Joe Biden, World Government Guy

by Peter Spiro

Some hard-working soul on the Democratic vice presidential vetting team had to make her way through a law review article Joe Biden co-authored in the late 1980’s on constitutional war powers. The piece is pretty safe stuff, advocating a “joint decision model” for use-of-force decisionmaking. In the course of proposing some tinkering with the War Powers Resolution, there is this suggestion:

One authority, clearly not inherent but which Congress might wish to provide [in the proposed bill], would empower the President to use force pursuant to a decision of the United Nations Security Council — as President Truman did in Korea, with the difference that Truman acted unilaterally, asserting an inherent authority. It seems inconceivable that Congress would wish to thwart the United States’ participation in any multilateral use of force on which the Security Council could unanimously agree, particularly if the President had consulted with the congressional leadership before participating in the United Nations’ decision. From the President’s perspective, genuine consultation would be the essence of prudence, since an extended use of force would eventually require congressional approval. Such a pre-authorization to the President could, in an international emergency such as the Korean intervention, prove useful and would serve, by its very existence, as a symbol of American support for multilateral, consensus-based U.N. action.

A similar authority for multilateral action would empower the President to use force in cooperation with America’s democratic allies under circumstances wherein military intervention could have decisive effect in protecting existing democratic institutions in a particular foreign country against a severe and immediate threat. As with the U.N.-related authority, built-in constraints on the President would derive from the need to act multilaterally and the eventual need to obtain congressional authorization for a sustained use of force

Joseph R. Biden Jr. & John B. Ritch III, The War Power at Constitutional Impasse, 77 Geo. L.J. 367, 397-98 (1988). Biden appears in the end not surprisingly to have dropped the idea when putting the proposal into bill form. You have to wonder if Biden actually read the article published under his name, unlike plagiarized biographies no great sin in the world of Washington (co-author Ritch, then Biden’s aide, is now director general of the somewhat scary sounding World Nuclear Association).

Bad idea? Maybe we’ve come around to a world in which Tom Franck’s then-daring proposition (elaborated here and in the memorable 1991 N.Y. Times op-ed, “Declare War? Congress Can’t”) doesn’t seem so outlandish any more. (Some hint here also along the lines of the Concert of Democracies.) I doubt we’ll hear too much from the Democratic ticket during the campaign about deferring to Turtle Bay, but perhaps we might see possibilities in this direction after inauguration day.

11 Responses

  1. I happened to see senator biden discuss the article at a speech at william and mary law school. perhaps he had little to do with its composition, but i feel safe saying that he was quite familiar with its contents.

    In fact, I personally videotaped the speech for the institute of Bill of Rights Law; I am sure the tape is still available at the university.

  2. I don’t see this as deference to Turtle Bay in the least.  That formulation suggests that the UN has a veto over US military activity, which is drastically different from what the authors propose. 

  3. JPE’s comment is well taken, and I’m obviously engaging in some cartooning here.  But the proposal would have added UN authorization into the constitutional mix in a new way, or at least in a way that would validate Korea as a precedent, something it hasn’t really been even in the age of the imperial presidency.

  4. Response…Actually, this proposal seems to strengthen the hand of the President–just what the Left wants, a President who can act more freely of Congress, right?

  5. IANAL, but I think jpe hits on a key difference between the idea expressed in this article and Sen. Kerry’s infamous “global test”.  While the latter seemed to say that foreign governments, particularly through the body of the UN, should have a say in preventing military action by the US, the former implies that additional Congressional action should not be required to empower the President to use military force if a multinational group of which the US is a part has unanimously agreed to action.

    I’m not a Biden fan or a supporter of his election, and perhaps he may be a “world government guy,” but I don’t think this article is necessarilly the damning evidence of his willingness to turn over US national security to the UN the post seems to imply.

  6. John Ritch is the Director General of the World Nuclear Association, whose sole purpose is the promotion of safe nuclear energy in order to combat climate change. That is not “scary,” it is sane and inevitable.

  7. No new posts in days, yet Russia recognizes South Ossetia & Abkhazia citing the Kosovo precedent, declares that NATO is limited by treaty from putting additional forces in the Baltic, and in dribs and drabs releases captured Georgian soldiers (were they given Geneva protections?).
    The reason for the lack of posts must be the August holiday season–you can’t all be focused on the Dem convention!

  8. DG:  World government folks that several of us are, how do you know that we’re not AT the convention, pulling the strings of the new global order?

    As for the World Nuclear Association, I said that it sounds scary, not that it is scary.  Perhaps a name change would be in order.

  9. Alright, the convention’s over now.  How about a realpolitik deal involving Russia completely and immediately withdrawing from Georgian territory (but not S.O. or A.), the U.S. and EU immediately recognizing the breakaways as independent, some formal limits on western forces in former SSRs, and Russia not turning off the gas.  It isn’t pretty, but this posturing game is getting real serious real quick, and the U.S. does not appear to understand that. 

    The collapse of the Soviet Union signalled not the end of history but the resumption of it, a la Bismark’s balance-of-power.  Russia today is in several ways echoing the old Russian Empire more than the USSR.  The astutely-noted decline of national loyalty in the west may be the symptom of a problem.

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  1. […] and law schools, now’s as good a time as ever to point out some of his ivory tower cred. At Opinio Juris, Peter Spiro discusses a 1988 law review article, entitled “The War Power at Constitutional […]

  2. […] and law schools, now’s as good a time as ever to point out some of his ivory tower cred. At Opinio Juris, Peter Spiro discusses a 1988 law review article, entitled “The War Power at Constitutional […]