FN129] required a new

look at the operational aspects of U.N. peace enforcement missions [FN130] and

the role of U.S. military forces therein. [FN131] PDD-25 identifies the need for

structural and procedural improvements in the U.N.'s oversight of its military

actions. [FN132] Further, the policy statement implicitly supports the active

role that the U.N. is assuming and recognizes the need for U.S. participation in

U.N. actions. [FN133] PDD-25 is premised on the idea that U.S. foreign policy

interests are best served by an active and effective U.N. and seeks to improve

U.N. operations and clearly define the role of the U.S. in U.N. operations.


The Clinton administration believes that U.N. peace actions normally address

circumstances which affect important U.S. interests either directly or *141

through their cumulative effect. [FN135] Importantly, the active participation

of the U.S., the world's most powerful nation, is essential to the ultimate

success of the U.N. U.S. participation may also be necessary to the success of

particular U.N. operations due to the unique capabilities and vast resources of

the U.S. military. [FN136] Further, the involvement of the U.S. military may be

required in some instances to persuade other nations to participate in a given

action or to protect U.S. interests during certain U.N. missions. [FN137]

Historically, the U.S. has assumed a significant role in each of the U.N.

sponsored military actions within which it has participated, thereby allowing

U.S. officers to retain command over U.S. troops. [FN138] While the more active

role that the U.N. has assumed in world affairs will likely result in a

corresponding increase in U.N. sponsored enforcement actions, PDD-25 was

advanced in an effort to provide the President with the option of deploying a

limited number of U.S. troops as part of a multi-national force. Because the

U.S. is unwilling to bear the expense in dollars and in lives [FN139] to lead

every U.N. action that it supports, [FN140] PDD-25 outlines a policy which

provides greater flexibility in the deployment of U.S. soldiers allowing the

U.S. to participate in U.N. actions in a limited capacity. [FN141] U.N. actions,

according to PDD-25, are best served by a community of nations within which the

U.S. should play an active, if not always leading, role. [FN142]

2. Permissible Deployment or Prohibited Delegation?

In PDD-25, the Clinton administration asserts that the President will never

actually relinquish command over U.S. military forces that are placed under

foreign commanders. [FN143] Rather, PDD-25 maintains that the President may, on

a case by case basis, place U.S. forces under the operational control *142 of a

U.N. commander for specific operations. [FN144] U.S. forces will never be

deployed without presidential approval because provisions within the treaty

between the U.S. and the U.N. dictate that U.S. forces will never be pressed

into service without the expressed consent of the U.S. [FN145] The veto power of

the U.S. representative to the U.N. Security Council further ensures that U.S.

forces would not be compelled to participate in military actions without

presidential consent. [FN146] Therefore the U.S. troops will never be called

into international service over the objections of the President and Congress.

Operational control, [FN147] according to PDD-25, does not interfere with the

constitutional chain of command of U.S. troops; it merely authorizes a foreign

commander to lead U.S. forces within the parameters agreed to by the President.

[FN148] Anytime that the U.S. agrees to send troops to a U.N. sanctioned

military action, an agreement is written between the U.S. and the U.N. governing

the involvement of U.S. forces in that action. [FN149] Operational control

allows a foreign officer to be installed in the normal chain of command to lead

troops in accomplishing pre-defined objectives using methods compatible with

standard U.S. military operating procedures. [FN150]

PDD-25 also mandates that fundamental elements of U.S. command would still

apply. [FN151] U.S. forces under U.N. commanders may refuse to follow any order

that exceeds the scope of the mission or violates American or international law,

and may report any concerns directly to a U.S. commander. [FN152] In the event

of a large-scale or long-term U.N. sponsored military action, the President

would follow precedent by insisting that U.S. commanders lead U.S. forces,

consequently limiting the scope of foreign command. [FN153] Moreover, many

defend the foreign command of U.S. troops by noting that "[t]here is nothing in

the Constitution expressly prohibiting the [P]resident from sending American

troops abroad to serve under foreign command." [FN154]

C. U.N. Command of U.S. Troops and the Courts

Given the justiciable issue created by Spc. Michael New's refusal to serve

under foreign command [FN155] and the possibility of legislation which expressly

*143 prohibits the foreign command of U.S. troops, the constitutionality of PDD-

25 may be adjudicated. [FN156] In addressing this issue, courts will need to

look beyond the surrounding political rhetoric and evaluate the case in light of

the letter and intent of the Constitution and the development of the powers

granted therein. America's founding fathers certainly did not envision American

troops serving under the command of foreigners within an organization like the

U.N. [FN157] Nonetheless, courts will look to the Constitution, as well as

existing precedent, to evaluate the validity of PDD- 25.

Any modern evaluation of the scope of presidential Commander-in-Chief powers

will most likely work within the general framework provided by the Supreme Court

in Youngstown. [FN158] Under a Youngstown analysis, the court must first

determine whether or not Congress has manifested its support or prohibition for

the action at issue. [FN159] If Congress passes legislation supporting the

foreign command of U.S. troops, the court will utilize a deferential review

standard under the first compartment of Youngstown and uphold the

Administration's foreign command policy. [FN160]

1. The Court's Analysis if Congress Does Not Pass Legislation Concerning the

Foreign Command of U.S. Troops

If Congress does not pass legislation addressing the President's ability to

place troops under foreign command, the court will evaluate the issue under the

second compartment of Youngstown. [FN161] Under this analysis, a court will

determine to which branch of government the Constitution grants the authority in

question. [FN162] If a court finds that the authority to place troops under

foreign command was granted by the Constitution to Congress and the President

concurrently, the court's "test of power is likely to depend on the imperatives

of events and contemporary imponderables rather than on abstract theories of

law." [FN163] Additionally, congressional indifference or inaction may be seen

by the court as inviting presidential action; the facts of the military and

political situation at issue should also prove influential in the court's

analysis of the issue. [FN164]

*144 Although the Constitution grants command authority to the President

alone, a strict reading of the Constitution and the intent of the Commander-in-

Chief clause is unlikely to resolve this issue. A court's policy evaluations are

thus apt to play a significant role in their analysis. The scope of the power

that Presidents have exercised under the guise of their role as Commander-in-

Chief may have exceeded the intent of the founding fathers, [FN165] yet

Presidents have not used these powers to frustrate the balance of power between

the Legislative and Executive branches or to effect tyranny. The President's

ability to deploy troops quickly and place them under foreign command when

necessary has proven beneficial in several circumstances. [FN166] Further, the

President's command over the nation's military and international intelligence

resources support the contention that decisions involving the command of the

U.S. military are best made by the President. [FN167] The qualified success of

this policy will not save a clearly unconstitutional act from being struck down

by the court, but it will favor the validation of the Clinton administration's

foreign command policy.

Although the Constitution was drafted in an era in which a country's

sovereignty was paramount, today's global village warrants policies that are

better suited to the current world environment. Were the Clinton administration

to issue a policy allowing U.S. troops to be called into service without the

expressed consent of the President or Congress, the court would likely find the

delegated powers of the Constitution usurped. Limited deployment of troops to

the temporary and constrained command of U.N. officers under the provisions of

PDD-25, however, allows a narrowly drawn policy to effect admirable humanitarian

goals. The traditional role of the President as the leader of U.S. foreign

policy and the deference that the courts and Congress have normally shown the

President in the past will also favor presidential pre-eminence in this area.

Courts are further inclined to consider the fact that, although command

decisions regarding U.S. troops may lie within the province of the President,

Congress may still influence command decisions through their capacity to

withhold funds from military actions or command decisions that it refuses to

sanction. Consequently, it is plausible that a court *145 will validate the

President's ability to place U.S. troops under the temporary command of a

foreign officer in light of congressional silence on the matter.

2. The Court's Analysis if Congress Passes Legislation Prohibiting the Foreign

Command of U.S. Troops

If Congress were to enact legislation prohibiting the foreign command of U.S.

troops, presidential actions to the contrary would be evaluated under the third

compartment of the Youngstown analysis and would be upheld only if a court

determines that the authority at issues lies exclusively with the President.

[FN168] Courts are apprehensive about siding against Congress due to the

representative nature of that body. [FN169] Nonetheless, a court is unlikely to

utilize the limited strict interpretation of the Constitution that many critics

of foreign command prefer, even if Congress passes legislation prohibiting the

foreign command of U.S. troops. Although the President's power is "at its lowest

ebb" when he acts contrary to the expressed will of Congress, courts will use

caution in evaluating the equilibrium of powers established by the Constitution.

[FN170] In addition to looking to the text of the Constitution, the court will

likely consider the precedent of placing U.S. soldiers under foreign command,

[FN171] and evaluate functional and institutional considerations to determine

which branch of government is best suited to make such command decisions.

The history of placing U.S. troops under limited foreign command will add

credence to the formalization of this policy as will the benefits of allowing

the U.S. to participate in U.N. operations in a more limited capacity. [FN172]

The traditional lead role of the President in foreign affairs and in commanding

military forces also allows an air of credibility to presidential command

decisions. The Constitution grants command authority of U.S. forces to the

President alone. Thus, if the Clinton administration's policy allowing the

foreign command is found unconstitutional, the court will base its decision on

constitutional authority rather than congressional edict. Given the clear grant

of command authority to the President, the lack of constitutional text

prohibiting placing troops under foreign commanders temporarily and the policy

issues supporting such action, the court should uphold presidential discretion

to place U.S. forces under U.N. commanders.

Congress does not appear likely to pass legislation explicitly prohibiting the

foreign command of U.S. troops. A court may regard the failure of Congress to

enact a law prohibiting foreign command, particularly after considering

legislation to do so, as congressional acquiescence. [FN173] *146 Congressional

failure to forbid the foreign command of U.S. troops also lends credence to the

supposition that the criticism of foreign command was motivated as much by

partisan politics as by serious concerns regarding the legality of such action.

[FN174] Moreover, Congress may neither delegate the command authority accorded

to the President by the Constitution to themselves nor validate an

unconstitutional act that does so. [FN175]

The "lawful role of the President as Commander-in-Chief [is beyond question,

thus courts are apt to] .... indulge the widest latitude of interpretation to

sustain his exclusive function to command the instruments of national force ...

against the outside world for the security of our society." [FN176] Temporarily

placing American troops under a foreign commander pursuant to a treaty with the

U.N. after the parameters of that mission have been determined and agreed to by

U.S. military command is cession of command only in the strictest sense. As a

living document, the Constitution must be interpreted in light of general

reasoning as the court attempts to reconcile an eighteenth-century governmental

framework with a twenty-first century global society. [FN177] The strong policy

considerations supporting the temporary foreign command of U.S. troops, the

traditional deference accorded the Executive branch concerning foreign affairs

and the lack of a clear constitutional prohibition all indicate the court will

uphold the President's authority to place U.S. troops under foreign command.



The recent increase in U.N. activity manifests the ability of that

organization to assume its intended purpose in world affairs to foster world

peace and nurture the recognition of basic human rights. An active and effective

U.N. furthers a bevy of American economic and military interests, but the

symbiotic relationship between the U.N. and the U.S. requires that the U.S. *147

play an active role in supporting U.N. activities. Just as the dynamics of the

U.N. have changed, U.S. foreign policy must change accordingly.

Allowing U.S. troops to serve under foreign commanders in limited

circumstances allows the U.S. to play an important role in the preservation of

world peace without necessarily making large investments in terms of dollars or

American lives. An over-simplistic view of the constitutional delegation of

command authority frustrates the President's command discretion, ignores

precedent and fails to comprehend the true nature of our Constitution. The

Constitution was intended to be a living document; while protecting certain

basic rights, it was written in terms broad enough to allow government to

function effectively within unforseen circumstances. To equate U.S. assumption

of its leadership role amongst a league of nations with a subjugation of

sovereignty to a foreign power undermines the effectiveness the U.N. and

ultimately thwarts American foreign policy interests. Once political rhetoric

gives way to reasoned analysis, the President's ability to place U.S. troops

under the temporary command of foreign officers should be validated as a proper

exercise of presidential command authority.

FN1. See S. 1370, 104th Cong., 1st Sess. (1995); H.R. 2540, 104th Cong., 1st

Sess. (1995).

FN2. Gilbert A. Lewthwaite, Model U.S. Soldier Refuses U.N. Duty; Medic Says He

Joined to Serve America, 'Not a Foreign Power,' BALTIMORE SUN, Oct. 13, 1995, at


FN3. See United States: Administration Policy on Reforming Multilateral Peace

Operations, 33 I.L.M. 705 (1994) [hereinafter Administration Policy]

(summarizing Presidential Decision Directive 25 which President Clinton signed

on May 3, 1994, outlining the Administration's revised foreign policy stance

regarding the foreign command of U.S. soldiers). See also infra notes 124-127

and accompanying text.

FN4. See Ronald A. Tayor, Foreign Command of U.S. Peacekeepers Debated, WASH.

TIMES, Aug. 19, 1993, at A3 (quoting U.S. Senate leaders criticizing

presidential authorization of foreign command).

FN5. See infra notes 7-90 and accompanying text.

FN6. See infra notes 91-178 and accompanying text.

FN7. See generally United States ex rel. New v. Perry, 919 F. Supp. 491, 500

(D.D.C. 1996) (holding that the court could not hear the appeal of New's court-

martial until his military appeals were complete); I Took An Oath: United States

v. Spc. Michael G. New, USA Briefing Dissemination Book, at 2 (January 10, 1996)

[hereinafter Oath] (on file with the University of Dayton Law Review).

FN8. Oath, supra note 7, at 1. New and other soldiers wore the uniform of the

U.S. Army and served under U.S. command during the United Nations' Desert Storm

operations in Kuwait. Id.

FN9. Id. The U.N.'s operation in the former Yugoslavia is commanded by NATO

under a regional arraignment per the U.N. Charter. Id. at 5.

FN10. Id. New said that his Army recruiter had never mentioned the prospect of

such service. Id.

FN11. Id. The Army attorney suggested that New apply for conscientious objector

status and avoid the issue with an immediate honorable discharge. Id. New

declined this suggestion, noting that he was willing to serve in Macedonia, but

he was unwilling to do so in a U.N.'s uniform. Id. The Army refused to allow New

either to serve without wearing a U.N. uniform or to transfer to another Army

unit which was not being deployed. Id. The Army also would not allow New to

leave the service with an honorable discharge to avoid deployment to Macedonia.


FN12. Id. at 3 (New was charged with violating a lawful order under Article 92

of the Uniform Code of Military Justice on October 24, 1995).

FN13. Id.

FN14. Id. In a pre-trial Motion to Dismiss, New alleged that President Clinton

exceeded his constitutional powers as Commander-in-Chief by deploying U.S.

troops without Congressional approval and delegating his commander authority to

the U.N. Id. New also claims that the order to wear the uniform of the U.N.

violates U.S. Army regulations pertaining to proper military dress. Press

Release from Ron Ray, Attorney for Michael New (Jan. 15, 1996) (on file with the

University of Dayton Law Review) (citing Art. I. sect. 9 of the U.S.

Constitution which dictates that only Congress may make rules regulating the

military). Since the U.N. uniform is not currently listed as an acceptable

uniform or uniform accessory according to Army regulations, New argued that he

had every right to disobey the order because it was illegal. Id.

FN15. Oath, supra note 7, at 7 (Congressional approval for deployment of U.S.

troops to Macedonia was neither sought nor granted).

FN16. Id.

FN17. Id. New noted that U.S. forces in Macedonia were required to carry only

one piece of identification, that of the U.N. Id. But see Rowan Scarborough,

Defiant GI's Attorney Is Gloomy; He's Filing Motions but Expects Conviction of

Spc. New, WASH. TIMES, Jan. 11, 1996, at A5 (noting that New's military oath

obligated him to follow the order of a superior officer according to the Army's

chief liaison to Congress).

FN18. See Judge Tosses Legality Issue in New Case; Jury Ordered to Consider Only

Obedience in Court-Martial, HOUSTON CHRON., Jan. 20, 1996, at A1 (quoting New's

attorney, retired Marine Colonel Ron Ray, as saying that New would be unable to

get a fair trial from the military and that the coming court-martial was merely

a formality prior to determining New's sentence).

FN19. Brannon P. Denning, Act of Conscience or Party Politics?, CHRISTIAN SCI.

MONITOR, Jan. 8, 1996, at 19.

FN20. Chronicles: The Week January 21-27, TIME, Feb. 5, 1996, at 13. New was

discharged for bad conduct for refusing to follow a direct order. Id. New's

discharge was subsequently affirmed by Major General Montgomery Meigs. See Rowan

Scarborough, General Upholds Verdict on New; Army Specialist to Be Discharged,

WASH. TIMES, June 15, 1996, at A2.

FN21. Rowan Scarborough, Medic Tainted by Guilty Finding; New Will Lose All VA

Benefits, WASH. TIMES, Jan. 26, 1996, at A6.

FN22. See, e.g., Denning, supra note 19, at 19 (noting that congressional

conservatives are using this case to renew the debate between Congress and the

President concerning the War Powers of each and alleging the debate has more to

do with partisan politics than potential constitutional infirmities).

FN23. See S. 1370, supra note 1; H.R. 2540, supra note 1 (amending title 10 of

the United States Code to prohibit requiring members of the U.S. military to

wear the insignia of the U.N.); see also H.R. Con. Res. 134, 104th Cong., 2d

Sess. (1996) (condemning the court martial of Michael New and calling on the

President to vindicate New and override his conviction).

FN24. See Scarborough, supra note 21, at A6.

FN25. See Catherine Toups, Deep in the Heart of Texas, U.N. Is a Four-Letter

Word, WASH. TIMES, Jan. 1, 1996, at A1.

FN26. See Harold M. Hyman, GI's Stand Could Endanger our Constitutional Society,

HOUSTON CHRON., NOV. 12, 1995, at Outlook4 (referencing recent incidents in

which some felt that over-aggressive government agencies killed members of

militant anti-government factions in Waco, Texas, and Ruby Ridge).


(1990). See infra notes 28-34 and accompanying text.

FN28. HENKIN, supra note 27, at 23.


(recounting that Washington's commission required him to follow the orders of

the Continental Congress during the Revolutionary War although the concept of

military strategy by such a committee soon proved unreasonable).

FN30. Since members of Congress were usually dispersed throughout the country, a

President who was always in session and capable of acting quickly and decisively

was deemed necessary. HENKIN, supra note 27, at 27.


116 (1921) (noting that early constitutional proposals forbade personal command

of the military by the President). But see THE FEDERALIST NO. 48, at 309-10

(James Madison) (Clinton Rossiter ed., 1961) (commenting that the greatest

danger to liberty was not a tyrannical President, but a Congress that would take

over the power of the other two branches).

FN32. "The President shall be Commander in Chief of the Army and Navy of the

United States ...." U.S. CONST. art. II, s 2; see also HENKIN, supra note 27, at


FN33. The Federal Constitutional Convention of 1787 initially reserved the right

"to make war" to Congress, but changed the phrase to "declare war" to allow the

President to call troops to repel sudden attacks. PETER M. SHANE AND HAROLD H.


HENKIN, supra note 27, at 25.

FN34. SHANE & BRUFF, supra note 33, at 618; see also MICHAEL J. GLENNON,

CONSTITUTIONAL DEMOCRACY 287 (1990) (recounting George Mason's concerns at the

Federal Convention of 1787 that the entities controlling the purse and the sword

be separate to protect against despotism); see also HENKIN, supra note 27, at


FN35. See THE FEDERALIST NO. 69 (Alexander Hamilton) (downplaying the power of

the Commander-in-Chief by comparing the position to a first general).

FN36. Expansion of presidential

authority began with George

Washington, who added his prestige

and military prowess to the





UNITED STATES 1-2 (1974).

President Washington unilaterally

declared U.S. neutrality in the

war between Britain and France,

summoned state militias before

personally leading them into

Pennsylvania in 1794 pursuant to

the Whiskey Rebellion, and sowed

the seed for a standing army when

he asked Congress to forestall

disbanding the forces that had

been raised to fight Indians due

to the possibility of foreign

dangers. Id. at 2. Even Thomas

Jefferson, not generally

considered a proponent of large

government and a powerful

presidency, recognized the need

for pre-eminence of the President

in foreign affairs by unilaterally

sending U.S. naval forces to

defend U.S. interests in Tripoli

and establishing precedent

allowing future Presidents to

engage the military in foreign

conflicts short of war without

congressional approval. Id.


FN38. Id.

FN39. Id.

FN40. Id. at 53.


ARMED FORCES ABROAD 1798-1989 (Ellen C. Collier ed., 1989).

FN42. Congressional foreign policy efforts had proven ineffective under the

Articles of Confederation. HENKIN, supra note 37, at 37, 52-53.

FN43. HENKIN, supra note 27, at 28

(noting that the practice of

informally consulting with members

of Congress regarding the use of

military force disarmed Congress

and added legitimacy to unilateral

presidential actions).

FN44. SHANE & BRUFF, supra note 33, at 630. After already committing U.S.

troops, President Truman simultaneously informed Congress and the press of his

commitment to the Korean conflict. Id. Nevertheless, President Eisenhower asked

Congress for the authority to use the U.S. military in Formosa--implying that

the right to send troops remained with Congress. Id. at 631. See also Louis

Fisher, The Korean War: On What Basis Did Truman Act?, 89 AM. J. INT'L L. 21


FN45. Southeast Asia Collective Defense Treaty, Sept. 8, 1954, 6 U.S.T. 81, 209

U.N.T.S. 28.

FN46. SHANE & BRUFF, supra note 33, at 633. The Gulf of Tonkin resolution

acknowledges virtually unlimited control of the U.S. military by the President

and manifests the erosion of proper constitutional delegation of powers. Id.

FN47. Id. at 628-35 (discussing a trend which began early in the 20th century

placing the power to bring the country into war into the hands of the President

as exemplified by Presidents Franklin Roosevelt and Lyndon Johnson).

FN48. For example, while President Lincoln raised and commanded armies, he

failed to call for a session of Congress for three months after the attack on

Fort Sumter which started the Civil War. SCHAFFTER & MATHEWS, supra note 36, at

15-21 (recounting that Lincoln also suspended habeas corpus and freed all slaves

without congressional authorization). President Wilson armed American merchant

vessels prior to World War I; similarly, President Franklin Roosevelt entered

into the lend-lease agreement and authorized American vessels to shoot Axis

submarines on sight prior to the U.S. officially entering World War II. Id.; see

also Korematsu v. United States, 323 U.S. 214 (1944) (allowing the President to

order the detention of Japanese-Americans during World War II).

FN49. SCHAFFTER & MATHEWS, supra note 36, at 15-26.

FN50. War Powers Resolution s 2(a), 50 U.S.C. s 1541(a) (1994).

FN51. Id. See also Peace Powers Act of 1994, S. 1803, 103d Cong., 2d Sess.

(1994); H.R. 3744, 103d Cong., 2d Sess. (1994) [hereinafter Peace Powers Act of

1994] (attempting to establish a balance of foreign policy power between

Congress and the President).

FN52. War Powers Resolution ss 4-6, 50 U.S.C. ss 1542-44 (1994). President Nixon

vetoed the War Powers Resolution because he felt that it unconstitutionally

infringed upon presidential power. H.R. DOC. NO. 171, 93d Cong., 1st Sess. 1

(1973). In particular, Nixon considered the resolution's grant of authority to

Congress to require the President to end a military engagement within sixty days

a clear violation of the President's Commander-in- Chief power. Id. The

President also thought that the framers of the Constitution had purposefully

left the delegation of war powers between Congress and the President flexible

and that the rigid procedures given in the resolution would hinder

responsiveness to changing circumstances. Id. at 1-2. Nixon's veto was

subsequently overridden. 119 CONG. REC. 36,197-98 (1973).

FN53. President Carter sent a report to Congress after the aborted hostage



1980-81, at 777 (1981). But see SHANE & BRUFF, supra note 33, at 653 (recounting

testimony from President Carter's legal counsel that Carter was not required to

consult with Congress because his actions were within his Commander-in-Chief

authority). President Reagan also sent reports to Congress after invading

Grenada in 1983 and bombing Libya in 1986. Id. at 669-70.

FN54. President Reagan ignored

congressional requests to submit

reports prior to authorizing

military actions in Lebanon to

protect oil tankers in the Persian

Gulf in 1986. See SHANE & BRUFF,

supra note 33, at 653-71.

President Reagan reported to

Congress only after deploying

troops to Lebanon, a move which

Congress validated through

subsequent legislation. Id. at

651-52. Congressional affirmation

of Reagan's unilateral commitment

of U.S. troops notwithstanding his

prior reporting responsibilities

under the War Powers Resolution,

manifested, in the minds of some,

Congress' "unwillingness or

inability to use the War Powers

Resolution effectively to assert

Congress' voice in" military

policy making, and raised "obvious

questions as to the utility" of

that resolution. Id. at 671; see

also Lowry v. Reagan, 676 F. Supp.

333 (D.D.C. 1987) (dismissing a

case brought by 110 Congressmen

claiming that President Reagan had

violated the War Powers Resolution

by failing to include Congress in

the Persian Gulf conflict because

the case would require the courts

to assess the international

situation which was beyond their

competence); Phillip R. Trimble,

The President's Foreign Affairs

Power, in Foreign Affairs and the

U.S. Constitution, 39 (Louis

Henkin, et al. eds., 1990).

FN55. President Bush sought

congressional approval for

military actions pursuant to the

U.N. resolution condemning Iraq's

invasion of Kuwait only after

issuing ultimatums to the leader

of Iraq and deploying U.S. troops.

See Gilbert A. Lewthwaite, Clinton

Plans to Ask Congress to Back

Sending GIs to Bosnia; President

Responds to a Demand from Capital

Hill, BALTIMORE SUN, Oct. 21,

1995, at 6A.

FN56. See Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, S.

1281, 103d. Cong., 1st Sess. 1, 161-70A (1993); Peace Powers Act of 1994, supra

note 51; Peace, Prosperity, and Democracy Act of 1994, S. 1856, 103d Cong., 2d

Sess. (1994). See also George K. Walker, United States National Security Law and

United Nations Peacekeeping or Peacemaking Operations, 29 WAKE FOREST L. REV.

435, 488-503 (1994) (evaluating recent legislation involving the congressional

oversight of U.N. peace operations).

FN57. Philip Bobbitt, War Powers: An Essay on John Hart Ely's War and

Responsibility: Constitutional Lessons of Vietnam and its Aftermath, 92 MICH. L.

REV. 1364, 1366-67 (1994) (noting that the War Powers resolution has not

inhibited presidential use of force). Paradoxically, Congressional resolve to

assert a larger role in war power matters has been at its lowest point at the

very time that the constitutional right of Congress to insist upon participation

is the strongest. Thomas M. Franck, Rethinking War Powers: By Law or By

"Thaumaturgic Invocation"?, in FOREIGN AFFAIRS AND THE U.S. CONSTITUTION, supra

note 54, at 56, 58.

FN58. Poorly written legislation

has permitted the President to

avoid significant congressional

restraint during brief military

encounters. See supra notes 53-54

recounting unilateral

authorization of force by the

President in Lebanon, Grenada, and


FN59. The political question doctrine and the refusal to hear moot controversies

raise substantial barriers to cases seeming to question foreign affairs actions.

FN60. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318

(1936); Employers Group of Motor Freight Carriers v. NWLB, 143 F.2d 145 (D.C.

Cir.), cert. denied, 323 U.S. 735 (1944).

FN61. See HENKIN, supra note 27, at 70-71 (1990) (stating that courts blend

judicial humility with patriotism in often showing undue deference to the

President and Congress); Michael J. Glennon, Foreign Affairs and the Political

Question Doctrine, in FOREIGN AFFAIRS AND THE U.S. CONSTITUTION, supra note 54,

at 112-13 (noting that all doctrines that lead courts not to decide cases find a

home in the field of foreign affairs); Immigration & Naturalization Servs. v.

Chadha, 462 U.S. 919, 944 (1983) (considering the functional advantages of each

branch of government in determining which is best suited to administer a

particular function).

FN62. Curtiss-Wright, 299 U.S. at 318. Although some of the powers are not

enumerated in the Constitution, they are, according to the Court, warranted "in

the law of nations." Id.

FN63. HENKIN, supra note 27, at 71 (coupling deference for constitutional

foreign affairs powers with the representational aspect of Congress).

FN64. Id. at 78 (considering the

President no more representative

of the people than the courts).

FN65. See supra note 31.

FN66. See supra note 48 discussing presidential orders enacted without

congressional consideration or approval.

FN67. Glennon, supra note 61, at 112.

FN68. Id. at 112-13. See also Baker v. Carr, 369 U.S. 186, 211 (1962)

(establishing the political question doctrine by noting that many foreign

relations issues defy judicial application, although courts should not decline

to rule on a case if, by addressing the issue, the court can deter governmental


FN69. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 178 (1804). Congress had

authorized the seizure of ships bound for French Ports, but President Jefferson

ordered the Navy to seize vessels heading both in and out of French ports. Id.

at 177-78. The Court recognized the pre-eminence of Congressional authority to

make laws in engagements short of war and held against a captain who, by

following the direct order of his Commander-in-Chief, violated congressional

legislation. Id. at 178-79.

FN70. Compare The Prize Cases, 67

U.S. (2 Black) 635 (1862)

(upholding President Lincoln's

right to enact a naval blockade of

the Confederacy during the Civil

War) and Ex parte Vallandingham,

68 U.S. (1 Wall.) 243 (1863)

(refusal by the Supreme Court to

hear a case concerning the

military trial of disaffected

civilians when civil courts were

available pursuant to a

proclamation by President Lincoln

during the Civil War) with Ex

parte Milligan, 71 U.S. (4 Wall.)

2 (1866) (holding that the

President could not order the

trial of civilians before military

courts after Civil War hostilities

had ceased and civilian courts

were open).

FN71. Habeas Corpus Act of 1863, ch. 81, 12 Stat. 755, amended by Act of May 11,

1866, ch. 80, 14 Stat. 46 (allowing either party to remove a case against a

federal officer to federal court within six months of the rendition of


FN72. See e.g., In re Debs, 158 U.S. 564 (1895) (authorizing President Cleveland

to send troops to Chicago during a Pullman strike to resume train service and to

ensure that the mail went through).

FN73. See Employers Group of Motor

Freight Carriers v. NWLB, 143 F.2d

145 (D.C. Cir.) (upholding the

ability of President Franklin

Roosevelt, as Commander-in-Chief,

to establish advisory agencies

that, in this case, were funded

through congressional

appropriations), cert. denied, 323

U.S. 735 (1944).

FN74. See SCHAFFTER & MATHEWS, supra note 36, at

9 (noting that Presidents Roosevelt and Truman

seized private facilities seventy-nine times

between 1941 and 1952).

FN75. 299 U.S. 304 (1936).

FN76. Id. at 319; see also Missouri v. Holland, 252 U.S. 416 (1920) (holding

that presidential treaty authority need not conform with Congressional


FN77. Curtiss-Wright, 299 U.S. at 320.

FN78. 323 U.S. 214 (1944).

FN79. See, e.g., Abner J. Mikva, A Tribute to Justice William J. Brennan, Jr.,

104 HARV. L. REV. 12 (1990) (recounting the regret of Justice Black over the

Korematsu decision).

FN80. 343 U.S. 579 (1952).

FN81. Id. at 582-83.

FN82. Id. at 587-89.

FN83. Id. at 587.

FN84. Id. at 635-38 (Jackson, J., concurring) (qualifying his framework by

noting that presidential powers do not fit within strict judicial definitions

but fluctuate as they disjoin and conjoin with the powers of Congress).

FN85. Id. at 635-36.

FN86. Id. at 637.

FN87. Id..

FN88. Id..

FN89. Id. at 637-38.

FN90. Id. The President was not granted a monopoly on war powers by the

Constitution nor was he deemed Commander-in-Chief of the entire country in

addition to its Army and Navy. Id. at 643-44. Although Congress does not have

the power to deprive the President of command of the military, only Congress has

the power to raise and fund military forces. Id. at 644.

FN91. American troops fought under foreign commanders at the beginning of U.S.

participation in World War I before sufficient materials were gathered and men

drafted so the U.S. could field its own European army. David F. Trask,

Introduction to 1 UNITED STATES ARMY IN THE WORLD WAR, 1917-1919, at xii (1988)

(noting that President Wilson and General Pershing considered foreign command of

American troops a temporary measure). U.S. troops also served under British

General Montgomery as part of a coalition army soon after the U.S. entered World



LAMB, MONTGOMERY IN EUROPE 1943-45: SUCCESS OR FAILURE? 183 (1984) (recognizing

that foreign command was soon displaced when American General Eisenhower became

commander over the entire European theater). American troops also reported to

foreign commanders in NATO, and an Army medical unit was placed under foreign

command in the U.N.'s Desert Storm conflict with Iraq. See also Harry Levins,

Under Foreign Flag; GI's Have Served Under Non-U.S. Commanders in Many Past

Wars, ST. LOUIS POST-DISPATCH, Feb. 25, 1996, at 1B (recounting, to refute Spc.

Michael New's allegations that such actions are unconstitutional instances, the

multi-national force in the Sinai Peninsula to separate Egypt and Israel, where

U.S. soldiers served under foreign commanders).

FN92. William J. Clinton, Presidential Decision Directive 25 (1994)

(unpublished). PDD-25 has been classified as a confidential and, as such, has

not been released, however, excerpts have been released revealing its contents.

See Michael J. Glennon & Allison R. Hayward, Collective Security and the

Constitution: Can the Commander in Chief Power Be Delegated to the United

Nations?, 82 GEO. L.J. 1573, 1574 (1994) (discussing the context of the

unpublished PDD-25). PDD-25 also outlines the circumstances under which the

President would place troops under foreign command and makes recommendations as

to how the U.N. may improve the way it organizes and oversees military

operations. See Administration Policy, supra note 3, at 801.

FN93. See infra notes 95-154 and accompanying text.

FN94. See infra notes 155-78 and accompanying text.

FN95. See e.g., Peter W. Rodman, Declarations of Dependence, NAT'L REV., June

13, 1994, at 32.

FN96. "The current discussion about U.S. troops under foreign command... seems

to reflect prevailing conclusions about U.S. foreign-policy and the role in it

of peacekeeping and the UN, and perhaps a desire to withdraw from

responsibilities of the world situation." Peace Operations, 1995: Hearing Before

the Subcomm. on Airland Forces of the Comm. on Armed Services, United States

Senate, 104th Cong., 1st Sess. 36 (1995) (statement of Ambassador Jonathan Dean,

Adviser of International Security Issues, Union of Concerned Scientists). See

also Thomas Goetz, Beating Up the Blue Berets: Amid all the Mud Slinging of the

Presidential Campaign, the UN Provides an Easy Target, VILLAGE VOICE, Mar. 5,

1996, at 24 (concluding that such isolationist rhetoric lacks a sound basis).

FN97. See, e.g., Rodman, supra

note 95 (assailing President

Clinton's foreign command policy

as embodied in PDD-25 for

subjugating American interests to

those of the U.N.).

FN98. Id. (comparing the history of right-wing criticisms that the U.N.

threatens U.S. sovereignty to red scare concerns over the spread of communism).

FN99. See Warren Strobel,

Somalia's Specter Haunts Haiti

Plan, WASH. TIMES, July 17, 1994,

at A1. Even U.S. participation in

the 1994 U.N. action to return a

democratically elected leader to

power in nearby Haiti failed to

garner support in the U.S. Id.

FN100. Rodman, supra note 95, at 33. U.S. troops were pulled out of the

unpopular 1993 U.N. humanitarian mission in Somalia after eighteen soldiers were

killed in an October firefight. Id.

FN101. Some fear that U.S. participation in the U.N. sponsored peacekeeping

efforts in Macedonia will require long-term commitment reminiscent of post-

World War II Germany and will make American troops available for politically

motivated attacks. Frank Gaffney, Jr., No-go Momentum on Bosnia, WASH. TIMES,

Nov. 14, 1995, at A14 (claiming that President Clinton was not following the

criteria for troop deployment that he set forth in PDD-25).

FN102. Denning, supra note 19, at 19.

FN103. See D.L. Cuddy, U.N. Compromises Soldier's Loyalty, ROCKY MOUNTAIN NEWS,

Jan. 1, 1996, at A44 (supporting New's stand by claiming that the Constitution

only affords the President the authority to command the U.S. military when it is

called into the actual service of the U.S.).

FN104. Military leaders, however, would presumably prefer that policy concerns

should be addressed on the floor of Congress and not advanced by field soldiers

whose refusal to follow orders threatens the orderly function of military


FN105. See Marguerite Michaels, Peacemaking War, TIME, July 26, 1993, at 48

(describing the case of an Italian commander whose conduct was reprimanded by

the U.N. in Somalia as indicative of potential problems with foreign command of

U.S. troops).

FN106. One piece of legislation, however, implicitly supported the foreign

command of troops by requiring that Congressional approval be obtained before

placing U.S. soldiers under a foreign commander. See Peace Powers Act of 1994,

supra note 51 (replacing the War Powers Resolution with a bill which replaces

impermissible limits on the President's use of U.S. troops abroad with simple

reporting and consultation stipulations).

FN107. See, e.g., 139 CONG. REC. S13565 (daily ed. Oct. 18, 1993) (allowing U.S.

troops to be placed under foreign command only after the President had sought

and received congressional authorization, President Clinton considered this to

be a violation of his power as Commander-in-Chief). See generally George K.

Walker, United States National Security Law and United Nations Peacekeeping or

Peacemaking Operations, 29 WAKE FOREST L. REV. 435 (1994) (outlining proposed

legislation addressing the participation of U.S. military forces in U.N.

operations and placing those forces under U.N. command).

FN108. See CON. REC. H 8596 (daily ed. Sept. 6, 1995) ("[E]xpressing the sense

of Congress that the national security policy of the United States should be

based upon a national strategy for peace through strength."). See also 141 CONG.

REC. H1862 (daily ed. Feb. 16, 1995) (referencing the Engel Amendment to the

national security bill restricting the foreign command of U.S. troops); 140

CONG. REC. S416-18 (daily ed. Jan. 31, 1994) (statement of Sen. Dole indicating

he was removing a provision from the Peace Powers Act of 1994 prohibiting the

foreign command of U.S. troops to accommodate the presidential administration

and to avoid sidetracking the entire bill); 140 CONG. REC. E 002-03 (daily ed.

Sept. 29, 1994) (proposing an Amendment to the 1995 defense appropriations

legislation to prohibit the foreign command of U.S. troops); see also Tayor,

supra note 4, at A3 (quoting Senate leaders from both parties criticizing the

foreign command component of PDD-25's predecessor, PDD-13).

FN109. See Eric Black, Policing the Peace; Congress, Presidents have had Uneasy

Struggle Over Power to Make War, STAR TRIB., Nov. 27, 1995, at A1 (noting that

Congress is unlikely to rally the necessary support to forbid the Bosnian

mission in time to halt that action).

FN110. See generally Glennon & Hayward, supra, note 92.

FN111. See U.S. CONST. art. II, s 2.

FN112. "[T]he general rule of law is [] that a delegated authority cannot be

delegated." Shankland v. Washington, 30 U.S. (5 Pet.) 390, 395 (1831); see also

Bill Gertz, Order on U.N. Uniform Spurned; American Awaits Army Discipline,

WASH. TIMES, Oct. 11, 1995, at A4 (criticizing the delegation of military

command authority to foreigners).

FN113. Lee A. Casey & David B. Rivkin, Jr., Congress, the President and the

U.N., WASH. TIMES, Jan. 30, 1995, at A21.

FN114. UNPROFOR is the UN Protection Force.

FN115. See Roscoe G. Bartlett, The Case of Michael New, WASH. TIMES, Mar. 18,

1996, at A19 (recounting congressional questions concerning the legality of the

Macedonian operation).

FN116. Id. See also Scarborough, supra note 20, at A2 (recounting U.S.

Representative to the U.N. Madeline Albright's testimony before a Senate panel

stating that the Macedonian operation does not require Congressional approval

and that U.S. troops wear U.N. insignia in Macedonia "to prevent potential

deadly confusion.").

FN117. Bartlett, supra note 115, at A19.

FN118. See Rowan Scarborough, Senator May Halt Funds for Macedonia Mission,

WASH. TIMES, Apr. 9, 1996, at A6 (recounting a letter from Sen. Mitch McConnell

to the White House threatening to withhold funds for the operation in Macedonia

because the President failed to seek Congressional approval prior to deploying

U.S. forces).

FN119. Id.

FN120. Glennon & Hayward, supra note 92, at 1594.

FN121. Id.

FN122. Id.

FN123. Id. at 1595. Although the U.S. would likely unilaterally withdraw troops

from an enforcement action without the consent of the U.N., the withdrawal might

violate U.S. treaty obligations. Id. Article VI of the Constitution states that

treaties, including the treaty the U.S. has with the U.N., "shall be the supreme

law of the land," but, when a treaty obligation runs contrary to our

Constitution, that obligation is nullified. See INTERNATIONAL LAW: CASES AND

MATERIALS 165, 199 (Louis Henkin et al. eds., 3d ed. 1993) (noting that

"treaties are subject to the constitutional limitations that apply to all

exercises of federal power").

FN124. Clinton, supra note 92. PDD-25 has been classified as a confidential and,

as such, has not been released, however, excerpts have been released revealing

its contents.

FN125. See Administration Policy,

supra note 3, at 801 (outlining

the contents of PDD-25).

FN126. See 141 CONG. REC. H1780 (daily ed. Sept. 15, 1995).

FN127. See infra notes 143-54 and accompanying text.

FN128. See Administration Policy, supra note 3.

FN129. See Tom Squitieri, 'New World Order' Facing Disorder, USA TODAY, Oct. 11,

1993, at 4A (discussing recent U.N. sponsored military actions in Lebanon,

Haiti, Somalia, and the former Yugoslavia and noting that the concept of an

active U.N. in the new world order was introduced by President Bush).

FN130. See World Cop?, THE ECONOMIST, Dec. 19, 1992, at 13 (noting that although

the U.S. is unwilling to play world's policeman, the U.N. will need significant

retooling to handle the task).

FN131. Administration Policy, supra note 3, at 801. PDD-25 recommends ways to

improve the U.N.'s management of its military operations, sets a standard of

review to determine whether the U.S. should become involved in a peace

operation, addresses the role of regional organization like NATO in peace

operations, declares a need to clearly define the command and control structure

for U.S. troops in U.N. actions, and recommends how the President and Congress

can better cooperate during peace operations. Id.

FN132. Id.

FN133. Id. at 801-02.

FN134. Id.

FN135. Id. at 800 (listing international territorial disputes, armed ethnic

conflicts, civil wars as threats to current world peace).

FN136. Id. at 801.

FN137. Id. at 801.

FN138. U.N. operations have traditionally been organized on an ad-hoc basis. See

James W. Houck, The Command and Control of United Nations Forces in the Era of

"Peace Enforcement," 4 DUKE J. COMP. & INT'L L. 1, 11 (1993). Nations offer

troops to support a particular operation, and a single nation is normally

designated to lead forces in a particular engagement under the auspices of the

U.N. Id. For example, the U.S. led the U.N. forces in Korea. Id. at 12. In the

1991 U.N. action against Iraq, participating nations were split into two

distinct factions; one faction was led by the U.S., and the second was led by

Saudi Arabia. Id. at 17. The two different factions worked with the U.N. and

each other to coordinate military operations. Id.

FN139. See Rodman, supra note 95, at 32.

FN140. Administration Policy, supra note 3, at 801. Further, other nations may

interpret U.S. led actions as a manifestation of U.S. imperialism rather than

U.N. peacekeeping. Id.

FN141. Many U.N. member countries, including several of our NATO allies, readily

place their troops under foreign commanders as part of U.N. peace operations.

See Steven Greenhouse, Conflict on G.O.P. Agenda Intense in Capital Meetings,

N.Y. TIMES, Jan. 29, 1995, s 1, at 10 (fearing that if the U.S. enacts a policy

which forbids U.S. troops from serving under foreign command, our NATO allies

may do the same).

FN142. Id. PDD-25 also states that the U.S. does not support the idea of a

standing U.N. army or earmarking particular U.S. military units to participate

in U.N. operations. Id. But see Rodman, supra note 95, at 32 (quoting President

Clinton as seeing a need to institutionalize the U.N.'s success in Desert Storm

and the creation of a "U.N. Rapid Deployment Force").

FN143. Administration Policy, supra note 3, at 807.

FN144. Id.

FN145. See U.N. CHARTER art. 43; see also infra note 149 and accompanying text

(noting that a treaty agreement which robs the President of his constitutional

right to command U.S. military forces would be unenforceable as violative of the


FN146. See Administration Policy,

supra note 3, at 808.

FN147. Operational control simply allows foreign commanders to lead U.S. troops

in accomplishing military objectives and methods that have been pre-approved by

the U.S. Id.

FN148. Id.

FN149. See U.N. CHARTER art. 43. An agreement is also reached between other

nations and the U.N. any time military forces are committed to a U.N. action by

a given country. Administration Policy, supra note 3, at 808.

FN150. Administration Policy, supra note 3, at 808.

FN151. Id.

FN152. Id.

FN153. Id.

FN154. Denning, supra, note 19, at 19.

FN155. See United States ex rel. New v. Perry, 919 F. Supp. 491, 499 (D.D.C.

1996) (holding that New's case was nonjusticiable until the military appeal of

his court martial had run its course).

FN156. But see Denning, supra note

19, at 19 (noting that "federal

courts are loath to referee

disputes between the executive and

legislative branches of government

over the conduct of foreign


FN157. See generally supra note 36. Although several officers from foreign

countries trained Revolutionary War troops, none did so under the commission of

a foreign country.

FN158. Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579 (1952);

see Dames & Moore v. Regan, 453

U.S. 654, 669 (1981) (Rehnquist,

J.) (noting that, although few

presidential actions are apt to

fall cleanly into one of the three

compartments of the test,

particularly where an

unanticipated international crisis

is involved, Youngstown provides a

useful analytical framework to use

in evaluating executive actions).

FN159. Youngstown, 343 U.S. at 635-55 (Jackson, J., concurring); see also supra

notes 80-90 and accompanying text.

FN160. Id. at 635-37.

FN161. Id. at 637.

FN162. Id.

FN163. Id.

FN164. Id.

FN165. But see Harold Hongju Koh, Why the President (Almost) Always Wins in

Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255, 1256

(1988) (arguing that the "growing trend of executive initiative, abetted by

congressional acquiescence and judicial tolerance[,]" has allowed the President

to obtain too much power over foreign affairs).

FN166. See supra note 48. The court may also consider in their analysis the

willingness of other countries to place their military forces under foreign

command pursuant to multi-national military efforts.

FN167. If the court reviews a case similar to New's, the court will also

consider concerns that the disobedience of a soldier "undermine[s] the

presumption of lawfulness that attaches to orders ultimately emanating from the

Commander-in-Chief." United States ex rel. New v. Perry, 919 F. Supp. 491, 497

(D.D.C. 1996); see also 141 CONG. REC. S16425 (daily ed. Oct. 31, 1995)

(statement of Senator Craig) (noting that, although he sympathized with Michael

New and supported legislation outlawing foreign command, the Senator felt that

it was not New's place to question a direct order); Lawful Order/Soldiers are

not at Liberty to Pick and Choose, HOUSTON CHRON., Jan. 26, 1996, at A30 (noting

that although they felt "U.S. forces should not be placed under U.N. command[,]

.. individual soldiers, for the sake of the defense of the nation they serve,

cannot take it on themselves to make such decisions").

FN168. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952)

(Jackson, J., concurring).

FN169. See HENKIN, supra note 27, at 43.

FN170. Id.


that courts reference custom in determining the proper constitutional delegation

of power).

FN172. See supra notes 126, 138-42

and accompanying text.

FN173. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).

FN174. See Denning, supra note 19, at 19 (arguing that Republican concerns over

Michael New are hypocritical because the party failed to voice similar concerns

when Republican Presidents held office); Crossfire, (CNN television broadcast,

Feb. 15, 1995) (transcript on file with the University of Dayton Law Review)

(discussing the partisan political motives behind the criticism of the

President's foreign command policy). Legislative attempts to secure

congressional approval prior to the placement of troops under foreign command

further suggests the influence of partisan politics and intimates that the

foreign command of U.S. forces is constitutionally acceptable. See Peace

Operations, supra, note 96 (arguing that the provisions of the Peace Powers Act

of 1995, which was co-sponsored by the Senate Majority Leader, Republican Bob

Dole, requiring congressional approval of the foreign command of U.S. troops

certifies the constitutionality of such action).

FN175. See Shankland v. Washington, 30 U.S. (5 Pet.) 390, 395 (1831) (holding

that a delegated constitutional authority cannot, in turn, be delegated).

FN176. Youngstown, 343 U.S. at 645. The President may not escape the limits of a

constitutional republic, however, by utilizing his military authority. Id. at

645-46. Though the vague constitutional clauses that afford power to the

President provide a plausible basis for trying to assume authority beyond the

power actually granted, the court should resist such nebulous justification for

unrestricted presidential power. Id. at 647.

FN177. See generally GLENNON, supra note 171.

FN178. The court may also look for an opportunity to deem the issue

nonjusticiable or quickly validate presidential discretion over this matter

given the court's hesitancy to alter the equilibrium of power between the

President and Congress. See Goldwater v. Carter, 444 U.S. 996, 997 (1979)

(Powell, J., concurring) (reiterating judicial hesitancy to decide disputes

between the President and Congress).