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standing tradition? Is the recent struggle in Congress to impose controls over the waging of war an historical first, unknown until now in view of the general self-restraint by earlier Presidents? Or are the present maneuverings between the two political branches of our government merely a sign of recurring ripples in the stream of history? Who, if anyone, possesses the dominant powers to wage war; to authorize the initiative of war; to deploy men, equipment, and supplies? What checks and balances are there on the war powers? What control does Congress or the President have over the other in regard to making war? What kind of hostilities, if any, can our nation legally engage in without a formal declaration of war? All these questions, and more, are interwoven in the current effort by Congress to restrict the President's ability to wage war. It is my hope that this Article will help illuminate these issues.

II. HISTORICAL OVERVIEW

A. Presidential Initiatives

It may come as a shock to many Americans that the United States has been involved in at least 197 foreign military hostilities in its history," only five of which have been declared wars." These incidents took place all over the world." Nearly half involved actual fighting," and no less than 111 actions were undertaken solely on Executive authority without the initial support of any related statute or treaty, let alone a declaration of war."

A few commentators have brushed aside these precedents as being "shortlived,"" or "minor undertakings,"" or almost exclusively "confined to the Western Hemisphere."" But it is a fact that 93 actions lasted more than 30 days," a considerable number involved the landing of many thousands of American troops on foreign soil, and exactly 100 occurred outside the Western 13. See generally Emerson, War Powers Legislation, 74 W. VA. L. Rev. 53 (1972). 14. The five declared wars are the War of 1812, the War with Mexico, the SpanishAmerican War, and World Wars I and II.

15. See generally, Emerson, supra note 13, app. A (chronological list of 192 United States military hostilities abroad without a declaration of war, prepared at my request). 16. At least 81 hostilities were accompanied by fighting or ultimatums. Id. app. D. 17. See the list of 81 hostilities which may arguably have been initiated pursuant to prior legislative authority, id. app. G. But it should be observed that 51 of these possible collaborations by Congress took the form of a treaty. Thus, if a full-blown congressional declaration of war would be required to commit United States forces to hostilities, the fact that 51 activities may have been authorized by treaty and therefore by one House of Congress alone, would not serve as a precedent for the requirement of declarations of war in other circumstances.

18. Malawer, The Vietnam War Under the Constitution: Legal Issues Involved in the United States Military Involvement in Vietnam, 31 U. PÄTT. L. Rev. 213 (1969). 19. Reveley, Presidential War-Making: Constitutional Prerogative or Usurpation?, 55 VA. L. REV. 1243, 1258 (1969).

20. See testimony of Professor Henry Steele Commager, who claims the precedents are confined to the Western Hemisphere and contiguous territory up to "the last twenty years or so," with one exception. Senate War Powers Hearings, supra note 12, at S 3355. 21. See Emerson, supra note 13, app. E.

22. Id.app. A.

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Hemisphere." These operations include the capture of 90 French ships during the period from 1798 to 1800, the sinking or capture of 65 pirate vessels in the Caribbean prior to 1825, several landings and punitive actions abroad to defend or evacuate United States citizens and their property, the dispatch of 2,000 sailors and marines to force open commercial trade with Japan in the 1850's, the use of 126,468 troops to suppress the Philippine Insurrection after the 1898 treaty of peace with Spain was concluded, the deployment of several thousands of troops ashore in China from 1900 to 1941, the Pershing Expedition into Mexico with 12,000 men, the commitment of 14,000 men to Allied expeditions in Russia a year and a half after Armistice Day, the Korean Conflict of the 1950's, the occupation of parts of Lebanon in 1958 by 14,000 American soldiers and marines, the super-power confrontation between the United States and the Soviet Union during the Cuban missile crisis of 1962, and the Vietnam hostilities, among many others."

B. Early Congressional Response

Obviously, little wars are not a "phenomen[on] new to the national experience." Nor have past Presidents been immune from congressional sniping at their military policies." Throughout the early years of this century, there were dozens of attempts in Congress to shackle the President's right to use military power. In 1912, Senator Bacon proposed an amendment to the Army Appropriation Bill which would have prohibited the use of any money provided by that law

for the pay or supplies of any part of the Army of the United States employed, stationed, or on duty in any country or territory beyond the jurisdiction of the laws of the United States or in going to or returning from points within the same."

27

This amendment, which would have restricted all United States troops to the United States or its possessions, was defeated without a record vote." In

23. Id. app. F.

24. Id. app. A.

25. See R. DUPUY & W. BAUMER, THE LITTLE WARS OF THE UNITED STATES, at preface (1968).

26. President Tyler was denounced in Congress and threatened with impeachment because he deployed military units to protect Texas against Mexico in 1844. C. BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES 47-49, 70-74 (1921). President Polk was rebuked in a resolution passed by the House of Representatives declaring that the war with Mexico, which his military maneuvers had precipitated, "was unnecessarily and unconstitutionally begun by the President of the United States." Id.

In 1871, President Grant was severely condemned on the floor of the Senate because of his action in sending a strong naval force to Santo Domingo to protect it from invasion and internal disorder. In fact, a resolution introduced by Senator Sumner would have condemned the use of the Navy without the authority of Congress as an infraction of the Constitution of the United States and a usurpation of power not conferred upon the President." But the resolution was tabled by a large majority (38 to 16). Id.

27. 48 CONG. REC. 10,927 (1912).

28. Id. at 10,930.

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1919, several Members of Congress introduced measures aimed at ordering American soldiers home from Europe and challenging the presence of our troops in Siberia as unconstitutional." The only one that passed, however, was a watered-down resolution by Senator Hiram Johnson, simply requesting the President to provide Congress with information on the Siberian Expedition. Then in 1922, a major effort was made in Congress to control the geographical deployment of American forces. The House Committee on Appropriations reported the War Department funding bill with a provision specifying:

30

No part of the appropriations made herein for pay of the Army shall be used, except in time of emergency, for the payment of troops garrisoned in China, or for payment of more than 500 officers and enlisted men on the Continent of Europe; nor shall such appropriations be used, except in time of emergency, for the payment of more than 5,000 enlisted men in the Panama Canal Zone, or more than 5,000 enlisted men in the Hawaiian Islands."

After a vigorous debate squarely on the constitutional allotment of the war powers between the Executive and Congress," the House agreed, on March 24, to Representative Rogers' motion to strike out the committee restriction. John Rogers, a law graduate from Harvard and a seven-term Republican Congressman, presented an illuminating and scholarly discussion of the constitutional issues involved, which stands to this day as one of the greatest expositions ever made during a legislative attempt to run the details of the Armed Forces.35

The Senate made its move later in the year. On December 27, 1922, Senator Reed offered an amendment to the Naval Appropriation Bill designed to "at once cause the return to the United States of all American troops now stationed in Germany." The amendment was debated, but never accepted. On December 30, 1922, Senator King called up an amendment to the same appropriation measure providing:

That no part of said amount shall be used for the purpose of maintaining or employing marines, either officers or enlisted men, in the Republic of Haiti or the Dominican Republic after June 30, 1923.” Senator King's amendment was rejected the same day." In 1925, he was again disturbed by the use of American troops in the Caribbean and again intro

29. See H.R. Res. 251 (Representative Rhodes), H.R. Res. 266 (Representative Wood), H.R. Con. Res. 8 (Representative Mason), S. Res. 181 (Senator McCormick), S.J. Res. 60 (Senator Edge), S.J. Res. 111 (Senator Sherman), 66th Cong., 1st Sess. (1919). 30. S. Res. 13, 66th Cong., 1st Sess. (1919). See 58 CONG. REC. 1864 (1919). 31. 62 CONG. REC. 4109 (1922).

32. Id. at 4510.

33. See id. at 4109-10, 4295-98.

34. See 64 CONG. REC. 934 (1922).

35. Id. at 1117.

36. Id. at 1131.

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duced an amendment to the Naval Appropriations Bill. It stated that "no part of... any amount carried in this bill shall be used to keep or maintain any marines in the Republic of Haiti."" Once more, Senator King's amendment was rejected."

Three years later, the Senate engaged in one of the most fully-aired debates ever conducted on the question of congressional authority to restrict the power of the President to employ troops abroad-a discussion that would put to shame contemporary exchanges in that body which wander far afield of the true inquiries at the heart of the war powers issue. In 1928, the Senate focused its attention on an effort by Senator Blaine to prevent American forces from being used for intervention in the affairs of any foreign nation "unless war has been declared by Congress or unless a state of war actually exists under recognized principles of international law."" The proposal was initiated in view of the feeling of several Senators that the United States military occupation of Nicaragua was not in accordance with the Constitution." Senator Blaine's broad amendment, and a more limited one by Senator McKellar which was confined to Nicaragua alone," would have directed the withdrawal of troops and marines from Nicaragua within 9 months, presaging the format of the first Mansfield amendment of 1971." Only the geographical area was different. Both the Blaine and McKellar amendments failed after a week of debate, by a vote of 22 yeas to 52 nays on the Blaine proposal and 20 yeas to 53 nays on the McKellar amendment."

By 1940, Congress did succeed in enacting a geographical limitation on the emplacement of United States units abroad. Section 3(e) of the Selective Service Act of 1940 expressly required that no draftees were to be employed beyond the Western Hemisphere, except in territories and possessions of the United States." Congressional debate on the provision confirms beyond doubt that it was the intent of its sponsors to limit the meaning of "Western Hemisphere" narrowly to the area of the Americas which "we have long engaged to protect under the Monroe Doctrine.""

And yet, 1 year later President Franklin Roosevelt deployed our forces, including draftees, to hold Iceland and Greenland, months before the United States formally entered World War II." President Roosevelt's action in send

46. 86 CONG. REC. 10,295 (1940). See id. at 10,092, 10,103-05, 10,116, 10,129, 10,391,

10,742, 10,794-98, 10,895-914.

47. See Emerson, supra note 13, app. A.

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ing troops more than 2,000 miles away from home bore out Senator Lodge's admission, as author of the restriction, that “[t]his is a pious hope."

48

A year before, Roosevelt had violated at least two of the post-World War I neutrality laws when he handed over 50 reconditioned destroyers to Great Britain in exchange for a series of military bases in the British West Atlantic." President Roosevelt further moved this nation from a neutral into a belligerent status before the repeal of the neutrality laws by ordering the United States Navy to convoy military supplies meant for Britain and Russia as far as Iceland and to attack Axis submarines in the process."

III. CONGRESS REASSERTS ITSELF

A. Indochina Amendments

This historical sketch, while not exhaustive, demonstrates that individual Members of Congress have often criticized Presidential conduct of foreign hostilities, but seldom, and perhaps never, has the Legislative Branch as a unit directly challenged the President's decisions with statutes unequivocally ordering the Executive to withdraw troops from a specific geographic area, or prohibiting him from employing forces in certain situations." Even recent highly-publicized endeavors by Congress to restrict Executive actions, fall far short of being outright shackles on his conduct.

For example, the Cooper-Church amendment, purportedly barring the introduction of new forces into Laos and Thailand, actually attempts to translate into law President Nixon's own pledges not to involve American ground combat troops in these countries." This amendment, as enacted in the Department of Defense Appropriation Act of 1970, reads:

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."

Nothing is said about barring the sending of advisors to these two countries,

48. 86 CONG. REC. 10,897 (1940). The 1940 provision is a poor precedent for war powers legislation. Not only was it flouted by President Roosevelt, but it was openly admitted during Senate debate that Congress could not constitutionally restrain the President from commanding troops wherever he wishes. Id. at 10,895-914.

49. See, E. CORWIN, THE PRESIDENT: OFFICE AND POWERS 238-39 (4th rev. ed. 1957). 50. Id. at 203. Schwartz concludes:

The President's action in this respect is of particular legal interest because of an express provision in the Lend Lease Act of 1941, that "Nothing in this Act shall be construed to authorize or permit the authorization of convoying vessels by naval vessels of the United States."

2 B. SCHWARTZ, THE POWERS OF GOVERNMENT 202 (1963).

51. The 1940 law, which apparently barred the sending of troops outside the Western Hemisphere, was treated by both Congress and the President as merely a "hope" of Congress, not an actual limitation on Executive authority. See note 48 supra.

52. Congressional Research Service, Legislation Enacted by the 91st Congress to Limit United States Military Involvement in Southeast Asia 9-10 (Mar. 30, 1971) [hereinafter cited as C.R.S.].

53. Act of Dec. 29, 1969, Pub. L. No. 91-171, § 643, 83 Stat. 469, 487,