War be and the same is hereby declared to exist.

The others either recognized the existence of war by the act of some other State, as in the Mexican War and the First and Second World Wars, or recognized the existence of war as of some previous date, as in the Spanish-American War. The declaration of war against Mexico of May 13, 1846, provided that

whereas, by act of the Republic of Mexico, a state of war exists * * *.5

In the case of the Spanish-American War, the declaration of April 25, 1898 provided

*** that war be, and the same is hereby declared to exist, and that war has existed since the twenty-first day of April *** between the United States of America and the Kingdom of Spain * * **

Several significant court cases make the point that a state of war can exist without a formal declaration of war by the Congress. The first is Hamilton v. McClaughry, arising out of American participation in quelling the Boxer uprising. A corporal, tried and convicted by a United States court martial in Peking, contended that at the time of the homicide of which he was convicted, there prevailed neither war, insurrection, nor rebellion, and that the military court which had tried him was without jurisdiction and its judgment void. The court said:

*

* In

Again, it is the well-settled law that the existence of a condition of war must be determined by the political department of the Government; that the courts take judicial notice of such determination and are bound thereby. * the present case, at no time was there any formal declaration of war by the political department of this Government against either the Government of China or the "Boxer" element of that Government. A formal declaration of war, however, is unnecessary to constitute a condition of war. *** The question here is whether this Government was, at the time of the commission of a homicide by petitioner, prosecuting its right in Chinese territory by force of arms. * * * The first duty of a state is the protection of the lives and property of its citizens wherever lawfully situated, by peaceable means if possible; if not, by force of arms. More especially must this protection be afforded the representatives of this Government in a foreign country.'

Another is the case of New York Life Insurance Company v. Bennion, arising out of the attack on Pearl Harbor. Mrs. Bennion brought action against the New York Life Insurance Co. for double indemnity payment on the policy held by her husband. Captain Bennion, commanding officer of the U.S.S. West Virginia, was killed on the bridge. of his ship on December 7, 1941, during the attack on Pearl Harbor. The insurance policy provided double indemnity for accidental death, but not for death resulting from "war or any act incident thereto."

42 Stat. 755.

59 Stat. 9. The declaration of war of April 6, 1917, provided "that the state of war between the United States and the Imperial German Government which has been thrust upon the United States is hereby formally declared." (40 Stat. 1). The declaration of December 8, 1941, provided: "Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it resolved *** that the state of war between the United States and the Imperial Government of Japan which has been thrust upon the United States is hereby formally declared ***" (55 Stat. 795). The declaration of war of December 11, 1941, against Germany provided: "Whereas the Government of Germany has formally declared war against the Government of and people of the United States of America: Therefore has it resolved *** that the state of war between the United States and Germany which has been thrust upon the United States is hereby formally declared" (55 Stat. 796). The declaration of war against Italy of December 11, 1941, followed the same form as that against Germany (55 Stat. 797).

630 Stat. 364.

7136 Fed. 445, 449-450 (1905).

The problem was whether the existence of war is dependent upon a formal declaration by the Congress.

The Court said:

No one denies the grim reality that the attack beginning December 7, 1941, at about 7:30 a.m. Honolulu time, marked the commencement of an armed conflict between two sovereign nations which ended only when the Japanese surrendered nearly 4 years later. Furthermore, it seems to be agreed that the existence or nonexistence of a state of war is a political question, to be determined by the political department of our Government. The basic difference lies in the contention on the one hand that a formal declaration by the Congress, which alone has the constitutional power to declare and make war, is an essential prerequisite to judicial cognizance of its existence; and the contention on the other hand, that the existence of a war is not dependent upon its formal declaration but rather is determinable from an appraisal of actualities; that the formal declaration by Congress on the day after the attack was merely a formal recognition of that which was already actually in existence.

When one sovereign nation attacks another with premeditated and deliberate intent to wage war against it, and that nation resists the attacks with all the force at its command, we have war in the grim sense of reality. It is war in the only sense that men know and understand it. Mankind goes no further in his definitive search-he does not stand on ceremony or wait for technical niceties.

Let us suppose that Congress was not in session on December 7th when the Japanese attacked, and could not convene for 30 days, therefore could not and did not formally declare or recognize a state of war until January 8, 1942. Meanwhile, the President, acting in his capacity as Commander and Chief of the Armed Forces, took all available measures, not only to repel the invasion, but waged, as we did an offensive war at Midway and throughout the Pacific. And let us suppose that the insured here had been killed on January 7, 1942, in one of the many sea battles which raged over the Pacific immediately after the Pearl Harbor attack. In these circumstances it cannot be denied that the acts and conduct of the President, acting in furtherance of his constitutional authority and duty, would constitute a political determination of a state of war of which the courts would take judicial notice. We can discern no demonstrable difference in the supposition and the actual facts, and we therefore conclude that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political détermination of the existence of a state of war commencing with the attack of Pearl Harbor.8

In the case of Youngstown Sheet and Tube Co. v. Sawyer, in which it was decided by the Supreme Court that the President did not have the authority to seize steel mills on the basis of his role as Commander in Chief, during the Korean conflict, Mr. Justice Jackson in his concurring opinion, recognized that "a state of war may in fact exist without a formal declaration."

Thus, while certain judicial decisions have deemed that a state of war can exist without a formal declaration of war, there has not been an attempt to apply this judgment to the respective war powers of the President or the Congress. In the instances cited, the determination of the existence of a state of war depended on the context. The Harvard Law Review article points out that a precise definition of the term "war" is not feasible:

Despite occasional judicial attempts to discover a unique, general legal definition applicable in all contexts, it seems clear that no verbal formula can identify one class of armed hostilities as properly subject to rules and considerations wholly different from those applicable to other classes. At best "war" will assume different meanings depending on the context which prompts the investigation, whether it be the interpretation of a contract, a life insurance policy, a statute, or a constitution.

Moreover in April 1970, the U.S. Court of Military Appeals decided that the conflict in Vietnam was not to be considered "time of war" for

8158 F.2d 260, 262, 264 (1946).

72 S. Ct. 863 (1952).

the purposes of Article 2(10) of the Uniform Code of Military Justice. In this instance, a civilian had been tried by a military court on the grounds that the offense of attempting to steal 36,000 government-owned batteries in Vietnam had been committed in "time of war." In a column in the Washington Post, Merlo Pusey cites the reasoning of Judge Darden for the Court's reversal of the conviction:

We emphasize our awareness that the fighting in Vietnam qualifies as war as that word is generally used and understood. By almost any standard of comparison-the number of persons involved, the level of casualties, the ferocity of the combat, the extent of the suffering, and the impact on our nation, the Vietnamese armed conflict is a major military action. But such a recognition should not serve as a shortcut for a formal declaration of war, at least in the sensitive area of subjecting civilians to military jurisdiction.10

After noting that the issue of whether a state of war could exist without formal declaration had been settled, one authority adds:

But the issue so much a source of controversy in the era of the Cold War and so divisive politically in the context of United States involvement in the Vietnamese War has been whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such declaration. The Supreme Court has studiously refused to consider the issue in any of the forms in which it has been presented and the lower courts have generally refused, on "political question" grounds to adjudicate the matter."

In Atlee v. Richardson, a case challenging the constitutionality of the Vietnam War, the Supreme Court summarily affirmed a dismissal of the suit on political question grounds by a three-judge district court.12 In Holtzman v. Schlesinger Justice Marshall with the concurrence of seven Justices imposed a new stay against a district court injunction prohibiting United States military action in Cambodia after Justice Douglas had vacated the stay of an appeals court.1

13

National emergency.-By enacting legislation which authorizes certain activities in time of "national emergency," Congress itself has enabled the President to take action which would have been possible only under a declaration of war.

According to a publication by the Executive Office of the President : Many statutes provide that the powers they confer may be exercised during a national emergency proclaimed by the President.

By Proclamation No. 2914 of December 16, 1950, President Truman proclaimed the existence of a national emergency. He affirmed the continued existence of that national emergency by Proclamation No. 2974 of April 28, 1952. President Eisenhower (Executive Order Nos. 10896 and 10905), President Kennedy (Executive Order No. 11037), and President Johnson (Executive Order No. 11387) expressly recognized the continuance of that national emergency. No action has been taken by the President or the Congress to terminate that national emergency. Consequently, the powers provided by those statutes may be exercised whenever there is a need for such exercise.

*** Certain statutes provide that the powers they confer may be exercised in a national emergency proclaimed by the President on a date subsequent to December 16, 1950. These powers are not available for exercise on the basis of the national emergency proclaimed by Proclamation No. 2914 of December 14, 1950.1

The majority of these statutes concern the President's powers over domestic affairs. One statute in particular affects the President's use

10 Washington Post, April 16, 1940: A20.

11 U.S. Congress. Senate. The Constitution of the United States of America. Analysis and Interpretation. S. Doc. 92-82. Washington, U.S. Govt. Print. Off., 1973. p. 328. 12 411 U.S. 911 (1973), aff'g. 347 F. Supp. 689 (D.C.E.D. Pa. 1972).

13 414 U.S. 1304 (1973), Marshall, Douglas dissenting, 1316-1321.

14 Guide to Emergency Powers Conferred by Laws in Effect on January 1, 1969. Office of Emergency Preparedness. Executive Office of the President. p. ii.

of troops abroad because it deals with the number of reserves which may be called up.

In time of war or national emergency declared by Congress (or when otherwise authorized by law) any reserve unit or member of the ready reserve may be ordered to duty for duration of the war or emergency and for six months thereafter.15 In time of national emergency declared by the President after January 1, 1953 (or when otherwise authorized by law), any reserve unit or member of the ready reserve may be ordered to active duty for not more than 24 consecutive months; however, not more than 1,000,000 members of the Ready Reserve may be on active duty (other than for training), without their consent, at any one time. 16°

In 1972 the Senate created the Special Committee to Study the Termination of the National Emergency which recommended legislation regulating the exercise of national emergency power. In September 1975 the House passed legislation providing for the termination of the four outstanding proclamations of national emergency, thus effectively deactivating the statutory authorities triggered by them, and providing procedures for the implementation and termination of national emergency declarations in the future. Similar legislation had been passed by the Senate in the 93rd Congress.

In view of this prospect of the termination of long-existing declarations of national emergency, legislation was proposed whereby the President could call up to 50,000 reservists for up to 90 days without a declaration of war or proclamation of emergency.17

B. OTHER POWERS OF CONGRESS

Under the Constitution, Congress possesses a variety of powers in addition to the power to declare war which can be used to limit the President's ability to deploy U.S. forces overseas and to commit them to combat. The late Professor Edward S. Corwin expressed the potentially overwhelming power of the Congress in these terms:

The point is that the sort of foreign policy which present-day conditions require can never be kept going by attributing to the President, as in the past, the simple power to order the Navy around without consulting Congress. Far otherwise: Congress must be constantly asked to exercise powers which no President has ever ventured to exercise on any scale-the power to tax, to pledge the credit of the United States, to raise armies, to regulate commerce, and so forth and so forth. And if Congress cannot be persuaded to back Presidential policy by bringing these powers to its support, then-the idea of a Presidential coup d'etat being dismismissed the policy fails, and that is all there is to it.18

W. Taylor Reveley III, writing in 1969, summarized a large number of potential congressional restraints on the President:

**In Richard Neustadt's words, we have "a government of separated institutions sharing powers." Thus, virtually all presidential programs and ventures require implementing legislation and funding. Unlike parliamentary executives, the President has no ultimate weapons, such as dissolution or excommunication from party ranks, with which to beat reluctant legislators into submission. As a result, an abiding concern of the Executive and his assistants is the likely reaction of Congress to their proposals and actions.

15 10 U.S.C. 672.

16 10 U.S.C. 673.

17 U.S. Congress. Senate. Committee on Armed Service, Subcommittee on Manpower and Personnel. Reserve Call-up. Hearings, 94th Cong., 1st sess., on S. 2115, July 30, 1975. 18 Corwin, op. cit., p. 222.

Legislators have a number of tools with which to restrain the President. Through legislation, they can restrict his options, hamstring policies and, to an extent, even take the policy initiative from him. It has been suggested that Congress is presently attempting to control the Executive by qualified legislation more than in the past, and the movement headed by Senator Fulbright, if successful, would certainly reduce presidential freedom in foreign affairs. Through the power of the purse, the legislators can similarly limit the President. Although control of the purse has been virtually a nonpower in the hands of cold war Congresses when funds were sought for the military, present reluctance to embark on major defense spending and criticism of the military establishment suggest that appropriations may engage anew as a limiting factor. A few voices have even been heard to suggest that funds supporting troops in the field be cut-traditionally, an unthinkable position.

The power of congressional committees to investigate and oversee, as the 1967 Fulbright hearings indicate, provides a means of sparking national debate, molding opinion and thereby influencing presidential action. Activity within Congress can frequently focus outside political pressure and bring it to bear on the Chief Executive. Similarly, legislators can work the political process privately as well, communicating quietly with the President to persuade him that his ideas are ill-advised or subject to great potential opposition. Congress can also work in tandem with rebellious elements in the bureaucracy to thwart presidential initiatives. Remote though the possibility is, the President must remain aware of the congressional capacity to impeach him or to censure his conduct by resolutiona fate that befell Polk at the hands of a House disturbed by his role in initiating the Mexican War. The President is also continually hemmed in by the play of the political system-by sniping from members of the opposition party and by the demands and feelings of members of his own party.

Finally, the Senate is constitutionally empowered to advise and consent to presidential treaties and appointments and has devised the power to delay and negate by filibuster. These senatorial prerogatives, coupled with the power of Congress over the legislation and appropriations necessary to implement the President's foreign policies, constitute the primary restraints on his action.1o

Other specific congressional acts which can limit the President, some of them covered generally in the foregoing quotation, include the termination of war, as the Congress did by joint resolution after World War I; the termination of a state of national emergency; the refusal to confirm both civilian and military appointments; the establishment of manpower ceilings for the armed forces; the prohibition of military service by draftees outside of certain areas; the enactment of neutrality legislation; and the restriction of various types of legislation associated with possible military involvement overseas, such as bilateral military and economic aid and military sales and credit programs.

Raise and support armies.-The powers to raise and support armies and provide and maintain a Navy, coupled with the power to appropriate funds, enable Congress to play a major role in shaping policy on the use of armed forces abroad.

Except for Lincoln's actions, Presidents have used only the forces available to them.20 The President's power is restricted to these forces, and Congress can refuse to "raise and support" additional forces for purposes it does not approve. In time of war, however, the situation has been different, and Congress has usually afforded the President broad powers. Corwin observed on this point in 1948 that:

Actually, Congress has never adopted any legislation that would seriously cramp the style of a President who was attempting to break the resistance of an enemy or seeking to assure the safety of the national forces."

Does the power of Congress to make rules for the government and regulation of the land and naval forces permit the Congress to limit

19 Reveley, op. cit., pp. 1774-1776. Footnotes omitted.

20 See above, 18.

21 Corwin, op. cit., p. 259.