In their endeavor to develop and legitimize an independent presidential war-making power, U.S. presidents have utilized the prerogative theory of presidential authority. According to this theory, the U.S. Constitution vests in the President a broad prerogative--a general, undefined power that is inherent in the Office of President and is in addition to the more specific, less ambiguous enumerated grants of presidential authority contained in Article II, Sections 2 and 3, of the Constitution. The adherents of prerogative theory hold that the presidential prerogative is a broad power to act in the national interest, or general welfare, of the U.S.A. during time of a very serious national crisis or extreme emergency. They contend that the President has general, undefined authority and responsibility to take rapid and decisive action to cope with a national crisis or emergency situation of extraordinary proportions, e.g., the U.S.A. being subject to foreign invasion or attack or being in imminent danger of foreign invasion or attack.

What is the constitutional basis of the prerogative theory of presidential power? According to the theory's adherents, three clauses in the Federal Constitution--Article II, Clauses 1 and 8, and Article II, Section 2, Clause 1--give the President a broad prerogative.

      Article II, Section 1, Clause 1:

        "The executive Power shall be vested in a President
        of the United States of America."

          This clause is interpreted by the prerogative
          theorists as vesting in the President a very
          broad, undefined "executive Power" that is in
          addition to the more specific executive
          powers granted to the President by Sections 2
          and 3 of Article II.

      Article II, Section 1, Clause 8:

        "Before he [the President] enter on the Execution
        of His Office, he shall take the following Oath or
        Affirmation:  'I do solemnly swear (or affirm) that
        I will faithfully execute the Office of President
        of the United States, and will to the best of my
        Ability preserve, protect and defend the Constitu-
        tion of the United States.'"

          Clause 8 of Section 1 is construed by the pre-
          rogativists as granting the President general,
          undefined authority to take action to--

            Faithfully execute (perform the duties of) the
            Office of President;

            Preserve, protect, and defend the Constitution.
       
      Article II, Section 2, Clause 1:

        "The President shall be Commander in Chief of the
        Army and Navy of the United States and of the Mi-
        litia of the several States, when called into the
        actual Service of the United States;"

          Clause 1 of Section 2 is interpreted as attach-
          ing to the Office of President broad, undefined
          power to take military and other governmental 
          action to suppress armed insurrections and other
          domestic disorders as well as to defend the
          U.S.A. against foreign attack or threatened at-
          tack and protect America's vital national inter-
          ests abroad.  This general, undefined power, ac-
          cording to the exponents of prerogative theory,
          is inherent in the constitutional posi-
          tion of the President as Commander-in-Chief of
          the nation's Armed Forces.


The prerogative theorists claim that the three constitutional clauses cited above give the President inherent authority that has never been defined or enumerated.  They argue that the power, in fact, cannot be defined, since the scope of this power, at any given time, is contingent upon the conditions and problems existing at that time.
The American theory of the presidential prerogative, as stated and defended by its exponents, is related to and derived from the theory of the royal prerogative in English and British constitutional history.  The royal prerogative, claimed by the English/British Crown during the seventeenth and eighteenth centuries, was--in the words of seventeenth-century political philosopher John Locke, in Second Treatise of Civil Government (1690)--the broad, sweeping authority of the Monarch to act for the good of the Kingdom and its people "without the prescription of law" and "sometimes even against it."  American theorists, in general, do not perceive the presidential prerogative under the U.S. Constitution to be as broad or sweeping as the royal prerogative claimed under the English/British Constitution of the 1600s and 1700s.  In 1865, however, U.S. President Abraham Lincoln, a theorist and practitioner of prerogative theory, came very close to using Locke's words describing the royal prerogative-- "without the prescription of law" and "sometimes even against it--when Lincoln sought to justify the extraordinary measures taken by him to deal with the Southern states' secession from the Union, the outbreak of the Civil War, and the emergence of antiwar, secessionist, and pro-Confeder- ate movements in areas of the U.S.A. outside the eleven states of the Confederacy.  These extraordinary measures, taken by Lincoln early in his Presidency, were adopted by presidential fiat, without the legitimacy and support of prior congressional authorization, and in some instances, in clear violation of key provisions of the Federal Constitution.  The Civil War President claimed that, under the Constitution, his positions as national Chief Executive and Commander-in-Chief and his sworn duty to preserve, protect, and defend the Constitution
gave him the right, in a grave crisis or emergency threatening the existence of the American nation, to become a quasi-dictator and take extreme measures which, in the absence of such a national crisis or emergency, would be illegal and unconstitutional.

In American political and constitutional history prior to the Presidency of Franklin D. Roosevelt, major advocates and practitioners of presidential- prerogative theory include Alexander Hamilton and Presidents Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Woodrow Wilson.
Hamilton, as statesman and prerogative theorist, argued that a very broad construction should be applied to Clause 1 of Article II, Section 1, of the Constitution.  He maintained that the general grant of "the executive Power" to the President embraced many inherent functions and powers comprising a broad presidential prerogative.
As President, Jackson maintained that, under Clauses 1 and 8 of Article II, he possessed an inherent power to act decisively and forcefully to enforce U.S. national laws, to preserve and protect the U.S. Constitution, and to defend the American nation against all foreign and domestic threats to its safety and existence.
President Lincoln, in expounding his theory of "constitutional dictator- ship," held that Article II, Section 1, Clauses 1 and 8, and Section 2, Clause 1 attached to the Office of President a set of inherent powers, a broad prerogative enabling the President to legitimately and constitution- ally become a virtual dictator during time of extreme national crisis or emergency, when the U.S.A. was faced with a real and serious threat to its safety and survival as a free, independent, and unified nation.  According to Lincoln's perception, the language of the U.S. Constitution was deliberately vague and ambiguous and offered considerable room for enlargement of the President's executive and military authority during time of great danger to the nation.  The President, during such a time of great danger, can legitimately expand "the executive Power" to the degree he believes necessary.
In short, the President, in time of an extreme national crisis or emergency posing a serious threat to the very existence of the U.S.A., has the inherent power and duty to take dictatorial measures-- extraordinary measures which might be unconstitution- al under more normal and less critical conditions.  Presidential measures, otherwise unlawful, would become lawful by becoming essential to the protection and preservation of the U.S. Constitution, through protection and preservation of the American nation.
President Franklin Roosevelt and all presidents succeeding him--Republican as well as Democratic presidents, Conservative-leaning as well as Liberal-
leaning presidents--have subscribed to the prerogative theory of presiden- tial power and have used the theory to develop and legitimize an independent war-making power for the Office of President and/or to enlarge the President's internal police powers (e.g., power to suppress domestic disorders, to prevent or settle nation-wide industrial strikes and other labor-management conflicts threatening to paralyze the economy and/or jeopardize the war effort, and to forcibly impose and accelerate court-ordered racial desegregation on the public schools).  They have relied, in particular, upon Lincoln's conception of inherent powers attached to the presidential office by Article II, Section 1, Clauses 1 and 8, and Section 2, Clause 1, of the U.S. Constitution.
Examples of FDR's successors utilizing prerogative theory to develop and legitimize an independent presidential war-making power include Dwight Eisenhower, Lyndon Johnson, and Richard M. Nixon.
In 1955, when President Eisenhower recommended to Congress that it pass the Formosa Resolution to provide political support for (as well as share in the responsibility for and domestic political risks of) any measures taken by the President to defend Taiwan and the Pescadores against Chinese Communist aggression, he was very careful to insist that "the authority for some of the actions which might be required would be inherent in the authority of the Commander-in-Chief."  While seeking legitimacy-enhancing congressional support in the form of a joint resolution, Eisenhower wished to avoid the appearance of conceding that his exercise of the presidential war powers was dependent or limited by congressional action.  Eisenhower, like all other presidents of the contemporary era, believed that inherent in the President as Chief Executive and Commander-in-Chief were broad powers that could not be constitutionally circumscribed by congressional legislation or rendered inoperative by the failure or refusal of Congress to pass a joint resolution requested by the President.
President Lyndon B. Johnson, waging war in Vietnam without the benefit of a congressional declaration of war, took the position that, under the Consti- tution, the President possessed inherent powers, which, most importantly, included the power to make war.  In a 1966 Department of State Bulletin, Leonard Meeker, a spokesman for the Johnson Presidency, maintained that inherent in the roles of the President as Commander-in-Chief and national Chief Executive was the power to--
      "deploy American forces abroad and commit them to
      military operations when the President deems such
      action necessary to maintain the security and de-
      fense of the United States....  If he considers
      that deployment of U.S. forces to South Vietnam is
      required, and that military measures against the
      source of Communist aggression in North Vietnam
      are necessary, he is constitutionally empowered to
      take these measures."
 



H.  VIETNAM & INDEPENDENT PRESIDENTIAL WAR-MAKING

In and off the coast of Vietnam, independent presidential war-making reached its zenith during the Presidencies of Lyndon Johnson (1963-1969) and Richard Nixon (1969-1974).  In their conduct of the Vietnam War, both Johnson and Nixon, as mentioned previously, relied heavily on the version of presidential-prerogative theory advanced by Lincoln a century earlier to justify his unprecedented exercise of the war powers in the Civil War and in planning and announcing what was to be his postwar Reconstruction policy.  Congress, in approving the 1964 Gulf of Tonkin Resulution, did authorize the President to
take all necessary measures to defend South Vietnam and its established government against any further aggression on the part of the Viet Cong and North Vietnamese Communist regime and to repel any armed attack against U.S. military forces in the region.  Shortly after passage of this resolution, however, U.S. participation in the Vietnam War was escalated far beyond what, at a later date, many members of Congress claimed they had in mind when they voted for passage of the resolution.
In early 1965, immediately after Viet Cong guerrilla units had attacked U.S. Army installations in South Vietnam, President Johnson responded by launching "Operation Rolling Thunder," ordering sustained bombing missions over North Vietnam.  In March of the same year, Johnson sent to South Vietnam the first U.S. ground combat troops--i.e., the first U.S. combat ground troops that were not sent under the label "military advisers."  In response to America's greater military commitment, the Vietnamese Communist Party and the Viet Cong adopted and began to implement a protracted war strategy designed to get U.S. military forces mired in a long, drawn-out war, operating on the assumption that the U.S.A. had neither the will nor the ability to win such a war, since the nation lacked clearly defined interests or objectives in Vietnam and, as the casualties and other costs of American involvement mounted, would eventually become weary of the war and withdraw from it, leaving the Communists a free hand to forcibly take over South Vietnam.
As independent presidential war-making progressed during the remaining years of the Johnson Presidency, U.S. involvement in the Vietnam War continued to escalate, the Communists kept on pursuing their protracted war strategy, and things went from bad to worse for American and South Vietnamese ground forces.  With an expanded and prolonged war and with mounting American casualties, soon there were insufficient U.S. Army RAs (volunteers) to continue waging the protracted war and the U.S. government was forced to reintroduce military conscription (i.e., the draft).  More and more young American males were being called on to risk their lives for the sake of fighting what many perceived to be an "unwinable war" to prop up and protect a corrupt and authoritarian South Vietnamese government.  Within the U.S.A., the people began to tire of the war, as the Communist foe had predicted, and there was growing American criticism of and opposition to President Johnson's military policy in Vietnam.  Consequently, there emerged in the U.S.A. a significant political protest movement demanding America's disengagement from the Vietnam War.  Closely associated with the growing antiwar sentiment within the country was a revival of isolationism a political ideology which, during earlier periods of American history, had been advanced to justify and support advocacy of a policy of our nation's noninvolvement in international power struggles and remaining free of "entangling alliances" and which was now being employed to justify the call for America's withdrawal from international affairs in general and the Vietnam War in particular.
The military and political developments described above had the consequence of intense pressures being brought to bear on the American national politi- cal system.  These pressures created extreme discomfort for professional politicians and policy advisers in the Johnson Presidency and for many members of what was then the Democratic Party majority in the two houses of Congress.  Fearful of how the voters might react in the 1966 and 1968 congressional elections, Democrats in Congress were spooked into frantic political manuevering and posturing, many second guessing the President's military policy in Vietnam, but being rather disingenuous about their own respective past roles in supporting that policy.  Congressional critics of Johnson's Vietnam policy were getting louder and increasing in number.
The second-guessing congressional critics, including members of the Senate Foreign Relations Committee, insisted that President Johnson had gone far beyond what Congress had intended when it passed the Gulf of Tonkin Resolution.  In denouncing his ordering Operation Rolling Thunder (the sustained bombing campaign over North Vietnam) and his sending U.S. ground troops to Vietnam, the critics maintained that the President had utilized the response of Congress to a minor incident off the coast of Vietnam--the North Vietnamese gunboat attack against U.S. naval vessels--to establish the foundation for a major war, that he had converted what previously had been a "limited" war into a major war.
While the growing antiwar and isolationist sentiment caused many Democrats in Congress to be concerned about their near-future reelection chances, Democratic Senator Robert F. Kennedy, driven by his all-consuming political ambition, saw the shift in public opinion as a splendid opportunity for himself, an opportunity that he could exploit in order to achieve his ultimate political goal--getting himself elected President of the United States.  In publicly commenting on the Vietnam War in numerous speeches and other media events, Senator Kennedy drastically changed his position from that of the interventionist and War Hawk he had been while serving as U.S. Attorney General and presidential adviser during the Presidency of his brother, John F. Kennedy, and assumed the stance of an isolationist and Dove (as regards the Vietnam War), appealing to the growing segment of Liberal-Leftist opinion reflected in the antiwar protest movement.  Kennedy announced that he would be a contender for nomination by the Democratic Party as its presidential candidate in the 1968 election.  President Johnson, realizing that the rug of political support needed to win the Democratic nomination and the presidential election had been jerked out from under him, announced that he would not be a contestant for the Democratic nomination in 1968. As Kennedy's campaign for the nomination was nearing success, he was assinated by an Arab-American nutcase (a tragedy that could have been avoided, had Kennedy taken the precaution of putting on a steel helmet and bullet-proof vest before publicly opening his mouth about a matter likely to upset a particular variety of wackos within American society and announcing to a Los Angeles crowd that, while having seen the light and now a Dove and noninterventionist in matters regarding Vietnam, he was not abondoning his position as a Hawk and interventionist on the side of Israel in its ongoing conflict with the Arabs).  The Democratic National Convention, meeting in Chicago, nominated Hubert H. Humphrey, but the Republican candidate, Richard Nixon, won the 1968 presidential election.
When Nixon became President in January, 1969, he expressed his wish to bring an end to the war in Vietnam, and his National Security Advisor, Henry Kissinger, began meeting in Paris with diplomatic representatives of the North Vietnamese government to negotiate a settlement.  However, the Vietnam War dragged on and the phenomenon of independent presidential war-making continued to flourish.  President Nixon initiated a number of U.S. military actions in Indochina--actions which were taken without the President's consulting Congress and most of which were strongly denounced not only by spokesmen for the antiwar protect movement, but also by con- gressional critics and by Nixon's detractors in the larger American political arena.
In March, 1969, the President ordered "Operation Breakfast"--the secret aerial bombing of North Vietnamese Communist sanctuaries in Cambodia, sanctuaries from which the Communists had been launching raids across the Cambodian border into South Vietnam.  In April, 1970, Nixon launched "Operation Fishhook," ordering U.S. ground troops to move into Cambodia and destroy the North Vietnamese Communists' military headquarters, supply centers, and staging areas for operations in South Vietnam.  On January 18, 1971, Nixon ordered U.S. military forces to provide air cover and artillery support for a major South Vietnamese Army operation in Laos, an effort to cut the Ho Chi Minh Trail by attacking the North Vietnamese military forces that were using the trail and keeping it open.
In may, 1972, with the Paris negotiations between the U.S.A. and North Vietnam deadlocked and with the North Vietnamese Communists continuing their invasion of South Vietnam, President Nixon ordered the bombing and mining of Hanoi and Haiphong.  In a speech explaining why he had taken this action, the President asserted that--
      "There is only one way to stop the killing.  That is
      to keep the weapons of war out of the hands of the
      international outlaws of North Vietnam."  [Richard M.
      Nixon, THE MEMOIRS OF RICHARD NIXON (New York:  Gros-
      set and Dunlap, 1978), p. 605.]


Nixon continued:
      I have ordered the following measures which are being
      being implemented as I am speaking to you.  All en-
      trances to North Vietnamese ports will be mined to
      prevent access to these ports and North Vietnamese 
      naval operations from these ports.  United States
      forces have been directed to take appropriate meas-
      ures within the internal and claimed territorial wa-
      ters of North Vietnam to interdict the delivery of
      any supplies.  Rail and all other communications will
      be cut off to the maximum extent possible.  Air and
      naval strikes against military targets in North Viet-
      nam will continue."  [Ibid.]


In his Memoirs, Nixon said that he believed it was--
      "... essential that we take decisive action to crip-
      ple the North Vietnamese invasion [of South Vietnam]
      by interdicting the supplies of fuel and military
      equipment the enemy needed for its push into South
      Vietnam.  I consequently directed that plans be pre-
      pared immediately for mining Haiphong and for bomb-
      ing prime military targets in Hanoi, particularly
      the railroad lines used for transporting military
      supplies."  [Ibid., p. 602.]
      

As the Paris peace negotiations and the North Vietnamese agression against South Vietnam were carried on simultaneously throughout the remainder of 1972, and as the North Vietnam "negotiators" remained as brittle, intransi- gent and treacherous as ever, President Nixon decided that the situation--
      "... had now reached the point where only the strong-
      est action [by the U.S.A.] would have any effect in
      convincing Hanoi that negotiating a fair settlement
      with us was a better option for them than continuing
      the war."  [Ibid., p. 733]


Therefore, the President, on December 14, 1972, ordered resumption of the bombing of Hanoi and Haiphong.  Nixon's account of the action was as follows:
      "On December 14, I issued an order, to become effec-
      tive three days hence, for reseeding of the mines in
      Haiphong Harbor, for resumed aerial reconnaissance,
      and for B52 strikes against military targets in the
      Hanoi-Haiphong complex.  The bombing plan included
      sixteen major transportation, power, and Radio Hanoi
      transmitter targets in Hanoi, as well as six commu-
      nications command and control targets in the outly-
      ing area.  There were thirteen targets in the Hai-
      phong area, including shipyards and docks."  [Ibid.,
      p. 734]