The President's War Powers

Did Richard Nixon "usurp" the constitutional powers of Congress when he unilaterally ordered troops into Cambodia? Swarms of lawyers went to Washington last week to join an increasingly intense debate on the issue (see THE NATION). Their most persuasive arguments raised fundamental questions that go far beyond Cambodia and the Indochina war.

Many of the antiwar lawyers conceded that proving the Cambodian "attacks" unconstitutional may be difficult. Nixon's authority as Commander in Chief gives him full power to protect U.S. troops in the field. But could he exercise that authority if the troops fighting in Southeast Asia were not deployed legally in the first place? The 1964 Gulf of Tonkin Resolution gave congressional support to President Johnson's use of "all necessary measures to repel any armed attack against the forces of the United States." The dissenters argue, of course, that Congressmen who voted for the resolution after a reported enemy attack on two U.S. destroyers never intended it to be a de facto declaration of war. Though Congress has also voted to equip troops under fire, the critics add, it is unfair to conclude that Congress thus approves of the war.

These arguments may never be settled. More important, many dissidents argue that usurpation of congressional power has been going on not just for months but for decades. As a thoughtful memorandum being circulated in Washington by Yale Law School students puts the issue: "The expansion of the war into Cambodia is the latest in a long series of acts which, taken together, have nearly stripped Congress of its war power. Undoubtedly, the speed with which crises develop in the modern world necessitates a strong executive who can respond quickly. The real question is whether the balance has shifted too far in favor of the executive."

Authority to Declare. When the constitutional drafters met in Philadelphia in 1787, they deliberately denied U.S. Presidents the kind of unfettered war power that European kings enjoyed. Instead, they gave Congress authority to "declare" war, "raise and support armies," make military appropriations for a period no longer than two years, and "provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." The only exceptions to legislative war authority were intended to be narrow: the framers made the President "Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." They also refrained from giving Congress the power to "make" war -a more comprehensive authority than the power to declare it.

According to James Madison, the President would thus have "power to repel sudden attacks." To many scholars the implication is clear. The President was to initiate emergency defensive operations; Congress was to remain responsible for all offensive ones. Said Thomas Jefferson: "We have given one effectual check to the dog of war by transferring the power of letting him loose from those who are to spend to those who are to pay."

Potential Attack. In the early days of the Republic, the founders' system was honored, as Presidents sought congressional permission for military moves abroad -if not always formal declarations of hostility. During the so-called "undeclared war" with France between 1798 and 1800, Congress authorized naval seizures of American merchant ships going to French ports. But President John Adams went further and ordered the seizure of American ships leaving those ports as well, and the Supreme Court held that he had exceeded the intent of Congress. As Administration defenders often note, President Jefferson felt free to send naval vessels to protect U.S. ships against the Barbary pirates. Nonetheless, Jefferson carefully refused to allow his commanders to hold even captured pirate vessels until Congress had approved action "beyond the line of defense."

Later Presidents often continued to get at least some form of authorization from Congress before taking major military plunges, but their area of discretion slowly enlarged. In 1911, President William Howard Taft moved 20,000 troops to the Mexican border to protect American lives and property threatened by the Mexican revolution -but recognized congressional jurisdiction by refusing to send forces over the boundary. Presidents asked for and received formal declarations for the War of 1812, the Spanish-American War, the Mexican War and World Wars I and II.

Chasing Bandits. Even so, the Constitution does not define the difference between war and murky actions short of it. As a result, Chief Executives have felt increasingly free to undertake the military maneuvers required of a major nation. For its part, Congress did not assert authority over such actions as Theodore Roosevelt's military move into Panama in 1903 and Woodrow Wilson's willingness to do what Taft would not -send troops to chase Pancho Villa's raiders in Mexico in 1916.

Bipartisan congressional support for an anti-Communist foreign policy after World War II accelerated the trend toward presidential war power. By the time Truman dispatched troops to Korea, Ohio's Senator Robert Taft was almost alone in complaining that the President, by his undeclared "police action," had "usurped authority in violation of the laws and the Constitution." All told, it has been calculated, U.S. Presidents have ordered troops into position or action without a formal congressional declaration a total of 149 times.

Strict Construction. All this raises several fascinating questions. In the past, congressional authorizations and resolutions short of a declaration of hostilities have been sufficient for Presidents to commit troops to military actions bearing many hallmarks of full-scale war. Is there a point at which an expanding nonwar becomes a real war that must be declared in order to be legal? Congress has rarely been concerned with providing the answer. Does this mean that Congress has now effectively construed the Constitution to mean that, in military engagements, once a nonwar always a nonwar? If so, must Congress follow its own precedents?

Ultimately, the Cambodian version of this issue is less likely to reach the Supreme Court than to be settled politically between Congress and the President. Meantime, ironies abound. Liberals who long dismissed Congress as retrograde and favored "power to the President," as Columbia Law Professor Tom Farer puts it, are now defending congressional wisdom. Longtime advocates of pragmatic interpretation of the Constitution are now becoming staunch strict constructionists.

More important, the President's critics argue that a democracy's war actions must not only be legal but also widely supported. Few deny that the President must be free to respond to surprise attacks or support engaged troops. But when there is time for congressional debate, the critics contend the military and diplomatic inconveniences of delay are small enough prices to pay for ensuring that the U.S. will not be drawn into risky involvements until the nation has had a chance to grasp what is at stake.

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