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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.

I

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 need to be plainly uttered if we are to begin to understand the full dimensions of the problem subsumed under the war powers of the President.

To begin with, the President’s war powers fall into two quite separate categories, one constitutional, the other physical. Attention has been focused on the former. The distinction may be illustrated by the case of Iceland. So far as I know the President of Iceland may have the most sweeping power to take his little country into war whenever he sees fit. But since Iceland has neither an army nor a navy,1 the war powers of its president remain an abstract problem for its constitutional scholars. Even if he became intensely concerned about Allende’s violation of ITT’s property rights in Chile or the crushing of free enterprise by Castro in Cuba, his ability to do anything about it is limited by the fact that the only force at his disposal is a fleet of six armed fishery protection vessels.

The form taken by the war powers controversy in our country is constitutional. But its roots lie in the enormous growth since World War II in the physical means of war-making at the President’s disposal. It is the swift expansion of the American military establishment and of US imperial pretensions since the cold war began under Truman that has made the problem acute. It is not difficult to find instances of brief military or naval actions which can be termed “undeclared presidential wars” almost as far back as the earliest days of the Republic. But these were no more than brief forays and a minor problem so long as American ambitions and military power were limited.

Presidential war-making powers did not become a substantial threat to the congressional power to declare war until this century with the appearance of what used to be called “gunboat” or “dollar diplomacy” in our relations with our neighbors in Central America and the Caribbean. They termed it Yanqui imperialism. Then, too, as with the undeclared war in Vietnam, this was a bipartisan phenomenon. As summed up three years ago in an eloquent but futile report of the Senate Foreign Relations Committee,2 that earlier experience looks like a dress rehearsal for our involvement in Indochina.

In that earlier period, too, we made and unmade governments to enforce “respect,” Godfather and Nixon fashion. The Foreign Relations Committee report recalled:

President Theodore Roosevelt used the Navy to prevent Colombian forces from suppressing insurrection [which we had arranged, the committee might have added, in order to seize the Canal Zone—IFS] in the province of Panama and intervened militarily in Cuba and the Dominican Republic. Presidents Taft and Wilson also sent armed forces to the Caribbean and Central America without Congressional authorization…. President Wilson [shelled and—IFS] seized the Mexican port of Vera Cruz in 1914 as an act of reprisal, in order, he said, to “enforce respect” for the government of the United States.

Where earlier presidents used gunboats, Nixon used and still uses B-52s. The problem has become chronic with the emergence of the United States after World War II as the biggest military power of all time, claiming—in “the free world”—to be the protector and policeman of virtually the whole globe outside the Soviet bloc and China.3

As the means, the secret commitments, and the occasions for intervention have grown, the power of Congress to make the final decisions of war and peace have dwindled. Until the problem is attacked as a function of imperialism and militarism, constitutional and statutory tinkerings with war powers are likely to prove ineffective. Here and there, in the voluminous hearings, reports, and debates on the pending legislation, this truth occasionally surfaces. The Senate Foreign Relations Committee said some of this when it reported out the Javits-Stennis-Eagleton war powers bill last year.4

If the United States, the committee report said, “is to be continually at war, or in crisis, or on the verge of war, or in small-scale, partial or surrogate war, the force of events must lead inevitably toward Executive domination despite any legislative roadblocks that may be placed in the Executive’s way.” Senator Javits also touched on the more fundamental factors when Senate debate on the measure began last year.5

The Founding Fathers were deeply distrustful of “standing armies.” At the time of the ratification of the Constitution, the United States Army consisted of a total of 719 officers and men. On the eve of the Civil War it was only 28,000 and in 1890 it was only 38,000. Even in 1915, the Army numbered less than 175,000. However, since 1951 [the Korean War] the size of our “standing” armed forces rarely has dipped below 3,000,000 men. These forces under the President’s command are equipped with nuclear weapons…and they are deployed all over the world…. It is the convergence of the President’s role of conducting foreign policy with his role as Commander-in-Chief of the most potent “standing army” the world has ever seen that has tilted the relationship between the President and Congress so far out of balance….

The imbalance will be tilted even further by the completion of the new all-volunteer army, which puts all the armed forces on a professional basis and relieves the President and the Pentagon from the need to rely on the draft except in the case of a major war. The army will no longer be a citizens’ army but a professional force largely enlisted from among the poor and desperate.

As Joseph A. Califano, Jr., who was President Johnson’s assistant for domestic affairs, has pointed out,6

An all-volunteer force that subjects only the ones at the bottom to military service will effectively reduce the need for future rulers to be concerned about the more affluent majority in America and its judgments about foreign adventures, at least until those adventures are so far along that they will be virtually impossible to stop.

II

The character and course of the war powers legislation in Congress show the same weaknesses that have allowed presidential power to grow so strong in the past. One difficulty is that of foreseeing the contingencies under which war may arise. When the Constitution was being written, Congress was first given the power to “make” war, but this was changed to “declare.” The purpose of this change was twofold: to allow the President to repel sudden attacks and to free him as commander in chief from interference by Congress in the day-to-day operations of the armed forces once war had been declared. Too specific a spelling out of presidential powers would either restrict his powers too greatly or give him a blank check in advance for actions that might go far beyond legitimate limits.

Last year both houses of Congress passed war powers bills but they died with the session when the differences between them could not be reconciled. Each passed with majorities big enough to override a veto. The Javits-Stennis-Eagleton bill passed the Senate by a vote of 68 to 16 on April 13, 1972. The Zablocki bill passed the House 344 to 13 last August 14.

The lopsided vote testifies to the wide discontent in Congress. It is not often that Democrats as different as Stennis and Eagleton can agree with a Republican like Javits to merge their respective bills. In the House there are more than a dozen bills to limit the President’s war-making powers. Their sponsors range from Ronald Dellums, the black militant Democrat from California, to John Rarick of Louisiana, who has been described as a Birchite with a Southern accent. But the coming legislative battle will be between revised versions of the Javits-Stennis-Eagleton bill in the Senate and the new Zablocki bill in the House, as they emerge from committee shortly. The contest will be over which bill will prevail in a showdown or fare best in a compromise.

  1. 1

    Actually the island since World War II has been in all but name a protectorate of the United States. Under the NATO treaty, US army, navy, and air force detachments are stationed there as its defense force. See The Statesman’s Year Book.

  2. 2

    Report on S. Res. 85, April 16, 1969, the National Commitments resolution, now out of print, quoted here from page 14 of Documents Relating to the War Power of Congress, The President’s Authority as Commander-in-Chief and the War in Indochina, US Senate Committee on Foreign Relations, July, 1970.

  3. 3

    And since the Peking visit by Nixon we have begun to hear from the Pentagon that we need a big navy in East Asia to protect Communist China against Russia (as well, of course, as Formosa against China).

  4. 4

    Page 22, Sen. Rpt. No. 92-606, 92nd Congress, 2nd Session, February 9, 1972.

  5. 5

    Senate speech, March 29, 1972.

  6. 6

    The Washington Post, March 22, from The New Republic, March 3. Mr. Califano said the effective opposition to the Vietnam war came from the middle class which “would not permit their [italics in original] sons to die in a war which they considered meaningless.” He estimated that even after a generous allowance for inflation, the US would be paying $6 billion more in fiscal 1974 for an all-volunteer force than it paid in 1968 for a force one third larger.

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