Navy; however, "it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it." 25 The only instance in which the Commander in Chief actually exercised direct command in the field was Washington during the Whiskey Rebellion in 1794.

At times, Presidents have delegated supreme command of the forces in active service. At other times, they have personally exercised command. In 1862, Lincoln ordered a general advance in the hope of stimulating General McClellan to action. In 1945, Truman ordered use of the atomic bomb against Japan. With the growing requirement for close coordination of diplomatic and military undertakings in the post World War II period, Presidents have tended to exert increasing control over military operations.

C. NATURE OF THE CONGRESSIONAL POWER TO DECLARE WAR

According to the Constitution, the power to declare war rests solely in the Congress.

As the Supreme Court said in U.S. v. Macintosh

The Constitution *** wisely contemplating the ever-present possibility of war, declares that one of its purposes is to "provide for the common defense." In express terms Congress is empowered "to declare war," which necessarily connotes the plenary power to wage war with all the force necessary to make it effective; and "to raise *** armies," which necessarily connotes the like power to say who shall serve in them and in what way."

However, while the Congress has the power to declare war, the President as Commander in Chief has the power to make war in the sense of conducting it. This is indicated by the debates in the Constitutional Convention on the question of vesting in Congress the power "to make war":

Mr. Pinkney opposed the vesting this power in the legislature. Its proceedings were too slow ***

Mr. Butler*** He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.

Mr. M (adison) and Mr. Gerry moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr. Sharman thought it stood very well. The Executive shd. be able to repel and not to commence war. "Make" better than "declare" the latter narrowing the power too much."

The word "make" was changed to "declare," and in a Harvard Law Review article, it is concluded that:

At most, the sole reason for the substitution was to confirm the Executive's power "to repel sudden attacks.” In all other cases the commitment of the country to a trial of force with another nation was to remain the prerogative of Congress.2

25 Story, Commentaries, 1492.

26 283 U.S. 605, 622 (1931).

27 Ferrand, Max, ed. The Records of the Federal Convention of 1787 vol. II. New Haven, Yale University Press, 1966, pp. 318, 319.

28 Harvard Law Review, op. cit., p. 1773. In Madison's notes on the Constitutional Convention, a footnote was added to Connecticut's dissenting vote on the motion to change "make" war to "declare":

On the remark by Mr. King that "make" war might be understood to "conduct" it which was an Executive function, Mr. Elseworth gave up his objection (and the vote of Cont. [Connecticut] was changed to-ay). Ferrand, op. cit., p. 319.

The Harvard Law Review article notes that "At least one delegate, Mr. Elseworth, changed his vote when it was pointed out that 'make war' might be construed to give Congress power to 'conduct war' after it had begun a function clearly meant to be given to the Executive." Emphasis added, p. 1773, footnote 16.

Giving further evidence of the intent of the framers, a letter written by Thomas Jefferson to Madison in 1789 stated:

We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.29

W. Taylor Reveley's comments on the Constitutional Convention conclude that:

It seems reasonably clear *** that the Drafters intended decisions regarding the initiation of force abroad to be made not by the President alone, not by the Senate alone, nor by the President and the Senate, but by the entire Congress subject to the signature or veto of the President. The Framers recognized the potentially momentous consequences of foreign conflict and wished to check its unilateral initiation by any single individual or group. Madison expressed this concern early in the Constitutional Convention: "A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them [wars] on the whole." Foreign conflicts, since they involve the entire nation, are to be begun only after both legislative houses and the Executive have been heard, even at the cost of some delay in reaching a decision.

30

In a legal memorandum prepared by the State Department in 1966, Leonard Meeker translates the intent of the framers regarding repulse of a sudden attack into a different context today:

In 1787 the world was a far larger place, and the framers probably had in mind attacks upon the United States. In the 20th century, the world has grown much smaller. An attack on a country far from our shores can impinge directly on the nation's security. *** The Constitution leaves to the President the judgment to determine whether the circumstances of a particular armed attack are so urgent and the potential consequences so threatening to the security of the United States that he should act without formally consulting the Congress."

In 1970 Assistant Attorney General William Rehnquist commented on the Constitutional Convention in a speech on the constitutionality of the President's actions in Cambodia:

An examination of the proceedings of the Constitutional Convention * ** indicates that the framers did not intend to precisely delimit the boundary between the power of the Executive Branch and that of the Legislative Branch. While rejecting the traditional power of kings to commit unwilling nations to war, they at the same time recognized the need for quick Executive response to rapidly developing international situations.32

The Senate Foreign Relations Committee report on the National Commitments Resolution of 1969 granted the President's constitutional powers to "repel sudden attacks" against the United States:

A careful study of the Constitution and of the intent of the framers as set forth in the extensive documentation which they bequeathed to us leaves not the slightest doubt that, except for repelling sudden attacks on the United States, the founders of our country intended decisions to initiate either general or limited

29 Boyd, Jules. ed. The Papers of Thomas Jefferson, Princeton, Princeton University Press, 1955, v. 15, p. 397. 30 Reveley W. Taylor, III. Presidential War-Making: Constitutional Prerogative or Usurpation? Virginia Law Review v. 55, November 1969, p. 1284. In a footnote to this passage, Reveley explains:

In short, an attempt was made to devise a scheme in which war would be entered upon only after measured deliberation, thus avoiding involvement in conflicts where the costs, upon reflection, appeared to outweigh the gains, or where the primary "gains" would be executive aggrandizement or the satiation of popular passion. These checks were intended to insure that the fighting would be supported by most Americans, thus avoiding disastrous internecine struggle within the country over war policy. 31 Meeker, op. cit., pp. 484-85.

32 Rehnquist, William H., Assistant Attorney General, Office of the Legal Counsel, Department of Justice. "The President's Constitutional Authority to Order the Attack on the Cambodian Sanctuaries." Remarks before the Association of the Bar of the City of New York, May 28, 1970, p. 3.

hostilities against foreign countries to be made by the Congress, not by the Executive.33

But the committee did not approve of the extension of Presidential power to the defense of other countries. The report cited a previous committee report on the North Atlantic Treaty, to illustrate the congressional interpretation of the constitutional considerations under the Treaty's provisions:

***Would the United States be obligated to react to an attack on Paris or Copenhagen in the same way it would react to an attack on New York City? In such an event does the treaty give the President the power to take any action without specific congressional authorization which he could not take in the absence of the treaty? The answer to both of these questions is "No."

The committee report on the North Atlantic Treaty also stated: ***The Committee does not believe it appropriate in this report to undertake to define the authority of the President to use the armed forces. Nothing in the treaty, however, including the provision that an attack against one shall be considered an attack against all, increases or decreases the constitutional powers of either the President or the Congress or changes the relationship between them. The report on the commitments resolution added the following comments:

There seems to have been general agreement that the *** postwar security treaties did not change the relative powers of Congress and the President with respect to the use of the armed forces. There was little agreement, however, on what exactly those relative powers were * * * because, as the trend toward executive control accelerated, constitutional considerations were neglected and the de facto power of the President came to be accepted as a constitutional power.34

Congressional concern over the manner in which United States troops became involved in the Vietnam War intensified after the Cambodian incursion of 1970 and further study was given to the division of the war powers intended under the Constitution. In the 91st Congress the House passed a war powers bill and in the 92d Congress both the Senate and the House passed legislation designed to reassert and define the congressional role in undeclared wars, but the two bodies came to no agreement in conference. In 1973 agreement was reached and the Congress passed the War Powers Resolution (P.L. 93-148) over the veto of the President. The purpose of the resolution of which the full text is printed in the appendix is

to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

The constitutional powers of the President as Commander in Chief to introduce U.S. Armed Forces into hostilities or situations in which involvement in hostilities is imminent, the resolution states, are exercised only pursuant to:

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

33 U.S. Congress. Senate. Committee on Foreign Relations. National Commitments. (91st Congress, 1st session. Senate. Report no. 91-129), p. 30-31. Washington, U.S. Govt. Print. Off., 1969.

34 Ibid., p. 47.

Requirements in the resolution that the President consult with and report to Congress prior to and after such use of troops, and that Congress authorize the continued use of troops beyond 60 or 90 days, are discussed below under the section, "Limitations by Congress."

IV. PRECEDENTS IN THE USE OF FORCES BEYOND THE NATIONAL

BOUNDARY

The power of the President as Commander in Chief has been exercised to send troops abroad on many occasions-sometimes under a declaration of war, sometimes with other types of congressional authorization or support, and sometimes without congressional sanction. Authorities differ on the number of instances in which American troops have been landed abroad for the protection of American interests. A State Department list of armed actions taken by the United States without a declaration of war showed a total of 137 such actions. In his doctoral thesis, "The United States Congress and the Power to Use Military Force Abroad," Robert William Russell compiled a list of the uses of American military force abroad from 1789-1967, which had 144 entries. The author assigned no numbers to the incidents, however, and gave no totals, "because the figures would be meaningless without further analysis."

1

A list prepared under the direction of Senator Barry Goldwater contained 199 instances of U.S. military hostilities abroad, without a declaration of war, from 1798 to 1972.2 The differences in numbers between these lists, and between them and others, reflect individual differences over the kinds of actions to be included. Appendix I of this report represents a judgment as to which U.S. armed interventions overseas represented major military actions. It is divided into actions which were declared wars and those which were unaccompanied by a formal declaration of war, for which relevant congressional action is noted. Appendix II is a more comprehensive list of such military actions, both major and minor, drawn from a number of sources.

The number of troops involved in these incidents of the application of military force varies greatly. They range from a few sailors or marines landed to protect American lives and property, to hundreds of thousands in Vietnam and to millions in World War II. Most applications of force were of short duration, although some, like Korea or Vietnam, lasted a number of years. Those undertaken at Presidential initiative were often backed up by subsequent congressional action. Some of these incidents, whether supported by congressional action or not, developed into situations analogous to war.

A. PROTECTION OF LIVES AND PROPERTY

Many of the actions not involving a declaration of war have directly concerned the protection of American lives and property.

1 Armed Actions Taken by the United States Without A Declaration of War, 1789-1967. Research Project 806A. Historical Studies Division, Historical Office, Bureau of Public Affairs. Department of State, August 1967, 30 pp.

2 Goldwater. Barry. War Without Declaration. A Chronological List of 199 U.S. Military Hostilities Abroad Without a Declaration of War. 1798-1972. Remarks in the Senate. Congressional Record, v. 119, July 20, 1973: S14174-14183.