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.

Congress has the exclusive power under the Constitution to appropriate funds. It has the specific power to raise and support armies and to provide and maintain a navy. The withholding of appropriations as a limitation on the President is suggested in the preceding quotation by Reveley. Professor Corwin wrote that "Congress may effectively block Presidential policy by simply declining to pass implementing legislation-appropriations for instance." 29

Professor Corwin has also discussed limitations on the President through the Congressional role in military appointments, as follows: There is one power of supreme military command the President curiously lacks that of choosing his subordinates. Not only does Congress determine the grades to which appointments may be made and lay down the qualifications of appointees, but it has always been assumed that the Senate shares the appointing power in the case of military as well as civil officers. Without doubt, Congress could transfer the power to "the President alone," but it has never done so.30 Except for Lincoln's actions, Presidents have used only the forces available to them." 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.32

Does the power of Congress to make rules for the government and regulation of the land and naval forces permit the Congress to limit the President's power as 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.33

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. Although not posing a legal limitation and simply stating the "sense of the Senate," S. Res. 85, passed June 25, 1969, placed the Senate's view on record. It stated that a national commitment, defined to mean the use of the armed forces of the United States on foreign territory, or a promise to assist a foreign country by the use of the armed forces or financial resources of the United States, resulted "only from affirmative action taken by the executive and legislative branches of the United States Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment."

The appropriations power was used for the purposes of a limitation in the defense appropriations act of 1970, (P.L. 91-171, approved December 29, 1969). An amendment added to that act stated "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." VI. CONGRESSIONAL AUTHORIZATION WITHOUT A DECLARATION OF

WAR

Congress might authorize or approve and support a President's action in sending troops abroad by methods other than a formal declaration of war (or it might disapprove such actions), although some might dispute whether a particular authorization is adequate in any specific situation involving serious hostilities. In fact, there appears to be a trend toward use of authorizations in forms other than a declaration of war as a more usual method of expressing Congressional decisions. Reveley states:

Congressional authorization need not be by formal declaration of war: "[N]either in the language of the Constitution, the intent of the framers, the available historical and judicial precedents nor the purposes behind the clause" is there a requirement for such formality, particularly under present circumstances when most wars are deliberately limited in scope and purpose. A joint resolution, signed by the President, is the most tenable method of authorizing the use of force today. To be meaningful, the resolution should be passed only after Congress is aware of the basic elements of the situation, and has had reasonable time to consider their implications. The resolution should not, as rule, be a blank check leaving the place, purpose and duration of hostilities to the President's sole discretion to respond to changing circumstances. If the legislators wish to delegate full responsibility to the President, it appears that such action would be within the constitutional pale so long as Congress delegates with full awareness of the authority granted.1

In a footnote he adds:

Senate approval of a treaty would not suffice, as that would exclude the House from the decision-making process. An executive agreement, approved by the entire Congress and specifically described as authorization to use force, should be acceptable. Similarly, legislation to increase the size of the armed forces or to appropriate additional money to sustain a use of force might be regarded as authorization if legislative intent to that effect is made abundantly clear. Absent such clarity, simple legislation ought not to be regarded as implied approval, since it may have been adopted for reasons other than to ratify a presidential fait accompli.... Nothing can be assumed from a congressional failure to act. The burden is not upon Congress to make its views clear or be deemed to have acquiesced, but rather upon the President to obtain legislative approval before he acts.2

The lack of specific congressional sanction for the Korean War contributed to the criticism which President Truman received in Congress about the war. On four occasions from 1955 through 1964 Congress, in response to requests by the President, passed joint resolutions expressing support of foreign policy. These were the Formosa resolution of 1955, the Middle East resolution of 1957, the Cuban resolution of 1962 and the Vietnam or "Gulf of Tonkin" resolution of 1964. Views on their significance tend to vary according to whether or not one maintains that congressional authorization is necessary before the President can commit troops to combat

overseas.

This section presents brief synopses of these resolutions and notes on their background. Also included is a resolution in some ways similar to them, the Berlin resolution of 1962.3

A. The Formosa Resolution, 1955.-Public Law 84-4, H.J. Res. 159, approved January 29, 1955, authorized the President to employ the U.S. armed forces as he deemed necessary to protect Formosa and the Pescadores against armed attack, and also to protect such related positions and to take such other measures as he judged to be required or appropriate for this purpose. It provided that the resolution shall expire when the President shall determine that the peace and security of the area is reasonably assured and shall so report to the Congress. President Eisenhower had submitted a Mutual Defense Treaty with the Republic of China to the Senate on January 6, 1955. There had been intermittent shelling of the Nationalist-held island of Quemoy, near the Chinese Communist port of Amoy, for some months.

1 Reveley, W. Taylor III, op. cit., p. 1289. Footnotes omitted.

2 Ibid., p. 1290.

The synopses and notes on these resolutions are adapted from U.S. Library of Congress. Legislative Reference Service. Ernest Lent, Foreign Policy Resolutions by the Congress. Report F-170, May 25, 1966.

Climaxing a long series of threats and actions against Chiang's government, Chinese Communist forces seized the small Nationalist-held island of Yichiang some 210 miles north of Formosa on January 18.

In a special message to the Congress on January 24, President Eisenhower stated that Congress should "make clear the unified and serious intentions" of the U.S. and its "readiness to fight if necessary. He added that "authority for some of the actions which might be required" was inherent in his authority as Commander in Chief. The resolution was passed by the House by 310 votes to 3 on January 25 after a day of hearings and a day of debate. The Senate followed suit on January 28, after two days of hearings and three days of debate. The Senate vote was 75-3, with Senators Langer, Lehman and Morse in opposition.

Controversy centered on the failure of the resolution to spell out the specific area which the U.S. would fight to defend. Administration spokesmen declined to specify whether the U.S. would defend Quemoy and nearby Matsu, and these islands were not mentioned in the resolution. It left the way open for U.S. defense of these and other islands if the President deemed their defense essential to that of Formosa and the Pescadores.

The Nationalist-held Tachen island group was evacuated February 7-11. The Senate approved ratification of the defense treaty with Nationalist China on February 9, adding a number of understandings, one of which stated that no military operations would be undertaken from the territories covered by the treaty except by joint U.S.-Nationalist Chinese agreement. The President remained publicly uncommitted about Quemoy and Matsu, and the crisis gradually lessened.

B. The Middle East Resolution, 1957.-Public Law 85-7, H.J. Res. 117, approved March 9, 1957, authorized the President to extend military and economic aid to Middle East nations. It stated that the U.S. "regards as vital to the national interest and world peace the preservation of the independence and integrity of the nations of the Middle East." It declared that, if the President determines the necessity of it, the U.S. is prepared to use armed forces to assist nations requesting assistance against armed aggression from any Communist-controlled country, provided this is consonant with the Constitution and treaty obligations of the U.S. The resolution authorized the use of $200 million of previously appropriated funds, required certain reports, and said the President should continue to support the U.N. Emergency Force in the Middle East. It required the President to report his action under the resolution in January and July of each year, a provision changed in 1961 to "whenever appropriate." It provided that the resolution would expire on a Presidential finding concerning peace and security in the area or earlier by concurrent resolution.

The reduced power and influence of Britain and France in the Middle East following the Suez Crisis of 1956 had left what Secretary Dulles considered a dangerous power vacuum there. President Eisenhower's message to Congress on January 5, 1957 enunciated the so-called Eisenhower Doctrine and urged its support by congressional resolution. House J. Res. 117, amended in both chambers, passed the Senate 72-19, and the House accepted the Senate version by 370-60.

C. The Cuban Resolution, 1962.-Public Law 87-733, S.J. Res. 230, approved October 3, 1962, expressed the determination of the U.S. to prevent the Marxist-Leninist regime in Cuba, by whatever means may be necessary, including the use of arms, from extending its aggressive or subversive activities to any part of the Hemisphere; to prevent the creation of an externally supported military capability there endangering U.S. security; and to work with the Organization of American States and with liberty-loving Cubans to support the aspirations of the Cuban people for self-determination.

Amid expressions of mounting concern in the Congress over reports of Soviet missiles in Cuba, President Kennedy stated on September 13, 1962, that the Soviet arms shipments did not constitute a serious threat and that, if the Communist buildup were to interfere with our security in any way, this country would do whatever must be done to protect its security and that of its allies. At that time, he stated that a congressional resolution was not necessary to his authority. After its adoption, he referred to "the authority entrusted to me by the Constitution, as endorsed by the Resolution of the Congress." Senator Sparkman, Acting Chairman of the Foreign Relations Committee, presented the resolution to the Senate as an original resolution by that Committee and the Senate Armed Services Committee, which had met jointly to consider a number of resolutions on Cuba, some of them much stronger than S.J. Res. 230. Senator Sparkman stated that the resolution was the product of these committees and of the Executive branch, and was entirely consistent with the President's September 13 statement. In his 1965 book Kennedy, Theodore Sorensen suggests some direct involvement by President Kennedy. So it is clear that there was interplay between the Congress and the Executive in developing the resolution.

The resolution was adopted 86-1 in the Senate on September 20, Senator Prouty (R.-Vt.) casting the lone dissenting vote on the grounds it was not strong enough. In the House, Representative Broomfield (R.-Mich.) offered a motion to recommit the resolution with instructions to the House Foreign Affairs Committee to include a provision urging the President to implement and enforce the Monroe Doctrine throughout the Hemisphere. The Broomfield motion was defeated 140-251. S.J. Res. 230 was then adopted 384-7.

On the same day President Kennedy signed this resolution, he also signed S.J. Res. 224, Public Law 87-736, authorizing the callup of 150,000 members of the ready reserve.

The famous aerial photographs of medium-range ballistic missile. sites in Cuba were seen by the President on October 16, about three weeks after S.J. Res. 230 cleared the Congress. The President's demand that Khruschchev withdraw the missiles was made on October 22.

The Cuban resolution is probably the least typical of the major "foreign-policy-support" resolutions, differing in several respects from the Formosa, Middle East and "Gulf of Tonkin" resolutions. Who made the initiative is unclear, although its origin in the broadest sense appears to have been the pressure of the Congress on the Administration for a stronger approach to the Cuban problem. The resolution contains no clauses "authorizing" the President to do anything, and the President took the position that he needed no authorization,