The President and the Power to Make War

Will Richard M. Nixon restore the mandate laid down by the Founding Fathers that only Congress may commit the United States to war? Or will he insist, as several of his recent predecessors have, on keeping the power in his own hands?

In the first months of his term, President Nixon is necessarily preoccupied with liquidation of the war in Vietnam. The unpopularity of that war may seem to guarantee immunity from any similar venture in the foreseeable future. But the latter half of the twentieth century has proved to be extremely unpredictable. The possibility of a Nixon war, comparable with a Truman war in Korea and a Kennedy and Johnson Wear in Vietnam, cannot he dismissed as a wholly groundless fear so long as the President may decide Sot himself when and where major wars are to be fought.

Nothing is clearer in our history than the intent of the framers to deny this power to the President. Not only did they grant Congress the exclusive power to declare war; they also gave Congress power to raise and support armies and a navy, to control reprisals, and to “make titles concerning captures on land and water.” The Constitutional Convention of 1787 was so determined to prevent presidential wars that it refused to confer the executive function on one person until after it had stripped the office of the power to make war. The only concession was a change in the congressional authorization from “make war” to “declare war.” The purpose here was, as Madison made clear in his reports of the convention, to leave “to the Executive the power to repel sudden attacks.”

In recent decades, however, this limited power to use the armed forces in holding operations has been inflated to seemingly limitless proportions. Our own generation has seen Presidents commit the country to three bloody wars—once in advance of congressional action, once without any congressional action, and once with only a misguided gesture on the part of Congress. In their blatant efforts to justify these actions, the Roosevelt, Truman, and Johnson Administrations laid claim to “inherent powers” broad enough to control the course of the nation in any future emergency.

After the war in Vietnam turned sour, the Senate raised a furor over the methods by which President Johnson had committed more than half a million Americans to it. The Foreign Relations Committee highlighted the perils of executive warmaking in a series of hearings. Its report to the nation ended with this biting conclusion:

The concentration in the hands of the President of virtually unlimited authority over matters of war and peace has all but removed the limits to executive power in the most important single area of our national life. Until they are restored the American people will be threatened with tyranny or disaster.

In some measure this rebuke to the President reflected bad blood between Lyndon Johnson and Senator J. William Fulbright, chairman of the Foreign Relations Committee. Vet the report was adopted by a vote ot 16 to 0. Administration Democrats as well as the disgruntled Democrats and Republicans were expressing a state of alarm in Congress over presidential usurpation of the war power.

The threatened clash between the Johnson Administration and the Senate did not come to head in the 90th Congress because of the presidential election and the peace talks in Paris. With delicate negotiations under way to end the war, the time was not ripe for an official assault on the maneuvers which took us into it. Fulbright discarded a fiery speech which had been prepared for the anticipated showdown, and Lyndon Johnson left office without having to face this particular whirlwind which the war in Vietnam stirred up. Nevertheless, the Foreign Relations Committee has become a focal center of a rising national storm over the sending of men into battle anywhere in the world without any decision by Congress that either limited hostilities or full-scale war is in order.

Fulbright and his colleagues see Vietnam as the most flagrant example of executive warmaking, but it is the trend which is most alarming.

In the case of World War II, Roosevelt moved from giving munitions to Hitler’s enemies under the Lend-Lease Act to the convoying of vessels carrying supplies to Britain and the giving of information about German raiders. When an American destroyer, the U.S.S. Greer, was attacked by a German U-boat after it had followed the U-boat for three hours and broadcast its position to a British plane dropping depth charges, FDR distorted the incident and used it as an excuse for ordering American craft to shoot on sight at German and Italian warships in the western half of the Atlantic. Apparently Roosevelt made his agonizing decision out of fear that Congress would not abandon its tottering neutrality policy. But there is nothing in the Constitution which says the President may take over the power to go to war when he thinks Congress will not exercise it.

In the case of Korea, President Truman seemed to act as if the power to send Americans into battle had been shifted to the United Nations. All his orders were embellished with UN sanctions. Actually, however, he committed American air and naval units to the defense of South Korea before the UN Security Council even recommended it. The President used regular American forces because the UN had no military units of its own, as the charter had contemplated it would have. The Security Council could merely call upon the member nations to aid the beleaguered South Koreans. A call of this kind could not give the President any authority he did not previously have, but Truman used it as justification for carrying on a major war for three years, without going to Congress except for appropriations. His objective—to save a victim of Communist aggression—was highly laudable, but worthy motives do not excuse the abuse of power.

President Johnson was more subtle when he decided on his venture in Vietnam. The Eisenhower and Kennedy Administrations had been giving ever increasing aid to South Vietnam without arresting the drift toward chaos and defeat. So LBJ seized upon two minor incidents in the Gulf of Tonkin in the midst of his 1964 political campaign as an excuse for what Bill Moyers, his onetime press secretary, has called a “psychological gambit.” First, he ordered a sixty-four-plane raid on a nearby North Vietnamese base as a reprisal for the Tonkin Gulf incidents, in which the American personnel had suffered no injuries and the American vessels no appreciable damage. Then he asked Congress to pass a resolution which his Undersecretary of State, Nicholas deB. Katzenbach, later described as a “functional declaration of war,” although it was mereh a gesture.

According to Moyers, this double play was designed to intimidate Hanoi and thus end its attempted subversion of South Vietnam. But Hanoi called the bluff, and the struggle escalated for four years, with the loss of more than 35,000 American lives. As the war dragged wearily on, disillusionment fed on the disclosures that Secretary of Defense Robert McNamara had given Congress a biased account of the Tonkin Gulf incidents. Congress itself had acted with frantic haste, without even attempting to learn the facts. By 1967 most leaders in Congress were deeply troubled, but they had given away their power. They could only vow that it would not happen again.

To justify these acts of executive warmaking, a group of official power stretchers have been at work. Their task has been to transform the authority of the Commander in Chief “to repel sudden attacks” into an unlimited license to employ the armed forces. Probably the most fantastic claim is to bo found in a State Department pamphlet entitled “The Legality of U.S. Participation in the Defense of Viet-Nam.” In it the Department’s legal adviser, Leonard C. Meeker, offered this gem of freewheeling induction:

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.

President Johnson seemed to underwrite this expansive view when he responded to a question about the Tonkin Gulf resolution at his news conference on August 18, 1967. ‘We stated then, and we repeat now, he said, “we did not think the resolution was necessary to do what we did and what were doing.” In other words, he had asked Congress to applaud his venture in Vietnam only for the psychological effect, the appearance of national unity. But the hard decision between fighting a war or not doing so was one for the President to make.

As the Nixon Administration look over the reins in Washington, therefore, executive warmaking was well entrenched in both theory and practice. Burning resentment against it had been manifested, but the altered state of affairs has had White House power behind it, and no means of restoring the historical restraints has yet been devised.

Away from the guns

The atmosphere of 1969 may be conducive to a solution of this old dilemma. The past reluctance to tackle the problem has largely evaporated because of the experience in Vietnam and the realization of Congress that continued inaction would mean firmer lodgment of the war power in the White House, it is clear that the solution, if there is to be one, must be worked out while the constitutional principles can be discussed on their merits, not under the guns of a national crisis.

The Nixon Administration has some additional incentives to join in a rational accommodation. The first of these is an understandable desire to keep its own skirts free from the opprobrium attached to the Tonkin Gulf resolution. A second might well be alignment of its policy with that of the late President Dwight D. Eisenhower. Despite his own military background, Eisenhower took a strong stand against the commitment of American troops to war without action by Congress. When it appeared that Communist China might attack Formosa in 1955, he asked Congress for specific but limited authority to protect Formosa and the Pescadores by force if necessary. After a spirited debate in the Senate, Congress acquiesced with large majorities in both houses.

The Formosa resolution was a significant reversion to the practice followed in the early days of the republic. President John Adams went to Congress for authority to use force on a limited scale in the undeclared war with France. President Thomas Jefferson similarly asked Congress for authority to engage in limited naval operations against the Barbary pirates. Neither deemed a declaration of war to be appropriate, but both recognized the right of Congress to initiate limited war as well as to declare full-scale war.

Senator Fulbright and It is committee have pointed to this technique of authorizing limited war measures as being highly useful in our day. Declarations of war are even more out of style now than in the 1790s. Communist aggression often poses a challenge which cannot be rationally met by a declaration of war. In such cases there is a constitutional alternative to unlimited presidential discretion—the authorization of limited military action for a specific purpose.

The differences between the Formosa resolution and the Tonkin Gulf resolution are broad and fundamental. The first invoked the power of Congress for a specific but limited purpose, leaving to the President only the discretion of implementing the polity if events should make it necessary. The second granted no authority. Rather, it said that the United States was “prepared, as the President determines, to take all necessary steps" to help South Vietnam in its struggle against aggression. It was not an exercise of the war power but merely a congressional abdication in favor of full discretion for the President, and in practice it was so interpreted.

Overawed Congress

The Nixon Administration could greatly relieve the tension in Congress and the country by indicating a willingness to return to the Adams-Jelferson-Eisenhower concept of the war power. The White Mouse and the Foreign Relations Committee might then find some way of giving effect to such a policy, through a war powers act or otherwise.

The initiative will have to come, however, from the Foreign Relations Committee. The committee was appallingly slow in facing up to its responsibilities. Until Vietnam demonstrated the perils of executive warmaking with unmistakable plainness, the committee had taken the lead in the greatest power giveaway of the century. Its 1967 report attempted to explain this supine conduct by saying that the country was not yet fully adjusted to its global role, that Congress had been “overawed by the cult of executive expertise,” and that Congress had fallen into the habit of giving the President a free hand as “a kind of penance for its prewar isolationism.” There is a note of candid sincerity in this confession. Yet it is a flimsy excuse for such a colossal upset in the constitutional balance of power.

Restoration of the war power to Congress appears to be by all odds the most important task that will confront the committee during the 91st Congress. Unfortunately, the Fulbright resolution (first introduced in 1967 as S. Res. 151 and revived this year as S. Res. 85) does not do the job. As sent to the Senate, it merely expresses the “sense of the Senate” that a United States commitment to a foreign power could result only from “a treaty, convention, or other legislative instrumentality specifically intended to give effect to such a commitment.”

It is not so much foreign commitments as the manner in which the President and Congress will respond to national crises involving the use of armed forces which needs to be defined. No loose, unofficial understanding will do. The problem for Congress is the reassertion of its authority to decide the issue of war or peace, whether the question is one of limited war or of full-scale war. The problem for the White House is recognition and respect for this congressional authority, while clinging resolutely to its control of foreign policy short of making war and to its essential right to repel sudden attacks.

In return for a reasonable attitude on the part of the White House, Congress could recognize by law the right of the President to send troops to any country hound to us by a mutual defense treaty, making an attack upon one an attack upon all. This would mean that the President could, under existing treaties, respond immediately, with forces properly at hand, to any attack in the Western Hemisphere or any part of NATO. Response to an attack would not, however, automatically mean war. With the war power back in the hands of Congress, that body would have to decide upon any commitment beyond temporary holding operations. It would also have to approve in advance any stationing of American troops abroad outside NATO and the Western Hemisphere.

The problem is admittedly delicate and complicated. It may take many years to evolve a system that will leave ample room for executive leadership and legislative responsibility. But if this course is fraught with difficulties and some dangers, they are minor compared with the frightening risks of one-man decisions involving the fate of the nation. Vietnam should be our last war initiated and carried on solely at the discretion of the President. But it is not likely to be unless Congress sets up a feasible alternative, and unless public opinion compels abandonment of the doctrine of presidential power to make war.