The President, as Commander in Chief of the Armed Forces of the United States, has full control over the use thereof. He also has authority to conduct the foreign relations of the United States. Since the beginning of United States history, he has upon numerous occasions utilized these powers in sending armed forces abroad. The preservation of the United Nations for the maintenance of peace is a cardinal interest of the United States. Both traditional international law and article 39 of the United Nations Charter and the resolution pursuant thereto authorize the United States to repel the armed aggression against the Republic of Korea.* * *

The continued defiance of the United Nations by the North Korean authorities would have meant that the United Nations would have ceased to exist as a serious instrumentality for the maintenance of international peace. The continued existence of the United Nations as an effective international organization is a paramount United States interest. The defiance of the United Nations is in clear violation of the Charter of the United Nations and of the resolutions adopted by the Security Council of the United Nations to bring about a settlement of the problem. It is a threat to international peace and security, a threat to the peace and security of the United States and to the security of United States forces in the Pacific.

These interests of the United States are interests which the President as Commander in Chief can protect by the employment of the Armed Forces of the United States without a declaration of war.23

While there was considerable debate in Congress on the legality of the President's action, the issue became blurred because the action was taken under the auspices of the United Nations.

Some find significance in the fact that the administration avoided the use of the word "war" to describe hostilities in Korea, referring to it instead as a "police action":

Attempts were made to justify the decision on the grounds, inter alia, that the action was taken under the United Nations Charter, a part of both the treaty and international law which the President is constitutionally empowered to execute, and that the President was protecting "the broad interests of American foreign policy." Significantly, though, constant attempts were made by the administration to describe the conflict, not as a "war," but as a mere "police action," suggesting that, indeed, the President's power to use force to protect such interests was somehow limited to military measures short of war.

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D. STATIONING OF UNITED STATES FORCES ABROAD IN TIME OF PEACE

In addition to sending troops abroad in times of hostilities, the President has also stationed forces abroad in time of peace and in the absence of any fighting. The period since the close of World War II furnishes numerous examples of the sending of U.S. troops overseas.25 However, the years immediately preceding the Second World War also afford three examples of the dispatch of forces to foreign territory in time of peace for strategic reasons. All of them occurred before the United States became a belligerent.

The first instance was the occupation by U.S. troops of the naval and air bases acquired from Britain in exchange for 50 destroyers. The bases were acquired through an executive agreement that was not submitted to the Senate for approval. The exchange was effected between the Governments and, on September 3, 1940, the President informed Congress of the action taken.

23 Authority of the President to Repel the Attack in Korea, Department of State Memorandum of July 3, 1950. Department of State Bulletin v. 23, July 31, 1950, pp. 173, 176-177. 24-Harvard Law Review, op. cit., p. 1972.

25 In Appendix I-B are listed major U.S. armed actions overseas, other than declared wars, together with related actions by the Congress.

The war in Europe had left Greenland in an uncertain status after Germany invaded Denmark. The strategic position of the island made it important to both Great Britain and Germany. On April 10, 1941. the Secretary of State announced the text of an agreement signed by himself and the Danish Minister the day before. It was announced that Greenland would be occupied by American troops.

Iceland, an independent sovereign State, had been occupied by British troops. Through an exchange of letters, sometime in June 1941, President Roosevelt and the Prime Minister of Iceland, apparently arranged for American troops to replace British troops. The landing of U.S. troops was reported to Congress by the President in a special message on July 7, 1941, the same day the forces landed. The President transmitted the documents to Congress "for information" and did not request any action.

Among postwar experiences involving U.S. troops abroad in time of peace, the question of sending additional troops to Europe in early 1951 was clearly a landmark case. The "Great Debate" over troops to Europe grew up gradually after President Truman's announcement in September 1950 that he planned to send additional ground troops to Europe as part of the projected buildup of NATO forces there. Senator Taft's speech attacking the Administration for formulating foreign policy without consulting the Congress or the people, delivered in the Senate on January 5, 1951, marked the beginning of a Senate preoccupation with the issue which lasted through the adoption of S. Res. 99 three months later.26 This resolution, adopted April 4, 1951, expressed approval of "present plans to send four additional divisions of ground forces to Western Europe," but stated it was the sense of the Senate "that no ground troops in addition to such four divisions should be sent to Western Europe *** without further congressional approval." The resolution also expressed support of General Eisenhower's appointment as NATO commander, the sense of the Senate regarding future military contributions by Italy, Germany and Spain, and the sense of the Senate on a number of consulting and reporting procedures involving the President, the Joint Chiefs of Staff, the NATO Commander and the Congress.

Since the Troops-to-Europe resolution was adopted, the President has not raised the issue of further ground troops for Europe beyond the additional four divisions specified. There has thus been no direct test of whether the "further Congressional approval" specified in the resolution would in fact have been sought. The "Great Debate" seems to have resulted in something of a draw between the President and the Congress an occurrence itself which was unusual in a long period of generally declining congressional power on the issue vis-a-vis the President.

The sending of troops abroad in the absence of hostilities poses somewhat different issues than the sending of troops into a conflict.

One school of opinion, over the years, has held that the President as Commander in Chief, and perhaps with certain inherent and executive powers, can station armed forces overseas in peacetime as he sees fit, without the need to obtain congressional authorization.

26 The text of S. Res. 99 is included in Appendix 1V.

Writing in 1929, W. W. Willoughby, professor at Johns Hopkins University, asserted that the President had exclusive discretion to send forces outside the country in time of peace, although he cited Elihu Root as a contrary authority:

There has been no question as to the constitutional power of the President of the United States, in time of war, to send troops outside of the United States when the military exigencies of the war so require. This he can do as Commander in Chief of the Army and Navy, and his discretion in this respect can probably not be controlled or limited by Congress.

As to his constitutional power to send United States troops outside the country in time of peace, when this is deemed by him necessary or expedient as a means of preserving or advancing the foreign interests or relations of the United States, there would seem to be equally little doubt, although it has been contended by some that the exercise of this discretion can be limited by congressional statute. That Congress has this right to limit or to forbid the sending of United States forces outside of the country in time of peace has been asserted by so eminent an authority, as Ex-Secretary Root. It would seem to the author, however, that the President, under his powers as Commander in Chief of the Army and Navy, and his general control of the foreign relations of the United States, has this discretionary right constitutionally vested in him, and, therefore, not subject to congressional control. Especially, since the argument of the court in Myers v. United States (272 U.S. 52), with reference to the general character of the executive power vested in the President, and, apparently, the authority impliedly vested in him by reason of his obligation to take care that the laws be faithfully executed, it is reasonable to predict that, should the question be presented to it, the Supreme Court will so hold. Of course, if this sending is in pursuance of express provisions of a treaty, or for the execution of treaty provisions, the sending could not reasonably be subject to constitutional objection."

Forty years later, in 1969, the Department of State expressed a similar view of presidential prerogative:

As Commander in Chief, the President has the sole authority to command our Armed Forces, whether they are within or outside the United States. And, although reasonable men may differ as to the circumstances in which he should do so, the President has the constitutional power to send U.S. military forces abroad without specific congressional approval."

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Others assert that congressional approval is necessary for sending troops to foreign countries under certain circumstances. One such circumstance cited is where there is a danger of war. Sending troops overseas in such a case, it is sometimes held, would be unconstitutional because only the Congress has the power, under the Constitution, to declare war. Similar circumstances requiring congressional approval in the views of some, include cases when the troops might be employed provocatively or offensively.

In response to a query made by a Member of the Congress on June 3, 1940, on whether the President of the United States had the authority under existing law to order Federal troops into service outside of the possessions of the United States, the Judge Advocate General of the Army stated:

He (the President) may not raise armies. This the Congress is responsible for doing (Constitution, art. I, sec. VIII, clause 12). Once raised, an army of the United States is under the sole and exclusive direction of the President. Their movement and implementation is at the President's discretion, limited only by whether or not an intended use would constitute an initiation or declaration of war by the President, if carried through.29

27 The Constitutional Law of the United States (2d ed.) New York, 1929, vol. III, p. 1567.

28 Comments on Senate Resolution 85 (the "National Commitments" resolution). Memorandum accompanying letter of March 10, 1969, from William B. Macomber, Jr., Assistant Secretary of State for Congressional Relations, quoted in National Commitments Report, op. cit., p. 35.

29 Memorandum to the Adjutant General, June 17, 1940.

It would appear from this memorandum that the President could not move troops if the purpose in so doing was to initiate or declare

a war.

Edwin L. Bochard, writing in 1945, maintained that congressional consent was required if war was a possibility:

His action in landing troops for the protection of American citizens * * * is limited to small, backward, or weak countries, where the American citizen or his property is in immediate danger or where the intervention is assented to, where small forces are involved, and where the activity could not possibly lead to war. If the President even faintly suspects that intervention might lead to war, it is his duty, as President Wilson undertook in the Vera Cruz expedition of 1914 against Mexico, to obtain the consent of Congress for his proposed enterprise *** 30

The War Powers Resolution in Section 4 covers the introduction of U.S. Armed Forces into three peacetime situations as well as into hostilities:

(1) into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.

In any event, Congress has an effective voice in determining policy on the stationing of troops abroad in peacetime through the legislation authorizing and appropriating funds for the armed services. The Department of Defense Appropriation Authorization Act, 1975 (P.L. 93-365, approved August 5, 1974) for example, authorized the end strength of active duty personnel for each of the branches of the armed forces. It required the reduction of noncombat components of the total U.S. military strength in Europe to be reduced by 18,000 and authorized the increase in the combat component strength by the same amount as the reduction.

As another example, Congress has legislated that no member of an armed force may be assigned to active duty on land outside the United States and its territories and possessions until he has had a specified period of basic training or its equivalent.31

30 The Charter and the Constitution, 39 American Journal of International Law, pp. 767, 768-769 (1945). 31 10 U.S.C. 511 (d), 671. See also U.S. Congress. House. Rept. 94-488, p. 65.

V. LIMITATIONS ON THE PRESIDENT'S USE OF TROOPS ABROAD

A. DECLARATION OF WAR

The framers of the Constitution vested in Congress the sole power to declare war.1 The President's power to order military action prior to consultation of Congress was allowed for, it can be deduced from debates, only in one specific situation, namely, to repel sudden attacks on the United States. However, armed conflict between nations without a declaration of war is becoming more commonplace, and recent practice indicates that a formal declaration of war is no longer necessarily issued, even by nations engaging in extended hostilities. The Harvard Law Review states:

Though there may have been a time when *** changes in legal status were uniquely the result of a formal declaration [of war] this is clearly no longer true today. Countries have long engaged in undeclared hostilities which in terms of the effort involved, the impact on citizens, and the effect on domestic and international legal relations are often indistinguishable from a formally declared war. *** the formal declaration of war in the modern context is often deliberately avoided precisely because of the apparent commitment to total victory and the general hardening of attitudes likely to result."

The international implications of declaring or not declaring war in time of hostilities do not constitute the key issue in this study. The main question is the division of the war power between Congress and the President. How significant a limitation on the President's power has been the requirement for a declaration of war by Congress in the past?

The precedents show that Congress has never refused to declare war when requested by the President and also that several major military actions have been undertaken without such a declaration. Prior to the conflict in Vietnam, five out of ten serious and extended engagements of force against other nations were conducted by the United States without a formal declaration of war. Those engagements which took place without any congressional declaration are: the undeclared naval war with France, 1798-1800; the First Barbary War, 1801-05; the Second Barbary War, 1815; the American-Mexican hostilities, 1914-17: and the Korean War, 1950-53. Those conflicts in which war was declared are: The War of 1812; the Mexican War; the SpanishAmerican War; and the First and Second World Wars.3

Although Congress has "declared war" in the sense that a formal resolution has been enacted, four of the five "declarations" have recognized the prior existence of war. The only exception was the War of 1812. The declaration of war in 1812 provided that

1 The Supreme Court has noted that "the whole powers of war [are] by the constitution of the United States, vested in congress." Talbot v. Seeman (1801) 1 Cr. 28.

2 Harvard Law Review, op. cit. p. 1772. Formal declarations of war were made against Israel by Algeria, Iraq, Kuwait, Sudan and Syria on June 5, 1967.

3 See Appendix I. Rogers, J. G. op. cit. p. 45 ff.