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TEXAS LAW REVIEW
ernment "the powers indispensable to its functioning effectively in the company of sovereign nations."113
The delegation theory of Professors Velvel, Wormuth, and Bickel would deny the President and the Congress the most ordinary and elementary tools for protecting the nation in a time of international turbulence. Under their rule, we should be the only nation on earth incapable of making a credible military treaty. Their rule would make it impossible firmly to delineate American interests in advance, and thus to deter and contain processes of expansion which Congress and the President deem threatening to national security. It would emasculate both Congress and the Presidency, and deprive even treaties like NATO of their weight and credibility.
The Constitution, Justice Goldberg once said, is not “a suicide pact."114 The war power, the Supreme Court has remarked, is the power to wage war successfully. So too, the power of the President and of the Congress over foreign relations is the power to wage peace successfully. There is nothing in the history of the war power and the foreign relations power, since President Washington's first term, to suggest that the United States may not seek to avert the danger of war by giving potential enemies of the nation a credible and effective warning in advance. McCulloch v. Maryland teaches that those who oppose the presumptive constitutional validity of the means Congress and the President together select as appropriate to protect the security of the nation face a nearly insuperable burden of proof.115
C. The Political Question Doctrine
It is sometimes claimed that the “political question” doctrine makes it impossible to reach final decisions--that is, "final" decisions by courts on the constitutionality of procedures like those used by Presidents and Congress in Korea and Vietnam. This contention misconceives the political question doctrine. It is not, as some contend, a flexible and amorphous idea used by the Courts to avoid questions they do not wish to decide, although judges sometimes use it for this purpose. As Marshall made clear in Marbury v. Madison,116 the doctrine is something quite different: that courts cannot and should not pass on the
113 Perez v. Brownell, 356 U.S. 44, 57 (1958). 114 Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964). 115 17 U.S. (4 Wheat.) 316, 409-11 (1918). 116 5 U.S. (ì Cranch) 137 (1803).
899 propriety of decisions entrusted by the Constitution or the laws to the discretion of another branch of government.117
In Marbury's case, no court could have questioned the propriety of the President's decision to nominate Marbury rather than John Doe or Richard Roe; the Senate's vote in its absolute discretion to advise his appointment, and consent to it; or the President's final decision, having received a favorable vote from the Senate, to sign Marbury's commission, and have it sealed. The question became justiciable, the Court said, only because the political discretion of the President and the Senate was exhausted when the seal was affixed. At that moment, and not before, Marbury acquired a vested legal right, a property interest, in the office.
The question whether Marbury's right to the judgeship should be protected in court, the Court said, “far from being an intrusion into the secrets of the cabinet, ... respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents."118
Like nearly all the intervening cases, Powell v. McCormack119 rests upon the same simple principle. The Court did not attempt to control the political decision of Congress to exclude Adam Clayton Powell, duly elected to membership in Congress. It carefully ruled, however, that while under the Constitution each House was indeed “the Judge of the Elections, Returns and Qualifications of its own members," the discretion of Congress over the admission of members could rest only on the grounds specified in the constitution—age, citizenship, residence, and election. Since it was conceded in this case that Powell met these
117 The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice; to which claims it is the duty of that court to attend; should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and the laws, submitted to the executive, can never
be made in this court. Id. at 169-70.
118 Id. at 170.
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constitutional qualifications, which were unalterable by the legislature, it followed that the vote excluding him was invalid.120 The Court took exactly the same position in Roudebush v. Hartke: “Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question.”121
By now many lower courts, faced with the complaint of young men about to be drafted into the armed forces, have passed upon the constitutionality of the war in Vietnam. Such plaintiffs surely have standing to raise the question, in the sense of a direct personal interest in the outcome of the litigation; the possibility that they may be killed or maimed in the course of military operations represents the most direct and most personal of all interests. I can imagine no civil right more profound, and more to be respected, than the right of a conscript to be assured that the war he is required to fight has been constitutionally authorized. All the courts which have passed upon the question have given these plaintiffs the answer Justice Story gave to the militiamen in Martin v. Mott: that whether the United States acts or does not act under a treaty; whether it decides to help or not to help a friendly government in measures of self-defense against a rebellion aided or instigated and organized from abroad; whether the President and Congress “declare" war, or choose the course of limited war-all are matters peculiarly within the discretion entrusted to the President, or to Congress, or to both, under our constitution and laws and, therefore “political" questions within the meaning of Marbury v. Madison.122 When Courts decide that the way in which the political arms of the government exercise such discretion is a “political question,” they are not abstaining from a decision on its legality; on the contrary, they are deciding that the choices made were within the zone of discretion entrusted to the political branches of the government, and are therefore legal.
I should be the last to urge, as some have done, that the courts should refrain from decisions of this kind on the ground that it may be 1972)
120 Id. at 518-22, 548-49.
121 92 S. Ct. 804, 807 (1972). See Dionisopoulos, A Commentary on the Constitutional Issues in Powell and Related Cases, 17 J. PUB. L. 103 (1968); Henkin, Viet-Nam in the Courts of the United States: "Political Questions,” 63 Am. J. INT'L L. 284 (1969); Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517 (1966); Schwartz & McCormack, The Justiciability of Legal Objections to the American Military Effort in Vietnam, 46 Texas L. Rev. 1033 (1968).
122 See, e.g., Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970), aff'd, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869 (1971); United States v. Sisson, 294 F. Supp. 511, 515, 520 (D. Mass. 1968), 297 F. Supp. 902' (D. Mass. 1969), appeal dismissed for lack of jurisdiction, 399 U.S. 267 (1970).
THE WAR POWERS ACT
impractical and undesirable to have the courts pass on such difficult and sensitive problems. 123 On the contrary, I believe that many exercises of the military power do produce justiciable controversies, and that in such cases the courts should review the exercise of the war power by political authority to make sure it is kept within constitutional limits. I believe our national debate about Vietnam might well have been less confused and less poisonous if the Supreme Court, in a great opinion, had said what the lower courts have all said—and what I think any judge under the pressure of responsibility would necessarily conclude that there is no constitutional basis for challenging the legality of the war in Vietnam. Men can reasonably debate whether the United States should
made the commitment of the SEATO Treaty, or honored its commitment when the Treaty was breached. They can argue about the strategy and tactics of the combat and diplomacy of the war in Indo China. Equally, with Senator Cooper they can question whether a vote of Congress was necessary, in addition to a Treaty, to authorize the President to use the national force on a large scale in Vietnam. But when President and Congress pool all the war powers they possess, jointly and separately, what is there left to debate? It is difficult, at least for me, to discover any plausible basis for contending that the Vietnam War is unconstitutional, or even constitutionally doubtful.
D. “Necessary and Proper
In the tense and cautious diplomacy of our present relations with the Soviet Union, as they have developed over the last twenty-five years, the authority of the President to set clear and silent limits in advance is perhaps the most important of all the powers in our constitutional armory to prevent confrontations that could carry nuclear implications. No shots have been fired between the armed forces of the United States and those of the Soviet Union; and the inhibition against firing the first shot has been an immensely powerful factor of restraint in the conduct of the cold war. The basic rule of cold war diplomacy, thus far, has been that the Soviet Union does not use force to challenge our presence, or what we clearly and privately inform them are our state interests, and
123 See Rostow, The Japanese American Cases-A Disaster, 54 YALE L.J. 489 (1945), reprinted in E. Rostow, THE SOVEREIGN PREROGATIVE 193 (1962); H. WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL Law 11-13 (1961). Cf. A. BICKEL, THE LEAST DANGEROUS BRANCH 69-70 (1962); T. TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY 109-13, 116-21 (1970). The limits of presidential power in war have never been better analyzed than by Justice Curtis in his pamphlet Executive Power (1862), reprinted in II B. Curtis, Á MEMOIR OF BENJAMIN ROBBINS Curtis, L.L.D. 306 (1879).
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that we likewise do not use force to oppose hers. We did not intervene in East Germany, Hungary, or Czechoslovakia. They did not use their own force to oppose our actions in Berlin, in Yugoslavia, in Greece, in Korea, and in Vietnam. In resisting the Berlin Blockade, President Truman carefully chose the air lift, a method of action that would have required the Soviets to fire the first shot. President Kennedy sought to accomplish the same end in his handling of the Cuban Missile Crisis, cautiously choosing a limited naval blockade rather than air strike or invasion, the latter strongly urged upon him by Senator Fulbright and others. 124
The nature of the problem requires promptness of action, great flexibility in the choice of means, and freedom to shift, from hour to hour, in response to the exigencies of the diplomatic situation. It puts a decisive premium on establishing a deterrent presence, or a credible deterrent threat, before irrevocable steps have been taken, or decisions made.
The Javits Bill purports to abolish this power-essential to diplo macy, and to the process of avoiding war. It is a power which nearly every President has used, at least since 1794, when President Washington sent troops to drive Indians—perhaps supported by the Britishfrom Western territories in dispute. And it is the diplomatic power the President needs most under the circumstances of modern life—the power to make a credible threat to use force in order to prevent a confrontation which might escalate.
I believe that an attempt by Congress to deprive the President of power so crucial to his duties as organ of the nation in the conduct of foreign relations is unconstitutional. It is as unconstitutional as a Presidential assumption of power deemed legislative, or as Congressional invasions of the President's much mooted power to remove subordinate officials of the Executive branch, or his pardoning power, or of the authority of the courts under Article III.125
The Senate Foreign Relations Committee claims to have discovered new potentialities in the necessary and proper clause authorizing Congress to control the way in which “any Department or officer thereof"
124 R. KENNEDY, supra note 12, at 32, 119.
125 See, e.g., Wiener v. United States, 357 U.S. 349 (1958); Reid v. Covert, 354 U.S. 1 (1957); Myers v. United States, 272 U.S. 52 (1926); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1871); Ex Parte Yerger, 75 U.S. (8 Wall.) 85 (1869); Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867); Marbury v. Madison, 5 Ú.S. (ì Cranch) 137 (1803); E. CORWIN, THE PRESIDENT'S REMOVAL POWER UNDER THE CONSTITUTION (1927). This argument was the heart of the impeachment proceedings against President Andrew Johnson. See B. CURTIS, supra note 123, at 343.