Legality and Legitimacy in American Military Interventions

Abstract

Debates about the sources of presidential power in wartime often turn on constitutional separation of powers questions about where executive authority ends and legislative authority begins. Such legal premises of presidential power are both ambiguous and contested, however, lending credibility to alternative theories of presidential power that hinge on political considerations such as public support, a source of legitimacy rather than legality for particular actions. This article builds on the distinction between legality and legitimacy in presidential power in wartime and develops a legitimacy framework that identifies rational-legal, traditional, and charismatic sources of legitimacy. An examination of the historical record of American military force from 1798 to the present suggests that executives have often pursued a legal basis for intervention and obtained legislative authorization for the use of force, but have also acted as though sources of legitimacy are viable substitutes for legality. Early in American history, those sources consisted of traditional authority such as Manifest Destiny; in the early half of the twentieth century, they took the form of charismatic authority such as the Roosevelt Corollary to the Monroe Doctrine; and since 1945, rational-legal authority through international organizations. Analyzing the argument in light of the historical record shows that the turn to unilateralism is not a new feature of the executive–legislative balance of power, but rather an undercurrent of intervention politics, atop of which rest efforts at legitimation for the use of force.