The Law: The President's War Powers

Did Richard Nixon "usurp" the constitutional powers of Congress when he unilaterally ordered troops into Cambodia? Swarms of lawyers went to Washington last week to join an increasingly intense debate on the issue (see THE NATION). Their most persuasive arguments raised fundamental questions that go far beyond Cambodia and the Indochina war.

Many of the antiwar lawyers conceded that proving the Cambodian "attacks" unconstitutional may be difficult. Nixon's authority as Commander in Chief gives him full power to protect U.S. troops in the field. But could he exercise that authority if the troops fighting in Southeast Asia were not deployed legally in the first place? The 1964 Gulf of Tonkin Resolution gave congressional support to President Johnson's use of "all necessary measures to repel any armed attack against the forces of the United States." The dissenters argue, of course, that Congressmen who voted for the resolution after a reported enemy attack on two U.S. destroyers never intended it to be a de facto declaration of war. Though Congress has also voted to equip troops under fire, the critics add, it is unfair to conclude that Congress thus approves of the war.

These arguments may never be settled. More important, many dissidents argue that usurpation of congressional power has been going on not just for months but for decades. As a thoughtful memorandum being circulated in Washington by Yale Law School students puts the issue: "The expansion of the war into Cambodia is the latest in a long series of acts which, taken together, have nearly stripped Congress of its war power. Undoubtedly, the speed with which crises develop in the modern world necessitates a strong executive who can respond quickly. The real question is whether the balance has shifted too far in favor of the executive."

Authority to Declare. When the constitutional drafters met in Philadelphia in 1787, they deliberately denied U.S. Presidents the kind of unfettered war power that European kings enjoyed. Instead, they gave Congress authority to "declare" war, "raise and support armies," make military appropriations for a period no longer than two years, and "provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." The only exceptions to legislative war authority were intended to be narrow: the framers made the President "Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." They also refrained from giving Congress the power to "make" war−a more comprehensive authority than the power to declare it.

According to James Madison, the President would thus have "power to repel sudden attacks." To many scholars the implication is clear. The President was to initiate emergency defensive operations; Congress was to remain responsible for all offensive ones. Said Thomas Jefferson: "We have given one effectual check to the dog of war by transferring the power of letting him loose from those who are to spend to those who are to pay."