EXHIBIT I [Reprinted by permission from "Law and the Social Order", Arizona State University Law Journal, Volume 1971, Number Three] The President's Ability To The Senate Foreign Relations Committee has ordered favorably reported Senate Bill 2956, which lays down rigid rules to govern the President's use of the Armed Forces in the absence of a congressional declaration of war. With this bill in the background, Senator Goldwater discusses the historical military actions taken by American Presidents and Congress' responses to these actions. He then examines the constitutionality of congressional limitations on the President's warmaking power and concludes that, while Congress holds control over the size and strength of the country's military machinery, the President's power to use that machinery when he feels the country is in danger cannot be restrained by congressional policy directives. I. CONTEMPORARY SETTING On November 17, 1971, President Nixon signed a $21.3 billion military procurement bill,' but emphasized in doing so that he would ignore a socalled end-the-war rider as being "without binding force or effect" and failing to "reflect my judgment about the way in which the war should be brought to a conclusion." Hours later, the House of Representatives rejected, for the fourth time in 1971, a proposal to set a specific deadline for ending the United States military involvement in Indochina.3 Not to be deterred by two setbacks in one day, Senator Mike Mansfield, the distinguished Majority Leader of the Senate and author of the troop withdrawal amendment just torpedoed by President Nixon, promptly opened *Member, United States Senate (Arizona). 1. Act of Nov. 17, 1971, Pub. L. No. 91-156, 85 Stat. 423. 2. 29 CONG. Q. WEEKLY REP. 2371 (1971). (The Act was signed Nov. 17, 1971.) President Nixon's comments were directed at section 601 of the Act, the "Mansfield Amendment." Id. 3. The proposal was in the form of an amendment to the 1972 Department of Defense Appropriations Act, H.R. 11,731, 92d Cong., 1st Sess. (1971), calling for a halt in funding for any military support by United States forces in or over Indochina after June 1, 1972. It was rejected by a vote of 163 to 238. See text of amendment at 117 CONG. REC. H 11,170 (daily ed. Nov. 17, 1971) and vote, id. at H 11,196-97. 424 LAW AND THE SOCIAL ORDER [LAW & Soc. ORDER a new attack on the Executive's military authority. The next day another Mansfield amendment was reported to the Senate-a prohibition on spending attached to the 1972 Department of Defense Appropriation Act which sought to force the withdrawal of 60,000 American troops from NATO. This time the President needed no aid from the other Chamber, since the Senate voted on November 23 to reject the limitation by 39 yeas to 54 nays.' 6 The senior Senator from Montana had yet one more challenge waiting in his campaign against Executive discretion, however, for only a week earlier the Senate had passed his third amendment of the year aimed at terminating all United States military operations in Indochina. The amendment set a final date for the withdrawal of all United States forces within 6 months, and was coupled to the Special Foreign Military and Related Assistance Act.' The first session of the 92d Congress might still be deadlocked over this issue had not the House of Representatives voted against the proposal a week before Christmas." However, the most sweeping challenge of 1971 to the President's foreign policy prerogatives stayed alive. I refer to Senate Bill 2956, a bill to codify the rules governing the use of the Armed Forces in the absence of a declaration of war. This legislation, awesome in its implications, was ordered reported favorably on December 7, 1971, by a unanimous vote of the Senate Committee on Foreign Relations." Thus closed the legislative year 1971, the second succeeding year in which Congress had undertaken a massive effort to reverse what many members of Congress call the erosion of the legislative branch by Presidential usurpation." Many lawmakers and constitutional writers treat the current moves by Congress as a momentous occasion, precipitated by what they allege to be a completely unprecedented example of Presidential warmaking during the past quarter century." But is the experience of Executive initiative in the use of military force truly a modern phenomenon-a departure from long4. H.R. 11,731, § 744 (Star Print), 92d Cong., 1st Sess. (1971), as reported by The Senate Committee on Appropriations, S. REP. No. 92-498, 92d Cong., 1st Sess. 48-49 (1971). 5. 117 CONG. REC. S 19,516 (daily ed. Nov. 23, 1971). 6. See S. 2819, § 9, 92d Cong., 1st Sess., 117 CONG. REC. S 18,282 (daily ed. Nov. 11, 1971). 7. Id. 8. 117 CONG. REC. H 12,689-90 (daily ed. Dec. 16, 1971). 9. S. 2956, 92d Cong., 1st Sess. (1971), was introduced by Senator Javits for himself and Senators Stennis, Eagleton, and Spong. See text of bill, 117 CONG. REC. S 20,627-28 (daily ed. Dec. 6, 1971). 10. Daily Digest, 117 CONG. REC. D 1280 (daily ed. Dec. 7, 1971). 11. See pages 429-31 infra. 12. See, e.g., statements of Senators Javits and Eagleton, 117 CONG. REC. S 20,627-28 (daily ed. Dec. 6, 1971), and the testimony of Professors Commager, Morris, and Kelly, Hearings on S. 731, S.J. Res. 18 & 59, Before the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. (1971), reprinted in 117 CONG. REC. S 3353-62 (daily ed. Mar. 16, 1971) [hereinafter cited as Senate War Powers Hearings]. 1971:423] THE PRESIDENT'S WARMAKING POWER 425 standing tradition? Is the recent struggle in Congress to impose controls over the waging of war an historical first, unknown until now in view of the general self-restraint by earlier Presidents? Or are the present maneuverings between the two political branches of our government merely a sign of recurring ripples in the stream of history? Who, if anyone, possesses the dominant powers to wage war; to authorize the initiative of war; to deploy men, equipment, and supplies? What checks and balances are there on the war powers? What control does Congress or the President have over the other in regard to making war? What kind of hostilities, if any, can our nation legally engage in without a formal declaration of war? All these questions, and more, are interwoven in the current effort by Congress to restrict the President's ability to wage war. It is my hope that this Article will help illuminate these issues. II. HISTORICAL OVERVIEW A. Presidential Initiatives It may come as a shock to many Americans that the United States has been involved in at least 197 foreign military hostilities in its history," only five of which have been declared wars." These incidents took place all over the world." Nearly half involved actual fighting," and no less than 111 actions were undertaken solely on Executive authority without the initial support of any related statute or treaty, let alone a declaration of war." A few commentators have brushed aside these precedents as being "shortlived,"" or "minor undertakings," or almost exclusively "confined to the Western Hemisphere."" But it is a fact that 93 actions lasted more than 30 days," a considerable number involved the landing of many thousands of American troops on foreign soil, and exactly 100 occurred outside the Western 13. See generally Emerson, War Powers Legislation, 74 W. Va. L. REV. 53 (1972). 14. The five declared wars are the War of 1812, the War with Mexico, the SpanishAmerican War, and World Wars I and II. 15. See generally, Emerson, supra note 13, app. A (chronological list of 192 United States military hostilities abroad without a declaration of war, prepared at my request). 16. At least 81 hostilities were accompanied by fighting or ultimatums. Id. app. D. 17. See the list of 81 hostilities which may arguably have been initiated pursuant to prior legislative authority, id. app. G. But it should be observed that 51 of these possible collaborations by Congress took the form of a treaty. Thus, if a full-blown congressional declaration of war would be required to commit United States forces to hostilities, the fact that 51 activities may have been authorized by treaty and therefore by one House of Congress alone, would not serve as a precedent for the requirement of declarations of war in other circumstances. 18. Malawer, The Vietnam War Under the Constitution: Legal Issues Involved in the United States Military Involvement in Vietnam, 31 U. PËт. L. Rɛv. 213 (1969). 19. Reveley, Presidential War-Making: Constitutional Prerogative or Usurpation?, 55 Va. L. REV. 1243, 1258 (1969). 20. See testimony of Professor Henry Steele Commager, who claims the precedents are confined to the Western Hemisphere and contiguous territory up to "the last twenty years or so," with one exception. Senate War Powers Hearings, supra note 12, at S 3355. 21. See Emerson, supra note 13, app. E. 22. Id. app. A. 426 LAW AND THE SOCIAL ORDER [LAW & Soc. ORDER Hemisphere." These operations include the capture of 90 French ships during the period from 1798 to 1800, the sinking or capture of 65 pirate vessels in the Caribbean prior to 1825, several landings and punitive actions abroad to defend or evacuate United States citizens and their property, the dispatch of 2,000 sailors and marines to force open commercial trade with Japan in the 1850's, the use of 126,468 troops to suppress the Philippine Insurrection after the 1898 treaty of peace with Spain was concluded, the deployment of several thousands of troops ashore in China from 1900 to 1941, the Pershing Expedition into Mexico with 12,000 men, the commitment of 14,000 men to Allied expeditions in Russia a year and a half after Armistice Day, the Korean Conflict of the 1950's, the occupation of parts of Lebanon in 1958 by 14,000 American soldiers and marines, the super-power confrontation between the United States and the Soviet Union during the Cuban missile crisis of 1962, and the Vietnam hostilities, among many others." B. Early Congressional Response Obviously, little wars are not a "phenomen[on] new to the national experience."" Nor have past Presidents been immune from congressional sniping at their military policies." Throughout the early years of this century, there were dozens of attempts in Congress to shackle the President's right to use military power. In 1912, Senator Bacon proposed an amendment to the Army Appropriation Bill which would have prohibited the use of any money provided by that law for the pay or supplies of any part of the Army of the United States employed, stationed, or on duty in any country or territory beyond the jurisdiction of the laws of the United States or in going to or returning from points within the same." 27 This amendment, which would have restricted all United States troops to the United States or its possessions, was defeated without a record vote." In 23. Id. app. F. 24. Id.app. A. 25. See R. DUPUY & W. BAUMER, THE LITTLE WARS OF THE UNITED STATES, at preface (1968). 26. President Tyler was denounced in Congress and threatened with impeachment because he deployed military units to protect Texas against Mexico in 1844. C. BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES 47-49, 70-74 (1921). President Polk was rebuked in a resolution passed by the House of Representatives declaring that the war with Mexico, which his military maneuvers had precipitated, "was unnecessarily and unconstitutionally begun by the President of the United States." Id. In 1871, President Grant was severely condemned on the floor of the Senate because of his action in sending a strong naval force to Santo Domingo to protect it from invasion and internal disorder. In fact, a resolution introduced by Senator Sumner would have condemned the use of the Navy without the authority of Congress as “an infraction of the Constitution of the United States and a usurpation of power not conferred upon the President." But the resolution was tabled by a large majority (38 to 16). Id. 27. 48 CONG. Rec. 10,927 (1912). 28. Id. at 10,930. 1971:423] THE PRESIDENT'S WARMAKING POWER 427 1919, several Members of Congress introduced measures aimed at ordering American soldiers home from Europe and challenging the presence of our troops in Siberia as unconstitutional." The only one that passed, however, was a watered-down resolution by Senator Hiram Johnson, simply requesting the President to provide Congress with information on the Siberian Expedition. Then in 1922, a major effort was made in Congress to control the geographical deployment of American forces. The House Committee on Appropriations reported the War Department funding bill with a provision specifying: 30 No part of the appropriations made herein for pay of the Army shall be used, except in time of emergency, for the payment of troops garrisoned in China, or for payment of more than 500 officers and enlisted men on the Continent of Europe; nor shall such appropriations be used, except in time of emergency, for the payment of more than 5,000 enlisted men in the Panama Canal Zone, or more than 5,000 enlisted men in the Hawaiian Islands." After a vigorous debate squarely on the constitutional allotment of the war powers between the Executive and Congress," the House agreed, on March 24, to Representative Rogers' motion to strike out the committee restriction. John Rogers, a law graduate from Harvard and a seven-term Republican Congressman, presented an illuminating and scholarly discussion of the constitutional issues involved, which stands to this day as one of the greatest expositions ever made during a legislative attempt to run the details of the Armed Forces.33 The Senate made its move later in the year. On December 27, 1922, Senator Reed offered an amendment to the Naval Appropriation Bill designed to “at once cause the return to the United States of all American troops now stationed in Germany."" The amendment was debated, but never accepted. On December 30, 1922, Senator King called up an amendment to the same appropriation measure providing: That no part of said amount shall be used for the purpose of maintaining or employing marines, either officers or enlisted men, in the Republic of Haiti or the Dominican Republic after June 30, 1923." Senator King's amendment was rejected the same day." In 1925, he was again disturbed by the use of American troops in the Caribbean and again intro 29. See H.R. Res. 251 (Representative Rhodes), H.R. Res. 266 (Representative Wood), H.R. Con. Res. 8 (Representative Mason), S. Res. 181 (Senator McCormick), S.J. Res. 60 (Senator Edge), S.J. Res. 111 (Senator Sherman), 66th Cong., 1st Sess. (1919). 30. S. Res. 13, 66th Cong., 1st Sess. (1919). See 58 CONG. REC. 1864 (1919). 31. 62 CONG. REC. 4109 (1922). 32. Id. at 4510. 33. See id. at 4109-10, 4295-98. 34. See 64 CONG. REC. 934 (1922). 35. Id. at 1117. 36. Id. at 1131. |