Executive & Legislative

By GEORGE J. CHURCH

The President sends U.S. military forces into an area where they come under enemy fire. Congressmen denounce him for dragging the nation into battle "unconstitutionally." But it is too late; war has begun, and Congress has no choice except to let it continue.

A description of how the U.S. got into war in Viet Nam in 1965? Or how it might become embroiled in the Persian Gulf conflict the day after tomorrow? Not quite: this war began in 1846, when President James K. Polk sent troops to occupy a disputed border area between Mexico and the new state of Texas, touching off fighting that Congress reluctantly formalized with a declaration of war. Otherwise, though, Polk's action might have been a dress rehearsal for the bloody undeclared wars the U.S. has fought in the past four decades. It illustrates a conflict between congressional and presidential powers that is built into the Constitution.

The framers, determined never to give one man the authority of the European kings of their day to commit the nation to battle, gave Congress sole power to declare war. But they recognized that unity of command was essential, and so made the President Commander in Chief, thus giving him at least potential authority to order troops into situations where war might become inevitable. As early as 1801, Thomas Jefferson and Alexander Hamilton were disputing the division of power. President Jefferson told Congress that without a declaration of war, he could order only defensive action, even against enemy attack. No, said Hamilton, an attack on U.S. forces creates a state of war and makes "any declaration on the part of Congress . . . unnecessary."

Later Presidents took a far less restrictive view of their authority than Jefferson did. Congress has declared war only five times, embroiling the U.S. in the War of 1812, the Mexican War, the Spanish-American War and World Wars I and II. Even in the 19th century, declared wars were far outnumbered by military actions begun at a President's command.

When Chief Executives involved the nation in serious conflicts, however, Congress was generally willing to endorse their actions, usually after the fact. And when Presidents did get the U.S. into wars that had the potential of being unpopular, no constitutional crisis occurred because the U.S. always won.

After World War II, however, conflicts over warmaking authority could no longer be suppressed. The U.S. emerged as a global superpower, committed to the defense of allies against another superpower, the Soviet Union, and its clients. The chances of shooting incidents multiplied greatly. The terrible power of modern weapons increased the premium on fast action, which could not wait for an old-fashioned declaration of war. The threat of nuclear holocaust dictated the need to limit whatever wars did start. That also worked against declarations of war and simultaneously made difficult, if not impossible, a clean-cut victory.

Thus the bloody stalemate in South Korea eventually led to grumbling that Harry Truman had acted unconstitutionally by sending U.S. troops to defend that nation against Communist invasion. The explosion came after Lyndon Johnson involved the U.S. in its longest war, the only one it unequivocally lost. The Johnson Administration proclaimed the Gulf of Tonkin resolution that Congress passed in 1964 to be the "functional equivalent" of a declaration of war against North Viet Nam, although the President had presented it to the legislators as a mere authorization to repel North Vietnamese attacks.

Congressmen set out to reclaim the warmaking power. In 1973, Congress passed the War Powers Resolution over Richard Nixon's veto. Its major provisions: the President, whenever possible, must consult Congress in advance before sending military forces into any situation where fighting seems "imminent"; in any case, he must notify the legislature within 48 hours. Congress then must specifically authorize the continued deployment of troops, planes or warships within 60 days. If it does not, the President must pull the forces out of harm's way.

The resolution, however, is vague (there is no definition of imminent), and some respected critics question its constitutionality. Presidents have complied with its letter but not its spirit. Jimmy Carter in 1980 notified Congress of his attempt to rescue the hostages in Iran only after the mission ) had been launched and aborted, leaving eight servicemen dead. Ronald Reagan last year "consulted" leaders of Congress about the U.S. air strike against Libya only after the bombers were in the air and nearing their targets. Two weeks ago the Administration spelled out to Congress the "rules of engagement" under which warships sent to the Persian Gulf would be allowed to open fire. But Reagan has rejected advice to seek congressional approval for his plan under the War Powers Resolution. His contention is that no hostilities involving U.S. forces seem imminent. Congress, for its part, has been caught in a terrible dilemma. Despite deep misgivings, it approved Reagan's ill-fated dispatch of Marines to Lebanon, lest it undermine the President's ability to conduct a credible foreign policy.

For 200 years the nation has been relying largely on a hope voiced by Pierce Butler of South Carolina during the Constitutional Convention. The President, said Butler, "will not make war but when the nation will support it." Not deliberately, but Presidents do make disastrous misjudgments, and it may be impossible to write legislation that will prevent them from doing so without curbing their necessary freedom of action. The solution, if there is one, lies in that slender but sturdy reed, common sense. The President must genuinely consult Congress before taking any military action that might bring war. Congress must curb both its penchant for leaking secrets and its disposition to delay endlessly when fast action is needed -- but must also summon the nerve to say no to a President who simply refuses to take its advice.

With reporting by Neil MacNeil/Washington