Eugene Kontorovich: Yoo does suggest limits on presidential war powers.... He criticizes President Clinton for placing U.S. troops in Kosovo under foreign command. This, he says, violated the Appointments Clause, which requires those given federal executive power to be chosen through a process that involves Congress; foreign commanders do not go through this process, but are given executive power when they can give orders to U.S. troops. True, other presidents [Truman, Roosevelt, Wilson, Washington] have done this, particularly in the World Wars. But they only gave the foreign commanders "operational command" rather than strategic command. Why this makes much of a difference is not clear, but for Yoo, it means Clinton's actions were unconstitutional while previous presidents escape censure. Yoo's appointments-clause argument is... hard to reconcile with his other positions. If anything is the president's bailiwick, it is the actual conduct of war, and placing U.S. soldiers under tactical command of foreign officers bears directly on the conduct of the war: If we operate side-by-side with allies, it may be necessary for its successful prosecution. As long as the president can remove the soldiers from foreign command, his "commander in chief" role is preserved -- indeed, it is strengthened through greater flexibility in how units are organized...
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