The Power of Congress to Control the Presidents Discretion
The Cold War and After: Presidential Power To Use Troops Overseas Without Congressional Authorization
Reaction after World War II did not persist, but soon ran its course, and the necessities, real and only perceived, of the United States’ role as world power and chief guarantor of the peace operated to expand the powers of the President and to diminish congressional powers in the foreign relations arena. President Truman did not seek congressional authorization before sending troops to Korea, and subsequent Presidents similarly acted on their own in putting troops into many foreign countries, including the Dominican Republic, Lebanon, Grenada, Panama, and the Persian Gulf, and most notably Indochina.162 Eventually, public opposition precipitated another constitutional debate whether the President had the authority to commit troops to foreign combat without the approval of Congress, a debate that went on inconclusively between Congress and Executive163 and one which the courts were content generally to consign to the exclusive consideration of those two bodies. The substance of the debate concerns many facets of the President’s powers and responsibilities, including his obligations to protect the lives and property of United States citizens abroad, to execute the treaty obligations of the Nation, to further the national security interests of the Nation, and to deal with aggression and threats of aggression as they confront him. Defying neat summarization, the considerations nevertheless merit at least an historical survey and an attempted categorization of the arguments.
162 See the discussion in National Commitments Resolution, Report of the Senate Committee on Foreign Relations, S. Rep. No. 91-129, 91st Congress, 1st sess. (1969); U.S. Commitments to Foreign Powers: Hearings Before the Senate Committee on Foreign Relations, 90th Congress, 1st sess. (1967), 16-19 (Professor Bartlett).
163 See under Article I, § 8, cls. 11-14.
The Historic Use of Force Abroad.—In 1912, the Department of State published a memorandum prepared by its Solicitor which set out to justify the Right to Protect Citizens in Foreign Countries by Landing Forces.164 In addition to the justification, the memorandum summarized 47 instances in which force had been used, in most of them without any congressional authorization. Twice revised and reissued, the memorandum was joined by a 1928 independent study and a 1945 work by a former government official in supporting conclusions that drifted away from the original justification of the use of United States forces abroad to the use of such forces at the discretion of the President and free from control by Congress.165
New lists and revised arguments were published to support the actions of President Truman in sending troops to Korea and of Presidents Kennedy and Johnson in sending troops first to Vietnam and then to Indochina generally,166 and new lists have been propounded.167 The great majority of the instances cited involved fights with pirates, landings of small naval contingents on barbarous or semibarbarous coasts to protect commerce, the dispatch of small bodies of troops to chase bandits across the Mexican border, and the like, and some incidents supposedly without authorization from Congress did in fact have underlying statutory or other legislative authorization. Some instances, e.g., President Polk’s use of troops to precipitate war with Mexico in 1846, President Grant’s attempt to annex the Dominican Republic, President McKinley’s dispatch of troops into China during the Boxer Rebellion, involved considerable exercises of presidential power, but in general purposes were limited and congressional authority was sought for the use of troops against a sovereign state or in such a way as to constitute war. The early years of this century saw the expansion in the Caribbean and Latin America both of the use of troops for the furthering of what was perceived to be our national interests and of the power of the President to deploy the military force of the United States without congressional authorization.168
164 J. Clark, Memorandum by the Solicitor for the Department of State, in RIGHT TO PROTECT CITIZENS IN FOREIGN COUNTRIES BY LANDING FORCES (1912).
165 Id., (Washington: 1929; 1934); M. OFFUTT, THE PROTECTION OF CITIZENS ABROAD BY THE ARMED FORCES OF THE UNITED STATES (1928); J. ROGERS, WORLD POLICING AND THE CONSTITUTION (1945). The burden of the last cited volume was to establish that the President was empowered to participate in United Nations peacekeeping actions without having to seek congressional authorization on each occasion; it may be said to be one of the earliest, if not the earliest, propoundings of the doctrine of inherent presidential powers to use troops abroad outside the narrow compass traditionally accorded those powers.
166 E.g., H. Rep. No. 127, 82d Congress, 1st Sess. (1951), 55-62; Corwin, Who Has the Power to Make War? NEW YORK TIMES MAGAZINE (July 31, 1949), 11; Authority of the President to Repel the Attack in Korea, 23 DEPT. STATE BULL. 173 (1950); Department of State, Historical Studies Division, Armed Actions Taken by the United States Without a Declaration of War, 1789-1967 (Res. Proj. No. 806A (Washington: 1967)). That the compilation of such lists was more than a defense against public criticism can be gleaned from a revealing discussion in Secretary of State Acheson’s memoirs detailing why the President did not seek congressional sanction for sending troops to Korea. There has never, I believe, been any serious doubt—in the sense of non-politically inspired doubt—of the President’s constitutional authority to do what he did. The basis for this conclusion in legal theory and historical precedent was fully set out in the State Department’s memorandum of July 3, 1950, extensively published. But the wisdom of the decision not to ask for congressional approval has been doubted... .
After discussing several reasons establishing the wisdom of the decision, the Secretary continued: The President agreed, moved also, I think, by another passionately held conviction. His great office was to him a sacred and temporary trust, which he was determined to pass on unimpaired by the slightest loss of power or prestige. This attitude would incline him strongly against any attempt to divert criticism from himself by action that might establish a precedent in derogation of presidential power to send our forces into battle. The memorandum that we prepared listed eighty-seven instances in the past century in which his predecessors had done this. And thus yet another decision was made. D. ACHESON, PRESENT AT THE CREATION 414, 415 (1969).
167 War Powers Legislation: Hearings Before the Senate Foreign Relations Committee, 92d Congress, 1st Sess. (1971), 347, 354-355, 359-379 (Senator Goldwater); Emerson, War Powers Legislation, 74 W. VA. L. REV. 53 (1972). The most complete list as of the time prepared is Collier, Instances of Use of United States Armed Forces Abroad, 1798-1989, CONG. RES. SERV. (1989), which was cited for its numerical total in United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990). For an effort to reconstruct the development and continuation of the listings, see F. WORMUTH & E. FIRMAGE, TO CHAIN THE DOG OF WAR 142-145 (2d ed. 1989).
168 Of course, considerable debate continues with respect to the meaning of the historical record. For reflections of the narrow reading, see National Commitments Resolution, Report of the Senate Committee on Foreign Relations, S. Rep. No. 91-129, 1st Sess. (1969); J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993). On the broader reading and finding great presidential power, see A. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (1976); Emerson, Making War Without a Declaration, 17 J. LEGIS. 23 (1990).
The pre-war actions of Presidents Wilson and Franklin Roosevelt advanced in substantial degrees the fact of presidential initiative, although the theory did not begin to catch up with the fact until the Great Debate over the commitment of troops by the United States to Europe under the Atlantic Pact. While congressional authorization was obtained, that debate, the debate over the United Nations charter, and the debate over Article 5 of the North Atlantic Treaty of 1949, declaring that armed attack against one signatory was to be considered as an attack against all signatories, provided the occasion for the formulation of a theory of independent presidential power to use the armed forces in the national interest at his discretion.169 Thus, Secretary of State Acheson told Congress: Not only has the President the authority to use the armed forces in carrying out the broad foreign policy of the United States implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution.170
The Theory of Presidential Power.—The fullest expression of the presidential power proponents has been in defense of the course followed in Indochina. Thus, the Legal Adviser of the State Department, in a widely circulated document, contended: Under the Constitution, the President, in addition to being Chief Executive, is Commander in Chief of the Army and Navy. He holds the prime responsibility for the conduct of United States foreign relations. These duties carry very broad powers, including the power to deploy American forces abroad and commit them to military operations when the President deems such action necessary to maintain the security and defense of the United States... .
169 For some popular defenses of presidential power during the Great Debate, see Corwin, Who Has the Power to Make War? NEW YORK TIMES MAGAZINE (July 31, 1949), 11; Commager, Presidential Power: The Issue Analyzed, NEW YORK TIMES
MAGAZINE (January 14, 1951), 11. Cf. Douglas, The Constitutional and Legal Basis for the President’s Action in Using Armed Forces to Repel the Invasion of South Korea, 96 CONG. REC. 9647 (1950). President Truman and Secretary Acheson utilized the argument from the U. N. Charter in defending the United States actions in Korea, and the Charter defense has been made much of since. See, e.g., Stromseth, Rethinking War Powers: Congress, the President, and the United Nations, 81 GEO. L. J. 597 (1993).
170 Assignment of Ground Forces of the United States to Duty in the European Area: Hearings Before the Senate Foreign Relations and Armed Services Committees, 82d Congress, 1st sess. (1951), 92.
In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation’s security. In the SEATO treaty, for example, it is formally declared that an armed attack against Viet Nam would endanger the peace and security of the United States.
Under our Constitution it is the President who must decide when an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Viet Nam is required, and that military measures against the source of Communist aggression in North Viet Nam are necessary, he is constitutionally empowered to take those measures.171
Opponents of such expanded presidential powers have contended, however, that the authority to initiate war was not divided between the Executive and Congress but was vested exclusively in Congress. The President had the duty and the power to repeal sudden attacks and act in other emergencies, and in his role as Commander-in-Chief he was empowered to direct the armed forces for any purpose specified by Congress.172 Though Congress asserted itself in some respects, it never really managed to confront the President’s power with any sort of effective limitation, until recently.
The Power of Congress to Control the President’s Discretion.—Over the President’s veto, Congress enacted the War Powers Resolution,173 designed to redistribute the war powers between the President and Congress. Although ambiguous in some respects, the Resolution appears to define restrictively the President’s powers, to require him to report fully to Congress upon the introduction of troops into foreign areas, to specify a maximum time limitation on the engagement of hostilities absent affirmative congressional action, and to provide a means for Congress to require cessation of hostilities in advance of the time set. The Resolution states that the President’s power to commit United States troops into hostilities, or into situations of imminent involvement in hostilities, is limited to instances of (1) a declaration of war, (2) a specific statutory authorization, or (3) a national emergency created by an attack on the United States, its territories or possessions, or its armed forces.174 In the absence of a declaration of war, a President must within 48 hours report to Congress whenever he introduces troops (1) into hostilities or situations of imminent hostilities, (2) into a foreign nation while equipped for combat, except in certain nonhostile situations, or (3) in numbers which substantially enlarge United States troops equipped for combat already located in a foreign nation.175 If the President introduces troops in the first of these three situations, then he must terminate the use of troops within 60 days after his report was submitted or was required to be submitted to Congress, (1) has declared war, (2) has extended the period, or (3) is unable to meet as a result of an attack on the United States, but the period can be extended another 30 days by the President’s certification to Congress of unavoidable military necessity respecting the safety of the troops.176 Congress may through the passage of a concurrent resolution require the President to remove the troops sooner.177 The Resolution further states that no legislation, whether enacted prior to or subsequent to passage of the Resolution will be taken to empower the President to use troops abroad unless the legislation specifically does so and that no treaty may so empower the President unless it is supplemented by implementing legislation specifically addressed to the issue.178
171 Meeker, The Legality of United States Participation in the Defense of Viet Nam, 54 DEPT. STATE BULL. 474, 484-485 (1966). See also Moore, The National Executive and the Use of the Armed Forces Abroad, 21 NAVAL WAR COLLEGE REV. 28 (1969); Wright, The Power of the Executive to Use Military Forces Abroad, 10 VA. J. INT. L. 43 (1969); Documents Relating to the War Powers of Congress, The President’s Authority as Commander-in-Chief and the War in Indochina, Senate Committee on Foreign Relations, 91st Congress, 2d sess. (Comm. Print) (1970), 1 (Under Secretary of State Katzenbach), 90 (J. Stevenson, Legal Adviser, Department of State), 120 (Professor Moore), 175 (Assistant Attorney General Rehnquist).
172 E.g., F. WORMUTH & E. FIRMAGE, TO CHAIN THE DOG OF WAR (2d ed. 1989), F.; J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND
ITS AFTERMATH (1993); U.S. Commitments to Foreign Powers: Hearings Before the Senate Committee on Foreign Relations, 90th Congress, 1st sess. (1967), 9 (Professor Bartlett); War Powers Legislation: Hearings Before the Senate Committee on Foreign Relations, 92d Cong., 1st sess. (1971), 7 (Professor Commager), 75 (Professor Morris), 251 (Professor Mason).
173 P.L. 93-148, 87 Stat. 555, 50 U.S.C. §§ 1541-1548. For the congressional intent and explanation, see H. Rep. No. 93-287, S. Rep. No. 93-220, and H. Rep. No. 93-547 (Conference Report), all 93d Congress, 1st Sess. (1973). The President’s veto message is H. Doc. No. 93-171, 93d Congress. 1st Sess. (1973). All this material is collected in The War Powers Resolution—Relevant Documents, Reports, Correspondence, House Committee on Foreign Affairs, 103d Cong., 2d Sess. (Comm. Print) (GPO: 1994), 1-46. For a narrative account of passage and an assessment of the disputed compliance to date, from the congressional point of view, see The War Powers Resolution, A Special Study of the House Committee on Foreign Affairs, 102d Cong., 2d Sess. (Comm. Print) (GPO: 1982).
174 87 Stat. 554, 2(c), 50 U.S.C. § 1541(c).
175 Id. at § 1543(a).
176 Id. at § 1544(b).
177 Id. at § 1544(c). It is the general consensus that, following INS v. Chadha, 462 U.S. 919 (1983), this provision of the Resolution is unconstitutional.
178 50 U.S.C. § 1547(a).
Aside from its use as a rhetorical device, the War Powers Resolution has been of little worth in reordering presidential-congressional relations in the years since its enactment. All Presidents operating under it have expressly or implicitly considered it to be an unconstitutional infringement on presidential powers, and on each occasion of use abroad of United States troops the President in reporting to Congress has done so consistent[ly] with the reporting section but not pursuant to the provision.179 Upon the invasion of Kuwait by Iraqi troops in 1990, President Bush sought not congressional authorization but a United Nations Security Council resolution authorizing the use of force by member Nations. Only at the last moment did the President seek authorization from Congress, he and his officials contending he had the power to act unilater-ally.180 Congress after intensive debate voted, 250 to 183 in the House of Representatives and 53 to 46 in the Senate, to authorize the President to use United States troops pursuant to the U. N. resolution and purporting to bring the act within the context of the War Powers Resolution.181By contrast, President George W. Bush sought a resolution from Congress in 2002 to approve the eventual invasion of Iraq before seeking a UN Security Council resolution, all the while denying that express authorization from Congress, or for that matter, the UN Security Council, was necessary to renew hostilities in Iraq. Prior to adjourning for its midterm elections, Congress passed the Authorization for Use of Military Force against Iraq Resolution of 2002,1 which it styled as “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” On signing the measure, the President noted that he had sought “an additional resolution of support” from Congress, and expressed appreciation for receiving that support, but stated, “my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.”2 In the Bush administration’s view, the primary benefit of receiving authorization from Congress seems to have been the message of political unity it conveyed to the rest of the world rather than the fulfillment of any constitutional requirements.
Although there is recurrent talk within Congress and without with regard to amending the War Powers Resolution to strengthen it, no consensus has emerged, and there is little evidence that there exists within Congress the resolve to exercise the responsibility concomitant with strengthening it.182
179 See the text of the reports in The War Powers Resolution—Relevant Documents, Reports, Correspondence, supra at 47 (Pres. Ford on transport of refugees from Danang), 55 (Pres. Carter on attempted rescue of Iranian hostages), 73 (Pres. Reagan on use of troops in Lebanon), 113 (Pres. Reagan on Grenada), 144 (Pres. Bush on Panama), 147, 149 (Pres. Bush on Persian Gulf), 189 (Pres. Bush on Somalia), 262 (Pres. Clinton on Haiti).
180 See Crisis in the Persian Gulf Region: U. S. Policy Options and Implications: Hearings Before the Senate Committee on Armed Services, 101st Cong., 2d Sess. (1990), 701 (Secretary Cheney) (President did not require any additional authorization from the Congress before attacking Iraq). On the day following his request for supporting legislation from Congress, President Bush, in answer to a question about the requested action, stated: I don’t think I need it.... I feel that I have the authority to fully implement the United Nations resolutions. 27 WEEKLY COMP. PRES. DOC. 25 (Jan. 8, 1991).
181 P. L. 102-1, 105 Stat. 3.
1 Pub. L. 107-243; 116 Stat. 1498 (2002). The House approved the resolution by a vote of 296-133. The Senate passed the House version of H.J. Res. 114 by a vote of 77-23.
2 See President’s Statement on Signing The Authorization for Use of Military Force Against Iraq Resolution of 2002, 38 Weekly Comp. Pres. Doc. 1779 (Oct. 16, 2002).
182 See, on proposals to amend and on congressional responsibility, J. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993).