the President's power as the Commander in Chief? As indicated above in the case of Swaim v. U.S., the Court of Claims stated that these two powers are distinct:

Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress cannot take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power "to make rules for the government and regulation of the land and naval forces"; but the two powers are distinct; neither can trench upon the other; the President cannot, under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed; and Congress cannot in the disguise of "rules for the government" of the Army impair the authority of the President as Commander in Chief.22

The statement does not define what the President's authority as Commander in Chief is, and the specifics of the case appear to have limited applicability. The Court sustained the President in establishing a court martial of his own to try the Judge Advocate General, which was neither provided for nor expressly prohibited by statute.

However, there would appear to be a difference between the potential power of the Congress and the limitations on sending troops abroad that Congress has actually placed on the President in the past. There are instances in which Congress has placed limitations on the President. In selective service legislation Congress has in fact limited the power of the President to use the forces made available to him. Section 3 (e) of the Selective Training and Service Act of 1940 provided that:

Persons inducted into the land forces of the United States under this Act shall not be employed beyond the limits of the Western Hemisphere except in the Territories and possessions of the United States, including the Philippine Islands.

On December 13, 1941, this provision was suspended "during the existence of any war in which the United States is engaged, and during the 6 months immediately following the termination of any such war"; in 1946 it was repealed. In 1945 Congress extended the operation of the Selective Training and Service Act of 1940 and inserted the following proviso:

And provided further, That no man under nineteen years of age who is inducted into the land or naval forces under the provisions of this Act shall be ordered into actual combat service until after he has been given at least six months of military training of such character and to the extent necessary to prepare such inductee for combat duty; this proviso shall not be construed as preventing the assignment of enlisted men of the Navy or Coast Guard and the Reserve components thereof to duty for training on combat vessels of the Navy or Coast Guard and at naval bases beyond the continental limits of the United States.

Most of the limitations of this type are relatively recent, however. During the Vietnam War Congress used restrictions in authorization and appropriation legislation as an effective instrument for bringing about the end of participation of U.S. forces in the war.

Beginning in 1969 restrictions in funding legislation were used to prevent extension of the geographic area in which U.S. forces were participating in hostilities and ultimately to bring about the withdrawal of U.S. forces from Vietnam completely.

Section 643 of the Department of Defense Appropriation Act, 1970 (P.L. 91-171), approved December 29, 1969, and several pieces of subsequent legislation 23 provided:

22 28 Court of Claims 173. 221: affirmed 100 U.S. 553 (1897).

23 P.L. 91-668, P.L. 92-204, P.L. 92-570.

In line with the expressed intention of the President of the United States, none of the funds appropriated by this Act shall be used to finance the introduction of American ground combat troops into Laos or Thailand.

Section 7 of the Supplemental Foreign Assistance Authorization Act of 1970 (P.L. 91-652), approved January 5, 1971, provided:

In line with the expressed intention of the President of the United States, none of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia.

Section 601 of the Military Procurement Authorization, Fiscal Year 1972 (P.L. 92-156), approved November 17, 1971, stated:

It is hereby declared to be the policy of the United States to terminate at the earliest practicable date all military operations of the United States in Indochina, and to provide for the prompt and orderly withdrawal of all United States military forces at a date certain, subject to the release of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government and an accounting for all Americans missing in action who have been held by or known to such Government or such forces.

Section 307 of the Second Supplemental Appropriation Act, Fiscal Year 1973 (P.L. 93-50, approved July 1, 1973) provided:

None of the funds herein appropriated under this Act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam and South Vietnam or off the shores of Cambodia, Laos, North Vietnam and South Vietnam by United States forces, and after August 15, 1973, no other funds heretofore appropriated under any other Act may be expended for such purposes.

Section 108 of the Continuing Appropriations Act, Fiscal Year 1974 (P.L. 93-52, approved July 1, 1973) similarly provided:

Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia. This provision was amended and extended in subsequent authorization and appropriation legislation.24

Use of the Ready Reserve.-In 1952 Congress granted the President broad authority to increase the size of the active forces significantly without congressional authorization or prior supporting appropriation.25 By declaring a national emergency, the President is authorized by that law to order up to one million fully equipped Ready Reservists to active duty for a period not to exceed 24 months.

Since the President's authority to induct young men into the military service has been terminated and the active forces are not large enough for a major conventional war, the President's power to wage such a war has become largely dependent on this 1952 law. Without it, the President would be compelled to secure specific congressional action in order to mobilize a wartime force.

C. THE WAR POWERS RESOLUTION

Culminating the congressional effort to place limits on the President's use of troops abroad was the passage of the War Powers Resolution 26 on November 7, 1973, over the veto of the President. It wrote

24 P.L. 93-118, P.L. 93-124, P.L. 93-126, P.L. 93-155, P.L. 93-189, P.L. 93-238, P.L. 93-305, P.L. 93-324, P.L. 93-437.

25 10 US.C. 673; Act of July 9, 1952, Ch. 608 § 233 (b), 66 Stat. 489.

28 P.L. 93-148. The text of the War Powers Resolution is contained in appendix IV. 61-285-75

-6

into law that "the constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, 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."

The resolution contained consultation provisions, requiring the President "in every possible instance" to consult with Congress both before introducing troops into such situations and regularly afterwards until the troops have been removed. It required the President to report within 48 hours to the Speaker of the House and the President pro tempore of the Senate after the introduction of troops in three circumstances:

(1) Into hostilities or 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.

The President's report was required to set forth:

(1) The circumstances necessitating the introduction of United States Armed Forces;

(2) The constitutional and legislative authority under which such introduction took place; and

(3) The estimated scope and duration of the hostilities or involvement. The resolution also required the President to provide such other information as Congress might request, and to report to Congress periodically (at least every six months) so long as the troops continued to be engaged in the situation.

The chief limitation, the "teeth" of the resolution, was in section 5, which provided for the termination of the use of U.S. troops abroad both by congressional inaction and by congressional action. Section 5(b) called for any use of troops reported under section 4(a) (1), the introduction of armed forces into hostilities or situations of imminent hostilities, to be terminated automatically within sixty calendar days unless Congress had declared war, enacted a specific authorization for such use, extended the sixty-day period, or was physically unable to meet because of an attack upon the United States. The resolution. authorized extension of the sixty-day period by thirty days upon a written Presidential certification to Congress that "unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”

Section 5 (c) called for the removal by the President of U.S. Armed Forces from any hostilities abroad in the absence of a declaration of war or specific statutory authorization "if the Congress so directs by concurrent resolution."

Priority procedures were established for considering resolutions submited under sections 5(b) or 5(c).

Section 8(a) stated that authority to introduce armed forces into hostilities or situations of imminent hostilities should not be inferred from any provision of law unless it specifically authorized the introduction of armed forces into such situations and stated that it was

intended to constitute such authorization within the meaning of the War Powers Resolution. The resolution stated that such authority was not to be inferred from any treaty unless it was implemented by legislation meeting these same criteria.

Section 8(b) exempted from requiring further statutory authorization participation in the headquarters operations of high-level international military commands established under the United Nations Charter or treaty prior to the War Powers Resolution.

Section 8(c) stated that for the purpose of the War Powers Resolution the term "introduction of United States Armed Forces" included "the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.'

Section 8(d) stated that nothing in the joint resolution was intended to alter the constitutional authority of the Congress or the President or the provisions of existing treaties, or to be interpreted as granting any authority to the President with respect to the introduction of troops which he would not have had in the absence of the joint resolution.

Section 9 was a separability clause, stating that if any provision of the joint resolution or the application of it to any person or circumstance was held invalid, the remainder of the resolution and its applicability to any other person or circumstances was not to be affected.

In his message of October 24, 1973, transmitting his veto, which was overridden by both Houses of Congress on November 7, 1973, President Nixon contended the measure was both unconstitutional and dangerous to the interests of the nation. The message stated:

The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area. They acknowledged the need for flexibility in responding to changing circumstances. They recognized that foreign policy decisions must be made through close cooperation between the two branches and not through rigidly codified procedures.

House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them. Another would allow the Congress to eliminate certain authorities merely by the passage of a concurrent resolution-an action which does not normally have the force of law, since it denies the President his constitutional role in approving legislation.

I believe that both these provisions are unconstitutional. The only way in which the constitutional powers of a branch of the Government can be altered is by amending the Constitution-and any attempt to make such alterations by legislation alone is clearly without force.

While I firmly believe that a veto of House Joint Resolution 542 is warranted solely on constitutional grounds, I am also deeply disturbed by the practical consequences of this resolution. For it would seriously undermine this Nation's ability to act decisively and convincingly in times of international crisis. As a result, the confidence of our allies in our ability to assist them could be diminished and the respect of our adversaries for our deterrent posture could decline. A permanent and substantial element of unpredictability would be injected into the world's assessment of American behavior, further increasing the likelihood of miscalculation and war. 27

27 U.S. Congress. House. Message from the President of the United States Vetoing House Joint Resolution 542. Washington, U.S. Govt Print. Off., 1973. (93d Congress, 1st Session. House. Document No. 93-171.)

The President cited the Berlin crisis of 1961, the Cuban missile crisis of 1962, the Congo rescue operation in 1964, the Jordanian crisis of 1970, and "recent actions to bring about a peaceful settlement of the hostilities in the Middle East" as examples of responses that might not have been possible if the resolution had been in force at the time. Soon after passage Senator Eagleton wrote the Secretary of State requesting the Department's legal evaluation of the resolution's effect and asking to be informed of implementation measures.

On the interpretation, the Department of State replied on November 30, 1973:

It is the Department's opinion that Section 2(c) does not constitute a legally binding definition of the President's Constitutional power as Commander-in-Chief. It is our opinion that this subsection is at most a declaratory statement of policy. The title and language of the entire section, "Purpose and Policy," support this reading as does the text of the subsection itself. Section 2 does not contain language which requires or prohibits any particular action, which is characteristic of mandatory and binding provisions. In addition, the report of the House and Senate conferees itself states that "Subsequent sections of the joint resolution are not dependent upon the language of this subsection, as was the case with a similar provision of the Senate bill (section 3)." If Section 2(c) were a binding definition, it presumably would govern the rest of the resolution, as would have Section 3 of the Senate bill, S. 440.

There are, of course, fundamental questions whether such legislation could, even if so intended, limit the Constitutional authority of the President. Certainly the precedent of past practice supports a wider scope of Presidential authority than that contained in Section 2(c).28

On the question of implementation, the Department stated in a reply of May 10, 1974, that it did not consider any "particular new procedural measures" were necessary."

29

Nevertheless, shortly afterwards, the Chairman of the House Foreign Affairs and Senate Foreign Relations Committees wrote to Secretary of State Kissinger concerning implementation. In a letter of July 16, 1974, they asked the Secretary what arrangements had been made to ensure full and timely compliance with the reporting requirements and suggested staff discussions on details requiring coordination between the executive and legislative branches."

On October 7, 1974, Secretary Kissinger replied that he and Secretary of Defense Schlesinger had agreed that their respective legal counsels would be jointly responsible for bringing to their attention cases which it would be appropriate to report. In addition, a War Powers Reporting System had been established within the Operations Directorate of the Joint Chiefs of Staff for supplying to the counsels of the two departments information on troop deployment actions which could raise a question as to whether a report was required.

Meanwhile, however, one case had occurred which critics contended ought to have been but was not reported under the War Powers Resolution. On July 31, 1974, Senator Eagleton raised the issue in connection

29 Letter of November 30, 1973, to Hon. Thomas F. Eagleton from Marshall Wright, Assistant Secretary of State for Congressional Relations. Congressional Record, December 6, 1973; S22051.

29 Letter of May 10, 1974, to Hon. Thomas F. Eagleton from Linwood Holton, Assistant Secretary of State for Congressional Relations. Congressional Record, July 31, 1974: $13853.

30 Letter of July 16. 1974. to Secretary of State Henry A. Kissinger, from Hon. Thomas E. Morgan, Chairman, Committee on Foreign Affairs, and Hon. J. W. Fulbright, Chairman, Committee on Foreign Relations.

31 Letter of October 7, 1974, to Hon. Thomas E. Morgan, Chairman, Committee on Foreign Affairs, from Secretary of State Henry A. Kissinger.