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CRS Annotated Constitution

Article II -- Table of ContentsPrev | Next

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[p.449]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[p.450]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.[p.451]

“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.


Footnotes

158 J. Clark, Memorandum by the Solicitor for the Department of State, Right to Protect Citizens in Foreign Countries by Landing Forces (Washington: 1912).
159 Ibid., (Washington: 1929; 1934); M. Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States (Baltimore: 1928); J. Rogers, World Policing and the Constitution (Boston: 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, propounding of the doctrine of inherent presidential powers to use troops abroad outside the narrow compass traditionally accorded those powers.
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 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 (New York: 1969), 414, 415.
161 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 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 process of development and continuation of the listings, see F. Wormuth & E. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (New York: 2d ed. 1989), 142–145.
162 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. Rept. No. 91–129, 1st sess. (1969); J. Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (Princeton: 1993). On the broader reading and finding great presidential power, see A. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (New York: 1976); Emerson, Making War Without a Declaration, 17 J. Legis. 23 (1990).
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 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 L. J.597 (1993).
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.
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 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).
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).
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