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 determination of the existence of a state of war commencing with the attack on 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 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.

8 (1946) 158 F. 2d 260, pp. 262, 264.

972 S. Ct. 863. (1952).

Pusey notes:

The judiciary is saying that if Congress wishes to have civilians accompanying our armed forces abroad tried in military courts in time of war, it will have to authorize the war with a clear-cut declaration. . . . One must remember, of course, that the courts have not said that it is constitutional to conduct major wars in distant lands without authorization from Congress.10

Furthermore, 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."

The majority of these statutes affect the President's powers over domestic affairs. One statute in particluar affects the President's use of troops abroad because it deals with the number of reserves which may be called up. This aspect is discussed below in the section on the militia clause and the use of reserve components.

B. THE MILITIA CLAUSE AND USE OF THE RESERVE COMPONENTS

A second limitation which the Constitution places on the President which could affect the number of troops sent abroad concerns the calling up of reserve forces, under the militia clauses of the Constitution.

1. Use of the Militia Outside the United States.-Article II, Section 2, of the Constitution makes the President Commander in Chief of the militia only "when called into the actual service of the United States." The militia now consists of the Army National Guard and the Air National Guard. The President cannot order the militia into service upon his own authority as Commander in Chief.

Article I, Section 8, of the Constitution vests in Congress the power "to provide for calling forth the militia." Congress, in various acts, has given the President definite authority to call the militia under certain circumstances; but his power derives from legislatively exercised power and not from Presidential power under the Constitution.

Prior to the National Defense Act of 1916, the President was limited in the purposes for which he could use the militia, even when properly under his command. According to Article I, Section 8, of the Constitution, Congress could provide for calling forth the militia

10 Washington Post, April 16, 1970, p. A20.

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

only "to execute the laws of the Union, to suppress insurrections, and to repel invasions." The question of whether the militia could be sent outside the United States to repel invasions had been raised a number of times, with militia actually used outside the borders of the United States in the War of 1812, the Seminole War of 1818, and the Mexican War of 1846.12 However, the limitation on the use of militia outside the United States prompted the use of volunteers in both the Mexican War and the Spanish-American War to augment the regular forces.

In 1903, Congress passed the Dick Act, the first piece of permanent legislation governing the militia since the Militia Act of 1795. Essentially, the Dick Act provided for an Organized Militia, to be known as the National Guard. In 1908, the Act was amended to provide, inter alia, for calling the organized militia in case of emergency, prior to accepting volunteers. In return, the National Guard waived territorial limitations so that it might be available for service "either within or without the territory of the United States." 13

In 1912, Attorney General Wickersham rendered an opinion on the authority of the President to send the militia into a foreign country with the Regular Army as part of an army of occupation to intervene under conditions short of actual warfare. While holding that the militia might be taken across the border to repel an invasion, he maintained that "this is quite different from and affords no warrant for sending the militia into a foreign country in time of peace and when no invasion is made or threatened." " The Attorney General went on to state that the Constitution "affords no warrant for the use of the militia by the General Government except to suppress insurrection, repel invasions, or to execute the laws of the Union"; moreover, "it forbids such use for any other purpose." 5 According to C. A. Berdahl, "practically all authorities seem to agree that it (the militia) cannot be used, as militia, for the purpose of invading a foreign country or carrying on an offensive war outside the jurisdiction of the United States." 16

To remove this limitation on the use of the militia outside the United States, the Congress passed the National Defense Act of 1916, in which the National Guard could be federalized under the power of the Congress to raise and support armies and not under the power to provide for a militia.17

The act of 1916, according to C. A. Berdahl, "increased considerably the President's powers to use the militia forces at his discretion, since the troops so 'federalized' were by that action automatically discharged from the militia and taken over bodily into the national forces, and might therefore be used, not merely as militia, but for any purpose for which the Regular military and naval forces might be used." 18

The question of whether the militia clause limited the power of Congress to raise a "national army" was raised in the Selective Draft Cases and Cox v. Wood. In the Selective Draft Cases, the Court denied

12 Berdahl, C. A. War Powers of the Executive of the United States. Urbana, 1921. p. 132.

13 Section 4 of the Act of May 27, 1908, 35 Stat. 399, 400, 32 U.S.C. (1934) 81b, amending the Act of January 21, 1903, Section 5.

the contention that the incorporation of the National Guard into the Regular forces limited the uses to which such a national army might be used. The fallacy of the argument results from confounding the constitutional provisions concerning the militia with that conferring upon Congress the power to raise armies. It treats them as one while they are different.19

In Cox v. Wood, it was argued that although Congress had power to call citizens to compulsory service in virtue of the militia clause, that power was limited to the purposes of the militia clause, and that the draft was illegal because it was made under an act avowedly for the purpose of military duty in a foreign country. The Supreme Court. reaffirmed the Selective Draft Cases, and rejected the argument, saying:

*** the constitutional power of Congress to compel military service . . . was based on the following propositions: "(a) That the power of Congress to compel military service and the duty of the citizen to render it when called for were derived from the authority given to Congress by the Constitution to declare war and to raise armies. (b) That those powers were not qualified or restricted by the provisions of the militia clause, and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to the use of the militia, if any, deduced from the militia clause." 20 2. Use of Reserve Components.-At the present time, the basic policy for ordering the reserve components into Federal Service is that "whenever Congress determines that more units and organizations are needed for the national security than are in the regular components of the ground and air forces," the reserve components (or such part of them as may be needed) "shall be ordered to active duty and retained as long as so needed." 21 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.22 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.23 In sum, the President is legally empowered at the present time to call reserve forces to active duty, to a number not exceeding one million men, by declaring a new national emergency.24 Prior authorizations, as employed in the call-ups for Berlin in 1961, Cuba in 1962, and Vietnam in 1968, have lapsed.25 The authority of the Commander in Chief over the reserve components called to active federal service is indentical to his command authority over the regular forces. However, 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 four months of basic training or its equivalent."

19 (1918) 245 U.S. 366, at p. 381.

(1918) 247 U.S. 3, at p. 6.

Title 10, U.S.C., section 263.

Ibid., section 672.

13 Ibid., section 673.

26

24 This power is distinct from his authority to call the National Guard, as he considers necessary to repel an invasion, suppress a rebellion against the Government of the United States, or execute the laws of the United States. U.S.C., Title 10, section 3500.

For Berlin, P.L. 87-117, August 1, 1961, 75 Stat. 242. For Cuba, P.L. 87-736, October 3, 1962, 76 Stat. 710. For Vietnam, P.L. 89-687, October 15, 1966, 80 Stat. 981, and P.L. 90-500, September 20, 1968, 82 Stat. 850. U.S.C. Title 10, section 671.

C. LIMITATIONS BY CONGRESS

Under the Constitution, Congress possesses a variety of powers 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'état being dismissedthe policy fails, and that is all there is to it.27

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.

Legislators have a number of tools with which to restrain the President. Through legislation, they can restrict his options, hamstring his 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 resolution— a 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.28

Other specific Congressional acts which can limit the President, some of them covered generally in the foregoing quotation, include the

27 Corwin, Edward S., op. cit., p. 222.

28 Reveley, W. Taylor III, op. cit., pp. 1774-1776. Footnotes omitted.