VIETNAM WAR

Throughout American history, Presidents have dispatched armed forces abroad to protect the lives and property of United States citizens as well as American security interests. However, these military operations usually were limited in scope and duration, were conducted against relatively defenseless nations, and did not involve major powers. Thus, there was little opportunity to test the President's constitutional authority to send armed forces abroad without prior congressional authorization or a declaration of war. For various reasons, the korean war did not furnish the occasion to test President harry s. truman's constitutional powers. The Vietnam War (1965–1973) was the first modern undeclared war that provided the opportunity to test the President's authority as commander-in-chief.

During the Vietnam War numerous litigants challenged the President's authority to initiate and conduct military hostilities without a congressional declaration of war or other explicit prior authorization. Such litigants denied that the gulf of tonkin resolution constituted authorization. Despite these challenges, the federal courts exhibited extreme caution in entering this twilight zone of concurrent power. The federal judiciary's reluctance to decide war powers controversies reveals a respect for the constitutional separation of powers, an appreciation for the respective constitutional functions of Congress and the President in foreign affairs, and a sense of judicial self-restraint. Nevertheless, toward the end of the Vietnam War, several lower federal courts entered the political thicket to restore the constitutional balance between Congress and the President.

Despite factual variations, the Vietnam War cases can be classified into four broad categories. One federal district court asserted categorically that the complaint raised a political question beyond the court's jurisdiction. a second agreed that the President's authority to conduct military activities without a declaration of war posed a nonjusticiable political question, but proceeded to determine whether the President had acted on his own authority, pursuant to, or in conflict with either the expressed or implied will of Congress. Courts in the third category concluded that the political question doctrine did not foreclose them from inquiring into the existence and constitutional sufficiency of joint congressional-presidential participation in prosecuting the war. Finally, some district courts decided cases on the substantive merits. Yet the Vietnam War ended without an authoritative Supreme Court decision.

At the war's end Congress enacted the War Powers Resolution (1973), which attempted to resolve the constitutional ambiguities posed by the separation of the congressional war powers from the President's office of commander-in-chief. Under the resolution, Congress can alternatively authorize continuation of military hostilities that the President has initiated or require him to disengage armed forces from foreign combat within sixty to ninety days. Practical problems aside, the resolution seems constitutionally flawed. The Supreme Court's decision in immigration and naturalization service v. chadha (1983) cast doubt on the constitutionality of the resolution's legislative veto provision, which states that Congress can direct the disengagement of troops by concurrent resolution. Moreover, if the Constitution vests the authority to initiate military hostilities exclusively in the Congress, can Congress constitutionally delegate this authority to the President, even for a limited period? Is the War Powers Resolution an undated declaration of war that allows the President to choose the time, the place, and the enemy?

The Framers of the Constitution conferred only a limited set of defensive war powers on the President. As commander-in-chief he superintends the armed forces in war and peace, defending the nation, its armed forces, and its citizens and their property against attack, and directing military operations in wartime. The Framers did not authorize the President to initiate military hostilities, to transform defensive actions into aggressive wars, or to defend allies against attack.

In the Framers' view, only Congress could change the nation's condition from peace to war. Yet neither the constitutional text nor the records of the constitutional convention conclusively draw the boundary between congressional power to initiate war and presidential power to defend against attack. In the twentieth century, international terrorism, the Vietnam War, guerrilla and insurgency warfare, wars of "national liberation," and the global conflict between the United States and the Soviet Union have virtually erased the Framers' distinction between defensive and offensive war.

A long history of undeclared war and military hostilities demonstrates that the constitutional questions raised during the Vietnam War are inherent in the American constitutional system. Presidents will be confronted with demands and opportunities to intervene militarily to protect American national security interests and the security interests of the nation's allies. Before yielding to this temptation, future Presidents should recall one of the Vietnam War's most important lessons: the nation should not wage a protracted undeclared war without a continuing agreement between Congress and the President that reflects broad, sustained public support.

Edward Keynes
(1986)

Bibliography

Keynes, Edward 1982 Undeclared War. University Park: Pennsylvania State University Press.

Revely, W. Taylor, III 1981 War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? Charlottesville: University Press of Virginia.

Sofaer, Abraham D. 1976 War, Foreign Affairs, and Constitutional Power. Cambridge, Mass.: Ballinger Publishing Co.