Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

After North Vietnamese patrol boats reportedly attacked U.S. naval vessels in international waters in Southeast Asia in August 1964, Congress enacted a joint resolution, known as the Gulf of Tonkin Resolution, authorizing the President to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent any further aggression.” 1 As the conflict unfolded and spread beyond Vietnam’s borders, some Members of Congress questioned whether military operations had become so extensive that they exceed the Gulf of Tonkin Resolution’s scope and required a declaration of war.2 President Lyndon Johnson claimed the Constitution alone provided sufficient authority and would have done so even if Congress had never enacted the Gulf of Tonkin Resolution.3 Executive branch attorneys, on the other hand, relied on a combination of the President’s Article II powers and the Gulf of Tonkin Resolution as domestic legal authorities.4

; The Legality of United States Participation in the Defense of Viet-Nam, 54 Dep’t St. Bull. 474, 484 (1966). The State Department also cited the United States obligations under the South East Asian Collective Defense Treaty. Id. at 485. In an executive branch legal opinion addressing introduction of U.S. forces into Cambodia, then-Assistant Attorney General (and later Chief Justice of the Supreme Court) William Rehnquist took the view that the military action fell “short of war” and was “the sort of tactical decision traditionally confided to the Commander in Chief in the conduct of armed conflict.” 5

In 1971, Congress passed and the President signed a bill repealing the Gulf of Tonkin Resolution6 and calling for the “prompt and orderly” withdrawal of U.S. troops at the “earliest practicable date.” 7 U.S. troop presence diminished considerably during this period as the Nixon Administration carried out a policy to transfer control of the conflict to South Vietnamese forces, but the Nixon Administration continued aerial campaigns after the Gulf of Tonkin Resolution was rescinded.8 Congress eventually passed, and President Nixon signed, legislation prohibiting use of appropriated funds for military operations in Southeast Asia9 and setting a ceiling on U.S. civilian and military personnel in Vietnam.10 By 1973, Congress’s dissatisfaction with presidential use of armed forces without congressional authorization or consultation led it to enact the War Powers Resolution over President Nixon’s veto.11

Federal courts considered several cases contesting the constitutionality of military action in Vietnam and Southeast Asia, but no case successfully challenged the conflict or permanently constrained presidential action. Some lower courts held that these cases presented nonjusticiable political questions,12

, ; ; ; ; , . and the Supreme Court affirmed one district court’s dismissal of a class action challenge to the constitutionality of the Vietnam War on that basis.13 Other lower courts took a different approach and concluded that the question of whether congressional authorization was required for military action could be justiciable in some scenarios.14 These courts either held that Congress authorized military action by appropriating funds and extending the compulsory draft15 or that judicial intervention was not appropriate while the President was in the process of winding down the conflict.16

One district court issued an order, later reversed on appeal, that enjoined an air campaign in Cambodia on the grounds that the military action exceeded the President’s authority.17

, rev’d, , . Following a complex series of rapidly issued opinions during an appeals process in which Supreme Court Justices served as judges on the United States Court of Appeals for the Second Circuit, the stay was implemented for less than twenty-four hours.18

Footnotes

1

Pub. L. No. 88-408, 78 Stat. 384 (1964), repealed by 84 Stat. 2055 (1971). See also, U.S. Involvement in the Vietnam War: the Gulf of Tonkin and Escalation, 1964, U.S. Dep’t of State: Office of the Historian, >https://history.state.gov/milestones/1961-1968/gulf-of-tonkin (last visited Sept. 10, 2024); 2 Am. Mil. Hist., The U.S. Army in a Global Era 306 (2d ed. 2005), .

2

See, e.g., U.S. Commitments to Foreign Powers, Hearings before the S. Comm. on Foreign Relations, 90th Cong. 121 (1967) [hereinafter U.S. Commitments Hearing].

3

See The President’s News Conference (Aug. 18, 1967), in U.S. Commitments Hearing, supra note 2, at 126 ( “We stated then, and we repeat now, we did not think the resolution was necessary to do what we did and what we are doing.” ).

4

See

President and the War Power: South Vietnam and the Cambodian Sanctuaries,

1 Op. O.L.C. Supp. 321, 335–38 (1970)

; The Legality of United States Participation in the Defense of Viet-Nam, 54 Dep’t St. Bull. 474, 484 (1966). The State Department also cited the United States obligations under the South East Asian Collective Defense Treaty. Id. at 485.

5

President and the War Power: South Vietnam and the Cambodian Sanctuaries,

1 Op. O.L.C. Supp., at 322, 337

.

6

Pub. L. No. 91-672 § 12, 84 Stat. 2055 (1971).

7

Pub. L. No. 92-156 § 601(a), 85 Stat. 430 (1971).

8

See Jennifer K. Elsea et. al., Cong. Rsch. Serv., R41989, Congressional Authority to Limit Military Operations 21 (2013), >https://crsreports.congress.gov/product/pdf/R/R41989.

9

See, e.g., Pub. L. No. 93-50 §§ 304-07, 87 Stat. 99 (1973); Pub. L. No. 93-52 § 108, 87 Stat. 130 (1973).

10

Foreign Assistance Act of 1974, Pub. L. No. 93-559 § 38(f)(1), 88 Stat. 1795.

11

See Pub. L. No. 93-148 § 1(c), 87 Stat. 555 (1973) (codified at 50 U.S.C. § 1541(c)). For broader discussion of the War Powers Resolution and its troop withdrawal deadlines, see and Matthew C. Weed, Cong. Rsch. Serv., R42699, The War Powers Resolution: Concepts and Practice, >https://crsreports.congress.gov/product/pdf/R/R42699/16.

12

See, e.g.,

Luftig v. McNamara,

373 F.2d 664, 665–66 (D.C. Cir. 1967)

,

cert. denied,

387 U.S. 945 (1967)

;

Massachusetts v. Laird,

451 F.2d 26, 32–33 (1st Cir. 1971)

;

DaCosta v. Laird,

471 F.2d 1146, 1152–53 (2d Cir. 1973)

;

DaCosta v. Laird,

471 F.2d 1146, 1150, 1152 (2d Cir. 1973)

;

Hopltzman v. Schlesinger,

484 F.2d 1307, 1315 (2d Cir. 1973)

,

cert. denied,

416 U.S. 936 (1974)

.

13

Atlee v. Richardson,

411 U.S. 911 (1973)

(affirmed without written opinion). When the Supreme Court declined to adjudicate similar cases, Justice Douglass frequently dissented and contended that the Supreme Court should resolve the underlying separation of powers dispute. See, e.g.,

DaCosta v. Laird,

405 U.S. 979, 979 (1972)

(Douglas, J., dissenting from denial of petition for certiorari);

Massachusetts v. Laird,

400 U.S. 886, 886–99 (1970)

(Douglas, J., dissenting from denial of motion for leave to file bill of complaint).

14

Orlando v. Laird,

443 F.2d 1039, 1042 (2d Cir. 1971)

,

cert. denied,

404 U.S. 869 (1971)

;

Mitchell v. Laird,

488 F.2d 611, 614 (D.C. Cir. 1973)

.

15

See

DaCosta v. Laird,

448 F.2d 1368, 1369 (2d Cir. 1971)

( “[T]here was sufficient legislative action in extending the Selective Service Act and in appropriating billions of dollars to carry on military and naval operations in Vietnam to ratify and approve the measures taken by the Executive[.]” ),

cert denied,

405 U.S. 979 (1972)

;

Orlando,

443 F.2d at 1043

( “Congress has ratified the executive’s initiatives by appropriating billions of dollars to carry out military operations in Southeast Asia and by extending the Military Selective Service Act with full knowledge that persons conscripted under that Act had been, and would continue to be, sent to Vietnam.” ). But see

Mitchell,

488 F.2d at 615

(describing as “unsound” the conclusion that “appropriation, draft extension, and cognate laws enacted with direct or indirect reference to the Indo-China war . . . constitute a constitutionally permissible form of [congressional] assent” ).

16

In

Mitchell v. Laird

, the United States Court of Appeals for the D.C. Circuit stated that it was “persuaded” that, in some cases, courts may be able to resolve Members of Congress’s challenge to the President’s authority to take military action.

488 F.2d 611, 614 (D.C. Cir. 1973)

. The D.C. Circuit concluded that the timing and circumstances of that particular challenge, however, was not justiciable, in part, because “President Nixon’s duty did not go beyond trying, in good faith and to the best of his ability, to bring the war to an end as promptly as was consistent with the safety of those fighting and with a profound concern for the durable interests of the nation–its defense, its honor, its morality.”

Id. at 616

.

17

See

Holtzman v. Schlesinger,

361 F. Supp. 553, 566 (E.D.N.Y. 1973)

, rev’d,

484 F.2d 1307 (2d. Cir. 1973)

,

cert. denied,

94 S. Ct. 1935 (1974)

.

18

For discussion of this episode, see Highlights of the Term, 88 Harv. L. Rev. 43–44 (1974); Eugene R. Fidell, Why Did the Cambodia Bombing Continue?, 13 Green Bag 2d 321, 321–24 (2010). For more general discussion of Vietnam-era war powers litigation, see Michael D. Ramsey, War Powers Litigation After Zivotofsky v. Clinton, 21 Chap. L. Rev. 177, 180–83 (2018); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law 247–50 (1989).