1972] THE WAR POWERS ACT 95 887 argument falls before a series of Supreme Court decisions going back at least to Martin v. Mott, upholding standing delegations of discretion to the President in areas close to those of his independent constitutional responsibilities, and in areas of purely Congressional concern as well. In advancing the argument that the Tonkin Gulf Resolution constitutes an unconstitutional delegation of Congress' power to declare war-which is assumed to include an equally unique power to authorize undeclared war-the commentators, especially Professor Bickel, place some reliance on Kent v. Dulles.96 That important case considered the legality of denying a passport to Rockwell Kent on the ground that he was a member of the Communist Party. The basic statute on the subject goes back to 1856, and provides that "the Secretary of State may grant and issue passports... under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue or verify such passports." In modern times the passport has become an important facility of international travel, and indeed a 1952 statute purports to make it unlawful for a citizen to depart from or enter the United States without a valid passport. The Supreme Court upheld Kent's right to a passport, in an opinion which did not reach the question of constitutionality. Starting with the premise that the right to travel was an aspect of liberty protected by the Fifth Amendment, the court hesitated to infer from a pattern of longstanding administrative practice, which it found ambiguous at best, a Congressional purpose to authorize so drastic a curtailment of the liberty of the citizen. Interpreting the statute to avoid constitutional doubts, the court concluded that it should not construe Congressional silence to permit the Secretary to deny passports to individuals on the basis of their political opinions or associations. "If we were dealing with political questions entrusted to the Chief Executive by the Constitution," the Court said, "we would have a different case.""" Kent v. Dulles, the court wrote, was concerned only with the personal right of the citizen to travel: If that 'liberty' is to be regulated, it must be pursuant to the 95 25 U.S. (12 Wheat.) 19 (1827). 96 357 U.S. 116 (1958). See 1971 Hearings, supra note 1, at 555. 97 357 U.S. 116, 129 (1958). 888 TEXAS LAW REVIEW [Vol. 50:833 such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them. . . . We hesitate to find in this broad generalized power an authority to trench so heavily on the rights of the citizen.... We only conclude that § 1185 and § 211a do not delegate to the Secretary the kind of authority exercised here.98 The limits of Kent v. Dulles were explored in Zemel v. Rusk," considering the same statute, in the context of the same argument that Congress had acquiesced through silence in a long-standing pattern of administrative practice in construing and applying the passport act. Zemel dealt with the Secretary of State's refusal to validate a citizen's passport for travel to Cuba during 1962, a tense period in Cuban-American relations culminating in the Cuban Missile Crisis. In 1961 the Department of State had issued regulations requiring passports for travel to Cuba, and the specific endorsement of such passports by the Department before a citizen could travel to Cuba. Mr. Zemel said the purpose of his trip was “to satisfy my curiosity about the state of affairs in Cuba and to make me a better informed citizen.”100 Reviewing the history of periodic restraints of travel to areas of war, pestilence, famine, or disorder since 1915—that is, both before and since the reenactment of the statute of 1856 in 1926—the Court upheld the Department's position. The issue of statutory construction in Kent, the court said, was "whether a citizen could be denied a passport because of his beliefs or associations."101 In Zemel, however, the issue before the court, as a question of both statutory interpretation and constitutional law, was whether the Secretary could refuse to validate a citizen's passport for travel to Cuba “because of foreign policy considerations affecting all citizens.”’102 The Court concluded that the history of the problem justified the inference that the statute did delegate to the President an unreviewable discretion to restrict travel to areas where for reasons of foreign policy,103 and indeed for weighty considerations of national security,104 unlimited travel by citizens could “directly and materially interfere with the safety and welfare of the area or the Nation as a whole.”105 98 Id. 99 381 U.S. 1 (1965). 100 Id. at 4. 101 Id. at 13. 102 Id. 103 Id. at 15. 104 Id. at 16. 105 Id. at 15-16. 1972] THE WAR POWERS ACT 889 In Zemel, unlike Kent, the Court was therefore required to pass on the constitutional validity of such a delegation of legislative authority. It said: Finally, appellant challenges the 1926 Act on the ground that it does not contain sufficiently definite standards for the formulation of travel controls by the Executive. It is important to bear in mind, in appraising this argument, that because of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congressin giving the Executive authority over matters of foreign affairs-must of necessity paint with a brush broader than that it customarily wields in domestic areas. "Practically every volume of the United States This does not mean that simply because a statute deals with Thus, Kent and Zemel together would seem to confirm, not to challenge, the constitutional validity of the Tonkin Gulf Resolution. The Courts have upheld other broad delegations of discretion to the President, including many in areas which are purely legislative in character and have no roots in one or another of the inherent powers of the Presidency: in the field of tariffs and of responsibility for banking, to take only two examples.107 The distinction in Zemel between delega 106 Id. at 17-18. 107 19 U.S.C. §§ 181, 1336-38 (1970) (tariff statutes delegating to the President power over rates and duties); 12 U.S.C. §§ 95-95a (1970) (President's emergency powers over banks). 890 TEXAS LAW REVIEW [Vol. 50:833 tions in the field of domestic and of foreign affairs is frequently made, and certainly the conduct of foreign affairs requires the flexibility of broad discretion. Still, it is hard to imagine a "delegation” more complete than that of Martin v. Mott, for example, involving the President's power to call out the militia whenever he deems it desirable to do so. Generally speaking, the reasonableness of a delegation should be considered in relation to the nature of the problem Congress was trying to resolve, and its freedom within broad limits to select means which might conceivably contribute to the end it sought to achieve.108 No standard even reasonably close to the precedents and their reasoning provides support for the argument that the Tonkin Gulf Resolution can be treated as a nullity because it constitutes an unconstitutional delegation of legislative power. This cannot be the basis for Senator Fulbright's position that the war in Vietnam is "unconstitutional,"109 since the Javits Bill, which he supports, contemplates the possibility that Congress and the President might well decide to use advance statutory authorizations for the use of armed force by the President.110 The argument of undue delegation fails for a deeper reason. It is at war with the "nature of things," those stubborn exigencies of the external world that Montesquieu rightly saw as the true source of law, the nature of things in the late eighteenth century and the nature of things now. The necessities of circumstance in dealing with the hurly-burly of the real world have produced a quite different pattern of practice since 1789, not less democratic than the model in the minds of Professors Bickel, Wormuth, and Velvel, but far more flexible, resourceful, and effective. To treat Resolutions like the Tonkin Gulf Resolutions as nullities would make it nearly impossible to associate Congress with the President in the articulation of an effective deterrent diplomacy. Such a rule would make foreign affairs even more exclusively the province of the President than is the case today. In Marshall's classic words, echoing those of Hamilton in No. 23 See also Comment, Federal Taxation and Economic Stability, 57 YALE L.J. 1229, 1248-55 (1948). 108 E. CORWIN, THE PRESIDENT: Office and POWERS 369-73 (1940) (a compilation of the discretionary powers of the President in 1940). See also E. CORWIN, supra note 30, at 11930; K. DAVIS, ADMINISTRATIVE LAW TREATISE § 2.00 (1970 Supp.); Jaffe, An Essay on Delegation of Legislative Power, 47 COLUM. L. REV. 359, 561 (1947). 109 WAR POWERS, supra note 1, at 27; Fulbright, Congress, the President and the War Power, 25 ARK. L. REV. 71, 72 (1971). See also testimony of Alexander Bickel in 1971 Hearings, supra note 1, at 566-77, 579. 110 S. 2956, 92d Cong., 2d Sess. § 3(4) (1972). 1972] THE WAR POWERS ACT 891 of The Federalist, the first rule in interpreting "those great powers on which the welfare of a nation essentially depends" is that [i]t must have been the intention of those who gave these Marshall had noted previously that 111 [t]he power being given, it is the interest of the nation to fa- What Marshall wrote about the power of Congress to charter a bank in McCulloch v. Maryland applies even more emphatically to the respective roles of the President and Congress in exercising the great powers of the nation abroad, powers whose constitutional contours derive as much from international law and international life as from the deliberately few words of the document of 1787. The American nation which entered the family of nations in 1776 was endowed in its external relations with all the attributes of sovereignty. The written constitution which went into effect in 1789 must be read, Justice Frankfurter has said, to recognize in the national gov 111 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415-16 (1819.) 93-626 - 73 - 32 |