Annotation 8 - Article II

 

  The Cold War and After: Presidential Power To Use Troops Overseas Without Congressional Authorization

Reaction after World War II did not persist, soon running its course, and the necessities, real and only perceived as such, 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, the Dominican Republic, Lebanon, Grenada, Panama, and the Persian Gulf, among them, as well as most notably into Indochina. 156 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 which went on inconclu sively between Congress and Executive 157 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--from his obligation 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.

  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.'' 158 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 which 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. 159  

New lists and revised arguments were published to support the actions of President Truman in sending troops to Korea and Presidents Kennedy and Johnson in sending troops first to Vietnam and then to Indochina generally, 160 and new lists have been pro pounded. 161 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 legislation authorization. Some instances, 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. 162  

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 for the occasion of the formulation of a theory of independent presidential power to use the armed forces in the national interest at his discretion. 163 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.'' 164  

  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. . . .

''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.'' 165  

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. 166 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, 167 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. 168 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. 169 The President is required to terminate the use of troops in the reported situation within 60 days of reporting, unless 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. 170 Congress may through the passage of a concurrent resolution require the President to remove the troops sooner. 171 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. 172  

Aside from its use as a rhetorical device, the 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 sec tion but not pursuant to the provision. 173 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 unilaterally. 174 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. 175  

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. 176  

  The President as Commander of the Armed Forces

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so, and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued orders for a general advance in the hopes of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American command on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki. 177 As against an enemy in the field, the President possesses all the powers which are accorded by international law to any supreme com mander. ''He may invade the hostile country, and subject it to the sovereignty and authority of the United States.'' 178 In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities. 179 He may employ secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements. 180 He may, at least with the assent of Congress, authorize intercourse with the enemy. 181 He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the United States the obligation to render ''just compensation.'' 182 By the same warrant, he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions which may determine to a great extent the ensuing peace. 183 He may not, however, affect a permanent acquisition of territory, 184 though he may govern recently acquired territory until Congress sets up a more permanent regime. 185  

He is the ultimate tribunal for the enforcement of the rules and regulations which Congress adopts for the government of the forces, and which are enforced through courts-martial. 186 Indeed, until 1830, courts-martial were convened solely on his authority as Commander-in- Chief. 187 Such rules and regulations are, moreover, it would seem, subject in wartime to his amendment at discretion. 188 Similarly, the power of Congress to ''make rules for the government and regulation of the land and naval forces'' (Art. I, Sec. 8, cl. 14) did not prevent President Lincoln from promulgating in April, 1863, a code of rules to govern the conduct in the field of the armies of the United States which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad. 189 One important power he lacks, that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in ''the President alone.'' 190 Also, the President's power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal ''in pursuance of the sentence of a general court-martial or in mitigation thereof.'' 191 But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place. 192 The President's power of dismissal in time of war Congress has never attempted to limit.

  The Commander-in-Chief a Civilian Officer .--Is the Commander-in- Chiefship a military or civilian office in the contemplation of the Constitution? Unquestionably the latter. An opinion by a New York surrogate deals adequately, though not authoritatively, with the subject: ''The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Constitution that the President's duties as Commander in Chief represents only a part of duties ex officio as Chief Executive [Article II, sections 2 and 3 of the Constitution] and that the latter's office is a civil office. [Article II, section 1 of the Constitution; vol. 91, Cong. Rec. 4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does not enlist in, and he is not inducted or drafted into, the armed forces. Nor, is he subject to court-martial or other military discipline. On the contrary, Article II, section 4 of the Constitution provides that 'The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.' . . . The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President's position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:--'It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States v. Burns, 79 U.S. 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: 'The supremacy of the civil over the military is one of our great heritages.' Duncan v. Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210.'' 193  

Footnotes

[Footnote 156] See the discussion in National Commitments Resolution, Report of the Senate Committee on Foreign Relations, S. Rept. 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).

[Footnote 157] See under Article I, Sec. 8, cls. 11-14.

[Footnote 158] J. Clark, Memorandum by the Solicitor for the Department of State, Right to Protect Citizens in Foreign Countries by Landing Forces

[Footnote 160] E.g., H. Rept. 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. . . .''

[Footnote 163] 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).

[Footnote 164] 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.

[Footnote 165] 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).

[Footnote 166] E.g., F. Wormuth & E. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (New York: 1986); J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (Princeton: 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).

[Footnote 167] P.L. 93-148, 87 Stat. 555, 50 U.S.C. Sec. Sec. 1541-1548. For the congressional intent and explanation, see H. Rept. No. 93-287, S. Rept. No. 93-220, and H. Rept. 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).

[Footnote 168] 87 Stat. 554, 2(c), 50 U.S.C. Sec. 1541(c).

[Footnote 169] Id., Sec. 1543(a).

[Footnote 170] Id., Sec. 1544(b).

[Footnote 171] Id., Sec. 1544(c). It is the general consensus that, following INS v. Chadha, 462 U.S. 919 (1983), this provision of the Resolution is unconstitutional.

[Footnote 172] Id., 50 U.S.C. Sec. 1547(a).

[Footnote 173] See the text of the reports in The War Powers Resolution-- Relevant Documents, Reports, Correspondence, op. cit., n.167, 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).

[Footnote 174] See Hearings on Crisis in the Persian Gulf Region: U. S. Policy Options and Implications, Senate Committee on Armed Services, 101st Cong., 2d sess. (1990), 701 (Secretary Chaney) (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 Wkly. Comp. Pres. Doc. 25 (Jan. 8, 1991).

[Footnote 175] P. L. 102-1, 105 Stat. 3.

[Footnote 176] See, on proposals to amend and on congressional responsibility, J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (Princeton: 1993).

[Footnote 177] For a review of how several wartime Presidents have operated in this sphere, see E. May (ed.), The Ultimate Decision--The President as Commander in Chief (New York: 1960).

[Footnote 178] Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

[Footnote 179] Madsen v. Kinsella, 343 U.S. 341, 348 (1952). See also Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).

[Footnote 180] Totten v. United States, 92 U.S. 105 (1876).

[Footnote 181] Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875); Haver v. Yaker, 76 U.S. (9 Wall.) 32 (1869).

[Footnote 182] Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1852); United States v. Russell, 80 U.S. (13 Wall.) 623 (1871); Totten v. United States, 92 U.S. 105 (1876); 40 Ops. Atty. Gen. 250, 253 (1942).

[Footnote 183] Cf. the Protocol of August 12, 1898, which largely foreshadowed the Peace of Paris, 30 Stat. 1742 and President Wilson's Fourteen Points, which were incorporated in the Armistice of November 11, 1918.

[Footnote 184] Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).

[Footnote 185] Santiago v. Nogueras, 214 U.S. 260 (1909). As to temporarily occupied territory, see Dooley v. United States, 182 U.S. 222, 230 -231 (1901).

[Footnote 186] Swaim v. United States, 165 U.S. 553 (1897); and cases there reviewed. See also Givens v. Zerbst, 255 U.S. 11 (1921).

[Footnote 187] 15 Ops. Atty. Gen. 297, n; cf. 1 Ops. Atty. Gen. 233, 234, where the contrary view is stated by Attorney General Wirt.

[Footnote 188] Ex parte Quirin, 317 U.S. 1, 28 -29 (1942).

[Footnote 189] General Orders, No. 100, Official Records, War Rebellion, ser. III, vol. III; April 24, 1863.

[Footnote 190] See, e.g., Mimmack v. United States, 97 U.S. 426, 437 (1878); United States v. Corson, 114 U.S. 619 (1885).

[Footnote 191] 10 U.S.C. Sec. 804.

[Footnote 192] Mullan v. United States, 140 U.S. 240 (1891); Wallace v. United States, 257 U.S. 541 (1922).

[Footnote 193] Surrogate's Court, Duchess County, New York, ruling July 25, 1950, that the estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military services of the United States. New York Times, July 26, 1950, p. 27, col. 1.


 

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