Farrell 1

A basic belief of The Founding Fathers was to ensure

separation of powers between the Executive, Legislative and

Judicial branches of the US government. As outlined by James

Madison, “the powers of government should be so divided and

balanced among the several bodies of magistracy as that no one

could transcend their legal limits without being effectually

checked and restrained by the others” (Madison). This belief was to

ensure democratic principles were protected and included declaring

and conducting any war that the country might get involved with.

Article 1 Section 8 of the US Constitution1 defines Congress’ role

in war making while Article 2 Section 2 of the Constitution2,

defines the President’s responsibilities. By 1973, presidential

power in foreign policy and military actions had expanded

Farrell 2

significantly. Congress last declared war in 1942 but the United

States had been involved in a number of military actions3 since

then, most notably the Korean and Vietnam Wars (Franke-Ruta). After

almost a decade of involvement in Vietnam, Congress moved to curb

the growing presidential influence on war powers and re-establish

its constitutional authority (McMahon). In late 1973, Congress

passed the War Powers Resolution (Public Law 93-148), which was

meant to ensure that the legislature’s constitutional authority

could not be overtaken by the Executive branch in matters of war.

In their attempt to reinforce their constitutional authority, the

passing of the War Powers Resolution actually reduced Congress’

authority and gave the Executive branch expanded powers in

initiating and conducting a war.

Rep. Clement Zablocki (D-Wisconsin) sponsored the War Powers

Resolution (H J Res 542)4 in the House of Representatives in May of

1973. The bill was passed in November of 1973 after an override of

President Nixon’s veto. Zablocki believed the bill would “reassert”

the legislature’s “constitutionally mandated obligation in the area

of war powers.”("Enactment”). Specific legislative efforts to

redefine war powers had been going on since 1969 (“Senate Moves”)

Farrell 3

but concerns about expanded executive powers dated back to the end

of World War II. From the start of the Korean War in 1950 through

troop deployments in the Middle East and ultimately the Vietnam

War, the Executive branch was assuming a more aggressive and

arguably more unilateral role in military matters.

The Korean War or “police action” was deemed necessary to stop

any further expansion of Communism in Asia5. Despite the fact that

no formal declaration was asked for or passed, 300,000 US soldiers

were sent to Korea. Congress was relatively quiet in asserting its

war powers during the Korean “police action.” Only a few

legislators insisted that Truman should have gone to Congress for

approval6. The majority in Congress, which supported the action, may

have laid the groundwork for a more activist Executive Branch in

future foreign policy matters and military actions.

In April 1954, President Eisenhower introduced the concept of

the “domino theory” when addressing the continuing risk of

communism expanding in Asia (Eisenhower). At the time, the French

had been engaged in an armed conflict in trying to regain control

of what was French Indochina (Vietnam, Cambodia and Laos) before

the territories were lost to Japan during WWII. The French had

Farrell 4

effectively been at war with communist forces supported by

Communist China and the Soviet Union since 1946 (Hanyok 10). In

February of 1954, Eisenhower sent forty B-26 bombers and 200 Air

Force service technicians as part of the aid that was being sent to

the French (“Pentagon,” vol.1). The difference, this time, was the

inclusion of the service technicians. US servicemen were being sent

into a war zone. The Eisenhower Administration informed Congress

but did not ask for approval (Eisenhower). This was another example

of the Constitutional struggle between the legislature and

executive branches in war powers. Did Eisenhower completely ignore

Congress? The answer is no but it could also be suggested that the

Constitutional roles were becoming more blurred and the President

was clearly extending his influence in war powers.

In 1958, President Eisenhower, under the auspices of the

Eisenhower Doctrine, sent Marines into Lebanon7. Only after

Eisenhower decided to send in Marines, was Congress informed. Since

Eisenhower and his advisers informed Congress after the decision

was made, it could be argued they considered this more a formality

than consultation or approval. It seems that the political climate

of the time, especially as it related to the Cold War and perceived

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Soviet aggression, was providing a new power structure in war

making.

When it comes to Congress’ ability to maintain its

constitutional standing on war powers, the period right after WWII

and through the 1950’s was a critical period. The rise of Communism

after WWII seemed to create a new political direction in war making

powers. From the Korean “police action,” through support of the

French in Indochina and the implementation of the Eisenhower

Doctrine, the executive branch’s power increased significantly. It

seemed that Congress was conflicted by its perceived constitutional

responsibilities and its concern about possibly compromising the

President’s ability to conduct a strong foreign policy,

particularly in a “Cold War” environment. In the case of the

Eisenhower Doctrine, Congress consented to expanded powers for the

President. The 1960’s would prove to be equally challenging in

balancing the war powers responsibilities of the legislative and

executive branches.

President Kennedy continued the policies of Truman and

Eisenhower as it relates to Indochina. In May 1961, Kennedy sent

400 Green Berets to train Vietnamese soldiers ("Vietnam War:

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America."). In May of 1962, Kennedy sent 5000 Marines and combat

aircraft to Thailand in response to Communist activity in Laos

(they were withdrawn later in the year) (Salazar 11). There was

never a Congressional declaration of war or a resolution

authorizing these actions. There were appropriations approved by

Congress to provide aid to Vietnam but the troop deployments were

the action of the Executive Branch.

After Kennedy’s assassination, President Johnson continued the

Vietnam policies of his predecessors. On August 2, 1964, two North

Vietnamese torpedo boats encountered the USS Maddox in the Gulf of

Tonkin. On August 4th, the USS Maddox and the USS Turner Joy were

on patrol in the Gulf and reported they were under attack. US

pilots that were in the area did not see any enemy ships in the

area and it is now believed that there may not have been an actual

attack (Hanyok, 175). Whatever may have happened, the

administration moved quickly and introduced the Southeast Asia

Resolution (also known as the Gulf of Tonkin resolution8). On August

7th Congress passed the resolution. In the Senate only two votes

went against the resolution (Senators Wayne Morse – D, Oregon and

Ernest Gruening – D, Alaska) and the House vote was unanimous. The

Farrell 7

Congress had acted within a week of the Gulf of Tonkin incident.

The most important element of the resolution was that “the United

States is, therefore, prepared, as the President determines, to

take all necessary steps, including the use of armed force.”

(“Vietnam Resolution”). During the debate in the Congress, Sen.,

Morse stated, “I believe that history will record that we have made

a great mistake in subverting and circumventing the Constitution of

the United States... I believe this resolution to be a historic

mistake.”("Senate Debate”). Public support for the President was

strong. In August a Harris Poll showed that 72% of Americans

approved of what Johnson was doing in Vietnam. The alleged attack

of August 4th combined with public support and the overall belief

at the time that Communism was advancing all contributed to

Congress approving the Resolution with almost no opposition. Since

the end of WWII, with the Korean “police action,” the Eisenhower

Doctrine and now the Gulf of Tonkin Resolution, war making powers

may not have become the sole discretion of the President but any

constitutional balance had been significantly weakened.

By the end of 1968 there were 536,000 US soldiers in Vietnam

(“Vietnam Timeline”) By September of 1968, 54% of Americans thought

Farrell 8

sending troops to Vietnam was a mistake ("The Vietnam War

Statistics"). The political climate was changing in the US. Johnson

announced he would not run for re-election in 1968 as anti-war

feelings got stronger. Congress’ approach to its role in its war

making responsibility was also changing.

Soon after President Nixon’s inauguration in January 1969, the

Senate passed a non-binding resolution declaring that any

commitment of US forces would require approval from the legislative

and executive branches ("Senate Moves”). Although Nixon began to

withdraw troops in 1969, in April 1970 troops invaded Cambodia. In

a televised speech to the nation, Nixon specifically stated it was

not an invasion (Nixon, “Address”). The Cambodian “incursion”

included 30,000 US troops. This became a turning point. Protests

increased across the country and legislators accelerated their

efforts to limit the President’s war powers. In January 1973, the

same time that a peace agreement was reached with North Vietnam,

the war powers resolution was introduced. The bill was eventually

passed, over Nixon’s veto, in November 1973 ("Enactment”). It

should be noted that in January 1973, when the bill was first

introduced in the House, Nixon’s approval rating was 67%. At the

Farrell 9

time of the override his approval rating was approximately 30%.

(“Presidential”). The Watergate scandal and the public’s

opposition to the war had considerably weakened the President

politically. This gave Congress a unique opportunity to try to

reshape its role and responsibilities in war making. Just as

Johnson in 1964 was able to use a strong political position to

gain extensive war making powers, Congress was now in a position

to “re-assert” its role in war powers.

In brief, the War Powers Resolution requires that the

President consult with, and report to, Congress if US Forces were

introduced into combat (War Powers Resolution). Opponents of the

bill thought Congress was over-reaching and infringing on the

constitutional powers of the President. In his veto message, Nixon

wrote “the restrictions which this resolution would impose upon the

authority of the President are both unconstitutional and dangerous

to the best interests of our Nation.” (Nixon, “Veto”). Sen. Sam

Ervin (D-NC), stated that “Here is a power and a duty which the

Constitution clearly imposes upon the President of the United

States, to use the armed forces to protect this country against

invasion and here is a bill which says expressly that the President

Farrell 10

of the United States cannot perform his constitutional duty and

cannot exercise his constitutional power to protect this country”

(“Enactment”). This was a key belief of those that thought Congress

went too far. Ervin, and others, felt that Congress was now trying

to assume too much power. This was not just re-asserting the role

of Congress but taking over some of the President’s

responsibilities. Opposition also came from a different angle. Some

people thought that Congress was increasing, not decreasing,

Presidential powers. Sen. Thomas Eagleton represented this view by

stating, "the bill gives the President of the United States

unilateral authority to commit American troops anywhere in the

world, under any conditions he decides” (Adler, Fisher 5). Although

there was enough support to override a Presidential veto, there was

still some debate in Congress on the validity of the Resolution.

From 1975-2011, there have been over 130 presidential reports

under the resolution. Not one of these reports led to a formal

declaration of war or an actual implementation of the resolution

(Grimmett, “War Powers Presidential” summary). Some specific

examples of military action after the bill was passed included

President Reagan sending an invasion force of 1900 to the island of

Farrell 11

Grenada. Congressional representatives were informed the night

before the invasion started and long after the decision was made

(Rubner 627). Certainly, there was no “consultation” with the

administration although Reagan did file a report with Congress

“consistent with” the Resolution (Grimmett,“War Powers Resolution:

After”). It is interesting to note that the invasion occurred just

a few days after 240 Marines were killed in Lebanon during a

peacekeeping mission authorized by Reagan. Reagan sent 800 Marines

to Lebanon in July 1982. Reagan began discussions with

congressional leaders on July 6, 1982 after the plan had been

publicly announced ("Reagan"). “Consultation” did not happen but

there was no action taken by Congress.

Another example would have been when President Clinton in

March 1999, authorized US involvement in NATO airstrikes against

the Yugoslav Federal Republic (Serbia and Montenegro). Serbian

troops had been involved with “ethnic cleansing” of Albanians in

the province of Kosovo and NATO countries decided to act. The

bombing by the U.S. lasted for 79 days. Two days after the bombing

began, Clinton formally informed Congress, on March 26th, that

action had taken place (Grimmet,“War Powers Resolution: After”). In

Farrell 12

effect, Clinton ignored the “consultation” element of the

Resolution and the airstrikes exceeded the 60 day limit by almost

three weeks (Grimmett, “War Powers Resolution Presidential”4).

Congress had an almost schizophrenic reaction to the Kosovo issue.

On March 23rd, the Senate passed a non-binding resolution that

supported the idea of airstrikes (S Con Res 219). A month later, on

April 28th, the House, in a tie vote, rejected the Senate support

for the bombing and also passed legislation prohibiting use of

ground troops. In the same session, Congress also refused to

formally declare war but, in May, Congress approved funding for the

Kosovo operation (“Lawmakers”). Republicans, which controlled the

House and Senate, seemed conflicted by their desire to support

the military and their reluctance to get involved with a foreign

conflict. Some legislators, like Rep. Thomas Campbell (R-CA),

stated that Clinton violated the War Powers Resolution. Campbell

and 17 other representatives went so far as suing the President

on the Resolution but the case was dismissed (Grimmett, “War

Powers Resolution: After”). At the time the American public was

also somewhat split on Kosovo10 while Clinton’s approval rating was

64% (“Gallop Poll Clinton”). Congress, it seemed, was so divided

Farrell 13

that it could not form a clear strategy in dealing with Kosovo. As

a result the President was allowed to act without any real

consequences under the Resolution.

These examples show that Congress, despite its efforts to re-

establish its constitutional role in war powers, in fact ended

giving up more authority. It seems that, excluding the 11 times

Congress did declare war or when there was strong public support

for actions such as the Gulf of Tonkin, Congress was often

conflicted and could not reach a consensus on Presidential actions.

However, Congress complicated matters with the War Powers

Resolution by providing the President a way of arbitrarily taking

military action by requiring after the fact reporting (the 48 hour

notification requirement). Furthermore, the President was free to

act for up to 60 days depending on how, if at all, Congress acted.

It could be further argued that Congress not only failed in its

attempt to re-assert its role in war making responsibilities but

abdicated its constitutional role in declaring war. Kosovo is a

prime example as Congress formally voted against declaring war.

What is also ironic is that Congress, at a time when its political

standing was relatively strong, passed a resolution that weakened

Farrell 14

its authority. When Nixon stated his objections to the resolution,

he had very little credibility with Congress and the American

people. Despite this, members of Congress did have a genuine and

strong debate on how this resolution could impact the

constitutional roles of the legislative and executive branches. The

political climate certainly contributed to a more aggressive

Congress in eventually overriding a President’s veto but they did

seem to be aware of the constitutional roles of both branches of

government. Some legislators felt if Congress went too far in

trying to re-define their role it could be viewed as

unconstitutional. As a result, Congress may have tried to “thread

the needle” with the resolution and ended up weakening their role

in the process. In addition, Congress did not seem too assertive in

exercising the rights outlined in the Resolution, particularly the

consultation part. Rather than “re-asserting” their role in the

process, Congress would have been better off if they exercised the

rights they already had. As an example, from the time of the Gulf

of Tonkin to the withdrawal of US troops from Vietnam, Congress had

many opportunities to stop appropriations or use their

constitutional “power of the purse strings” to stop or check the

President’s actions. They chose not to do that. They waited for

Farrell 15

almost ten years to act and when they did act they may have

weakened their ability to influence military actions. As Arthur

Schlesinger, a noted historian stated “before the passage of the

resolution, unilateral presidential war was a matter of usurpation.

Now, it was a matter of law" (Imperial 434-35). This observation just

seems to confirm that, In their attempt to reinforce their

constitutional authority, the passing of the War Powers Resolution

actually reduced Congress’ authority and gave the Executive branch

expanded powers in initiating and conducting a war.

Farrell 16

End Notes

1 Article 1 Section 8 US Constitution – Power to Declare War. For

further information see Appendix A.

2 Article 2 Section 2 US Constitution – Executive Branch. For further

information on the document see Appendix B.

3 For the full list of military list, see Appendix D for further

information.

4 War Powers Resolution for further information see Appendix C.

5 At the end of WWII, Korea, which was controlled by Japan, was split

in two, North (Soviet controlled) and South (US controlled). In 1950,

the North invaded the South which resulted in a United Nations

resolution (UN Security Council Resolution 83) that approved military

action to stop the invasion. President Truman described it as a

“police action” and justified his actions based on the United Nations

resolution. It also coincided with Truman’s stated policy of

“containing” the spread of Communism. (Fisher)

6 Congressman Vito Marcantonio (American Labor Party, N.Y.) stated that

“when we agreed to the United Nations Charter we never agreed to

supplant our Constitution with the United Nations Charter. The Power to

declare and make war is vested in the representatives of the people, in

the Congress of the United States” (Fisher). Senator Robert Taft (R-

Ohio) warned that if the President could intervene in Korea “without

congressional approval, he can go to war in Malaya or Indonesia or Iran

or South America” Taft conceded that U.S. entry into the United Nations

created a new political equation, “but I do not think it justifies the

President’s present action without approval by Congress” (Fisher).

7Eisenhower was also dealing with Communist threats in other regions.

After the Suez Canal crisis of 1956, where Israel, Britain and France

invaded Egypt after the canal was nationalized by Egyptian leader

Gamal Abdel Nasser, Eisenhower addressed issues in the Middle East.

Soviet involvement in the Middle East prompted the President to

introduce the “Eisenhower Doctrine” for Congressional approval.

After considerable debate, Congress passed H J Res 117. The

resolution allowed the President “to cooperate with and assist” any

Middle East nations desiring help “in the development of economic

strength dedicated to the maintenance of national independence.

“Perhaps most importantly, it stated that “if the President

determines the necessity,” the U.S. “is prepared to use armed forces

to assist” any Mideast nation requesting aid against armed aggression

from a Communist-dominated country. The legislature did provide the

President new powers in initiating military action. Congressman Bruce

Alger (R Texas), who voted against H J Res 117 felt that “we only

fool ourselves and weaken our form of government.” Congressman August

E. Johansen (R Mich.) supported H J Res 117, despite “definite

misgivings and reservations,” to “sustain and strengthen” the

President. (“Suez”) (“Eisenhower Doctrine”).

8 The Gulf of Tonkin Resolution for the full document see Appendix F.

9 Kosovo senate resolution (S. Con. Res. 21) for further information see

Appendix G.

10 In a Gallup Poll conducted on March 30-31, 53% of Americans supported the bombings. (“Gallup Poll Kosovo”)

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