Can Congress Stop the President?

For now I’d just say the justification is the re-election of President Nixon.”

—William H. Sullivan, Deputy Assistant Secretary of State for East
Asia, when asked at a private briefing for congressional aides on March 27 what was Nixon’s legal authority for bombing Cambodia.

In a landmark case during the Korean War, a liberal majority of the US Supreme Court refused to allow Truman to seize the nation’s steel mills. The Court rejected the White House claim that such action was constitutional under the so-called war powers of the President. “Power to legislate for emergencies,” Justice Jackson then wrote in one of those brilliant concurring opinions for which he is famous, “belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its hands.” This case was the first to deal squarely with presidential claims of “inherent” war powers in the sweeping form that still plagues us in the skies over Indochina.

As a result of the long agony over Vietnam, the longest and most costly “undeclared war” in our history, Congress has been trying for three years to frame new legislation which would restrict the war powers of the President and restore those of Congress. The course of the long debate in Congress has reflected a widespread desire in both parties to curb presidential powers and yet a curious reluctance to grapple with the problem where it is most urgent, in the Indochinese war itself.

Two kinds of war powers legislation await final action in the Senate and the House. One would establish strict limits on the President’s power to take the country into war without specific authorization by Congress, in pursuance of the power to “declare war” given to the Congress by the Constitution. The other, more urgent, would use congressional power to prevent the Executive from taking us into a third Indochinese war. Almost all attention has been focused on the former. The latter has been shelved even while the danger of resumed bombing and intervention has grown.

The dispute over presidential war powers has been classed with impoundment, executive privilege, and freedom of the press as one of the four major questions on which a constitutional crisis has been developing between the White House and the Congress. But this may understate the complexities of the war powers problem. It may run deeper than the Constitution into the mores of the American Republic and people, and this may explain the reluctance of a frustrated Congress really to face the problem, especially where action is most immediately needed.

Abuse of power by Presidents,” said the historian Henry Steele Commager in his perceptive testimony at the opening of the Senate Foreign Relations Committee hearings on war powers legislation in March, 1971, “is a reflection, and perhaps a consequence of abuse of power by the American people and nation.” Certain political “four letter words” have been avoided in the long debate. The “not nice” terms are “imperialism” and “militarism.” Yet they …

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Letters

Sen. Eagleton & War Powers May 17, 1973