THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume II, Issue # 1, June 10-December 31, 1999
Dr. Almon Leroy Way, Jr., Editor
1. A Resurgence of Isolationism
As a consequence of the nature, course, and outcome of the Vietnam War, the American people were, by 1973, weary, disillusioned, and restive. Popular and congressional support for the U.S. government's policy of endeavoring to "contain Communism" had been seriously eroded and undermined. As indicated previously, the protracted character of the war and the high costs of U.S. involvement resulted in a resurgence within the U.S.A. of public opinion favoring an isolationist, or noninterventionist, foreign policy--a revival of sentiment in favor of America's withdrawal from international affairs, especially from participation in the war in Vietnam. Voices in and out of Congress were calling for America's retreat from its "imperial" role as "World Policeman" and "Protector of the Free World." This new mood of withdrawal, or retreat, was reinforced by the final defeat of the U.S.A. in the Vietnam War--"defeat" in the sense of the utter failure of the U.S. government to "contain Communism" in Indochina and prevent the Communists from overrunning and subjugating South Vietnam and Cambodia.
2. The Brewing Congressional Revolt
The new mood of withdrawal had the effect of eroding and undermining congressional sup- port for or acquiescense in independent presidential war-making. Congress was getting its back up and manifesting new found courage, moving to circumscribe the President's role as "chief architect of American foreign policy" and to curb his power as Commander-in-Chief to commit the U.S. Armed Forces to foreign combat. Brewing in Congress was a revolt against the President's virtually solo determination of U.S. foreign and military policy. Congress was seeking to reassert itself, regain power it had lost to the Presidency, and devise new means of participating more fully and effectively in the shaping and control of the nation's external policy.
At this particular moment in American political history, the inclination of Congress to rise up and challenge presidential ascendancy in foreign and military policy-making was given even greater strength--and the idea of such a political revolt made even more tempting--by the combined effects three sets of phenomena: (1) our system of checks and balances, (2) partisan politics, and (3) basic human nature.
3. The Impact of the System of Checks and Balances
America's constitutional system of checks and balances was designed by the Founders to facilitate and encourage competition and conflict--rather than collaboration or collusion-- among the three branches of the national government (legislative, executive, and judicial) and between the two chambers of Congress, the Senate and House of Representatives. As a consequence of the (1) Framers' design at the Federal Constitutional Convention of 1787 and (2) the evolution of the American constitutional and political system over the past two centuries, three major policy-making organs of the U.S. government--Presidency, Senate, and House of Representatives--are elected by different constituencies with varying and competing interests. These three major organs of government, reflecting and representing the interests of their respective constituencies, have a much greater tendency to oppose, block, and thwart each other than they have to support and accomodate one another.
Conflict between Congress and the President and between the Senate and House of Representatives has been institutionalized and is an essential feature of the national political system. Such conflict is continuous and, at times, includes power struggles between the legislature and the executive.
4. The Impact of Partisan Politics
Throughout the period of the Nixon Presidency, the partisan political situation in Washington, D.C., was one of divided government, with the titular leader of one major political party holding the Office of President and with the opposition party controlling Congress. While President Nixon was a Republican, the Democrats held a majority of the seats in each of the two houses of Congress. As was usually the case when the Democrats had majorities in both chambers of Congress during the tenure of a Republican president, the Democrats in Congress, looking after the institutional interests of their own party and seeking to enhance its chances for victory in future presidential and congressional elections, set out to thwart, frustrate, and embarass the Republican President, determined to make partisan political points at every turn and hoping to discover, investigate, and publicly expose a major scandal in the Nixon Presidency or in some other manner provoke or create a public controversy that would weaken, undermine, and possibly decimate support among voters and campaign contributors for Republican candidates in future elections.
5. The Impact of Basic Human Nature
During the Nixon Presidency, as has always been the case in the political arena, a major variable, or factor, shaping political events and developments was basic human nature--i.e., human frailty coupled with political ambition, human imperfection and moral weakness, as reflected in the bahavior of that very special class of human beings known to us as "professional politicians." The professional politicians who populate the U.S. Congress tend strongly to "play politics" with issues of American foreign and military policy, placing their own narrower partisan and personal interests above the broader interests of American national defense and security. Acting and reacting like the "political animal" he really is, each congressional politician is strongly inclined to oppose and criticize the foreign and military policy initiatives of a president of the opposing party and support and praise the policy initiatives of a president of his own party, as long as the policies of the latter appear to be popular with the voters in his state or congressional district. If the policy initiatives of a president with whom the congressional politician shares the same party label are not so popular with his state or district constituents, he is quite likely to forget about the institutional interests of his party at the national level and turn against the party's titular leader, claiming and proclaiming that he always had doubted the wisdom of and had opposed the particular presidential policies in question.
6. The Congressional Revolt in Progress
In June, 1973, the long-simmering congressional revolt against independent presidential war-making really got underway. Two different standing committees of the Senate voted to recommend to the full Senate its passage of a bill which, if enacted into law, would immediately cut off funds for U.S. bombing in Cambodia. Subsequently, the Senate passed the cutoff bill, and, on June 25, the bill was approved by the House of Representatives. Two days later, President Nixon vetoed the bill, and the bill's supporters in the House of Representatives failed to muster the two-thirds vote required of both chambers of Congress to override the President's veto and make the bill law without his signature and consent.
Although his veto of the legislation had been sustained, President Nixon realized that subsequent cutoff bills were very likely to be proposed and that, eventually, his veto would be overridden. To buy time and avoid an immediate cut off of funding, the President agreed to a compromise that had been negotiated between the Presidency and leading Congres- sional Democrats. The compromise bill, passed by the two houses of Congress and signed into law by Nixon, (1) specified August 15 as the date for cessation of U.S. bombing activities in Cambodia and (2) made congressional approval of funding a prerequisite for further U.S. military operations in Indochina.
Nixon complained that the effect of the compromise legislation, with its scheduled mandatory cut off of funds, was to deprive the President of the means to compel the Communists' compliance with the terms of the Vietnam peace agreement. According to Nixon--
"We were faced with having to abandon our support of the
Cambodians who were trying to hold back the Communist
Khmer Rouge, who were being supplied by the North Viet-
namese in violation of the peace agreement. The Cam-
bodians ... could not understand why we were suddenly de-
serting them--especially when the military tide seemed to
be turning in their favor.
"Congress, however, was not prepared to hear any arguments
and was determined to go forward despite the consequences."
[Nixon, MEMOIRS, p. 887.]
On August 3, President Nixon, in a written message to House Speaker Carl Albert and Senate Majority Leader Mike Mansfield, argued that, from the congressional legislation setting the scheduled mandatory funds cut off, the North Vietnamese were likely to draw the conclusion that they were at liberty to initiate military offensives in Cambodia and other parts of Indochina. He said that the North Vietnamese Communists probably would interpret the termination of U.S. bombing in Cambodia as "an invitation to fresh aggression or further violations of the Paris agreements." [IBID., p. 888.]
As the Nixon Presidency was being critically wounded--and what remained of its support, influence, and credibility were being drained out of it--by the highly publicized Senate investigation of the Watergate scandal and Nixon's involvement in the coverup, the congressional revolt against independent presidential war-making and its underlying theory continued to roll along pell-mell. With the Presidency momentarily weakened to the point that it was unabble to put up effective resistance to and defense against the onslaught, the Democratic majority in Congress had the taste of blood in its mouth and jumped in for the kill. Restrictive measures were forthcoming.
On November 7, 1973, Congress overrode a presidential veto and enacted into law the War Powers Act, which was intended to impose strict limits on the President's war-making abilities. In 1974, Congress started reducing appropriations for U.S. aid to South Vietnam's military forces, doing so at a time when the volume of Soviet supplies, arms, and equipment being turned over to the North Vietnamese was growing.
President Nixon maintained that actions taken by Congress against his Presidency--the bombing cut off, the War Powers Act, and the reduction in U.S. military aid to South Vietnam--"set off a string of events that led to the Communist takeover in Cambodia and, on April 30, 1975, the North Vietnamese conquest of South Vietnam." [IBID.]
Passage of the War Powers Act of 1973, also known as "Public Law 93-148" and the "War Powers Resolution," was a major move by Congress in its revolt against independent presidential war-making and the body of political and constitutional theory undergirding the practice--presidential prerogative theory and a very broad construction of the President's constitutional powers as Commander-in-Chief. At this point, I think, an examination of key provisions provisions of the War Powers Act is in order and would be helpful. We will take a look at the Act's stated purpose and rationale as well as the legal obligations and restric- tions the statute imposes on the President.
1. Purpose & Rationale of the War Powers Act
The purpose and underlying rationale of the War Powers act are stated in Section 2 of the Act. Section 2 declares that--
"It is the purpose of this joint resolution to fulfill the
intent of the framers of the Constitution of the United
States and insure that the collective judgement of both
the Congress and the President will apply to the introduc-
tion of United States Armed Forces into hostilities, or
into situations where imminent involvement in hostili-
ties is clearly indicated by the circumstances, and to the
continued use of such forces in hostilities or in such
situations. [Section 2(a).]
"Under Article I, Section 8, of the Constitution, it is
specifically provided that the Congress shall have
power to make all laws necessary and proper for
carrying into execution, not only its own powers but
also all other powers vested by the Constitution in
the Government of the United States, or any de-
partment or officer thereof. [Section 2(b).]
"The constitutional powers of the President as
Commander-in-Chief to introduce United States
Armed Forces into hostilities, or into situations
where imminent involvement is clearly indi-
cated by the circumstances, are exercised only
pursuant to (1) a declaration of war, (2) specif-
ic statutory authorization, or (3) a national
emergency created by attack upon the United
States, its territories or possessions, or its
armed forces." [Section 2(c).]
2. Consultation Requirements under the War Powers Act
Section 3 of the War Powers Act provides:
"The President in every possible instance shall
consult with Congress before introducing
United States Armed Forces into hostilities or
into situations where imminent involvement in
hostilities is clearly indicated by the circum-
stances, and after every such introduction
shall consult regularly with the Congress until
United States Armed Forces are no longer
engaged in hostilities or have been removed
from such situations."
3. Reporting Requirements Under the War Powers Act
Section 4(a) of the Act requires the President to report to Congress, providing it with information regarding (1) the circumstances necessitating the introduction of the U.S. Armed Forces, (2) the constitutional and statutory authority under which introduction of the Armed Forces took place, and (3) the estimated scope and duration of the hostilities or involvement. Section 4(b) requires the President to--
" ... provide such other information as the Congress
may request in the fulfillment of its constitutional
responsibilities with respect to committing the Nation
to war and to the use of United States Armed Forces
abroad."
Section 4(c) makes these reporting requirements applicable to every case in which the U.S. Armed Forces, in the absence of a congressional declaration of war, are introduced--
" ... into hostilities or into situations where imminent
involvement in hostilities is clearly indicated by the
circumstances;
or
" ... into the territory, airspace or waters of a foreign
nation, while equipped for combat, except for deployments
which relate solely to supply, replacement, repair, or
training of such forces...."
As long as the Armed Forces continue to be engaged in hostilities or involved in any situation described above, the President is legally obligated to--
"report to the Congress periodically on the status of such
hostilities or situation as well as on the scope and
duration of such hostilities or situation, but in no event
shall he report to Congress less often than once every
six months." [Section 4(c).]
4. The War Powers Act & Restrictions on Presidential Action
Sections 2(c) and 5(b) of the War Powers Act establish three conditions, the existence of any one of which authorizes the President to introduce U.S. military forces into foreign hostilities or into a situation where imminent involvement of American troops in foreign hostilities is clearly indicated. These two provisions of the statute limit presidential war-making to the three conditions. The President can legally commit the U.S. Armed Forces to hostilities or potentially hostile situations abroad only (1) after a congressional declaration of war, (2) by an existing congressional statute or resolution granting specific authorization, or (3) in a national emergency caused by a foreign attack on the U.S.A., its territories or possessions, or its military forces. On committing American troops under the third condition, the President must, within forty-eight hours after initiating military action, submit a formal report to Congress.
Section 5(b) of the Act provides that, within sixty calender days after a report is submitted or is required to be submitted pursuant to Section 4, whichever is earlier, the President shall--
"terminate any use of the United States Armed Forces with
respect to which such report was submitted (or required to
be submitted), unless the Congress (1) has declared war or
has enacted a specific authorization for such use of United
States Armed Forces, (2) has extended by law such sixty-
day period, or (3) is physically unable to meet as a result
of an armed attack upon the United States."
Section 5(b) further provides:
"Such sixty-day period shall be extended for not more
than an additional thirty days if the President determines
and certifies to the Congress in writing that unavoidable
military necessity respecting the safety of United States
Armed Forces requires the continued use of such armed
forces in the course of bringing about a prompt removal
of such forces."
Section 5(c) provides that, notwithstanding the provisions of Section 5(b)--
" ... at any time that United States Armed Forces are
engaged in hostilities outside the territory of the United
States, its possessions and territories without a declaration
of war or specific statutory authorization, such forces shall
be removed by the President if the Congress so directs by
concurrent resolution."
In summary, Section 5 of the War Powers Act recognizes the constitutional authority of the President to initiate limited U.S. military action abroad without first securing the formal consent of Congress. The President, however, is required to file a formal report to Congress no later than forty-eight hours after undertaking such military action. The military action is limited to sixty days, unless Congress grants a thirty-day extension after the President has certified that the safety of the troops necessitates their continued deployment. For the President to legally continue the military action beyond the ninety days, he must have prior congressional approval, either through a declaration of war or through a statute or joint resolution granting specific authorization to continue the military action. At any time before the foregoing time limits, Congress may, through passage of a concurrent resolution not subject to presidential veto, require the President to withdraw the Armed Forces from hostilities abroad.
Finally, the War Powers Act was intended to curb the President's use of the United Nations Charter and other other treaties as a means of developing and exercising an independent war-making power. Section 8(a)(2) of the Act provides:
"Authority to introduce United States Armed Forces into
hostilities or into situations wherein involvement in
hostilities is clearly indicated by the circumstances shall
not be inferred ... from any treaty heretofore or hereafter
ratified unless such treaty is implemented by legislation
specifically authorizing the introduction of United States
Armed Forces into hostilities or into such situations and
stating that it is intended to constitute specific statutory
authorization within the meaning of this joint resolution."
Presidential authority to engage U.S. military forces in armed combat abroad is not to be inferred from any treaty to which the U.S.A. is a party, unless congressional legislation implementing the treaty (1) specifically authorizes the President to take such action and (2) expressly states that the intent of the legislation is to grant such authorization.
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