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A Bibliography of Executive Branch War
Powers Opinions Since 1950
Stephen M. Griffin*
INTRODUCTION............................................................................. 649
BIBLIOGRAPHY............................................................................. 650
BRIEF COMMENTARY ................................................................... 653
APPENDICES ................................................................................. 658
A: MEMORANDUM FROM RUSK TO PRESIDENT JOHNSON ....... 658
B: MEMORANDUM FROM MEEKER TO PRESIDENT
JOHNSON.............................................................................. 662
C: MEMORANDUM FROM MEEKER TO PRESIDENT
JOHNSON.............................................................................. 669
D: MEMORANDUM FROM MEEKER TO PRESIDENT
JOHNSON.............................................................................. 676
E: MEMORANDUM FROM REHNQUIST TO COLSON.................. 686
F: MEMORANDUM FROM RICHARDSON TO ASH...................... 705
G: MEMORANDUM FROM GRAY TO PRESIDENT BUSH ............. 710
H: MEMORANDUM FROM GRAY TO GOVERNOR SUNUNU ....... 715
I.
INTRODUCTION
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I.
II.
III.
IV.
While there is extensive literature on presidential war powers,1 to
my knowledge there has never been a comprehensive listing of the
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*
© 2013 Stephen M. Griffin. Rutledge C. Clement, Jr. Professor in Constitutional
Law, Tulane University Law School. E-mail: [email protected].
See, e.g., JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS
1.
OF VIETNAM AND ITS AFTERMATH (1993); LOUIS FISHER, PRESIDENTIAL WAR POWER (2d ed.,
rev. 2004); MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY (1990); H. JEFFERSON
POWELL, THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS (2002); MICHAEL D. RAMSEY,
THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS (2007); W. TAYLOR REVELEY III, WAR POWERS
OF THE PRESIDENT AND CONGRESS: WHO HOLDS THE ARROWS AND OLIVE BRANCH? (1981);
ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS
(1976); THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY (David Gray
Adler & Larry N. George eds., 1996); DONALD L. WESTERFIELD, WAR POWERS: THE
PRESIDENT, THE CONGRESS, AND THE QUESTION OF WAR (1996); FRANCIS D. WORMUTH &
EDWIN B. FIRMAGE, TO CHAIN THE DOG OF WAR: THE WAR POWER OF CONGRESS IN HISTORY
AND LAW (2d ed. 1989); JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND
FOREIGN AFFAIRS AFTER 9/11 (2005). Two other upcoming books on war powers worthy of
note are STEPHEN M. GRIFFIN, LONG WARS AND THE CONSTITUTION (forthcoming 2013), and
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relevant legal opinions provided by the executive branch. This
Bibliography of executive branch legal opinions on war powers since
the beginning of the Korean War in 1950 is therefore intended as an
aid to future scholarship. The opinions are listed in chronological
order. Most have been published as public documents, although some
were confidential at the time they were written. The once-confidential
documents are available from presidential libraries, and I have
provided the information necessary for the library archivists to retrieve
them. This Bibliography is limited to opinions that are related to the
initiation of war, including the interpretation of the 1973 War Powers
Resolution (WPR).2 Eight opinions that I believe were previously
unknown or not easily accessible have been included as appendices to
this Bibliography. I provide a commentary on the various items in the
Bibliography at the end. I welcome suggestions for additions to this
list.
BIBLIOGRAPHY
1.
Memorandum from the U.S. Dep’t of State to President Harry S.
Truman (July 3, 1950), in H.R. REP. NO. 81-2495, pt. IV, at 61
(1950), quoted in 23 DEP’T ST. BULL. 173 (1950).
2.
STAFF OF JOINT COMM. MADE UP OF THE COMM. ON FOREIGN
RELATIONS AND THE COMM. ON ARMED SERVICES OF THE SENATE,
82D CONG., 1ST SESS., POWERS OF THE PRESIDENT TO SEND THE
ARMED FORCES OUTSIDE THE UNITED STATES (Comm. Print
1951).
3.
Memorandum from Dean Rusk, U.S. Sec’y of State, U.S. Dep’t
of State, to President Lyndon Baines Johnson (June 29, 1964) (on
file with LBJ Presidential Library, National Security File,
Country File, Vietnam, 7B, 1965-1968, Legality Considerations),
infra Appendix A.
4.
Memorandum from Leonard C. Meeker, Legal Adviser to the
President, to President Lyndon Baines Johnson (Feb. 11, 1965)
(on file with LBJ Presidential Library, National Security Files,
D
II.
MARIAH A. ZEISBERG, WAR POWERS: THE POLITICS OF CONSTITUTIONAL AUTHORITY
(forthcoming 2013).
2.
Pub. L. No. 93-148, 87 Stat. 555 (1973) (current version at 50 U.S.C. §§ 15411548 (2006)).
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Country File, Vietnam, 7B, 1965-1968, Legality Considerations),
infra Appendix B.
Memorandum from Leonard C. Meeker, Legal Adviser to the
President, to President Lyndon Baines Johnson (Apr. 6, 1965) (on
file with LBJ Presidential Library, National Security File,
Country File, Vietnam, 7B, 1965-1968, Legality Considerations),
infra Appendix C.
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5.
6.
Memorandum from Nicholas deB. Katzenbach, U.S. Att’y Gen.,
U.S. Dep’t of Justice, to President Lyndon Baines Johnson (June
10, 1965), in 2 FOREIGN RELATIONS OF THE UNITED STATES,
1964-1968: VIETNAM, JANUARY-JUNE 1965, at 751-54 (David C.
Humphrey, Ronald D. Landa, Louis J. Smith & Glenn W. La
Fantasie eds., 1996).
7.
Memorandum from Leonard C. Meeker, Legal Adviser to the
President, to President Lyndon Baines Johnson (June 11, 1965)
(on file with LBJ Presidential Library, National Security File,
Country File, Vietnam, 7B, 1965-1968, Legality Considerations),
infra Appendix D.
8.
Memorandum from Leonard C. Meeker, Legal Advisor to the
President, to the Senate Committee on Foreign Relations (Mar. 4,
1966), in 54 DEP’T STATE BULL. 474 (1966).
9.
Memorandum from William H. Rehnquist, U.S. Assistant Att’y
Gen., Office of Legal Counsel, U.S. Dep’t of Justice, to Charles
W. Colson, Special Counsel to the President (May 22, 1970) (on
file with Nixon Presidential Library and Museum, White House
Special Files, Staff Member and Office Files, Charles W. Colson,
Box 42, Cambodia, Accordion Folder II, Cambodia Legal Briefs,
1 of 2), infra Appendix E.3
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10. Memorandum from Elliot Richardson, U.S. Att’y Gen., U.S.
Dep’t of Justice, to Roy L. Ash, Dir., Office of Mgmt. & Budget
(Oct. 18, 1973) (on file with Nixon Presidential Library and
Museum, White House Central Files, Subject Files, FE (Federal
Government) 4-1, 10/1/73-11/30/73, Box 6), infra Appendix F.
3.
Special thanks to Nathan A. Forrester, Attorney-Adviser/Editor of the Office of
Legal Counsel in the U.S. Department of Justice, for his assistance.
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11. Veto of the War Powers Resolution, PUB. PAPERS 893 (Oct. 24,
1973).
12. A Test of Compliance Relative to the Danang Sealift, the
Evacuation at Phnom Penh, the Evacuation of Saigon and the
Mayaguez Incident: Hearings Before the Subcomm. on Int’l Sec.
& Scientific Affairs of the H. Comm. on Int’l Relations, 94th
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Cong. 95 (1975) (statements of Monroe Leigh, Legal Adviser,
U.S. Dep’t of State).
13. Presidential Power To Use the Armed Forces Abroad Without
Statutory Authorization, 4A Op. O.L.C. 185 (1980).
14. Overview of the War Powers Resolution, 8 Op. O.L.C. 271
(1984).
15. Memorandum from C. Boyden Gray, White House Counsel, to
President George H.W. Bush (Aug. 7, 1990) (on file with George
Bush Presidential Library and Museum, John Sununu Files,
OA/ID 29166-008, Persian Gulf War 1991, 6), infra Appendix G.
16. Memorandum from C. Boyden Gray, White House Counsel, to
Governor John H. Sununu, White House Chief of Staff (Dec. 6,
1990) (on file with George Bush Presidential Library and
Museum, John Sununu Files, OA/ID CF 00472, Persian Gulf War
1991, 11), infra Appendix H.
17. Authority To Use United States Military Forces in Somalia, 16
Op. O.L.C. 6 (1992).
18. Deployment of United States Armed Forces into Haiti, 18 Op.
O.L.C. 173 (1994).
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19. Proposed Deployment of United States Armed Forces into
Bosnia, 19 Op. O.L.C. 327 (1995).
20. Authorization for Continuing Hostilities in Kosovo, 24 Op.
O.L.C. 327 (2000).
21. John C. Yoo, The President’s Constitutional Authority To Conduct
Military Operations Against Terrorists and Nations Supporting
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Them, U.S. DEP’T OF JUSTICE (Sept. 25, 2001), http://www.
justice.gov/olc/warpowers925.htm.
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22. Jay S. Bybee, Authority of the President Under Domestic and
International Law To Use Military Force Against Iraq, U.S. DEP’T
OF JUSTICE (Oct. 23, 2002), http://www.justice.gov/olc/2002/iraqopinion-final.pdf.
23. Caroline D. Krass, Authority To Use Military Force in Libya,
U.S. DEP’T OF JUSTICE (Apr. 1, 2011), http://www.justice.gov/
olc/2011/authority-military-use-in-libya.pdf.
III. BRIEF COMMENTARY
D
Many scholars believe that President Harry S. Truman’s June
1950 decision to intervene in Korea without asking for a declaration of
war or other authorization from the Congress marked a departure from
previous practice.4 Whether or not this is true, it appears that there are
many more executive branch opinions concerning war powers after
1950.
Prior to 1950, there were instances when the executive branch
thought it necessary to compile lists of presidential military actions
abroad.5 During World War II, for example, the Department of State
began to assemble lists of presidentially ordered foreign interventions
in order to justify U.S. participation in an international military force.
The idea was that once the U.N. Charter was ratified by the Senate, the
President would be solely responsible for deciding when U.S. forces
would be used.6
These internal compilations were publicized as the war ended by
James Grafton Rogers, a former U.S. Assistant Secretary of State in
the Hoover Administration. He published a substantial pamphlet
addressing the question of whether the United States could
constitutionally participate in an international police force designed to
provide collective security.7 Rogers assumed the United Nations would
4.
See ELY, supra note 1, at 10; FISHER, supra note 1, at xi, 97-100; GLENNON, supra
note 1, at 80; WORMUTH & FIRMAGE, supra note 1, at 151; Raoul Berger, War-Making by the
President, 121 U. PA. L. REV. 29, 66-67 (1972).
5.
WORMUTH & FIRMAGE, supra note 1, at 142-43.
6.
ROBERT A. DIVINE, SECOND CHANCE: THE TRIUMPH OF INTERNATIONALISM IN
AMERICA DURING WORLD WAR II 222-25 (1967); ROBERT C. HILDERBRAND, DUMBARTON
OAKS: THE ORIGINS OF THE UNITED NATIONS AND THE SEARCH FOR POSTWAR SECURITY 14951 (1990).
7.
JAMES GRAFTON ROGERS, WORLD POLICING AND THE CONSTITUTION (1945).
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be formed and, when formed, would have an enforcement arm
designed to perform peacekeeping functions.8 He sounded some key
themes that later would be elaborated on by both the executive branch
and scholars defending a broad view of presidential war powers.9
Rogers’s work might have influenced the first legal opinion on
the list, drafted by the State Department’s Office of the Legal Adviser,
that defended the constitutionality of President Truman’s decision to
intervene in Korea.10 The executive branch also prepared a
supplemental statement of legal authorities supporting the decision,
which was published as a committee print of the Senate Foreign
Relations and Armed Services Committees in 1951.11
A number of significant opinions were provided by the State
Department, as well as by the Department of Justice, in support of the
constitutionality of the Vietnam War. Leonard Meeker, the State
Department’s legal adviser at the time, provided several of the
opinions, most of which are available only in the LBJ Presidential
Library. One fairly comprehensive memorandum was reprinted during
the Vietnam War in the Yale Law Journal.12 Also relevant was a
memorandum prepared by U.S. Attorney General Nicholas
Katzenbach in the months preceding President Lyndon Johnson’s
crucial July 1965 decision to escalate or “Americanize” the war.13
The Katzenbach memorandum is not as familiar to scholars as
some of the others, so I quote it here. Katzenbach analyzed the limits
on presidential authority to wage war as follows:
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In the absence of some action by Congress, the only legal limitation
on the power of the President to commit the armed forces arises by
implication from Article I, section 8 of the Constitution, under which
only Congress is authorized to “declare war.” I believe it is a fair,
although not uncontroversial, summary of nearly two centuries of
history to say that the power to “declare war” is the power to confer
substantially unlimited authority to use the armed forces to conquer
and, if necessary, subdue a foreign nation. Unless such unlimited
authority is exercised by the President, his legal position in using the
armed forces is sustainable. It has been argued that the President may,
8.
See id. at 7.
9.
For the use of Rogers’s work as authority by the executive branch, see supra Part
II, bibliog. #17, at 9.
10. Supra Part II, bibliog. #1.
11. Supra Part II, bibliog. #2.
12. Supra Part II, bibliog. #8; see Legality of United States Participation in the Viet
Nam Conflict: A Symposium, 75 YALE L.J. 1084, 1085-1108 (1966).
13. Supra Part II, bibliog. #6.
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without Congressional approval, take only urgent defensive measures,
or that he may take only minor police measures that are not likely to
commit the United States to full scale war. However, the action taken
by President Truman in Korea, which is not widely regarded as having
been illegal, shows how extensive the powers of the President may be.
The same illustration also shows how inextricably tied together the legal
14
and policy issues involved in such a situation necessarily are.
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Katzenbach’s analysis showed the influence of President
Truman’s Korea “precedent” and the view, common in the executive
branch at least throughout the Cold War, that the “declare war” clause
was not a limit on presidential power, except perhaps in a situation
similar to World War II.
The most interesting memorandum relevant to the Vietnam War
was written by William Rehnquist, who later became the Chief Justice
of the United States.15 Besides the interest of his later prominence, in
some ways this was the most candid memorandum because it directly
confronted the fact that the available historical precedents pointed in
different directions.
Next is an opinion by U.S. Attorney General Elliot Richardson on
the constitutionality of the WPR,16 which had just been passed by
Congress. It is unclear whether Richardson’s memorandum had
significant influence on President Richard Nixon’s subsequent veto
message, which was apparently drafted by the State Department.17 But
because it was previously unknown, it is provided in Appendix F to
this Bibliography.
Richardson believed declarations of war were inappropriate in a
variety of situations in which the United States might become
involved, including insurgencies and circumstances involving “terror
groups.”18 Richardson treated the “declare war” clause in a literal
manner, in effect asserting that it applied only when Congress enacted
documents labeled “Declarations of War” and that it did not embody a
substantive power to commence war.19 He wrote:
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From the constitutional point of view, we do not believe that
Congress has the authority to define the President’s war powers by
14. Supra Part II, bibliog. #6, at 752-53.
15. Supra Part II, bibliog. #9.
16. Supra Part II, bibliog. #10.
17. See Ann-Marie Woolnough Scheidt, The Origins and Enactment of the War
Powers Resolution, 1970-73, at 174 (1989) (unpublished Ph.D. dissertation, SUNY Stony
Brook) (on file with Tulane University Law Library).
18. Supra Part II, bibliog. #10.
19. Id. at 3-4.
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legislation enacted pursuant to the Necessary and Proper Clause. That
clause relates to the authority of the Federal Government as such, but
cannot form the basis of legislation limiting the power of the three
branches inter se. Otherwise Congress could through the exercise of its
legislative authority completely destroy the fundamental principle of the
separation of powers underlying the Constitution. . . .
Implementation of the war power provisions of the Constitution by
legislation purportedly enacted under the Necessary and Proper Clause
is also contrary to the spirit and purpose of our basic document. As
Chief Justice Marshall said in McCulloch v. Maryland . . . the
Constitution was “intended to endure for ages to come, and
consequently to be adopted [sic] to the various crises in human affairs.”
Hence, it was not to have “the properties of a legal code.” The bill,
however, would confine in a narrow statutory straitjacket, enacted
without knowledge of future crises, the President’s ability to meet the
20
unpredictable situations which may confront the United States.
Most of the remaining items are publicly available opinions of the
Department of Justice’s Office of Legal Counsel (OLC). The
memoranda dating from 1980 through 1990 are particularly relevant to
executive branch interpretation of the WPR.21
Two items in connection with the 1991 Persian Gulf War deserve
mention, as they are available only from the George Bush Presidential
Library and Museum. These are memoranda from White House
Counsel C. Boyden Gray justifying the constitutionality of launching a
war to remove Iraqi forces after Saddam Hussein’s invasion of Kuwait
on August 2, 1990.22 They are provided in Appendices G and H.
At bottom, Gray believed that congressional authorization was
required only when the United States intended to wage aggressive
(offensive) war. As a general matter, he reasoned that because the
United States does not engage in aggressive war, “the Executive
branch has generally held that the President can order U.S. forces into
combat without a declaration of war.”23 Gray concluded by telling
President George H.W. Bush:
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In the event that the United States undertakes any sort of military
response to Iraq’s invasion of Kuwait, you will have three options:
(1) proceed on your inherent authority as Commander-in-Chief without
seeking congressional authorization, (2) seek a joint resolution of
Congress approving your action, or (3) request a declaration of war. We
20.
21.
22.
23.
Id. at 4-5 (citation omitted).
Supra Part II, bibliog. ##13-15.
Supra Part II, bibliog. ##15-16.
Supra Part II, bibliog. #15, at 2.
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believe it is legally sufficient to proceed with no formal congressional
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authorization at all.
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Gray also noted that counsel in the executive branch believed the
WPR’s “sixty-day clock” to be unconstitutional.25
Among the various OLC opinions listed, a number of legal
scholars and attorneys who have served in the executive branch have
cited the Haiti and Bosnia opinions as influential.26 These opinions
relied on historical practice in supporting presidential authority to
deploy troops to those countries. But they also drew a distinction
between deployments involving a limited risk of casualties as opposed
to “‘war’ in the constitutional sense.”27 Presumably OLC was saying
that full-scale wars would raise considerably different constitutional
questions than the more limited deployments at issue during the
Clinton Administration. The OLC opinion with respect to President
Barack Obama’s intervention in Libya followed the analysis in these
Clinton Administration opinions.28 It is noteworthy, however, that the
OLC analysis authored by U.S. Deputy Assistant Attorney General
John Yoo during the administration of President George W. Bush did
not follow the Clinton Administration’s analysis.29 OLC opinions on
war powers thus appear to point in different directions depending on
which party holds the presidency.
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24. Id. at 4.
25. Id. at 3. Gray made an interesting comment in a later memorandum to President
Bush’s chief of staff, former Governor John Sununu:
We believe that the War Powers Resolution is unconstitutional insofar as it purports
to allow Congress to compel the withdrawal of U.S. forces through inaction, but no
President has wanted to jeopardize congressional support for his actions by defying
the Resolution. It often falls to Executive branch lawyers to develop a legal theory
permitting the President to avoid triggering the clock. Congress also has been
reluctant to permit the President to act in defiance of its interpretation of the
Resolution.
Supra Part II, bibliog. #16, at 1.
26. Supra Part II, bibliog. ##18-19.
27. Supra Part II, bibliog. #19, at 332.
28. Supra Part II, bibliog. #23.
29. Supra Part II, bibliog. #21.
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IV. APPENDICES
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[Editor’s Note : The following Appendices have been reproduced
verbatim from the original, typewritten documents. The pagination
and footnote numbers from the original documents are indicated in
bolded brackets. (In some of the original documents, this pagination
restarts at several points.) Hand-written or stamped notations have
been omitted and formatting has been retained to the extent possible.
The source of each Appendix has been provided in a footnote, as well
as the location of an electronic, photographic reproduction of the
original document.]
APPENDIX A
June 29, 1964
MEMORANDUM FROM DEAN RUSK TO
PRESIDENT LYNDON BAINES JOHNSON30
Subject: Legal Basis for Sending American Forces to Viet-Nam
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The enclosed memorandum is submitted in response to your
request of June 22 for a consideration of the legal basis for sending
American forces to Viet-Nam. The conclusions of the memorandum
may be summarized as follows:
1. The sending of American military personnel to serve in an
advisory, non-combatant role rests on specific authority contained in
the Foreign Assistance Act of 1961 and on a Mutual Defense
Assistance Agreement with Viet-Nam.
2. The assignment of United States military personnel to duty
in Viet-Nam involving participation in combat rests on the
constitutional powers of the President as Commander-in-Chief of the
armed forces, as Chief Executive, and in precedents in history for the
use of these powers to send American forces abroad, including various
situations involving their participation in hostilities. In the case of
Viet-Nam, the President’s action is additionally supported by the fact
that South Viet-Nam has been designated to receive protection under
Article IV of the Southeast Asia Collective Defense Treaty; both the
30. Source: LBJ Presidential Library National Security File, Country File, Vietnam,
7B, 1965-1968, Legality Consideration (photographic reproduction available at http://www.
tulanelawreview.org/files/87/3/smg/a.pdf).
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Treaty and the Protocol covering Viet-Nam received the advice and
consent of the Senate.
/s/
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Dean Rusk
[1] MEMORANDUM ON LEGAL BASIS FOR SENDING
AMERICAN FORCES TO VIET-NAM
1.
Advisory and noncombatant activities of American Forces in
Viet-Nam are authorized by Section 503 of the Foreign Assistance Act
of 1961 (22 U.S.C. (Supp. IV) 2311). That provision authorizes the
President to furnish military assistance abroad to any friendly country
through, inter alia, “assigning or detailing members of the Armed
Forces of the United States . . . to perform duties of a noncombatant
nature, including those related to training or advice.” Furthermore, the
United States and Viet-Nam are parties to an agreement for mutual
defense assistance in Indo-China dated December 23, 1950 (TIAS
2440, 3 UST 2756), which was concluded pursuant to Public Law 329,
81st Congress (63 Stat. 714, 22 USC (1952 ed.) 1571-1604). This
Agreement provides for the furnishing by the United States to VietNam of military assistance in the form of equipment, material and
services. Article IV, paragraph 2 of the Agreement states that “To
facilitate operations under this Agreement, each Government agrees
. . . To receive within its territory such personnel of the United States
of America as may be required for the purposes of this Agreement. . .”.
2.
D
The President’s authority to send United States military personnel
to Viet-Nam on assignments that include participation in combat
derives from Article II, Section 2 of the Constitution, which provides
that “The President shall be Commander-in-Chief of the Army and
Navy of the United States.” This power of the President is
complemented by his special responsibilities under the Constitution in
the field of foreign affairs (U.S. v. Curtiss-Wright Export Corp., 299
U.S. 304 (1936)) and by his position as Chief Executive with the duty
to see that the laws are faithfully executed.
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The line between Executive and Legislative power is not marked
out with precision in the Constitution. For example, Article I, Section
8, provides that Congress “shall have power . . . To declare war, . . . To
raise and support armies, . . . To provide and maintain a navy”.
However, the debate at the Federal Convention in 1787 when the
Constitution was being drafted makes clear that the powers of
Congress are without prejudice to the right of the President to take
action on his own “to repel sudden attacks”.
[2] Since the Constitution was adopted there have been at least
125 instances in which the President, without Congressional
authorization and in the absence of a declaration of war, has ordered
the armed forces to take action or maintain positions abroad. These
instances range from the war against the Barbary pirates in Jefferson’s
time to the sending of troops to Lebanon in 1958 by President
Eisenhower. In a number of cases the President has acted in
accordance with the general opinion of Congress or has sought
Congressional ratification later. Many other cases, however, have not
been referred to Congress at all.
While the most numerous class of these instances involved the
protection of American property or American citizens in foreign lands,
a number of them—such as the intervention in Texas in 1845 and in
Mexico in 1917, the intervention in Panama in 1903-04, the dispatch
of troops to Lebanon in 1958—were not concerned with the interests
of individual citizens but with the general defense of the United States
or the protection of some national interest or some concern of
American foreign policy.
A memorandum detailing these historical events and discussing
the question of the President’s constitutional authority, prepared in the
Department of State at the outset of the Korean conflict in 1950, is
attached (Tab A). A further presentation of the views of the Executive
Branch on this subject, published in 1951 as a Joint Committee Print
of the Senate Committees on Foreign Relations and Armed Services, is
also attached (Tab B).
Supreme Court decisions have not determined the extent of the
President’s authority to deploy and use United States armed forces
abroad in the absence of express authorization from the Congress. The
question has been the subject of Congressional debate at different
times, and the power of the President to take action on his own
responsibility has been generally supported. It has been supported on
the theory that the President has both a right and a duty to take
measures which he considers necessary for the defense of the United
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States. The view has sometimes been stated that the commitment of
United States forces to combat may be made by the President on his
own responsibility only when he judges the situation to be one of such
urgency as to brook no delay and to allow no time for seeking the
approval of Congress. Presidential decision that such an emergency
exists is one which other branches of the Government are unlikely to
try to overturn. There is, of course, a difference between (a) the
participation in combat of individual U.S. military personnel attached
to the armed forces of another country, and (b) the commitment of
organized United States forces to combat. Congressional concern [3]
has been particularly with the latter, because of the clearer possibility it
carries of involving the United States in large-scale hostilities.
If any question were raised as to the importance of Viet-Nam to
the defense of the United States, this would be answered not only by
the President’s own evaluation, but by the fact that a Protocol to the
Southeast Asia Treaty extends its protection to the Republic of VietNam. Both the Treaty and Protocol received the advice and consent of
the Senate. They represent a decision of the United States
Government, in the constitutional form of a treaty, that the defense and
security of Viet-Nam are necessary to the United States. Although the
Treaty and Protocol have not been invoked with respect to the situation
in Viet-Nam (since it is difficult to characterize North Vietnamese
actions in South Viet-Nam an “armed attack” within the meaning of
the Southeast Asia Treaty and the U. N. Charter), the existence of the
Treaty and Protocol lends support to the President’s action in sending
American forces to Viet-Nam. The legislative history of the Treaty and
Protocol indicates, however, an understanding that if the treaty were
formally invoked as a basis for United States military action or if
organized United States forces were committed to combat on a
substantial scale, the President would act through Congress if it were
in session, and if not in session would call Congress, “unless the
emergency were so great that prompt action was necessary to save a
vital interest of the United States.”
This memorandum has been reviewed in the Department of
Justice and approved by Mr. Schiel, Assistant Attorney General in
charge of the Office of Legal Counsel.
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APPENDIX B
February 11, 1965
MEMORANDUM FROM LEONARD C. MEEKER TO
PRESIDENT LYNDON BAINES JOHNSON31
Legal Basis for United States and South Vietnamese
Air Strikes
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SUBJECT:
The attached memorandum considers the legal basis for United
States and South Vietnamese air strikes on target areas in North VietNam. The memorandum develops a justification based on collective
self-defense against North Vietnamese aggressive conduct amounting
to armed attack; the right of collective self-defense is recognized in
Article 51 of the United Nations Charter. The memorandum avoids
reliance on theories of reprisal or retaliation, which are less readily
available under contemporary international law than they were before
the Charter.
There would, moreover, be some inconsistency in U.S. reliance
on reprisal or retaliation with respect to Viet-Nam when we have been
publicly critical of such justifications in other circumstances—for
example, in the Near East in situations involving Israel and the Arab
states.
There is the further consideration that a legal analysis based on
self-defense is politically more appealing in presenting our case to
other governments and in the court of public opinion around the world.
[1] Legal Basis for United States Actions Against North Viet-Nam
I
The Issue
D
This memorandum considers the question whether recent United
States-South Vietnamese actions against military targets in North VietNam are justified in international law, particularly in light of the
31. Source : LBJ Presidential Library, National Security Files, Country File,
Vietnam, 7B, 1965-1968, Legality Considerations (photographic reproduction available at
http://www.tulanelawreview.org/files/87/3/smg/b.pdf).
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United Nations Charter and the 1954 Geneva Accords on Viet-Nam. It
concludes that these actions are fully justified.
II
The Facts
Recent Incidents
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A.
On February 7, Viet Cong forces attacked South Viet-Nam air
bases in Pleiku and Tuy Hoa, two barracks installations in the Pleiku
area, and a number of villages in the vicinity of Tuy Hoa and Nha
Trang. Numerous casualties were inflicted. Since February 8, a large
number of South Vietnamese and United States personnel have been
killed in an increased number of Viet Cong ambushes and attacks. A
district town in Phuoc Long province was overrun, resulting in further
Vietnamese and United States casualties. In Qui Nhon, Viet Cong
terrorists in [2] an attack on an American military billet murdered
Americans and Vietnamese. In addition, there have been a number of
mining and other attacks on bridges and railways in South Viet-Nam as
well as assassinations and ambushes involving South Vietnamese civil
and military officials.
The Governments of the Republic of Viet-Nam and the United
States consulted and agreed on the necessity of taking prompt action to
meet these attacks. Accordingly, on February 7, 8 and 11 United
States and South Vietnamese air forces carried out attacks against
military facilities in the southern area of North Viet-Nam. These
military installations have been used by Hanoi as major training and
staging areas for armed cadres infiltrating from the north into South
Viet-Nam.
B.
Background
D
In 1954, agreements were concluded in Geneva for the cessation
of hostilities in Viet-Nam, Laos, and Cambodia. These Geneva
Accords divided Viet-Nam by establishing a provisional military
demarcation line. The agreements provided for the complete cessation
of all hostilities in Viet-Nam and for the withdrawal of the forces of
either party from the territory under the control of the other. The
Accords required the parties to ensure that the zones assigned to them
were not [3] used for the resumption of hostilities or to further an
aggressive policy. They also required the parties—and North Viet-
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Nam was a signatory—to respect the territory under the control of the
other party and to commit no act and undertake no operation against
the other party.
From the beginning, it was apparent that North Viet-Nam sought
to subvert South Viet-Nam in utter disregard of the 1954 Geneva
Accords. Arms and ammunition were cached throughout the south.
Key guerrilla forces were ordered to remain intact in South Viet-Nam.
Political agents were left behind to promote Hanoi’s cause. In the
ensuing years, these elements gradually emerged and turned to the use
of force and terror against the Government in Saigon.
By 1959, the guerrilla units in the south were being reinforced by
the infiltration of both men and materiel from North Viet-Nam.
Infiltration from the north has increased rapidly; up to 34,000 armed
and trained personnel have moved into South Viet-Nam from the north
since 1959. Military operations in the south have been directed, staffed
and supplied in crucial respects from Hanoi. These activities on the
part of North Viet-Nam were documented in “A Threat to the Peace,” a
publication issued by the Department of State in December 1961. [4]
Shortly thereafter, in a special report of June 1962, the International
Control Commission in Viet-Nam concluded that there was “sufficient
evidence to show beyond reasonable doubt” that these violations by
North Viet-Nam had occurred.
To meet the threat created by these violations of the Geneva
Accords and by North Viet-Nam’s aggressive intervention contrary to
general international law, the Government of the Republic of Viet-Nam
requested United States assistance. We had been providing Viet-Nam
since 1950-1951 with both economic and military aid. This assistance
was continued after the conclusion of the 1954 Geneva Accords,
within the limitations prescribed by those agreements. It had become
apparent, however, by 1961 that limited assistance was not sufficient to
meet the growing Communist threat. Consequently, in 1961, the
Government of the Republic of Viet-Nam requested additional aid
from the United States. The United States responded with increased
supplies and with larger numbers of training and advisory personnel to
assist the Vietnamese forces in prosecuting the war against the Viet
Cong. This response was proportioned with the design of sustaining
Viet-Nam in its defense against aggression without extending the
conflict beyond the borders of the country.
[5] The Communists, however, increased their intervention
without regard to obligations under international law and international
agreements by which they were bound. They stepped up the assistance
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from the north and increased the use of neighboring Laos as an
infiltration route, in violation of the freshly concluded 1962 Geneva
Agreement for the Settlement of the Laotian Question.
In August 1964, the North Vietnamese launched a direct attack
against United States vessels on the high seas in the Gulf of Tonkin.
We responded, in self-defense, by striking the bases from which the
attacking North Vietnamese torpedo boats operated and by destroying
oil storage facilities used to support these bases.
The Viet Cong attacks since February 7 are part of a continuing
aggression made possible only by North Viet-Nam. As indicated, the
North Vietnamese have trained and dispatched cadres to the south and
provided direction and supplies to the Viet Cong. In more recent
months they have sharply increased the infiltration of men and
equipment into the south, and virtually all personnel now coming in
are natives of North Viet-Nam. What began as covert and indirect
aggression has become open armed aggression. This aggression has
been carried out across the internationally agreed demarcation line of
1954 [6] between North and South Viet-Nam, and across international
frontiers between Viet-Nam and Laos.
III
International Law
The U.N. Charter
D
The recent Viet Cong attacks were not, as has been seen, an
isolated occurrence. They were part of a continuing armed aggression
directed by North Viet-Nam against South Viet-Nam in violation of
international agreements and international law.
This being the case, what are the Republic of Viet-Nam and the
United States entitled to do under international law by way of
response?
Under international law, the victim of armed aggression is
obviously permitted to defend itself and to organize a collective selfdefense effort in which others who are willing may join. This right is
recognized in Article 51 of the United Nations Charter. Article 51
states that
“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a
member of the United Nations, until the Security Council has taken the
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measures necessary to maintain international peace and security.
Measures taken by the members in the exercise of this right of selfdefense shall be immediately reported to the Security Council and shall
not in any way affect the authority and responsibility of the Security
Council [7] under the present Charter to take at any time such actions
as it deems necessary in order to maintain or restore international peace
and security.”
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As has been seen above, the whole course of conduct of North VietNam, particularly as it has evolved in recent months, adds up to open
armed attack within the meaning of Article 51—armed aggression
carried on across international frontiers. In these circumstances, South
Viet-Nam has requested and received assistance from the United
States and other nations in a collective defense effort.
The question may be raised as to the applicability to the VietNam situation of Article 2, paragraph 4, of the Charter. Article 2,
paragraph 4 provides that
“All members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
purposes of the United Nations.”
D
In the first place, it is plain that the use of force against territorial
integrity and political independence has been initiated by North VietNam and not by anyone else. Secondly, paragraph 2 of Article 4 of the
Charter does not place an absolute prohibition on the use of force. It
implicitly permits the use of force in a manner consistent with the
purposes and principles of the Charter. Moreover, the Charter itself
specifically provides for the use of force in certain circumstances
[8]—action through the United Nations itself, action through regional
arrangements and action in self-defense. The actions of the United
States and the Republic of Viet-Nam, being defensive in character and
designed to resist armed aggression, are consequently consistent with
the purposes and principles of the Charter and specifically with Article
2, paragraph 4.
It was as a measure of self-defense under Article 51 that the
United States responded in August 1964 to the North Vietnamese
attack on our vessels in the Gulf of Tonkin. Those measures were
immediately reported to the Security Council in accordance with
Article 51. The Security Council did not see fit to take any action to
maintain or restore international peace and security in the area.
Indeed, North Viet-Nam refused to participate in the deliberations of
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the Security Council and explicitly denied the right of the Council to
examine this problem.
The attacks against South Viet-Nam have mounted in intensity
since August, culminating in the recent attacks and acts of terror. In
these circumstances, it was mutually agreed between the Government
of South Viet-Nam and the United States Government that further
means of providing for the collective defense of South Viet-Nam were
required. Prompt defensive action was decided upon, and on February
7, 8, and 11 air strikes [9] were made against the supply bases and
assembly points in North Viet-Nam from which the aggression against
the south was being carried out. The actions taken constituted a
limited and measured response, fitted to the situation that produced it.
Again, these measures were immediately reported to the Security
Council in accordance with Article 51 of the United Nations Charter.
As yet, the Council has taken no action to maintain an effective peace
in the area. Until the regime in Hanoi decides to cease its aggressive
intervention in South Viet-Nam, and until effective steps are taken to
maintain international peace and security in the area, the Governments
of the United States and the Republic of Viet-Nam have every right to
continue their individual and collective self-defense against the
Communist armed aggression coming from North Viet-Nam.
IV
The Geneva Accords
D
It has been demonstrated that the North Vietnamese have
repeatedly violated the 1954 Geneva Accords in a most serious and
flagrant manner. In so doing, of course, North Viet-Nam is ignoring
an international Agreement which it signed and by which it is bound.
In addition, by the [10] continued presence in neighboring Laos of
North Vietnamese forces and their use of Laotian territory for
infiltration into South Viet-Nam, North Viet-Nam is violating solemn
commitments which it undertook in the 1962 Geneva Agreements to
refrain from such activities.
In these circumstances, international law recognizes the principle
that a material breach of a treaty by one party entitles other parties at
least to withhold compliance with an equivalent, corresponding or
related provision until the other party is prepared to observe its
obligations.
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The actions of the Republic of Viet-Nam and the United States
are fully consistent with this principle. North Vietnamese violations of
the Geneva Agreements have created an immediate danger to the
continued independence and integrity of the Republic of Viet-Nam.
The response of South Viet-Nam and the United States is designed to
meet this threat created by North Viet-Nam’s disregard of the Accords.
The extensive North Vietnamese violations certainly justify South
Viet-Nam at least to withhold compliance with those provisions of the
Accords which limit its ability to protect its very existence. Both
South Viet-Nam and the United States have made clear that the actions
[11] which they have taken will no longer be necessary if North VietNam would begin to comply with the Accords.
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APPENDIX C
April 6, 1965
MEMORANDUM FROM LEONARD C. MEEKER TO
PRESIDENT LYNDON BAINES JOHNSON32
President’s Authority to Send American Troops to VietNam
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SUBJECT:
BRIEFING MEMORANDUM
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Attached is a question and proposed answer on the President’s
authority to send very large numbers of American troops to Viet-Nam
(e.g., 300,000 ground troops). Such a question may be raised in the
course of your appearance tomorrow on the Hill, as it was with
Ambassador Taylor last week.
The suggested answer makes four basic points:
(1) Should circumstances require urgently the sending of large
numbers of American forces to Viet-Nam, the President would have
authority to deploy these forces by virtue of his constitutional powers
as Commander-in-Chief and as Chief Executive and in the exercise of
his constitutional responsibilities in the field of foreign affairs;
(2) The August 7, 1964, Congressional Joint Resolution on
Southeast Asia provides confirmation from the Congress of the
President’s Constitutional authority, and has the effect of
supplementing that authority to the extent that any supplement might
be thought needed. The Resolution covers the taking of “all necessary
steps, including the use of armed force, to assist any member or
protocol State of the SEA Collective Defense Treaty requesting
assistance in the defense of its freedom.” This includes the sending to
Viet-Nam [2] of such units of the armed forces as the President in his
judgment considers necessary.
(3) Neither the Constitution nor the Joint Resolution contains
any ceilings on numbers of ground troops or elements of naval or air
forces that the President might decide to employ in the over-all
national defense.
32. Source : LBJ Presidential Library, National Security File, Country File, Vietnam,
7B, 1965-1968, Legality Considerations (photographic reproduction available at http://www.
tulanelawreview.org/files/87/3/smg/c.pdf).
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(4) In the exercise of his broad constitutional responsibilities, the
President would consult with Congressional leaders on the sending of
any greatly increased numbers of troops to Viet-Nam. The President
has consistently engaged in such Congressional consultation with
respect to major decisions on Viet-Nam.
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[1] QUESTION AND ANSWER
Q. Does the President today have authority, for example, to send
300,000 American troops to Viet-Nam?
A. Under the authority that is conferred on the President by the
Constitution, which is reflected and confirmed by the Congressional
Joint Resolution of August 7, 1964, the President is empowered to
send and employ elements of the armed forces of the United States
wherever and whenever he judges them to be urgently needed in the
over-all national defense. To the extent that any doubts might remain
concerning the scope of the President’s Constitutional power as
Commander-in-Chief, Chief Executive, and the organ of the national
government in foreign relations, these are resolved with respect to
Viet-Nam by the terms of the Joint Resolution. Section 2 of the
Resolution provides:
“Consonant with the Constitution of the United States and the Charter
of the United Nations and in accordance with its obligations under the
Southeast Asia Collective Defense Treaty, the United States is,
therefore, prepared, as the President determines, to take all necessary
steps, including the use of armed force, to assist any member or
protocol state of the Southeast Asia Collective Defense Treaty
requesting assistance in defense of its freedom.”
D
Neither the Constitution nor the Joint Resolution imposes any
limitation on numbers of ground troops or other elements of the armed
forces to be deployed.
[2] In accordance with practice up to the present time, the
President would wish to engage in Congressional consultations before
making major new decisions with respect to the conduct of operations
in Viet-Nam.
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Background
The following points may be made by way of explanation:
1.
President’s Constitutional Powers.
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The President’s authority to send United States military forces to
Viet-Nam derives from Article II, section 2, of the Constitution, which
provides that “the President shall be Commander-in-Chief of the Army
and Navy of the United States.” This power of the President is
complemented by his special responsibilities under the Constitution in
the field of foreign affairs and by his position as Chief Executive.
There have been numerous precedents in history for exercise of
Presidential power to send American forces abroad, including various
situations involving their participation in hostilities. For example,
during the Korean conflict, the United States maintained a troop
strength of over 250,000 in Korea. In 1958, the President despatched
14,000 American troops to Lebanon, also without prior Congressional
approval. [3] Earlier, in 1941, President Roosevelt deployed over
10,000 U. S. forces to Iceland to secure that island against German
aggression. In the Cuban crisis of October 1962, no one questioned
the authority of the President to deploy substantial elements of the
United States Navy and Air Force in the Caribbean.
In the case of Viet-Nam, the President’s action would be
additionally supported by the fact that South Viet-Nam has been
designated to receive protection under Article IV of the Southeast Asia
Collective Defense Treaty; both the Treaty and the Protocol covering
Viet-Nam received the advice and consent of the Senate.
2.
Joint Resolution of the Congress.
D
The August 7, 1964 Joint Resolution of Congress provides “That
the Congress approves and supports the determination of the President,
as Commander-in-Chief, to take all necessary measures to repel any
armed attack against the forces of the United States and to prevent
further aggression.” In section 2 of the Joint Resolution, Congress has
declared: “Consonant with the Constitution of the United States and
the [4] Charter of the United Nations and in accordance with its
obligations under the Southeast Asia Collective Defense Treaty, the
United States is, therefore, prepared, as the President determines, to
take all necessary steps, including the use of armed force, to assist any
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member or protocol State of the Southeast Asia Collective Defense
Treaty requesting assistance in defense of its freedoms.”
There was no discussion in the Congress, in connection with the
adoption of the Joint Resolution, of precise numbers of forces which
the President could send to Viet-Nam. The Resolution gave political
and legal support to the future exercise by the President of his
Constitutional power to take all necessary steps, including the despatch
of American forces, which in his judgment are required to assist in the
defense of Viet-Nam. Relevant excerpts from the Congressional
debate on the Resolution are attached at Tab A. They indicate a
Congressional understanding that the President has authority to send
large numbers of American troops to Viet-Nam.
3.
Consultation with the Congress.
D
The President has continuously consulted with Congress on the
situation in Viet-Nam and on United States [5] actions there. In the
course of the Congressional debate on the Southeast Asia Joint
Resolution, Senator Fulbright, in an exchange with Senator Cooper,
stated “I have no doubt that the President will consult with Congress in
case a major change in present policy becomes necessary.” The
commitment of large numbers of organized United States forces to
combat in Viet-Nam would be a matter on which the President would
undoubtedly wish to consult with appropriate Congressional leaders.
Similarly, in connection with the adoption of a Congressional
Joint Resolution on Cuba in September 1962, Secretary Rusk assured
the Senate Committees on Foreign Relations and on Armed Services
that “. . . if a situation arose in which it were necessary to make a
major use of the United States armed forces against Cuba, the
consequences certainly as far as Cuba is concerned and this country
and the potential consequences in other places in the world, would be
so large and so significant that the President would be in close
consultation with the leadership of the Congress in connection with
any such move.”
[6] 4.
Declaration of War.
The President’s powers under the Constitution exist side by side
with the authority of Congress in this area. In addition to the power to
raise and support armies and to provide and maintain a navy, the power
to express Congressional policy and the power of the purse, the
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Congress has the power to declare war. As Constitutional history will
show, this is not the same as the power to “make” war—a power which
the Federal Convention in 1787 deliberately withheld from the
Congress.
Our Constitutional arguments are such that the President is
endowed with power to take actions which may eventuate in armed
conflict. It remains for the Congress to give the legal characterization
of “war” to a particular conflict if it so decides. Thus no declaration of
war is necessary for hostilities to occur or for U.S. forces to be major
participants in them. The Korean conflict illustrates these points well.
A declaration of war operates to activate a number of statutes
giving the President special authority, for example, with respect to the
movement of aliens in and out of the United States; the Armed Forces,
Reserves and the National Guard; procurement of materials and
services; security and protection of defense information; and merchant
[7] shipping and the use of vessels. Almost all of these statutes are
presently operative by virtue of the state of emergency proclaimed by
President Truman in December 1950, which continues in effect.
As indicated earlier, Congress possesses other constitutional
powers, in addition to the power to declare war, that bear upon the
policies and actions of the President in the field of armed conflict. By
reason of the general legislative power of Congress, including its
power over finances, there must be a basic concurrence and
collaboration between the Executive and Legislative Branches of
Government if any given policy and course of action of the President is
to be sustained over a period of time. The Congress thus has a major
role, and indeed a major influence, on the decisions made by the
President both as Commander-in[-]Chief and in the field of foreign
relations.
[1] Excerpts from Statements made on Joint Resolution of August 7,
1964.
Statement by Secretary Rusk before House Committee on
Foreign Affairs, August 6, 1964:
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“I shall not take your time this morning to review the constitutional
aspects of resolutions of this character. I believe it to be the generally
accepted constitutional view that the President has the constitutional
authority to take at least limited armed action in defense of American
national interests; in at least 85 instances, Presidents of the United
States have in fact taken such action. As I have said before, we cannot
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now be sure what actions may be required. The Formosa resolution of
1955 was followed by the use of U. S. warships to escort supply
convoys to the offshore islands in 1958; the Middle East resolution was
followed by President Eisenhower’s sending of troops to Lebanon in
1958; the Cuba resolution was followed by the well-known events of
October 1962. I do not suggest that any of these actions may serve as a
parallel for what may be required in southeast Asia. There can be no
doubt, however, that these previous resolutions form a solid legal
precedent for the action now proposed. Such action is required to make
the purposes of the United States clear and to protect our national
interests.
2.
Report of the House Committee on Foreign Affairs on the Joint
Resolution:
“As it had during earlier action on resolutions relating to Formosa
and to the Middle East, the committee considered the relation of the
authority contained in the resolution and the powers assigned to the
President by the Constitution. While the resolution makes it clear that
the people of the United States stand behind the President, it was
concluded that the resolution does not enter the field of controversy as
to the respective limitations of power [2] in the executive and the
legislative branches. As stated in the committee report on the Formosa
resolution:
Acting together, there can be no doubt that all the constitutional
powers necessary to meet the situation are present.
3.
On the floor of the Senate, August 6, 1964:
“Mr. Brewster: . . . So my question is whether there is anything in the
resolution which would authorize or recommend or approve the landing
of large American armies in Viet-Nam or in China.
Mr. Fulbright: There is nothing in the resolution, as I read it, that
contemplates it. I agree with the Senator that that is the last thing we
would want to do. However, the language of the resolution would not
prevent it. It would authorize whatever the Commander in Chief feels
is necessary. It does not restrain the Executive from doing it.”
On the floor of the Senate, August 6, 1964:
“Mr. Nelson: . . . But I would be most concerned if the Congress
should say that we intend by the joint resolution to authorize a complete
change in the mission which we have had in South Vietnam for the past
10 years, and which we have repeatedly stated was not a commitment to
engage in a direct land confrontation with our Army as a substitute for
the South Vietnam Army or as a substantially reinforced U. S. Army to
be joined with the South Vietnam Army in a war against North Vietnam
and possibly China.
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Mr. Fulbright: Mr. President, it seems to me that the joint resolution
would be consistent with what we have [3] been doing. We have been
assisting the countries in southeast Asia in pursuance of the treaty. But
in all frankness I cannot say to the Senator that I think the joint
resolution would in any way be a deterrent, a prohibition, a limitation,
or an expansion on the President’s power to use the Armed Forces in a
different way or more extensively than he is now using them. In a
broad sense, the joint resolution states that we approve of the action
taken with regard to the attack on our own ships, and that we also
approve of our country’s effort to maintain the independence of South
Vietnam . . . .
“In frankness, I do not believe the joint resolution would
substantially alter the President’s power to use whatever means seemed
appropriate under the circumstances. Our recourse in Congress would
be that if the action were too inappropriate, we could terminate the joint
resolution, by a concurrent resolution, and that would precipitate a great
controversy between the Executive and the Congress. As a practical
question, that could be done.”
On the floor of the Senate, August 6, 1964:
“Mr. Cooper: . . The Senator will remember that the SEATO Treaty, in
article IV, provides that in the event of an armed attack upon a party to
the Southeast Asia Collective Defense Treaty, or upon one of the
protocol states such as South Vietnam, the parties to the treaty, one of
whom is the United States, would then take such action as might be
appropriate, after resorting to their constitutional processes. I assume
that would mean, in the case of the United States, that Congress would
be asked to grant the authority to act.
“Does the Senator consider that in enacting this resolution we are
satisfying that requirement of article IV of the Southeast Asia
Collective Defense Treaty In other words, are we now giving the
President [4] advance authority to take whatever action he may deem
necessary respecting South Vietnam and its defense, or with respect to
the defense of any other country included in the treaty?
Mr. Fulbright: I think that is correct.
Mr. Cooper: Then, looking ahead, if the President decided that it was
necessary to use such force as could lead into war, we will give that
authority by this resolution?
Mr. Fulbright: T[h]at is the way I would interpret it. If a situation later
developed in which we thought the approval should be withdrawn, it
could be withdrawn by concurrent resolution.
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APPENDIX D
June 11, 1965
MEMORANDUM FROM LEONARD C. MEEKER TO
PRESIDENT LYNDON BAINES JOHNSON33
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Question
This memorandum examines the power of the President to
commit ground and air forces to South Viet Nam, above the present
total of approximately 52,000 to an anticipated total of 95,000, and to
authorize the use of ground forces in combat in accordance with the
terms of the White House statement of June 9, 1965.
Summary
The President does have power, under the Constitution and under
the Joint Resolution of Congress of August 10, 1964, to deploy United
States ground and air forces to South Viet Nam in the numbers and for
the purposes indicated above.
Where the President determines that the defense of the United
States requires immediate action, he is empowered under the
Constitution to engage United States forces in combat without
Congressional authorization. There are numerous precedents in
United States history for deployment abroad of United States armed
forces, and some of them include use in combat. In the Korean
conflict, the United States maintained a troop strength in Korea of over
250,000.
If authorization from the Congress is considered requisite to
sending 43,000 additional United States troops to Viet Nam at this
time, the Joint Resolution of August 10, 1964 gives a broad
authorization to the President. The Resolution declares:
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“Consonant with the Constitution of the United States and the
Charter of the United Nations and in accordance with its obligations
under the Southeast [2] Asia Collective Defense Treaty, the United
States is, therefore, prepared, as the President determines, to take all
necessary steps, including the use of armed force, to assist any member
33. Source : LBJ Presidential Library, National Security File, Country File, Vietnam,
7B, 1965-1968, Legality Considerations (photographic reproduction available at http://www.
tulanelawreview.org/files/87/3/smg/d.pdf).
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or protocol State of the Southeast Asia Collective Defense Treaty
requesting assistance in defense of its freedom.”
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While the Joint Resolution expresses no limitation on numbers of
forces or on the missions they might be assigned, and while the
legislative history does not disclose a purpose to effect any such
limitations, the record shows that the Resolution was passed on the
understanding that there would be consultation with the Congress “in
case a major change in present policy becomes necessary.” The
committing of an additional 43,000 United States forces to South Viet
Nam, with combat missions included in their assignment, could be
argued to constitute a policy decision calling for Congressional
consultation. Consultation would not require new affirmative action
by the Congress, but would afford the Congress an opportunity for
review.
Deployment by the President of United States forces as indicated
in the question stated at the outset of this memorandum would not
require the declaration of a state of war.
Discussion
The missions of the additional 43,000 American troops to be
deployed to South Viet Nam would be governed by the terms of the
White House statement dated June 9. The text of that statement is as
follows:
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“There has been no change in the mission of United States ground
combat units in Vietnam in recent days or weeks. The President has
issued no order of any kind in this regard to General [William C.]
Westmoreland recently or at [3] any other time. The primary mission
of these troops is to secure and safeguard important military
installations like the air base at Danang. They have the associated
mission of active patrolling and securing action in and near the areas
thus safeguarded.
“If help is requested by the appropriate Vietnamese commander,
General Westmoreland also has authority within the assigned mission to
employ these troops in support of Vietnamese forces faced with
aggressive attack when other effective reserves are not available and
when, in his judgment, the general military situation urgently requires
it.”
This memorandum will consider, in turn, four aspects of the
question of Presidential authority:
1. The power of the President under the Constitution;
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2. The authorization given by the Joint Resolution of Congress dated
August 10, 1964;
3. The political commitment of the Administration in connection with
the Joint Resolution, to consult with the Congress “in case a major
change in present policy becomes necessary”;
4. Whether any declaration of war is required.
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1. The Constitution. Basic Presidential authority to deploy
United States military forces abroad derives from Article II, Section 2
of the Constitution which provides that “The President shall be
commander in chief of the army and navy of the United States”. This
power of the President is complemented by his position as Chief
Executive: Under [4] Article II, Section 3, “he shall take care that the
laws be faithfully executed”. The power is also complemented by the
special responsibilities of the President in the field of foreign affairs.
U.S. vs. the Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
The line between Executive and Legislative power is not marked
out with precision in the Constitution. For example, Article I, Section
8, provides that Congress “shall have power . . . To declare war, . . . To
raise and support armies, . . . To provide and maintain a navy”.
However, the debate at the Federal Convention in 1787 when the
Constitution was being drafted makes clear that the powers of
Congress are without prejudice to the right of the President to take
action on his own “to repel sudden attacks”. In cases where the
President considers the need of military measures to defend the United
States so urgent as to brook no delay, the President is empowered to
commit and use United States forces in hostilities without first
securing an authorization from the Congress. In the case of Viet Nam,
Congressional authorization has already been given in the Joint
Resolution of August 10, 1964.
Since the Constitution was adopted, there have at least been 125
instances in which the President, without Congressional authority and
in the absence of a declaration of war, has ordered the armed forces to
take action or maintain positions abroad. These instances range from
the war of the Barbary Pirates in Jefferson’s time to the sending of
troops to Lebanon in 1958 by President Eisenhower. Substantial
numbers of troops have sometimes been involved; President Roosevelt
in 1941 deployed over 10,000 United States troops to Iceland to secure
that country against Nazi aggression, and President Eisenhower in
1958 dispatched 14,000 American troops to Lebanon. Some of the
historical instances have involved the use of United States forces in
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combat; in the most notable case—the Korean conflict of 1950-53—
the United States maintained a troop strength of over 250,000 in
Korea.
[5] A memorandum detailing these historical events and
discussing the question of the President’s constitutional authority,
prepared in the Department of State at the outset of the Korean conflict
in 1950, is attached (Tab A). A further presentation of the views of the
Executive Branch on this subject, published in 1951 as a Joint
Committee Print of the Senate Committees on Foreign Relations and
Armed Services, is also attached (Tab B).
Supreme Court decisions have not determined the extent of the
President’s authority to deploy and use United States armed forces
abroad in the absence of express authorization from the Congress. The
question has been the subject of Congressional debate at different
times, and the power of the President to take action on his own
responsibility has been generally supported. It has been supported on
the theory that the President has both a right and a duty to take
measures which he considers necessary for the defense of the United
States. The view has sometimes been stated that the commitment of
United States forces to combat may be made by the President on his
own responsibility only when he judges the situation to be one of such
urgency as to brook no delay and to allow no time for seeking the
approval of Congress. Presidential decision that such an emergency
exists is one which other branches of the Government are unlikely to
try to overturn. There is, of course, a difference between (a) the
participation in combat of individual U.S. military personnel attached
to the armed forces of another country, and (b) the commitment of
organized United States forces to combat. Congressional concern has
been particularly with the latter, because of the clearer possibility it
carries of involving the United States in large-scale hostilities.
If any question were raised as to the importance of Viet-Nam to
the defense of the United States, this would be answered not only by
the President’s own evaluation, but by the fact that a Protocol to the
Southeast Asia Treaty extends its protection to the Republic of VietNam. Both the Treaty and Protocol received the advice and consent of
the Senate. They represent a decision of the United States
Government, in the constitutional form of a treaty, that the defense and
security of Viet-Nam are necessary to the United States.
[6] 2.
Joint Resolution of the Congress. The August 10,
1964 Joint Resolution on Southeast Asia provides Congressional
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authorization for the sending of United States military forces to VietNam and for their use in combat operations.
The Joint Resolution provides “That the Congress approves and
supports the determination of the President, as Commander-in-Chief,
to take all necessary measures to repel any armed attack against the
forces of the United States and to prevent further aggression.” In
section 2 of the Joint Resolution, Congress has declared: “Consonant
with the Constitution of the United States and the Charter of the
United Nations and in accordance with its obligations under the
Southeast Asia Collective Defense Treaty, the United States is,
therefore, prepared, as the President determines, to take all necessary
steps, including the use of armed force, to assist any member or
protocol State of the Southeast Asia Collective Defense Treaty
requesting assistance in defense of its freedom.”
In the course of Congressional consideration of this resolution, a
number of statements were made bearing on the question of the
President’s authority to commit U. S. military forces to Viet-Nam and
to use them in a combat role:
a. Statement by Secretary Rusk before House Committee on
Foreign Affairs, August 6, 1964:
“I believe it to be the generally accepted constitutional view that the
President has the constitutional authority to take at least limited armed
action in defense of American national interests . . . As I have said
before, we cannot now be sure what actions may be required.”
b.
On the floor of the Senate, August 6, 1964:
“Mr. Brewster: . . . So my question is whether there is anything in the
resolution which would authorize or recommend or approve the landing
of large American armies in Viet-Nam or in China.
[7] “Mr. Fulbright: There is nothing in the resolution, as I read it, that
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contemplates it. I agree with the Senator that that is the last thing we
would want to do. However, the language of the resolution would not
prevent it. It would authorize whatever the Commander-in-Chief feels
is necessary. It does not restrain the Executive from doing it.”
c.
On the floor of the Senate, August 6, 1964:
“Mr. Nelson: Am I to understand that it is the sense of Congress that
we are saying to the executive branch: ‘If it becomes necessary to
prevent further aggression, we agree now, in advance, that you may land
as many divisions as deemed necessary, and engage in a direct military
assault on North Vietnam if it becomes the judgment of the Executive,
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the Commander-in-Chief, that this is the only way to prevent further
aggression’?”
“Mr. Fulbright: If the situation should deteriorate to such an extent that
the only way to save it from going completely under to the Communists
would be action such as the Senator suggests, then that would be a
grave decision on the part of our country as to whether we should
confine our activities to a very limited personnel on land and the
extensive use of naval and air power, or whether we should go further
and use more manpower.
“I personally feel it would be very unwise under any circumstances
to put a large land army on the Asian Continent.
“I do not know what the limits are. I do not think this resolution can
be determinative of that fact. I think it would indicate that he would
take reasonable means first to prevent any further aggression, or repel
further aggression against our own forces, and that he will live up to our
obligations under the SEATO treaty and with regard to the protocol
states.
“I do not know how to answer the Senator’s question and give him an
absolute assurance that large numbers [8] of troops would not be put
ashore. I would deplore it. And I hope the conditions do not justify it
now.”
On the floor of the Senate, August 6, 1964:
“Mr. Nelson: . . . But I would be most concerned if the Congress
should say that we intend by the joint resolution to authorize a complete
change in the mission which we have had in South Vietnam for the past
10 years, and which we have repeatedly stated was not a commitment to
engage in a direct land confrontation with our Army as a substitute for
the South Vietnam Army or as a substantially reinforced U.S. army to
be joined with theSouth [sic] Vietnam Army in a war against North
Vietnam and possibly China.
“Mr. Fulbright: Mr. President, it seems to me that the joint resolution
would be consistent with what we have been doing. We have been
assisting the countries in Southeast Asia in pursuance of the treaty. But
in all frankness I cannot say to the Senator that I think the joint
resolution would in any way be a deterrent, a prohibition, a limitation,
or an expansion on the President’s power to use the Armed Forces in a
different way or more extensively than he is now using them. In a
broad sense, the joint resolution states that we approve of the action
taken with regard to the attack on our own ships, and that we also
approve of our country’s effort to maintain the independence of South
Vietnam . . .
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“In frankness, I do not believe the joint resolution would
substantially alter the President’s power to use whatever means seemed
appropriate under the circumstances. Our recourse in Congress would
be that if the action were too inappropriate, we could terminate the joint
resolution, by a concurrent resolution, and that would precipitate a great
controversy between the Executive and the Congress. As a practical
question, that could be done.”
On the floor of the Senate, August 6, 1964:
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[9] e.
“Mr. Cooper: . . . The Senator will remember that the SEATO Treaty, in
article IV, provides that in the event of an armed attack upon a party to
the Southeast Asia Collective Defense Treaty, or upon one of the
protocol states such as South Vietnam, the parties to the treaty, one of
whom is the United States, would then take such action as might be
appropriate, after resorting to their constitutional processes. I assume
that would mean, in the case of the United States, that Congress would
be asked to grant the authority to act.
“Does the Senator consider that in enacting this resolution we are
satisfying that requirement of article IV of the Southeast Asia
Collective Defense Treaty? In other words, are we now giving the
President advance authority to take whatever action he may deem
necessary respecting South Vietnam and its defense, or with respect to
the defense of any other country included in the treaty?
“Mr. Fulbright: I think that is correct.
“Mr. Cooper: Then, looking ahead, if the President decided that it was
necessary to use such force as could lead into war, we will give that
authority by this resolution?
“Mr. Fulbright: That is the way I would interpret it. If a situation later
developed in which we thought the approval should be withdrawn, it
could be withdrawn by concurrent resolution.
Senator Nelson, on August 7, proposed an amendment to the
Joint Resolution which read, in part:
“Our continuing policy is to limit our role to the provision of aid,
training assistance, and military advice, [10] and it is the sense of
Congress that, except when provoked to a greater response, we should
continue to attempt to avoid a direct military involvement in the
Southeast Asian conflict.
Mr. Fulbright: (in rejecting the amendment)
“It states fairly accurately what the President has said would be our
policy, and what I stated my understanding was as to our policy; also
what other Senators have stated.
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[11] 3. Political commitment of consultation.
On August 6, 1964 Secretary Rusk, in testifying in executive
session before a joint meeting of the Senate Committees on Foreign
Relations and Armed Services concerning the Southeast Asia
resolution assured the members of Congress that there would be close
and continuing bipartisan consultations between the Executive and
Legislative Branches on the problems in Southeast Asia, especially if
the situation there developed “in ways which we cannot now
anticipate.”
In the Senate on August 6, Senator Fulbright made the following
response after a brief statement by Senator Cooper:
“Mr. Fulbright: I have no doubt that the President will consult with
Congress in case a major change in present policy becomes necessary.”
The language of the Resolution and the statements made on the
floor evidently recognized that the President might find it necessary to
deploy large numbers of American forces in a combat role to
accomplish the goal set forth in the Resolution. At the same time, the
Congress passed the Resolution on the understanding that the
President would consult with Congress in case a major change in
policy became necessary. The commitment of substantially larger
numbers of American troops in a short period of time and their
assignment to combat would appear to be the kind of policy change
which would call for such Congressional consultation. Consultation
would not require new affirmative action by the Congress, but would
afford the Congress an opportunity to express its views.
[12] Supplemental Appropriation for Southeast Asia
Congress reaffirmed its support of the Administration policy in
Viet Nam as recently as May 6, 1965 when it appropriated at the
President’s request an additional $700,000,000 for United States
military activities in Southeast Asia. The President stated in his
message of May 4:
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“This is not a routine appropriation. For each Member of Congress
who supports this request is also voting to persist in our effort to halt
Communist aggression in South Viet Nam.”
The Congress adopted the resolution by an overwhelming vote—
408 to 7 in the House and 88 to 3 in the Senate. However, a number of
Congressmen stated for the record that their vote should not be
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construed as a blanket endorsement of any future action on the Asian
mainland of a different character than the policy then in effect.
Senator Stennis who sponsored the resolution in the Senate was
asked directly by Senator Church whether he believed a vote in favor
of the resolution endorsed whatever action might be taken in the
future. Stennis replied that the resolution placed no limitations on the
President’s judgment but that each Senator must interpret his own vote.
Stennis added:
“I do not believe we are signing a blank check. We are backing up
our men and also backing up the present policy of the President. If he
substantially enlarges or changes it, I would assume he would come
back to us in one way or another.”
The appropriation by Congress neither enlarged nor restricted the
legal authority of the President to send combat troops to South Viet
Nam. The vote did express strong support for the policy which the
President was pursuing to [13] defend South Viet-Nam, with the
expectation that a substantial change in character of U. S. actions
would be preceded by the President’s going back to Congress “one
way or another.”
Declaration of War
A declaration of war by Congress is not necessary to commit
American forces to South Viet-Nam for the purposes set forth earlier.
The President’s powers under the Constitution exist side by side
with the authority of Congress in this area. In addition to the power to
raise and support armies and to provide and maintain a navy, the power
to express Congressional policy and the power of the purse, the
Congress has the power to declare war. As Constitutional history will
show, this is not the same as the power to “make” war—a power which
the Federal Convention in 1787 deliberately withheld from the
Congress.
Our Constitutional arrangements are such that the President is
endowed with power to take actions which may eventuate in armed
conflict. It remains for the Congress to give the legal characterization
of “war”, with the resulting legal consequences, to a particular conflict
if it so decides. Thus no declaration of war is necessary for hostilities
to occur or for U. S. forces to be major participants in them. The
Korean conflict illustrates these points well.
By reason of the general legislative power of Congress, including
its power over finances, there must be a basic concurrence and
collaboration between the Executive and Legislative Branches of
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Government if any given policy and [14] course of action of the
President is to be sustained over a period of time. The Congress thus
has a major role, and indeed a major influence, on the decisions made
by the President both as Commander-in-Chief and in the field of
foreign relations.
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APPENDIX E
May 22, 1970
MEMORANDUM FROM WILLIAM REHNQUIST TO
CHARLES W. COLSON34
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Honorable Charles W. Colson
Special Counsel to the President
184 Executive Office Building
Dear Chuck:
Enclosed is an expanded version of the memorandum on
Presidential power entitled, “The President and the War Power: South
Vietnam and the Cambodian Sanctuaries.” I am sending copies to
Jack Stevenson and John Lehman.
William H. Rehnquist
Assistant Attorney General
Office of Legal Counsel
[1] THE PRESIDENT AND THE WAR POWER: SOUTH
VIETNAM AND THE CAMBODIAN SANCTUARIES
The recent decision by President Nixon to use United States
armed forces to attack sanctuaries employed by the North Vietnamese
and the Viet Cong which were located across the Cambodian border
from South Vietnam has raised the issue of the scope of the President’s
power to conduct military operations such as those now underway in
Southeast Asia. This memorandum addresses itself to that issue.
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1. Division of the War Power by the Framers of the
Constitution. The draftsmen of the Constitution clearly intended to
divide the war power inhering in any sovereign nation between the
President and Congress, and just as clearly did not intend to precisely
delimit the boundary between the power of the Executive branch and
34. Source : Office of the Legal Counsel, U.S. Department of Justice, and Nixon
Presidential Library and Museum, White House Special Files, Staff Member and Office
Files, Charles W. Colson, Box 42, Cambodia, Accordion Folder II, Cambodia Legal Briefs, 1
of 2 (photographic reproduction available at http://www.tulanelawreview.org/files/87/3/smg/
e.pdf).
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that of the Legislative branch. They rejected the traditional power of
kings to commit unwilling nations to war to further the king’s
international political objectives. At the same time, they recognized
the need for quick Executive response to rapidly developing
international situations.
The accommodation of these two interests took place in the
session of the Constitutional Convention on Friday, August 17, 1787.
The enumeration of the powers of Congress was in the process of
being submitted to the delegates, and discussion occurred following
the submission to vote of the draft language empowering Congress “to
make war”.
The full text of the discussion, as reflected in Madison’s notes of
the proceedings, is set forth as an appendix to this memorandum. The
upshot was that the authority conferred upon Congress was changed
from the power “to make war” to the power “to declare war”. Charles
Pinckney urged that the war-making power be confided to the Senate
alone, while Pierce Butler urged that the power [2] be vested in the
President. James Madison and Elbridge Gerry then jointly moved to
substitute the word “declare” for the word “make”, “leaving to the
Executive the power to repel sudden attacks”. John Sherman
expressed a preference for “make” as opposed to “declare”, because
the latter was too narrow a grant of power. However, he expressed the
view that the grant of power to Congress to “make” war would
nonetheless permit the Executive to repel attack, although not to
commence war. Gerry and George Mason opposed the giving of the
power to declare war to the Executive. Rufus King supported the
substitution of the word “declare”, urging that the word “make” might
be understood to mean “conduct” war, which latter was an Executive
function.
With only New Hampshire dissenting, it was agreed that the
grant to Congress should be of the power to declare war. Pinckney’s
motion to strike out the whole clause, and thereby presumably to leave
the way open to vest the entire war-making power in the Executive,
was then defeated by a voice vote.
The framers of the Constitution, in making this division of
authority between the Executive and the Legislative branches, were
painting with a broad brush on a constitutional fabric, and not
endeavoring to accomplish a detailed allocation of authority between
the two branches. Nearly 200 years of practice under the constitutional
system has given rise to a number of precedents and usages, although
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it cannot be confidently said that any sharp line of demarcation exists
as a result of this history.
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2. Recognition of Armed Conflict Short of “War”. Before
turning to historical practice for the light which it throws upon the
proper interpretation of the President’s power, it is well to first dispel
any notion that the United States may lawfully engage in armed
hostilities with a foreign power only if Congress has declared war.
From the earliest days of the republic, all three branches of the federal
government have recognized that this is not so, [3] and that not every
armed conflict between forces of two sovereigns is “war”. This fact
affords no final answer to the constitutional question of the division of
authority between the President and Congress in exercising the war
power, but it does suggest that the effort to find an answer is not
advanced by a mechanical application of label to various fact
situations.
Congress, during the so-called “undeclared war” with France
which lasted from 1798 to 1800, authorized limited use of this nation’s
armed forces against those of France. The Fifth Congress, in 1 Stat.
578, authorized President Adams to take the following measures:
“That the President of the United States shall be, and is hereby
authorized to instruct the commanders of the public armed vessels
which are, or which shall be employed in the service of the United
States, to subdue, seize and take any armed French vessel, which shall
be found within the jurisdictional limits of the United States, or
elsewhere, on the high seas, and such captured vessel, with her apparel,
duns and appurtenances, and the goods or effects which shall be found
on board the same, being French property shall be brought within some
port of the United States, and shall be duly proceeded against and
condemned as forfeited. . . .”
The Supreme Court in a case arising out of this “undeclared war”
described these differences between war and other armed conflicts as
being differences between “solemn war” and “imperfect war”:
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“If it be declared in form, it is called solemn, and is of the perfect kind;
because one whole nation is at war with another whole nation; and all
the members of the nation declaring war are authorized to commit
hostilities against all the members of the other, in every place and [4]
under every circumstance. In such a war, all the members act under a
general authority, and all the rights and consequences of war attach to
their condition.
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“But hostilities may subsist between two nations, more confined in its
nature and extent; being limited as to places, persons and things; and
this is more properly termed imperfect war; because not solemn, and
because those who are authorized to commit hostilities act under special
authority and can go no further than to the extent of their commission.”
The Eliza, 4 Dall. 37, 40-41.
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While the Court termed both forms of military action “war”, the
distinction which it drew likewise separates the declared wars of the
Twentieth Century, such as the two World Wars, and the undeclared
armed conflicts such as have more recently occurred in Korea and in
Southeast Asia. In both of the two World Wars, the declarations of war
were viewed by the Executive branch to authorize complete
subjugation of the enemy, and some form of “unconditional surrender”
on the part of the enemy was the announced goal of the allied nations.
In Korea and Vietnam, on the other hand, the goals have been the far
more limited ones of the maintenance of territorial integrity and of the
right of self-determination.
As has been chronicled many times, the United States throughout
its history has been involved in armed conflicts short of declared war,
from the undeclared war with France in 1798-1800 to Vietnam. See
e.g., H. Rept. 127, 82nd Cong., 1st Sess.; H.Doc. 443, 84th Cong., 2d
Sess.; Rogers, World Policing and the Constitution, pp. 92-123 (1949).
The more significant of these involvements are separately discussed in
a following section of this memorandum.
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3. Designation of the President as Commander-in-Chief is a
Grant of Substantive Power. Because of the nature of the President’s
power as Commander-in-Chief and because of [5] the fact that it is
frequently exercised in external affairs, there are few judicial
precedents dealing with the subject. Such judicial learning as there is
on the subject, however, makes it reasonably clear that the designation
of the President as Commander-in-Chief of the Armed Forces is a
substantive grant of power, and not merely a commission which
entitles him to precedence in a reviewing stand.35
35. [n.1] A statement of Alexander Hamilton’s in Federalist No. 69 has been quoted
in support of the notion that the designation of the President as Commander-in-Chief does
nothing more than place him at the head of the military establishment. The full text of
Hamilton’s comment does not support such a narrow construction:
“The President is to be Commander-in-Chief of the Army and Navy of the United
States. In this respect his authority would be nominally the same as that of the
King of Great Britain, but in substance much inferior to it. It would amount to
nothing more than the supreme command and direction of the military and naval
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Chief Justice Marshall, writing for the Supreme Court in Little v.
Barreme, 2 Cranch 170, concluded that the seizure of a ship on the
high seas had not been authorized by an act of Congress. In the course
of the opinion, he stated:
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“It is by no means clear that the President of the United States, whose
high duty it is to ‘take care that the laws be faithfully executed,’ and who
is Commander in Chief of the Armies and Navies of the United States,
might not, without [6] any special authority for that purpose, in the
then existing state of things, have empowered the officers commanding
the armed vessels of the United States, to seize and send into port for
adjudication, American vessels which were forfeited by being engaged
in this illicit commerce.” 2 Cranch at 177.
Justice Grier, speaking for the Supreme Court in its famous
decision in the Prize Cases, likewise viewed the President’s designation
as Commander-in-Chief as being a substantive source of authority on
which he might rely in putting down rebellion:
“Whether the President in fulfilling his duties, as Commander in Chief,
in suppressing an insurrection, has met with such armed hostile
resistance, and a civil war of such alarming proportions as will compel
him to accord to them the character of belligerents, is a question to be
decided by him, and this Court must be governed by the decisions and
acts of the political department of the government to which this power
was entrusted. ‘He must determine what degree of force the crisis
demands.’ The proclamation of blockade is itself official and
conclusive evidence to the Court that a state of war existed which
demanded and authorized a recourse to such a measure, under the
circumstances peculiar to the case.” 2 Black 635, 670.
More recently, Justice Jackson, concurring in Youngstown Sheet
and Tube Co. v. Sawyer, said:
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“We should not use this occasion to circumscribe, much less to
contract, the lawful role of the President as Commander in Chief. I
should indulge the widest latitude of interpretation to sustain his
exclusive function to command [7] the instruments of national force, at
least when turned against the outside world for the security of our
society.” 343 U.S. 579, at 645.
forces, as first general and admiral of the Confederacy; while that of the British
king extends to the declaring of war and to the raising and regulating of fleets and
armies—all which, by the Constitution under consideration, would appertain to the
Legislature.”
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The limits of the President’s power as Commander-in-Chief are
nowhere defined in the Constitution, except by way of negative
implication from the fact that the power to declare war is committed to
Congress. However, as a result of numerous occurrences in the history
of the Republic, more light has been thrown on the scope of this power.
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[8] 4.
Scope of President’s Power as Commander-in-Chief.
The questions of how far the Chief Executive may go without
Congressional authorization in committing American military forces
to armed conflict, or in deploying them outside of the United States
and in conducting armed conflict already authorized by Congress,
have arisen repeatedly throughout the Nation’s history. The Executive
has asserted and exercised at least three different varieties of authority
under his power as Commander-in-Chief:
(a)
(b)
(c)
Authority to commit military forces of the United States to armed
conflict, at least in response to enemy attack or to protect the lives
of American troops in the field;
Authority to deploy United States troops throughout the world,
both to fulfill United States’ treaty obligations and to protect
American interests; and
Authority to conduct or carry on armed conflict once it is
instituted, by making and carrying out the necessary strategic and
tactical decisions in connection with such conflict.
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Congress has on some of these occasions acquiesced in the President’s
action without formal ratification; on others it has ratified the
President’s action; and on still others it has taken no action at all. On
several of the occasions, individual members of Congress, and, at the
close of the Mexican War, one House of Congress on a preliminary
vote, have protested Executive use of the armed forces. While a
particular course of Executive conduct to which there was no
opportunity for the Legislative Branch to effectively object cannot
establish a constitutional precedent in the same manner as it would be
established by an authoritative judicial decision, a long continued
practice on the part of the Executive, acquiesced in by the Congress, is
itself some evidence of the existence of constitutional authority to
support such a practice. United States v. Midwest Oil Co., 236 U.S.
459. As stated by Justice Frankfurter in his concurring opinion in
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 610:
[9] “The Constitution is a framework for government. Therefore the
way the framework has consistently operated fairly establishes that it
has operated according to its true nature. Deeply embedded traditional
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ways of conducting government cannot supplant the Constitution or
legislation, but they give meaning to the words of a text or supply
them.”
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(a) Commitment of Military Forces to Armed Conflict Without
Congressional Authorization. President Jefferson, in 1801, sent a
small squadron of American naval vessels into the Mediterranean to
protect United States commerce against threatened attack by the
Barbary pirates of Tripoli. In his message to Congress discussing his
action, Jefferson took the view that it would require Congressional
authorization for this squadron to assume an offensive, rather than a
defensive, stance.
In May, 1845, President Polk ordered military forces to the coasts
of Mexico and to the western frontier of Texas (still at that time an
independent republic) in order to prevent any interference by Mexico
with the proposed annexation of Texas to the United States. Following
annexation, Polk ordered General Zachery Taylor to march from the
Nueces River, which Mexico claimed was the southern border of
Texas, to the Rio Grande River, which Texas claimed was the southern
boundary of Texas. While so engaged, Taylor’s forces encountered
Mexican troops, and hostilities between the two nations commenced
on April 25, 1846. While Polk two and a half weeks later requested a
declaration of war from Congress, there had been no prior
authorization for Taylor’s march south of the Nueces.
Justice Grier, in his opinion for the Supreme Court in the Prize
Cases, 2 Black 634 (1863), commented on this fact, stating:
“The battles of Palo Alto and Resaca de la Palma had been fought
before the passage of the act of Congress of May 13, 1846, which
recognized ‘a state of war is existing by the act of the Republic of
Mexico.’”
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[10] In 1854, President Pierce approved the action of a naval
officer who bombarded Greytown, Nicaragua, in retaliation against a
revolutionary government that refused to make reparations for damage
and violence to United States citizens. This action was upheld by
Samuel Nelson, then a judge of the Southern District of New York and
later a Justice of the Supreme Court of the United States, in Durand v.
Hollis, 4 Blatch. 451 (1860). In his opinion in that case, Judge Nelson
said:
“As the executive head of the nation, the President is made the only
legitimate organ of the General Government, to open and carry on
correspondence or negotiations with foreign nations, in matters
concerning the interests of the country or of its citizens. It is to him,
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also, the citizens abroad must look for protection of person and of
property, and for the faithful execution of the laws existing and intended
for their protection. For this purpose, the whole executive power of the
country is placed in his hands, under the Constitution, and the laws
passed in pursuance thereof. . . .
“Acts of lawless violence, or of threatened violence to the citizen or
his property, cannot be anticipated and provided for; and for the
protection, to be effectual or of any avail, may, not unfrequently, require
the most prompt and decided action. . . .
“The question whether it was the duty of the President to interpose
for the protection of the citizens at Greytown against an irresponsible
and marauding community that had established itself there, was a
public political question, in which the government, as well as the
citizens whose interests were involved, was concerned, and which
belonged to the executive to determine; and his decision is final and
conclusive, and justified the defendant in the execution of his orders
given through the Secretary of the Navy.” 4 Blatch. 454-455.
[11] In April, 1861, President Lincoln called for 75,000
volunteers to suppress the rebellion by the southern states, and
proclaimed a blockade of the Confederacy. The Supreme Court in the
Prize Cases, supra, upheld the acts taken by President Lincoln prior to
their later ratification by Congress in July, 1861, saying:
“If a war be made by invasion of a foreign nation, the President is not
only authorized but bound to resist force by force. He does not initiate
the war, but is bound to accept the challenge without waiting for any
special legislative authority.” 2 Black at 668.
In 1900 President McKinley sent an expedition of 5,000 United
States troops as a component of an international force during the
Boxer Rebellion in China. While Congress recognized the existence
of the conflict by providing for combat pay, 31 Stat. 903, it neither
declared war nor formally ratified the President’s action. A federal
court, however, reiterated the early recognition of limited or undeclared
war:
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“In the present case, at no time was there any formal declaration of
war by the political department of this government against either the
government of China or the ‘Boxer’ element of that government. A
formal declaration of war, however, is unnecessary to constitute a
condition of war.” Hamilton v. McClaughry, 136 F. 445, 449 (Cir. Ct.
D. Kan. 1905).
Presidents Theodore Roosevelt, Taft, and Wilson on more than
one occasion committed American troops abroad to protect American
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interests. In November, 1903, President Roosevelt ordered the United
States Navy to guard the Panama area and prevent Colombian troops
from being landed in Panama in order to suppress the Panamanian
insurrection against Colombia. In [12] his annual report to Congress
in 1912, President Taft reported the sending of some 2,000 Marines to
Nicaragua (at the request of the President of Nicaragua) and the use of
warships and troops in Cuba. He merely advised Congress of these
actions without requesting any statutory authorization.
President Wilson on two separate occasions committed American
armed forces to hostile actions in Mexican territory. In April, 1914, he
directed a force of sailors and Marines to occupy the City of Vera
Cruz, during the revolution in that country. The city was seized and
occupied for seven months without Congressional authorization. In
1916, Wilson ordered General Pershing and more than 10,000 troops
to pursue Pancho Villa, the Mexican outlaw, into Mexican territory
following the latter’s raid on Columbus, New Mexico.
The most recent example of Presidential combat use of American
armed forces without Congressional declaration of war, prior to the
Vietnam conflict, was President Truman’s intervention in the Korean
conflict. Following invasion of South Korea by North Koreans on June
25, 1950, and a request for aid by the United Nations Security Council,
President Truman ordered the United States air and sea forces to give
South Korean troops cover and support. He ordered the Seventh Fleet
to guard Formosa. On June 30, the President announced that he had
authorized the use of the United States ground forces in the Korean
War, following the collapse of the South Korean Army. Ultimately, the
number of troops engaged in the Korean conflict reached 250,000, and
the conflict lasted more than three years. President Truman’s action
without [13] Congressional authorization precipitated the “Great
Debate” in Congress which raged from January to April, 1951.
While the President relied upon the United Nations Charter as a
basis for his action, as well as his power as Commander-in-Chief, his
action stands as a precedent for Executive action in committing United
States armed forces to extensive hostilities without any formal
declaration of war by Congress.
The United Nations Charter as a result of its ratification by the
Senate has the status of a treaty, but it does not by virtue of this fact
override any constitutional provision. Though treaties made in
pursuance of the Constitution under the supremacy clause may
override a state statute, Missouri v. Holland, 252 U.S. 416, they may
not override specific constitutional limitations. Geofroy v. Riggs, 133
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U.S. 258; Reid v. Covert, 351 U.S. 487. If a Congressional declaration
of war would be required in other circumstances to commit United
States forces to hostilities of the extent and nature of those undertaken
in Korea, the ratification of the United Nations Charter would not
obviate a like requirement in the case of the Korean conflict. While
the issue of Presidential power which was the subject of the great
debate in Congress was never authoritatively resolved, it is clear that
Congress acquiesced in President Truman’s intervention in Korea. See
Rees, The Limited War (1964); Pusey, The Way We Go to War (1969).
[14] (b) Deployment of United States Troops Throughout the
World.36 In February, 1917, President Wilson requested from Congress
authority to arm American merchant vessels. When that authority
failed of passage in Congress as a result of a filibuster, Wilson
proceeded to arm them without congressional authority, stating that he
was relying on his authority as Commander-in-Chief.
Near the close of the first World War, President Wilson
announced a decision to send American troops to Siberia. The troops
so sent remained for over a year, with their withdrawal beginning in
January, 1920. There was no congressional authorization for such
disposition of troops, and the United States had not declared war on
Russia.
In 1941, prior to Pearl Harbor, President Roosevelt utilized his
power as Commander-in-Chief to undertake a series of actions short of
war designed to aid the allied forces in the Second World War. On
April 9, 1941, he made an agreement with the Danish Minister for the
occupation of Greenland by American forces. In May, 1941,
Roosevelt issued a proclamation declaring an unlimited national
emergency, and he ordered American Naval craft to “sink on sight”
foreign submarines found in the “defensive waters” of the United
States. In July, 1941, the President announced that United States
forces would occupy Iceland in order to relieve British forces there,
and that the Navy would perform convoy duty for supplies being sent
to Great Britain under Lend-Lease. In September, 1941, Roosevelt
stated that he had given orders to the United States Army and Navy to
strike first at any German or Italian vessels of war in American
36. [n.2] The line between “deploying” forces and “committing them to combat”
may be razor thin. Had Zachary Taylor not encountered Mexican resistance below the
Nueces, that example could be classified as a “deployment,” while if under the orders of
President Franklin Roosevelt, discussed infra, American naval vessels had sunk on sight a
German submarine in mid-Atlantic, that example could be treated as a “commitment to
armed conflict.”
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“defensive waters”; the following month, he decided to carry 20,000
British troops from Halifax to the Middle East in American transports.
[15] President Truman’s decision in 1951 to send four United
States divisions to Europe in discharge of the Nation’s NATO
commitment occasioned prolonged debate in Congress over his
powers to take such action without congressional approval. Congress
ultimately acquiesced in the President’s action without actually
resolving the question, and all of President Truman’s successors have
asserted and exercised similar authority.
c. Authority to Conduct or Carry on Armed Conflict Once It
Has Been Lawfully Instituted. It has never been doubted that the
President’s power as Commander-in-Chief authorizes him, and him
alone, to conduct armed hostilities which have been lawfully instituted.
Chief Justice Chase, concurring in Ex parte Milligan, 4 Wall. 2, at 139,
said:
“Congress has the power not only to raise and support and govern
armies but to declare war. It has, therefore, the power to provide by law
for carrying on war. This power necessarily extends to all legislation
essential to the prosecution of war with vigor and success, except such
as interferes with the command of the forces and conduct of campaigns.
That power and duty belong to the President as Commander-in-Chief.”
(Emphasis supplied.)
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In the first World War, it was necessary to decide whether United
States troops in France would fight as a separate command under
General Pershing, or whether United States divisions should be
incorporated in existing groups or armies commanded by French or
British generals. President Wilson and his military advisers decided
that United States forces would fight as a separate command.
In the second World War, not only similar military decisions on a
global scale were required, but also decisions that partook as much of
political strategy as they did of military strategy: Should the United
States concentrate its military and materiel resources on either the
Atlantic or [16] Pacific fronts to the exclusion of the other, or should it
pursue the war on both fronts simultaneously? Where should the
reconquest of allied territories in Europe and Africa which had been
captured by the Axis powers begin? What should be the goal of the
allied powers? Those who lived through the second World War will
recall without difficulty, and without the necessity of consulting works
of history, that this sort of decision was reached by the allied
commanders in chief, and chief executive officers of the allied nations,
without (on the part of the United States) any formal congressional
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participation. The series of conferences attended by President
Roosevelt around the world—at Quebec, Cairo, Casablanca, Teheran,
Yalta, and by President Truman at Potsdam, ultimately established the
allied goals in fighting the second World War, including the demand
for unconditional surrender on the part of the Axis nations.
Similar strategic and tactical decisions were involved in the
undeclared Korean War under President Truman. Questions such as
whether United States forces should not merely defend South Korean
territory, but pursue North Korean forces by invading North Korea,
and as to whether American Air Force planes should pursue North
Korean and Chinese Communist planes north of the Yalu River,
separating Red China from North Korea, were of course made by the
President as Commander-in-Chief without any formal congressional
participation.
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[17] 5. Constitutional Practice Requires Executive to Obtain
Sanction of Congress for Conduct of Major Hostilities. It is too plain
from the foregoing discussion to admit of denial that the Executive,
under his power as Commander-in-Chief, is authorized to commit
American forces in such a way as to seriously risk hostilities, and also
to actually commit them to such hostilities, without prior
Congressional approval. However, if the contours of the divided war
power contemplated by the framers of the Constitution are to remain,
constitutional practice must include Executive resort to Congress in
order to obtain its sanction for the conduct of hostilities which reach a
certain scale. Constitutional practice also indicates, however, that
Congressional sanction need not be in the form of a declaration of war.
In the case of the Mexican War which was brought about, if not
initiated, by the Executive, the President requested and obtained a
declaration of war. Congress, meeting in 1861 pursuant to the call of
President Lincoln, ratified all of the actions he had taken on his own
initiative, and apparently refrained from declaring war on the
Confederate states only because it did not wish to recognize them as a
sovereign nation.
However, as previously noted, the Fifth Congress authorized
President Adams to take certain military action against France without
going so far as to declare war. More recently, in connection with
President Eisenhower’s landing of troops in Lebanon and with the
Cuban Missile crisis in 1962, Congress has given advance
authorization for military action by the President without declaring
war. 71 Stat. 5; 76 Stat. 697.
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The notion that such advance authorization by Congress for
military operations constitutes some sort of an invalid delegation of
congressional war power simply will not stand analysis. A declaration
of war by Congress is in effect a blank check to the Executive to
conduct military operations to bring about subjugation of the nation
against whom war has been declared. The idea that while Congress
may do [18] this, it may not delegate a lesser amount of authority to
conduct military operations, as was done in the instances referred to
above, is both utterly illogical and unsupported by precedent. While
cases such as Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935), hold that Congress in delegating powers to deal with domestic
affairs must establish standards for administrative guidance, no such
principle obtains in the field of external affairs. The Supreme Court in
United States v. Curtiss-Wright Corp., 299 U.S. 304, made this
distinction:
“Whether, if the Joint Resolution had related solely to internal affairs it
would be open to the challenge that it constituted an unlawful
delegation of legislative power to the Executive, we find it unnecessary
to determine. The whole aim of the Resolution is to affect a situation
entirely external to the United States, and falling within the category of
foreign affairs. . . .
“It will contribute to the elucidation of the question if we first
consider the differences between the powers of the federal government
in respect of foreign or external affairs and those in respect of domestic
or internal affairs. That there are differences between them, and that
these differences are fundamental, may not be doubted. . .” 299 U.S.
304 at 315.
“It results that the investment of the federal government with the
powers of external sovereignty did not depend upon the affirmative
grants of the Constitution. The power to declare and wage war, to
conclude peace, to make treaties, to maintain diplomatic relations with
other sovereignties, if they had never been mentioned in the
Constitution, would have vested in the federal government as necessary
concomitants of nationality.” 299 U.S. at 318.
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[19] “In the light of the foregoing observations, it is evident that this
Court should not be in haste to apply a general rule which will have the
effect of condemning legislation like that under review as constituting
an unlawful delegation of legislative power. The principles which
justify such legislation find overwhelming support in the unbroken
legislative practice which has prevailed almost from the inception of the
national government to the present date.” 299 U.S. at 322.
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What must be regarded as the high water mark of Executive
action without express congressional approval is, of course, the Korean
War. Although Congress never expressly sanctioned the President’s
action in committing United States forces in the hundreds of thousands
to the Korean conflict, it repeatedly voted authorizations and
appropriations to arm and equip the American troops. This is not to
say that such appropriations are invariably the equivalent of express
congressional approval; the decision as to whether limited hostilities,
commenced by the Executive, should be sanctioned by Congress may
be one quite different from the decision as to whether American troops
already committed and engaged in such hostilities shall be equipped
and supplied.
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[20] 6. Extent to Which Congress May Restrict by Legislation
the Substantive Power Granted the President by Virtue of His Being
Designated as Commander-in-Chief. While the President may commit
armed forces of the United States to hostile conflict without
congressional authorization under his constitutional power as
Commander-in-Chief, his authority exercised in conformity with
congressional authorization or ratification of his acts is obviously
broader than if it stood alone. By the same token, Congress
undoubtedly has the power in certain situations to restrict the
President’s power as Commander-in-Chief to a narrower scope than it
would have had in the absence of legislation. Chief Justice Marshall
strongly intimates in his opinion in Little v. Barreme, 2 Cranch, 170
(1804), supra, that the Executive action directing the seizure of a ship
on the high seas would have been valid had not Congress enacted
legislation restricting the circumstances under which such a seizure
was authorized. Congress, exercising its constitutional authority to
“make rules concerning captures on land and water” may thus
constrict the President’s power to direct the manner of proceeding with
such captures.
Congress has similarly sought to restrain the authority of the
President in the exercise of its power to “raise and support armies”. In
the Selective Service and Training Act of 1940, it was provided that:
“Persons inducted into the land forces of the United States under this
act shall not be employed beyond the limits of the Western Hemisphere
except in the Territories and possessions of the United States, including
the Philippine Islands.” 54 Stat. 885.
In the year following enactment of this law, President Roosevelt
determined to send United States troops, including draftees, to Iceland
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in order to relieve British troops garrisoned there. He chose to strain
geography, rather than the law, and obtained the option of what was
apparently a minority-view geographer that Iceland was actually in the
Western Hemisphere.
[21] Very recently, Congress has enacted legislation providing
that United States forces shall not be dispatched to Laos or Thailand in
connection with the Vietnam conflict. This proviso was accepted by
the Executive.
This is not to say, however, that every conceivable condition or
restriction which Congress may by legislation seek to impose on the
use of American military forces would be free of constitutional doubt.
Even in the area of domestic affairs, where the relationship between
Congress and the President is balanced differently than it is in the field
of external affairs, virtually every President since Woodrow Wilson has
had occasion to object to certain conditions in authorization legislation
as being violative of the separation of powers between the Executive
and the legislative branch.37 The problem would be met in exacerbated
form should Congress attempt by detailed instructions as to the use of
American forces already in the field to supersede the President as
Commander-in-Chief of the armed forces. Surely this is the thrust of
Chief Justice Chase’s concurring opinion in Ex parte Milligan, quoted
earlier in this text:
“[Congressional power] necessarily extends to all legislation essential to
the prosecution of war with vigor and success, except such as interferes
with the command of the forces and conduct of campaigns. That power
and duty belong to the President as Commander-in-Chief.” 4 Wall. at
139.
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[22] Nor is the manner in which armed hostilities may be
terminated altogether free from doubt. All declared wars in our history
have been customarily concluded by Treaties negotiated by the
President and ratified by the Senate. An effort in the Constitutional
convention to give Congress the power to declare “peace” as well as
“war” was unanimously turned down at the session of August 17,
1787, described in the Appendix to this memorandum.
[23] 7. The Vietnam Conflict: Relation Between the Power of
the President and the Power of Congress. The duration of the Vietnam
conflict, and its requirements in terms of both men and material, have
37. [n.3] All of these Presidents have stated in one way or another that just because
Congress concededly may refrain from appropriating any money at all, it does not necessarily
follow that it may attach whatever condition it desires to an appropriation which it does make.
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long since become sufficiently large so as to raise the most serious sort
of constitutional question had there been no congressional sanction of
that conflict. However, as is well known, the conflict in its present
form began following an attack on U.S. naval forces in the Gulf of
Tonkin in August, 1964. At that time President Johnson took direct air
action against the North Vietnamese, and he also requested Congress
“to join in affirming the national determination that all such attacks
will be met” and asked for “a resolution expressing the support of the
Congress for all necessary action to protect our armed forces and to
assist nations covered by the SEATO Treaty.”
On August 10, 1964, Congress passed the following resolution:
“. . . . Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled. That the Congress
approves and supports the determination of the President, as
Commander in Chief, to take all necessary measures to repel any armed
attack against the forces of the United States and to prevent further
aggression.
“Sec. 2. The United States regards as vital to its national interest and
to world peace the maintenance of international peace and security in
southeast Asia. Consonant with the Constitution of the United States
and the Charter of the United Nations and in accordance with its
obligations under the Southeast Asia Collective Defense Treaty, the
United States is, therefore, prepared as the President determines, to take
all necessary steps, including the use of armed force, to assist any
number or protocol state of the Southeast Asia Collective Defense
Treaty requesting assistance in defense of its freedom.
[24] “Sec. 3. This resolution shall expire when the President shall
determine that the peace and security of the area is reasonably assured
by international conditions created by action of the United Nations or
otherwise, except that it may be terminated earlier by concurrent
resolution of the Congress.” 78 Stat. 384 (1964).
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In connection with this resolution, Congress noted that whatever
the limits of the President’s authority acting alone might be, whenever
Congress and the President act together “there can be no doubt” of the
constitutional authority. H. Rept. 1708, 88th Cong., 2d Sess., p. 4.
Since that time, Congress has repeatedly adopted legislation
recognizing the situation in Southeast Asia, providing the funds to
carry out United States commitments there, and providing special
benefits for troops stationed there. By virtue of these acts, and by
virtue of the provision in the Gulf of Tonkin resolution as to the
manner in which it may be terminated, there is long-standing
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congressional recognition of a continuing Unites States commitment
in Southeast Asia.38
President Nixon has continued to maintain United States troops
in the field in South Vietnam, in pursuance of his policy to seek a
negotiated peace which will protect the right of the South Vietnamese
people to self-determination. The legality of the maintenance of these
troops in South [25] Vietnam, and their use to render assistance to the
South Vietnamese troops in repelling aggression from the Viet Cong
and the North Vietnamese, would admit of reasonable doubt only if
congressional sanction of hostilities commenced on the initiative of the
Executive could be manifested solely by a formal declaration of war.
But the numerous historical precedents previously cited militate
against such a formal type of reasoning.
A requirement that congressional approval of Executive action in
this field can come only through a declaration of war is not only
contrary to historic constitutional usage, but as a practical matter could
not help but curtail effective congressional participation in the exercise
of the shared war power. If Congress may sanction armed engagement
of United States forces only by declaring war, the possibility of its
retaining a larger degree of control through a more limited approvallis
[sic] foreclosed. While in terms of men and material the Vietnam
conflict is one of large scale, the objectives for which the conflict may
be carried on, as set forth in the Gulf of Tonkin resolution, are by no
means as extensive or all-inclusive as would have resulted from a
declaration of war by Congress. Conversely, however, there cannot be
the slightest doubt from an examination of the language of the Gulf of
Tonkin resolution that Congress expressly authorized extensive
military involvement by the United States, on no less a scale than that
now existing, by virtue of its adoption of this resolution. To reason that
if the caption “Declaration of War” had appeared at the top of the
resolution, this involvement would be permissible, but that the
identical language without such a caption does not give effective
congressional sanction to it at all, would be to treat this most nebulous
38. [n.4] “Legislative history” surrounding the Gulf of Tonkin resolution may be
cited for a number of varying interpretations of exactly what Congress was authorizing. In
view of the very plain text of the resolution, which authorizes the use of military force “as the
President determines” to assist Southeast Asian countries, including South Vietnam, in
defense of their freedom, it is all but impossible to argue that substantial military operations
in support of the South Vietnamese against North Vietnam and the Viet Cong were not
thereby authorized. The fact that Congress did not by adopting this resolution intend to
declare war does not detract from this conclusion; the authority conferred by the resolution is
a good deal short of that which would be conferred by a declaration of war.
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and ill defined of all areas of the law as if it were a problem in
common law pleading. Justice Grier, more than a century ago, in the
Prize Cases said:
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“This greatest of civil wars was not gradually developed by popular
commotion, tumultuous assemblies, or local unorganized insurrections.
[26] However long may have been its previous conception, it
nevertheless sprung forth suddenly from the parent brain, a Minerva in
the full panoply of war. The President was bound to meet it in the
shape it presented itself, without waiting for Congress to baptize it with
a name; and no name given to it by him or them could change the fact.”
D
If substance prevailed over form in establishing the right of the
federal government to fight the Civil War in 1861, substance should
equally prevail over form in recognizing congressional sanction for the
Vietnam conflict by the Gulf of Tonkin resolution, even though it was
not in name or by its terms a formal declaration of war.
Viewed in this context, the President’s determination to authorize
incursion into the Cambodian border area by United States forces in
order to destroy sanctuaries utilized by the enemy is the sort of tactical
decision traditionally confided to the Commander-in-Chief in the
conduct of armed conflict. From the time of the drafting of the
Constitution it has been clear that the Commander-in-Chief has
authority to take prompt action to protect American lives in situations
involving hostilities. Faced with a substantial troop commitment to
such hostilities made by the previous Chief Executive, and approved
by successive Congresses, President Nixon has an obligation as
Commander-in-Chief of the country’s armed forces to take what steps
he deems necessary to assure their safety in the field. A decision to
cross the Cambodian border, with at least the tacit consent of the
Cambodian government, in order to destroy sanctuaries being utilized
by North Vietnamese in violation of Cambodia’s neutrality, is wholly
consistent with that obligation. It is a decision made during the course
of an armed conflict as to how that conflict shall be conducted, rather
than a determination that some new and previously unauthorized
military venture shall be undertaken.
[27] By crossing the Cambodian border to attack sanctuaries
used by the enemy, the United States has in no sense gone to “war”
with Cambodia. United States forces are fighting with or in support of
Cambodian troops, and not against them. Whatever protest may have
been uttered by the Cambodian government was obviously the most
perfunctory, formal sort of declaration. The Cambodian incursion has
not resulted in a previously uncommitted nation joining the ranks of
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our enemies, but instead has enabled us to more effectively deter
enemy aggression heretofore conducted from the Cambodian
sanctuaries.
Only if the constitutional designation of the President as
Commander-in-Chief conferred no substantive authority whatever
could it be said that prior congressional authorization for such a
tactical decision was required. Since even those authorities least
inclined to a broad construction of the Executive power concede that
the Commander-in-Chief provision does confer substantive authority
over the manner in which hostilities are conducted, the President’s
decision to invade and destroy the border sanctuaries in Cambodia was
authorized under even a narrow reading of his power as Commanderin-Chief.
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William H. Rehnquist
Assistant Attorney General
Office of Legal Counsel
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APPENDIX F
October 18, 1973
MEMORANDUM FROM ELLIOT RICHARDSON TO
ROY L. ASH39
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Office of the Attorney General
Washington, D.C. 20530
OCT 18 1973
Dear Mr. Ash:
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In compliance with your request I have examined a facsimile of
the enrolled bill, H.J. Res. 542, 93d Cong., 1st Sess., “The War Powers
Resolution.”
The bill purports to outline how the collective judgment of the
President and Congress is to be applied to the “introduction of the
Armed Forces of the United States into hostilities, or [in]to situations
where imminent involvement in hostilities is clearly indicated by the
circumstances” [hereafter sometimes briefly referred to as “use of the
Armed Forces”] without a declaration of war. (Sec. 2(a)).
The bill recites that it is enacted pursuant to the power derived by
Congress from the Necessary and Proper Clause of the Constitution
(Article I, section 8, clause 18) and asserts that the President has the
constitutional power to use the Armed Forces in the above
circumstances only pursuant to (1) a declaration of war, (2) specific
statutory authorization, or (3) a national emergency created by attack
upon the United States, its territory or possessions, or its Armed
Forces.
The operative provisions of the bill are contained in sections 4
and 5. Section 4 provides that the President shall within 48 hours
submit a report to the Speaker of the House and the President pro
tempore of the Senate in any case in which United States Armed
Forces are introduced in the absence of a declaration of war—
“(1) into hostilities or into situations where imminent involvement
in hostilities is clearly indicated by the circumstances;
39. Source : Nixon Presidential Library and Museum, White House Central
Files, Subject Files, FE (Federal Government) 4-1, 10/1/73-11/30/73, Box 6 (photographic
reproduction available at http://www.tulanelawreview.org/files/87/3/smg/f.pdf).
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“(2) into the territory, airspace or waters of a foreign nation, while
equipped for combat, [2] except for deployments which relate solely to
supply, replacement, repair, or training of such forces; or
“(3) in numbers which substantially enlarge United States Armed
Forces equipped for combat already located in a foreign nation.”
That report is to include the following information:
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“(A) the circumstances necessitating the introduction of United
States Armed Forces;
“(B) the constitutional and legislative authority under which such
introduction took place; and
“(C) the estimated scope and duration of the hostilities or
involvement.”
D
Section 5(b) provides that where, in the absence of a declaration
of war, United States Armed Forces are introduced into hostilities or
into situations where imminent involvement in hostilities is clearly
indicated by the circumstances, the President shall terminate such use
within sixty calendar days unless Congress (1) has declared war or has
enacted a specific authorization for such use of the Armed Forces,
(2) has extended the sixty-day period by law, or (3) is physically unable
to meet as the result of an armed attack on the United States. The
sixty-day period is extended for not more than 30 days if the President
determines and certifies that an unavoidable military necessity
respecting the safety of the Armed Forces requires the extension.
Section 5(c) provides that at any time when the Armed Forces are
used abroad in the absence of a declaration of war or specific statutory
authorization, such forces shall be removed by the President if
Congress so directs by concurrent resolution.
It should also be noted that section 8(a) provides that authority to
use the Armed Forces abroad cannot be inferred [3] from any statute,
including any provision in an appropriation act or a treaty, unless the
statute specifically authorizes the use of the Armed Forces and states
that it is intended to constitute specific statutory authorization within
the meaning of the bill, or unless the treaty is implemented by such
legislation.
In our view, policy as well as constitutional reasons counsel the
withholding of Executive approval from this bill.
We begin with policy considerations. The bill tries to regulate by
law the unpredictable. The spectrum of the present state of world
affairs plainly raises the possibility of military action ranging from
nuclear warfare to brush-fire wars. It also suggests a variety of
insurgency situations arising from “wars of national liberation” and the
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unwillingness or inability of certain countries to control terror groups
claiming a mandate to wage war on their “enemies” anywhere on the
globe. And historically, most of our foreign military activities, going
way back to the 1790’s and the limited naval war with France, have
been unaccompanied by a formal declaration of war.
It is thus realistically impossible to anticipate the military or
paramilitary situations in which the United States might have some
role in the future. The complex nature of the bill indicates
congressional awareness of this problem. There is, however, no
certainty that there is not a casus omissus not covered by the bill,
because it is not possible to anticipate the new and totally
unprecedented kinds of hostilities that may develop in the future.
Moreover, there may be situations in which a declaration of war is not
practicable, if only because the “enemy” lacks belligerent status in the
international sense, or where for reasons of policy it would not be
desirable to enact the specific legislation envisaged by section 5(b) of
the bill. In those circumstances the regime provided for in the bill
appears to be far too narrow and rigid.
In addition it would seem that the bill over-emphasizes “the
declaration of war” provision of the Constitution. The Founding
Fathers no doubt knew that formal declarations of [4] war were a rarity
even in their times. Of the thirty-five instances of warfare that
occurred throughout the western world between 1700 and 1787, it has
been said that there was only one in which the hostilities were
preceded by a declaration of war. Maurice, Hostilities without
Declaration of War, pp. 12-26; 15; 27. Indeed, in the French and
Indian War, with which the Founding Fathers were thoroughly familiar,
hostilities both on land and on sea had progressed for two years before
there was a formal dec1aration of war. Maurice, op. cit., pp. 20-23;
Phillipson, International Law and the Great War, p. 53.
If Congress wishes to control the use of the Armed Forces by the
President in a particular case, it may do so through the exercise of its
appropriation power under the Constitution. We have, however,
serious doubts about the desirability of legislation where this result can
be brought about by congressional inaction (section 5(b)), and where
even an appropriation for a specific military action is not considered to
constitute congressional approval therefor unless the appropriation
contains a specific exemption from the provisions of the bill. (Section
8(a)(1)).
We are especially concerned with that part of the bill, section 5,
which would operate automatically as a legislative disapproval of U. S.
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military action, simply by congressional inaction. The basic formula of
the bill is (1) a specification of the circumstances in which the President
may use armed force without a declaration of war by Congress, and
(2) the automatic termination of the military activity if Congress, within
a sixty-day period, takes no action to approve the military activity. If, as
stated in section 2(a), the “collective judgment of both the Congress
and the President” is to apply to use of the Armed Forces, that
congressional judgment must be expressed in the form of a responsible
vote on the new military activity by the Congress then in office.
From the constitutional point of view, we do not believe that
Congress has the authority to define the President’s war powers by
legislation enacted pursuant to the Necessary and Proper Clause. That
clause relates to the authority of the Federal Government as such, but
cannot form the basis of [5] legislation 1imiting the power of the three
branches inter se. Otherwise Congress could through the exercise of
its 1egis1ative authority completely destroy the fundamental principle
of the separation of powers underlying the Constitution. In this context
it is appropriate to invite your attention to pp. 14-17 of the prepared
statement of Assistant Attorney General Dixon on H.R. 7386, 93d
Cong., 1st Sess. (the Pocket Veto bill), a copy of which is attached.
Implementation of the war power provisions of the Constitution
by legislation purportedly enacted under the Necessary and Proper
Clause is also contrary to the spirit and purpose of our basic document.
As Chief Justice Marshall said in McCulloch v. Maryland, 4 Wheat.
316, 415 (1819), the Constitution was “intended to endure for ages to
come, and consequently to be adopted to the various crises in human
affairs.” Hence, it was not to have “the properties of a legal code.” The
bill, however, would confine in a narrow statutory straitjacket, enacted
without knowledge of future crises, the President’s ability to meet the
unpredictable situations which may confront the United States.
Section 5(c) would require the President to withdraw its forces in
certain circumstances “if the Congress so directs by concurrent
resolution.” This provision in our view conflicts with Article I, section
7 of the Constitution, which provides that every bill, and “every Order,
Resolution, or Vote to which the Concurrence of the Senate and House
of Representatives may be necessary * * * shall be presented to the
President.”
A final consideration is that a bill dealing with a matter as critical
as legislation seeking to circumscribe the future power of the President
to meet mortal perils confronting the United States, should be simple
and unambiguous, and not prone to invite disputes and controversy. In
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the brief time period we have had to analyze this bill we note the
following uncertainties:
(a) Would the basic formula “introduction of the Armed Forces
of the United States into hostilities, or into situations where imminent
involvement in hostilities is clearly [6] indicated by the circumstances”
apply to a situation such as the 1958 intervention in Lebanon?
(b) Section 2(c) would seem to permit the President to use the
Armed Forces pursuant to specific statutory authorization. Section
4(a) nevertheless requires the President to report to Congress any use
of the Armed Forces even if made pursuant to a specific statutory
authorization—declared wars are the only exception from the
reporting requirement. Section 5(b) in turn provides that where the
President submits or is required to submit a report under section
4(a)(1), he must terminate the use of the U. S. Armed Forces unless
Congress has declared war, or has enacted specific legislation for such
use of the Armed Forces. This raises the question whether the specific
legislation referred to in section 5(b) is a new authorization or the
authorization under which the President acted originally. If it is the
same authorization, there appears to be little reason to require a report
to Congress. In any event the language of the statute is ambiguous in
this respect.
(c) Section 5(b) provides that the President need not terminate
the use of the U. S. Armed Forces if Congress has extended the
statutory sixty-day period by law. The bill, however, does not define
the President’s duties when the period of extension expires.
Uncertainties of this type are bound to create serious problems in
times of national emergencies. Hence, it is essential that any statute of
this type be drafted to avoid any and all ambiguities.
For those reasons, the Department of Justice recommends against
the Executive approval of this bill.
With kindest regards.
D
Sincerely,
/s/
Attorney General
Honorable Roy L. Ash
Director
Office of Management and Budget
Washington, D. C. 20503
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APPENDIX G
August 7, 1990
MEMORANDUM FROM C. BOYDEN GRAY TO
PRESIDENT GEORGE H.W. BUSH40
Potential Significance of a Declaration of War Against
Iraq
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SUBJECT:
As you requested, I have looked at the advantages and
disadvantages that would follow from a declaration of war against Iraq.
For the reasons set forth below, there are few legal advantages to a
declaration of war unless you anticipate serious and sustained
hostilities with Iraq requiring wartime mobilization of the American
people and economy. If you anticipate a more modest military
commitment to the Persian Gulf region, depending on the size of the
commitment, its likely duration, and the risk of involvement in
hostilities, you can proceed either without any formal congressional
approval at all, or seek a joint resolution of Congress endorsing your
action.
International Law
D
Under customary international practice, declarations of war serve
to (1) notify neutral powers of the existence of a state of war,
(2) prepare the nation’s political structure and populace for war, and
(3) publicly explain the circumstances necessitating the declaration.
Declaring war is one way that a state can acquire belligerent status
under international law. States with such status acquire belligerent
rights, including the rights to intern enemy aliens and confiscate
enemy property found within their territory, blockade enemy ports, and
seize enemy shipping. Of course, states against whom war is declared
acquire these same rights against the declaring state. This would mean
that if Iraq acquired belligerent status by virtue of a U.S. declaration of
war, Iraq would have a strong basis under international law for
interning U.S. citizens for the duration of the conflict. Belligerent
status can also be acquired by engaging in acts of war, however, and
40. Source : George Bush Presidential Library and Museum, John Sununu Files,
OA/ID 29166-008, Persian Gulf War 1991, 6 (photographic reproduction available at http://
www.tulanelawreview.org/files/87/3/smg/g.pdf).
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throughout history many if not most conflicts have been fought
without formal declarations of war.
Constitutional Issues
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Under our Constitution, Congress has the power to declare war
and the President, as Commander-in-Chief, has the power to conduct
it. The records of the constitutional convention suggest that an
important purpose of this division was to afford the President [2]
flexibility to respond quickly to aggression, while ensuring that
Congress approved of any decision to commit aggression against other
countries. Obviously this distinction is easier to draw in theory than in
practice. Because we believe that the United States does not initiate
aggression, the Executive branch has generally held that the President
can order U.S. forces into combat without a declaration of war.
Accordingly, we have proceeded without a declaration of war or other
congressional authorization when it was politically tenable to do so, as
in Grenada and Panama.
Congress, on the other hand, has sometimes taken a more
restrictive view of the President’s authority. Because the U.S. cannot
long sustain military commitments without the support of Congress
and the American people, other mechanisms have been resorted to
when politically expedient and a declaration of war was not desired.
The most commonly used mechanism is the joint resolution. The two
most recent examples are the Gulf of Tonkin Resolution, which was
adopted at President Johnson’s request in 1964 in furtherance of his
policy in Viet Nam, and the Multinational Force in Lebanon
Resolution, which Congress insisted on enacting in 1983 in order to
preserve its position concerning application of the War Powers
Resolution to Lebanon.41
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41. [n.1] Another example, arguably relevant to the current situation, is the
Resolution to Promote Peace and Stability in the Middle East, adopted in 1957 in support of
President Eisenhower’s intervention in Lebanon. This resolution, which remains in effect and
is currently codified at 22 U.S.C. 1961-1965, provides in pertinent part:
. . . the United States regards as vital to the national interest and world peace the
preservation of the independence and integrity of the nations of the Middle East.
To this end, if the President determines the necessity thereof, the United States is
prepared to use armed forces to assist any such nation or group of such nations
requesting assistance against armed aggression from any country controlled by
international communism . . .
This resolution would appear to provide congressional authorization for the deployment
of U.S. forces to the Middle East in response to Iraq’s invasion of Kuwait only if we could
plausibly claim that Iraq is a “country controlled by international communism.”
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Consequences Under U.S. Law
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If you order a U.S. military response to Iraq’s invasion of Kuwait,
it will be immaterial under U.S. law whether that response is unilateral
or undertaken under auspices of the United [3] Nations. In either case,
your legal options and the legal consequences under U.S. law of your
actions will be the same.
A declaration of war would have limited effect under existing
statutes. It would fully satisfy the requirements of the War Powers
Resolution42, thereby eliminating the need to report certain force
deployments to Congress and providing congressional authorization to
continue deployments into hostile situations for more than 60 days. A
joint resolution of Congress would also provide authorization to
continue such deployments, however, though the requirement that
certain deployments be reported to Congress would remain in effect.
In the absence of either a declaration of war or a joint resolution, we
would be subject to both the War Powers Resolution’s reporting
requirement and its requirement—which we regard as
unconstitutional—to terminate deployments into hostile situations after
60 days.
A declaration of war would also allow us to invoke the Trading
With the Enemy Act against the assets of Iraq and its citizens in the
United States. The principal advantage of this Act over the
International Emergency Economic Powers Act (which we have
already invoked against Iraq) is that it would permit us not only to
freeze Iraqi assets, but to confiscate them as well. A declaration of war
or national emergency by Congress empowers the President to call up
all members [of] the reserves for the duration of the war or emergency
plus six months. However, the President already has statutory
authority to call up 1,000,000 members of the Ready Reserve for 24
months upon issuing his own declaration of national emergency. In
addition, he has authority to call up 200,000 members of the Selected
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42. [n.2] The War Powers Resolution provides that the President is to consult with
Congress “in every possible instance” prior to introducing U.S. military forces into hostilities
or situations where involvement in hostilities is imminent. It also requires the President to
report to Congress within 48 hours any deployment (1) “into hostilities or into situations
where imminent involvement in hostilities is clearly indicated,” (2) “into the territory, airspace
or waters of a foreign nation while equipped for combat,” or (3) “in numbers which
substantially enlarge United States Armed Forces equipped for combat already located in a
foreign nation.” The Resolution further provides that, with respect to the first category of
deployments (into hostilities or situations where involvement in hostilities is imminent), the
forces must be withdrawn after 60 days unless Congress has declared war or enacted a joint
resolution authorizing continued deployment.
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Reserve for 90 days if he determines that doing so “is necessary to
augment the active forces for any operational mission.”
[4] Various other statutes empower the President to reclaim U.S.
title to former military facilities in the event of war. These statutes
vary, but as a general rule they give the President greater authority to
reclaim title in the event of a congressional declaration of war or
emergency than in the absence of such a declaration. Another statute
authorizes the President to require communications common carriers
to give priority to national security communications “during the
continuance of a war in which the United States is engaged.” This
provision probably could be invoked even in the absence of a
declaration of war, but its availability would be clearer in the event war
was declared.
The most important consequences of a declaration of war arise
not under any statute, but under the Constitution. During states of war,
Presidents have been able to assume extraordinary authority over
American society under the Commander-in-Chief clause. During
World War II, for example, President Roosevelt created dozens of
Executive branch agencies to oversee the economy, and those agencies
were generally successful in compelling private sector compliance
with their edicts, even in the absence of authorizing legislation. The
internment of Japanese-American citizens was first ordered by
Roosevelt pursuant to his Commander-in-Chief authority, though
Congress had ratified this action prior to the Supreme Court decision
upholding it. The President also gains extraordinary authority over the
military in times of war. He can, for example, direct the military to
requisition property and compel services of citizens and aliens,
irrespective of the availability of appropriated funds.
Conclusion
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In the event that the United States undertakes any sort of military
response to Iraq’s invasion of Kuwait, you will have three options:
(1) proceed on your inherent authority as Commander-in-Chief
without seeking congressional authorization, (2) seek a joint resolution
of Congress approving your action, or (3) request a declaration of war.
We believe it is legally sufficient to proceed with no formal
congressional authorization at all. However, if U.S. forces will be
involved in hostilities or situations where involvement in hostilities is
imminent and you wish to avoid a dispute over the War Powers
Resolution, or if a congressional endorsement would [be] useful in
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gaining public support for your action, you should consider seeking a
joint resolution approving your action. A declaration of war would
give you greater authority to wage war against Iraq and undertake
massive intervention in the U.S. economy, but the principal benefits of
such a declaration are ones that you are not likely to need—or indeed
want—in the current situation. Further, because of the implications
under international law, such a declaration could play into Iraq’s hands.
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APPENDIX H
December 6, 1990
MEMORANDUM FROM C. BOYDEN GRAY TO
GOVERNOR JOHN H. SUNUNU43
C. BOYDEN GRAY
SUBJECT:
War Powers Resolution
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FROM:
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Attached is the copy of the War Powers Resolution that you
requested. Sections 3, 4, and 5 are the heart of the Resolution.
On August 9 the President provided a report “consistent with” the
War Powers Resolution notifying Congress of the introduction of U.S.
forces into the Persian Gulf region, and on November 16 the President
provided an additional report updating Congress on the situation. As is
customary, neither report specified the relevant section of the
Resolution, but the first report was consistent with section 4(a)(2)
(concerning introductions of U.S. forces into foreign countries), and
the second was consistent with section 4(c) (concerning periodic
reports to Congress).
We have consciously avoided notifying Congress consistent with
section 4(a)(1) that hostilities in the region are imminent, because this
would trigger the Resolution’s 60-day clock under section 5(b). Once
the clock was triggered, the President would be required by the
Resolution to terminate the deployment of U.S. forces to the region
unless Congress passed legislation specifically authorizing the
deployment within sixty days.
We believe that the War Powers Resolution is unconstitutional
insofar as it purports to allow Congress to compel the withdrawal of
U.S. forces through inaction, but no President has wanted to jeopardize
congressional support for his actions by defying the Resolution. It
often falls to Executive branch lawyers to develop a legal theory
permitting the President to avoid triggering the clock. Congress also
has been reluctant to permit the President to act in defiance of its
interpretation of the Resolution. In the only case where the President’s
legal interpretation could not be reconciled with Congress’s (Lebanon
43. Source : George Bush Presidential Library and Museum, John Sununu Files,
OA/ID CF 00472, Persian Gulf War 1991, 11 (photographic reproduction available at http://
www.tulanelawreview.org/files/87/3/smg/h.pdf).
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in 1983), Congress enacted legislation specifically authorizing the U.S.
deployment, but subjecting that authorization to numerous restrictions
designed to limit the President’s freedom of action.
[2] In the current situation, the Resolution would not require
notice to Congress prior to the initiation of hostilities. While we could
choose to provide prior notice, I would counsel against doing so. Such
notice would trigger the 60-day clock, and set an unwelcome precedent
for future military operations.