Joe Biden, World Government Guy

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.