I. INTRODUCTION

The U.S. Constitution allocates war powers, as well as the foreign policy powers, to both the President and the Congress. However, this allocation was broadly framed, and this lack of precision was an "invitation to struggle" between the two branches. Historically, there has been a failure on the part of both to agree on their respective prerogatives, especially in regard to the war powers. In recent years, this failure has stemmed in large part from efforts to avoid impairing the effectiveness of the United States in its relations with authoritarian governments. Moreover, the Courts have hesitated to pass judgment on a question which they have considered to be a political, rather than a legal one.

While there has often been controversy in the past in regard to exercise of the war powers, recently the dispute over one of the most crucial aspects of the question, the sending of troops abroad, has reached a new dimension. The evolution of greater U.S. involvement in world affairs, as well as the inherent dangers of war in the nuclear age, are factors which must be considered in this controversy.

Twice since the end of the Second World War, first in Korea and then in Indochina, the United States has been heavily engaged in armed conflicts abroad. On other occasions, American troops have been sent to foreign countries in times of crisis, for example, to Lebanon in 1958 and the Dominican Republic in 1965. Additional critical situations, including the confrontation in the Formosa Straits in 1955 and the Cuban missile crisis in 1962, have been met by a use of American military forces. Through most of this period, even when men have been stationed in other countries in support of United States foreign policy, and weapons have been poised in the United States and abroad to retaliate in the event of a nuclear attack. All of these situations carried the risk of involving the nation in war.

In several instances, including the conflict in Korea in 1950, the Vietnam in 1965, and the entrance into Cambodia in 1970, there have forces have been sent abroad. This study will examine some of the constitutional issues brought to light in those debates. It is not intended to be a discussion of the merits of the policies themselves. The fundamental issue is whether the President, particularly in his

troops abroad without congressional authorization. Are there some instances in which the President does have the right to send troops abroad and others in which he does not? Closely connected is the question of the meaning of the congressional power to declare war, and whether congressional authorization for sending troops to fight abroad either by a declaration of war or by some other act, is possible or required. A third issue involved is the extent to which Congress can

limit the President's use of armed forces in instances when congressional authorization has not been obtained.

II. THE INTERNATIONAL FRAMEWORK

Often in recent years, the delineation of the executive and legislative roles in sending troops abroad has become more confused because of the additional issues of international law involved. Most questions of the international legality of specific United States actions are outside the scope of this study. However, in many instances the war powers of the President and the Congress affect those procedures by which the United States must determine and meet its international obligations. Therefore, a brief summary of the international legal framework within which the United States must operate will be described.

A. UNILATERAL ACTION

The United States, as a sovereign nation, can act to protect its interests as it views them by whatever means it determines, subject to the law of nations, the self-imposed limitations of treaty obligations such as the United Nations Charter, and domestic constitutional or statutory prohibitions.

A relationship between the spheres of international and constitutional law was described by Mr. Justice Sutherland in United States v. Curtiss-Wright Export Corporation:

Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens; and operations of the nation in such territory must be governed by treaties, international compacts and understandings, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.1

B. ACTION UNDER TREATY OBLIGATIONS

Because they might impose an obligation to use U.S. Armed Forces abroad, treaties are relevant to the exercise of the war powers in two respects. First, initial adoption of such a treaty obligation requires joint approval by the President and the Senate, that is, a measure of legislative-executive cooperation. Second, subsequent fulfillment of such an obligation can lead to either cooperation or conflict between the President and the Congress in the exercise of their respective war powers. Although executive agreements may also be a source of international obligation, their increased use in place of treaties will not be discussed in this study.

Article VI of the United States Constitution provides that the Constitution, laws of the United States, and all treaties made under the authority of the United States shall be the supreme law of the land. The provisions of a treaty may establish a legal basis for certain actions which would not exist in the absence of that treaty or specific legislation.

Not all treaty provisions are self-executing, however. Some require legislation to enable the United States to carry out its part. In such cases Congress plays a major role in determining the manner in which a treaty is to be interpreted and carried out by the United States.

1 (1936) 299 U.S. 304, p. 318.

Congress may also exercise its legislative power so as to nullify or supersede a treaty obligation. Chief Justice Taft, in his decision of 1923 as sole arbitrator between Great Britain and Costa Rica, made the point:

*** a treaty may repeal a statute, and a statute may repeal a treaty. The Supreme Court cannot under the Constitution recognize and enforce rights accruing to aliens under a treaty which Congress has repealed by statute.2

Even though Congress may by legislative act nullify and supersede a treaty, the international obligation of the United States under the treaty is not thereby terminated. Judge John Bassett Moore, discussing a case involving an act of Congress contrary to provisions of an earlier treaty, says:

It was held that the act of October 1, 1888, was a constitutional exercise of legislative power, and that, so far as it conflicted with existing treaties, it operated to that extent to abrogate them as part of the municipal law of the United States though it could not have the effect of destroying their international obligation.3

Secretary of State Hughes elaborated the point in a memorandum of February 19, 1923, to Secretary of the Treasury Mellon as follows:

* a judicial determination that an act of Congress is to prevail over a treaty does not relieve the Government of the United States of the obligations established by a treaty. The distinction is often ignored between a rule of domestic law, which is established by our legislative and judicial decisions and may be inconsistent with an existing treaty, and the international obligation which a treaty establishes. When this obligation is not performed, a claim will inevitably be made to which the existence of merely domestic legislation does not constitute a defense; and, if the claim seems to be well founded and other methods of settlement have not been availed of, the usual recourse is an arbitration in which international rules of action and obligations would be the subject of consideration.4 Treaty provisions might obligate the United States to take armed action against other states. While this country has never promised by treaty to go to war automatically in specific circumstances, it has entered into formal engagements that might conceivably result in the use of American forces in war or other armed hostilities. Whether treaties, such as the North Atlantic Treaty (NATO) or the Southeast Asia Collective Defense Treaty (SEATO), obligates the United States to take armed or other action in specific situations is not the issue in the problem of determining executive and legislative powers in sending troops abroad. The issue is what role each branch should play in determining first, whether a treaty obligates the United States to send armed forces, and second, in what manner this obligation is to be met. There have been conflicting opinions on both of these points. A memorandum prepared by Leonard C. Meeker, Legal Adviser of the

25 Hackworth, Digest of International Law, p. 195.

* V. Moore's Digest of International Law, p. 367, discussing the Chinese Exclusion case (1899), 130 U.S. 581.

Hackworth, op. cit., pp. 194-195.

The North Atlantic Treaty, signed April 4, 1949, states "the parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all; and each of them... will assist the... attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary including the use of armed force...

The Inter-American Treaty of Reciprocal Assistance, signed September 2, 1947, states that an armed attack against any American State "shall be considered as an attack against all the American States and... each one... undertakes to assist in meeting the attack."

In the ANZUS Treaty with Australia and New Zealand, signed September 1, 1951, the Southeast Asia Collective Defense Treaty signed September 8, 1954, and the bilateral security treaties with the Philippines (August 30, 1951), Japan (January 19, 1960), the Republic of Korea (October 1, 1953), and the Republic of China (December 2, 1954), each party "recognizes" that an armed attack in the specified area would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes.

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Department of State, on the legality of United States participation in the defense of Vietnam on March 4, 1966, stated:

Article IV, paragraph 1, of the SEATO Treaty establishes as a matter of law that a Communist armed attack against South Vietnam endangers the peace and safety of the United States. In this same provision the United States has undertaken a commitment in the SEATO Treaty to "act to meet the common danger in accordance with its constitutional processes" in the event of such an attack. Under our Constitution it is the President who must decide when an armed attack has occurred. He has also the constitutional responsibility for determining what measures of defense are required when the peace and safety of the United States are endangered. If he considers that deployment of U.S. forces to South Vietnam is required, and that military measures against the source of Communist aggression in North Vietnam are necessary, he is constitutionally empowered to take those measures."

On the other hand, Lawrence R. Velvel writes:

A treaty cannot override the Constitution, and under the Constitution it is the Congress, not the President, which is to declare war. Thus, the Congress must decide whether particular treaty obligations require entry into war. The words "constitutional process" in the SEATO Treaty therefore must mean that the Congress shall make this decision. If they mean the President shall make it, then in this respect the SEATO Treaty is void under the United States Constitution because it in effect gives the President the power to declare war. Neither can it be argued that, because the Senate approves treaties, the Senate has delegated the power to declare war to the President. As will be later pointed out, the power to declare war cannot be delegated to the President even by the full Congress. Still less can it be delegated by the Senate, since it does not belong to the Senate alone, but to the Senate and House together."

Francis D. Wormuth writes:

The general principle is that the treaty power cannot be used in such a way as to alter the constitutional distribution of powers. So the United States objected to the proposal for the creation of an international Prize Court because the Constitution does not permit appeals from decisions of the United States Supreme Court. In Reid v. Covert in 1957 the Supreme Court had before it an act of Congress which provided for the trial of civilian dependents of military personnel abroad, thus ousting the constitutional courts of their jurisdiction under Article III and depriving the dependents of their right to jury trial. The government justified the act as one necessary to carry out executive agreements with Great Britain and Japan which were treated as having the force of treaties. Justice Black said: "The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." 8

C. THE UNITED NATIONS CHARTER

Among all the treaties to which the United States is a party and which have a bearing on the use of American forces abroad in the postwar era, the United Nations Charter is in a category by itself for several reasons. One of its purposes is to establish a system "to maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace . . . Thus, it establishes new terms for utilizing armed force for the maintenance of international peace.

• Meeker, Leonard C., Legal Adviser. "The Legality of U.S. Participation in Defense of Vietnam." Department of State Bulletin, vol. 54, March 28, 1966, p. 485.

7 Velvel, Lawrence R., The War in Vietnam: Unconstitutional, Justiciable, and Jurisdictionally Attackable. In Richard A. Falk, ed. The Vietnam War and International Law, v. 2, Princeton, Princeton University Press, 1969. p. 657.

Wormuth, Francis D. The Vietnam War: The President versus the Constitution. In Richard A. Falk, ed., op. cit., p. 775.

Similarly, it places new limitations on the use of force by United Nations members. Moreover, according to the terms of the Charter its provisions prevail over the obligations under any other treaty. Article 103 states:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. The United Nations Charter, having been ratified by the President after the Senate had approved it, became operative on October 24, 1945. The legal force of treaties under the Constitution is described by Hackworth:

It is well settled by the decisions of the United States Supreme Court that treaty provisions, which are self-executing in the sense that they require no additional legislation to make them effective, are equivalent to and of like obligation with an act of Congress. The Constitution declares that both shall be the supreme law of the land, and both are equally binding upon the courts.

As with all treaties, therefore, the self-executing provisions of the Charter became the supreme law of the land. Certain of the nonself-executing provisions were made effective by the Congress in the "United Nations Participation Act of 1945." 10

The late E. S. Corwin, in his classic work on the Presidency, observes with regard to the United Nations Participation Act that: *** American implementation of the Charter, and hence its ultimately binding interpretation for the United States, is based on the national legislative power, not on the treaty-making power, nor on Presidential prerogative. * * * the controlling theory of the act is that American participation in United Nations shall rest on the principle of departmental collaboration, and not on an exclusive Presidential prerogative in the diplomatic field.11

It is important to examine the question of international obligations relating to the use of armed forces abroad which the United States incurs as a member of the United Nations. The starting point is the provision in article 25 by which:

* the members of the United Nations agree to accept and carry out the decisions of the Security Council ***

According to Hans Kelsen, professor at the University of California (Berkeley), this provision may be interpreted to mean:

the members are obligated to carry out all resolutions of the Security Council which the Security Council is authorized by the Charter to issue with the intention to bind the members at whom they are directed; that is to say all resolutions which the Charter does not characterize in a way which permit the interpretation that they shall not have a binding force, such as "recommendations" or "plans." 12

Secretary of State Stettinius commented on this article as follows:

The precise extent of the obligation of members under article 25 can be determined only by reference to other provisions of the Charter, particularly chapters VI, VII, VIII, and XII (art. 24, par. 2). Decisions of the Security Council take on a binding quality only as they relate to the prevention or suppression of breaches of

Hackworth, op. cit., p. 191, citing Foster v. Neilson (1829), 2 Pet. 253, 314; The Cherokee Tobacco (1870), 11 Wall. 616, 621; Chew Heong v. United States (1884), 112 U.S. 536; Head Money cases (1884), 112 U.S. 580, 599; Whitney v. Robertson (1888), 124 U.S. 190, 194.

10 Public Law 264, 79th Cong., 1st sess. (59 Stat. 619), as amended by Public Law 341, 81st Cong., 1st sess. (63 Stat. 734).

11 Corwin, Edward S. The President, Office and Powers, 1787-1957. New York, New York University Press, 1957. p. 221.

12 Law of the United Nations, London, 1950, pp. 95-96.