The Two World Wars and the Growth of Presidential War Powers
World War I led to an unprecedented growth in Presidential war powers. Congress gave President Wilson broad authority to execute the war, including expanded control over the military and authority to fight subversion and espionage. Congress also gave the President control over industries and the allocation of scare resources. Congress was willing to grant the President such broad powers because the scope and urgency of the conflict required a unified command and control over all war related operations and resources. In the word of one Presidential scholar, Congress simply abdicated its legislative authority to the President for the duration of the conflict.[24] Senate dissatisfaction with the way President Wilson handled his wartime authority led the Senate to reject the Treaty of Versailles, which Wilson personally negotiated to end the war. The Senate rejection of the treaty prevented the United States from joining the League of Nations, which was established to prevent future wars.
World War II led to a further expansion of Presidential war powers.[25] Congress delegated broad powers to President Roosevelt to manage the economy and direct the war effort, but restrained his war making ability. President Roosevelt asserted his Presidential prerogative to take measures that were deemed necessary to direct the war. In response, Congress passed a series of legislation designed to frustrate the President. They included the Neutrality Acts of 1935 and 1937, which prohibited shipments of arms, ammunition, or implements of war to any belligerent nation, including those that had been the victims of aggression. Roosevelt countered by signing an executive agreement, which was legally binding, by which Britain would receive U.S. destroyers in return for the U.S. right to lease certain British territory in the western Atlantic as naval and air bases. On March 11, 1941, Congress passed the Lend-Lease Act by which it delegated broad legislative powers to the President. Among other things, the act gave the President power to aid the Allied cause as he saw fit by virtually any means short of using the armed forces. Despite Congressional restrictions, President Roosevelt used the armed forces to aid the Allied. In response to German occupation of Denmark, Roosevelt stationed U.S. troops in Greenland, and thereafter sent troops to occupy Iceland, and ordered U.S. naval vessels to escort Allied convoys. By the time Congress declared war, President Roosevelt had all but intervened on the Allied side of the war.[26]
Although Congress granted President Roosevelt broad powers to execute the war, Roosevelt also asserted his commander in chief powers to go beyond what had already been delegated to him by Congressional statute. Roosevelt also invoked his national security powers and his obligation under the Constitution to “faithfully execute the Office of President of the United States” to justify increasing the U.S. involvement in the war. Roosevelt even threatened to suspend the Constitution to protect the national security of the nation if necessary.[27]
The end of World War II and the advent of nuclear weapons changed the role of the United States in world affairs and the war making powers of the President.[28] The United States became a dominant world power, with a military arsenal matched only by the Soviet Union. Presidential leadership, both internationally and in domestic politics was crucial for managing the post war security of the United States and the world. The Presidency became the focus of world attention, and world leaders looked to the President of the United States to provide global leadership and to protect the free world. The outbreak of the Cold War and rising tension between the United States and the Soviet Union, further strengthened the President authority in national security affairs. Congress deferred to the executive branch or acquiesced to decisions taken by the President in the name of national security. In the fight against Soviet communism, Congress gave the Presidential broad powers to protect the United States and its allies. Presidential control over the nation’s nuclear arsenal added to his unchallenged war powers authority and made him a dominant force in the conduct of war. The advent of nuclear weapons changed the military balance and the way nations fought wars. The need for the President to be able to act immediately in the event of a surprise nuclear attack, increased his role in war-making unseen by the Framers of the Constitution.[29]
The outbreak of the Korean war was the first occasion for the President to invoke his new war powers. Following North Korea’s invasion of South Korea, President Truman acted immediately to prevent a communist take over. He called for an emergence meeting of the United Nations Security Council to consider the situation in the Korean Peninsula. The Security Council adopted a resolution to condemn the invasion, and it called on member states to render every assistance to South Korea to repel North Korea’s aggression. Armed with the Security Council resolution, Truman ordered General Douglas MacArthur to evacuate all Americans, transport supplies to South Korea and bomb military installations bellow the 38th parallel. The United States sponsored a second resolution in the Security Council which explicitly called on member states to give military assistance to South Korea. Truman authorized United States forces into action on the basis of the Security Council resolution, not a Congressional declaration of war.[30]
President Truman’s reliance on United States treaty obligation to justify U.S. military involvement in the Korean war gave raise to a new development in Presidential war power. Truman maintained that U.S. involvement in Korea was in United Nations “police action,” did not need a declaration of war from Congress. Other Presidents after Truman would rely on United States treaty obligation to deploy United States forces abroad.
After the Korean war, Congress passed a series of joint resolutions granting the President authority to use the military to repel armed attacks or threats against designated nations or regions. On January 29, 1955 Congress adopted the Formosa Resolution, which authorized Presidents to use U.S. forces to protect Formosa and the Pescadores Islands against attack from Communist China. On March 9, 1957 Congress passed the Middle East Resolution by which it proclaimed U.S. intention to protect Middle East countries from international communist control. On October 3, 1962 Congress authorized Presidents to take whatever steps they believed necessary to defend Latin America against Cuban aggression and to stop the spread of Soviet weapons in Cuba capable of threatening U.S. security. Congress also expressed its intention to defend West Berlin and the right of access of the Western powers to the city. Following the end of the Korean war, Congress basically abdicated its war power to the President.[31]
In 1962 President Kennedy brought the nation to the brink of a nuclear war with the Soviet Union over the deployment of Soviet missiles in Cuba. After the CIA failed to overthrow or assassinate Fidel Castro in 1961, the Soviet Union deployed missiles in Cuba to help Castro defend against a future U.S. invasion. President Kennedy and his advisers discussed several alternative measures to force the Soviet Union to remove the missiles, including a full-scale invasion, a “surgical strike,” a naval blockade, and diplomatic negotiations. Finally, the President settled for a “quarantine” of Soviet ships entering Cuba’s harbor. The administration was careful not to use the word blockade, which would have been an act of war. It also chose not to invade Cuba or launch an air strike because such action would have violated Article 51 of the United Nations Charter. In the end the President opted for a quarantine, which is a limited blockade. The administration also sought the endorsement of the OAS instead of the United Nations Security Council. The President made his decision without Congressional authorization. According to the President’s legal counsel, the President acted “by Executive Order, Presidential proclamation, and inherent powers, not under any resolution or act of Congress.[32]
The Vietnam war was another occasion to further test the absolute war powers of the President absent of Congressional oversight. Presidents Truman, Kennedy, Johnson and Nixon had gradually increased American involvement in the Vietnam war without a Congressional declaration of war. In August 1964 Congress past the Gulf of Tonkin Resolution granting broad authority to President Johnson to combat North Vietnamese aggression.[33] Johnson used the resolution to increase U.S. involvement in the Vietnam war. The unpopularity of the war at home, coupled with President Nixon abuse of his powers, forced Congress to reaffirm its role in matters of war by passage of the War Powers Act.[34]
The Vietnam war marks a turning point in Presidential war powers. Congress subsequently responded to President Nixon’s abuse of his authority in Vietnam by repealing the Gulf of Tonkin Resolution. Congress later passed the War Powers Act in 1973, to curtail Presidential war powers.[35] Nixon vetoed the bill but it was overridden by both Houses of Congress and became law over the President’s objection. Every President since Nixon have resisted recognizing the limitations of the War Powers Act, saying it interferes with his ability to conduct foreign affairs. Attempts by members of Congress to get the federal courts to rule on the legality of the War Powers Act have failed. The Courts have ruled that the War Powers Act is a “political question” to be settled by the two political branches.
By passage of the War Powers Act, Congress attempted to reestablish its role in decision-making pertaining to war matters. However, the Act does not completely constrain the President’s ability to deploy the military abroad. The Act preserved the President’s supremacy in foreign affairs and his power as commander in chief. It clarified Congress’s role in war-making but left room for the President to act. Under the War Powers Act the President could commit U.S. armed forces into hostilities or situations where hostilities might be imminent only pursuant to a declaration of war, specific statutory authorization or a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. It urged the President to consult Congress regularly after committing U.S. forces in such situations. It required the President to report in writing within forty-eight hours to the Speaker of the House and the president pro tempore of the Senate on any commitment or substantial enlargement of U.S. combat forces abroad. It required the termination of a troop commitment within sixty days after the President’s initial report was submitted, unless Congress declares war, specifically authorized continuation of the commitment, or was physically unable to convene as a result of an armed attack upon the United States. Under these circumstances the President is granted an extension of up to thirty days if he determined and certified to Congress that unavoidable military necessity respecting the safety of U.S. forces required their continued use in bringing about a prompt disengagement. The Act allows Congress to disengage U.S. forces at any time if there was no declaration of war.[36]
The passage of the War Powers Act has not prevented the President from deploying the military abroad. Since the law took effect, various Presidents have deployed U.S. military forces in situations of hostilities a number of times without Congressional authorization.[37] In 1975 President Ford unilaterally ordered U.S. forces to bomb Cambodian targets in retaliation for the capture of the U.S. merchant ship Mayaguez. Congress agreed that the President had the authority to act without Congressional authorization. In 1980 President Carter attempted a rescue mission of U.S. diplomatic personnel in Iran without Congressional authorization. Carter justified his action on the need for absolute secrecy, which members of Congress accepted. In 1982 President Reagan sent U.S. troops to Lebanon as part of a multinational peacekeeping force to supervise the evacuation of PLO forces from Beirut. U.S. marines were withdrawn after the evacuation but redeployed following the assassination of President Bashir Gamayel of Lebanon and the massacre of Palestinian civilians in refugee camps in Beirut. The marines became targets of a terrorist attack, leaving hundreds of them dead. President Reagan ordered the marines to defend themselves and ordered U.S. warships in the Mediterranean to shell military positions in Beirut. The escalation of the conflict forced the President to negotiate with Congress an extension of U.S. forces in Lebanon. On October 12, President Reagan signed a joint resolution of Congress empowering him to keep the marines in Lebanon.[38]
In October 1983 President Reagan deployed U.S. troops in Grenada to evacuate American medical students on the island after a military takeover and the killing of the Prime Minister, several of his Cabinet Ministers and civilians.[39] The military junta had imposed a dawn to dust curfew and gave the army orders to shoot and kill violators. Congress voted that the sixty-day clock of the War Powers Resolution had begun when U.S. troop invaded Grenada. However, U.S. forces withdrew from Grenada within a few weeks of their initial landing, thus the President was not in violation of any of the provisions of the War Powers Act.
In 1986 President Reagan ordered U.S. warplanes to bomb Libyan cities of Tripoli and Benghazi in retaliation for alleged Libyan involvement in the bombing of a Berlin nightclub, in which two American servicemen were killed. Some members of Congress criticized the President’s method of consultation instead of notification, but supported the action. In 1987, in the midst of the Iraq/Iran war, President Reagan sent U.S. naval vessels to the Persian Gulf to provide military escort to Kuwaiti vessels, reflagged to carry the U.S. flag. The President’s action was designed to guarantee the free flow of oil through the gulf. Prior to the commencement of the escort, the U.S.S. Stark was hit by an Iraqi missile that left thirty-seven crew members dead. Two days after the escort began, a Kuwaiti vessel was hit by an Iranian mine.[40] Although it was clear at the time that U.S. forces would be drawn into the war, President Reagan refused to acknowledge it. Several members of Congress challenged the administration policy on the ground that it violated the War Powers Act. However, the U.S. District Court dismissed the suit as a political question.
Throughout the 1980s President Reagan conducted a secret war against the Marxist government of Nicaragua and leftist rebels in El Salvador. President Reagan dispatched 55 military advisers to El Salvador to help train the El Salvadoran army, and he provided military and financial support to the Nicaraguan Contras. Reagan publicly called for the overthrow of the Government of Nicaragua.[41] Law suits challenging the administration Central American policy were dismissed by judges in U.S. District Courts. Congress later passed the Boland Amendment, which banned the supply of military equipment to the Nicaraguan Contras. The Reagan administration violated the Congressional ban by secretly shipping weapons to the Contras in a complicated scheme that later became known as the Iran-Contra affair. Several Reagan advisers were prosecuted for violating the Congressional ban. The so-called Iran-Contra affair almost brought down the Reagan Presidency.
In 1989 President Bush invaded Panama and installed another government in office without authorization from Congress. President Bush justified the invasion on the following grounds: (1) To protect American citizens in Panama; (2) To stop drug trafficking; (3) To guarantee safe passage of vessels through the Panama Canal; and (4) To restore democracy in Panama.[42] The operation was completed within weeks and it was very popular among the public. Some members of Congress complained about the administration violation of the War Powers Act, but Congress took no action to challenge the President’s actions.
In August 1990 President Bush deployed U.S. forces in Saudi Arabia following Iraq’s invasion of Kuwait. President Bush later sponsored a resolution in the United Nations Security Council authorizing the use of force to eject Iraqi force from Kuwait. Bush insisted that he did not need Congressional authorization to act. President Bush subsequently secured a joint resolution from Congress before the actual war began, but maintained that he did not need Congressional authorization to act. Scholars of different political persuasion disagree on the President’s interpretation of his powers.[43] This author believes that the President had the legal authority to go to war with Iraq but needed Congressional support to convince a divided American public. The United States, like all member states of the United Nations, has a legal obligation to comply with measures adopted by the Security Council under Chapter VII of the Charter. By acting, the President was complying with U.S. treaty obligations. Under the Constitution the President has an obligation to execute the laws of the land, that includes international law.[44]
In 1992 President Bush relied on United Nations Security Council Resolution 794 (1992) to deploy the military in Somalia to distribute humanitarian assistance to the civilian population. The President did not get authorization from Congress, and Congress did not view the President’s action as a violation of the War Powers Act, although it was clear that United States forces were in a situation of hostilities.[45] President Clinton succeeded Bush and continued the mission under a more aggressive mandate. Clinton did not seek Congressional authorization for United States forces to carry out enforcement action or participate in efforts to capture one of the warlords. Several American servicemen were killed in pursuit of General Aidid. Congress later ordered the withdrawal of U.S. forces from Somalia and called for a review of United States participation in future United Nations peacekeeping missions.
In 1994 President Clinton, armed with a resolution from the Security Council, authorized the deployment of the U.S. military in Haiti to restore the legitimately elected government of President Aristide. The President did not seek authorization from Congress, given the opposition in Congress to American intervention in Haiti.[46] However, Congress did not challenge the President’s authority to deploy the military in Haiti. An outright invasion was aborted at the eleventh hour, following a last minute diplomatic accord between former President Carter and the military junta. As a result of the accord, United States forces landed peacefully in Haiti with the fully cooperation of the military regime.
In 1998 President Clinton invoked his Commander in Chief powers to launched air strikes against targets in Sudan and Afghanistan in retaliation for their involvement in terrorist attacks on United States embassies in Dar es Salaam and Nairobi. The President acted under a cloud of controversy surrounding his affair with Monica Lewinsky. Some members of Congress criticized the President for using the military at a time when the Congress was occupied with his impeachment hearings. However, Congress as a body supported the President’s action.
Soon after the terrorist attacks on the World Trade Center in New York, and the Pentagon in Washington on September 11th, President Bush called it an act of war and said that the United States would retaliate. Given the magnitude of the attacks on the United States, it was natural for Congress to rally behind the President, as is expected in emergence situations. The attacks on America gave way to unprecedented bipartisanship in Congress. On September 14th Congress passed a joint resolution granting the President authority to use the armed forces against those responsible for the recent attacks against the United States.[47] The resolution was pro forma, and not legally binding on the President. President Bush had the legal authority to act with or without Congressional authorization.[48] The joint resolution was basically symbolic, designed to show the world that the country was united in time of crisis. At the time of writing the President had authorized a bombing campaign against Afghanistan and is likely to follow with a ground invasion.
Conclusion
When the Framers of the Constitution debated war powers they were concerned that the decision to go to war would not be in the hands of one person, hence, they divided the powers to go to war between Congress and the President. The Framers gave Congress the power to declare war and made the President the Commander in Chief. More than two hundred year after the Constitution was adopted, Congress and the President continue to wrestle with the issue of who has supremacy in the area of war-making. The federal courts have not seen it fit to clarify this important legal issue.[49] Over time the power of the Presidency has grown in foreign affairs and the President has assumed a greater role in managing the external relations of the nation. The threat to national security has also expanded to include issues that the Framers did not anticipate, such drug trafficking, terrorism and transnational criminal activities. This unforeseen expansion in the threat to national security has simultaneously led to an increase in Presidential war powers.[50]
In addition, the advent of nuclear weapons, coupled with the expanded role of the United States in world affairs, has made the President’s role in foreign affairs more urgent. The President needs the authority to respond to threats to national security immediately and with extreme secrecy. Reliance on Congress is likely to complicate the operation and place U.S. personnel in danger. Given the changing international environment, coupled with a more influential role for the United States in international affairs, the President needs the authority to act without Congressional restrictions.[51] More importantly, increasing reliance by the President on the military to carry out international humanitarian missions is blurring the distinction between military and civilian activities. The military is frequently called upon by the President to respond international emergence situations that from time to time may lead to into situations of hostility, it would be difficult to expect the President to seek authorization from Congress ever time he needs to respond to situation humanitarian situations. This new development has further complicated the constitutional role of both the President and Congress and make it more difficult to determine when the President has actually over step his authority. Unlike two centuries ago when the Framers drafted the Constitution, foreign relations today is a complex web of inter-connected issues that are difficult to compartmentalize into military and non-military matters. The Framers of the Constitution could not have conceived this new development that would increase the President’s role in foreign affairs.
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