Constitutional Authority for the Transboundary Deployment of Armed Force
This chapter assesses the formal constitutional framework of authorization of foreign deployments of uniformed personnel, both formed units and individual service members. The initial volume of the Fourth Restatement of Foreign Relations Law does not ponder general matters of separation of powers and specifically in the realm of foreign affairs and national security. Apparently, this discussion is left to subsequent installments. The Third Restatement briefly addressed the separation of powers in foreign relations, in particular referring to the “continuing controversy as to whether the President can deploy the forces of the United States on his own authority for foreign policy purposes short of war, and, if so, whether that authority is subject to Congressional control. Nor is it agreed to what extent Congress can control decisions of the President as Commander in Chief in the conduct of wars authorized by Congress.” The United States is not unique in that respect, and similar controversies, whether in law or in practice, may and do occur in other jurisdictions. This chapter offers a comparative perspective, drawing from experiences of the Russian Federation and its predecessor, the Soviet Union and its heirs.