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War Powers Act
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The original documents are located in Box 43, folder "War Powers Act" of the John
Marsh Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 43 of The John Marsh Files at the Gerald R. Ford Presidential Library
19 1976
THE WHITE HOUSE
WASHINGTON
August 18, 1976
MEMORANDUM FOR:
JACK MARSH
FROM:
PHIL BUCHEN P.
SUBJECT:
War Powers Resolution
This is in response to your memorandum of August 3,
requesting my views on the advisability of seeking
a court determination regarding the constitutionality
of the War Powers Resolution. For the reasons discussed
below, I would not encourage the recommendation advanced
by Senator Goldwater for such a determination.
BACKGROUND
The War Powers Resolution [Pub. L. 93-148; J. Res. 542,
93d Cong., 2d Sess. (1973) ] was enacted by Congress on
November 7, 1973, over the veto of former President
Nixon. Never before had Congress undertaken to codify
or define rules applicable to the introduction of
United States armed forces into war or threatened war.
The announced purpose of the resolution, set forth in
Sec. 2 (a), is:
***
"
to insure that the collective
judgment of both the Congress and
the President will apply to the intro-
duction of United States Armed Forces
into hostilities, or in situations
where imminent involvement in
hostilities is clearly indicated by
the circumstances, and to the continued
use of such forces in hostilities or in
such situations."
FORD is LIBRARY
***
- 2 -
Section 2 (c) expresses a congressional understanding
that the "constitutional powers of the President as
Commander-in-Chief" to commit military forces exist
only when: (1) Congress has declared war, (2)
legislated specific authority, or (3) the United
States is under attack.
Section 3 provides that the President will consult
with Congress "in every possible instance" before
each use of armed forces in hostilities or threatened
hostilities and regularly thereafter, until United
States forces are disengaged or removed from such
situations. The applicability of the resolution is
initiated by Sec. 4, which requires that, absent a
declaration of war, whenever United States armed
forces are introduced (1) into hostilities or
imminent hostilities; (2) into the territory, air
space, or waters of a foreign nation, when equipped
for combat (other than solely for the supply, replace-
ment, repair or training of forces) ; or (3) in numbers
which substantially enlarge United States forces
equipped for combat already located in a foreign
nation, the President must report it in writing to
Congress within 48 hours and periodically afterwards.
It is significant that situations (2) and (3) are
not tied to the actual outbreak of or imminent involve-
ment in hostilities, but restrict the mere deployment
of combat forces into another country, whether or not
hostilities might be anticipated. Even the strengthening
of units already located in foreign countries is
similarly restricted.
Once the reporting provision has been triggered, Sec. 5
takes effect. This section mandates that no later than
60 days after a report is required, "the President shall
terminate any use of United States Armed Forces with
respect to which such report was submitted (or required
to be submitted), "unless Congress grants specific
authority for the operation to continue or "is physically
unable to meet as a result of an armed attack upon the
United States." The 60-day period can be extended for
an additional 30 days if the President determines and
certifies to Congress that the safety of United States
troops demands their continued use in the course of
bringing about their prompt removal.
-3-
DISCUSSION
Senator Goldwater and others have argued that the War
Powers Resolution represents a legislative encroachment
upon the President's exclusive constitutional province
in violation of the Commander-in-Chief clause [Art. II,
Sec. 2, cl. 1]. It is not clear whether their argument
relates only to the effects of Section 5 or whether it
also relates to the requirements that the President must
consult with Congress and must report concerning the use
of armed forces when there has been no declaration of war.
As you know, on a number of occasions, most notably the
Mayaguez incident, President Ford has directed military
operations which came within the purview of the War
Powers Resolution. A practice has developed in these
instances which is neither cumbersome nor unseemly. The
practice calls for the President to provide the Congress
with notice of troop movement and to consult with members
of the Congressional leadership on the general nature of
the problem and his intended solution. Although noting
the War Powers Resolution, the President has, for the
record, consistently relied solely on his constitutional
powers to effect these actions (see attachment).
Therefore, I see no point in trying to challenge the
consultation and notification procedure of the resolution.
However, the more serious objection is Section 5 which
requires the President to terminate military action after
a specified period unless the Congress grants specific
authority to continue the operation. It is possible to
imagine a situation where the President would want to
continue despite the refusal of Congress to approve his
operation, but until we arrive at that situation, I do
not see that there would be a case or controversy for
submission to a court. Also, the initiative to bring
a court action would probably have to come from Members
of Congress who would seek to stop the continuation of
the operation if it went beyond the period specified in
the statute. At that point, the Department of Justice
would enter the case for the President, and I see no
reason why private funds would be required to defend
the case against the President.
- 4 -
I fear that Senator Goldwater has not realized that
it is impossible to go at will into court for the
purpose of challenging a particular statute. A
federal court will only hear a "case or controversy"
and will not decide in the abstract on the validity
or interpretation of a statute. As you recall, we
have wanted to challenge statutes allowing for
Congressional "veto" of Executive actions, but we
are not able to initiate a suit and must await the
occasion of an actual veto that we defy and then
are challenged for defying it. Therefore, I would
discourage the Senator from the fund raising effort
which he proposes in his letter to Bill Whyte.
HOUSE OF REPRESENTATIVES CONTACT LIST
MEMBER
TIME
PLACE
COMMENT
The Speaker
Tip O'Neill
John McFall
John Rhodes
Bob Michel
A1 Cederberg
George Mahon
"Doc" Morgan
Bill Broomfield
Mel Price
Bob Wilson
UNITED STATES SENATE CONTACT LIST
MEMBER
TIME
PLACE
COMMENT
Eastland
Mansfield
Byrd, R.
Scott, H.
Griffin
Stennis
Thurmond
Sparkman
Case
McClellan
Young
August 3, 1976
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
JACK MARSH
Please note the attached letter to Bill Whyte, a copy of which
was sent to the White House.
The President has raised the question as to whether the course
suggested by Senator Goldwater should be pursued on getting a
court determination of the War Powers Act.
I would appreciate your views.
Many thanks.
CC: Dick Cheney
JOM/dl
FORD fai 070830 LIBRAR
BARRY GOLDWATER
COMMITTEES:
ARIZONA
AERONAUTICAL AND SPACE SCIENCES
ARMED SERVICES
RECEIVED
PREPAREDNESS INVESTIGATING SUBCOMMITTEE
WM. G. WHYTE
TACTICAL AIR POWER SUBCOMMITTEE
United States Senate
INTELLIGENCE SUBCOMMITTEE
MILITARY CONSTRUCTION SUBCOMMITTEE
DUL 2 7 1976
WASHINGTON, D.C. 20510
RESEARCH AND DEVELOPMENT SUBCOMMITTEE
VICE PRESIDENT
WASHINGTON
July 21, 1976
Mr. William Whyte
U. S. Steel
1625 K Street, Northwest
Washington, D. C. 20006
Dear Bill:
Ever since the Congress foolishly passed the War Powers
Act about two years ago, I had been discussing the de-
sirability and possibility of bringing a suit so that an
ultimate decision could be made by the Supreme Court testing
the constitutionality of this measure.
In my humble opinion, it is unconstitutional, but far beyond
that, it makes the Congress, all 535 members, the group
which will determine foreign policy, the group which will
determine if, when and with whom we go to war and, to be
honest with you, it scares the daylights out of me.
Now, my question to you is that if we can reach a determina-
tion as to how much this course of action might cost, and
I'm thinking of at least a quarter of a million dollars, do
you think we can put enough men together to raise the money
for that purpose? I will be very willing to help in any
way that I can, but let me suggest, Bill, that you first
discuss this with the President. I have very quickly brushed
it by him, but I have a feeling that he would be very desirous
of having the test made. I know that Nixon had that feeling
and I haven't spoken with a former Secretary of State yet
who doesn't feel that this legislation can be destructively
dangerous to the future of our country. I would appreciate
hearing from you. I am writing no one else until the two of
us can either agree or disagree.
Sincere)
Barry Go Idwater
THE WHITE HOUSE
WASHINGTON
May 24, 1975
MEMORANDUM FOR THE PRESIDENT
THRU:
JOHN O. MARSH
FROM:
BILL KENDALL RK
SUBJECT:
A Message from Senator Goldwater regarding
the War Powers Act.
At the last meeting Senator Goldwater attended at the White House
(The Science Advisor Meeting on May 22, 1975), Senator Goldwater
spoke with me about the War Powers Act. He feels the Act is uncon-
stitutional and has had some legal experts studying the question. The
Senator confided that much as he himself would like to bring suit on
the Act to test its constitutionality, he could not afford the heavy costs
such action would entail. He did, however, want me to bring this
matter to the President's attention and he may discuss it when he
sees the President today.
HOUSE OF REPRESENTATIVES CONTACT LIST
MEMBER
TIME
PLACE
COMMENT
The Speaker
Tip O'Neill
John McFall
John Rhodes
Bob Michel
A1 Cederberg
George Mahon
"Doc" Morgan
Bill Broomfield
Mel Price
Bob Wilson
UNITED STATES SENATE CONTACT LIST
MEMBER
TIME
PLACE
COMMENT
Eastland
Mansfield
Byrd, R.
Scott, H.
Griffin
Stennis
Thurmond
Sparkman
Case
McClellan
Young
Public Law 93-148
93rd Congress, H. J. Res. 542
November 7, 1973
LAW ARMY SECTION LIBRARY
Joint Resolution
Concerning the war powers of Congress and the President.
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled,
War Powers
Resolution.
SHORT TITLE
SECTION 1. This joint resolution may be cited as the "War Powers
Resolution".
PURPOSE AND POLICY
SEC. 2. (a) 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 judgment of both the Congress and the
President will apply to the introduction of United States Armed
Forces into hostilities, or into situations where imminent involvement
in hostilities is clearly indicated by the circumstances, and to the con-
tinued use of such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically USC prec.
provided that the Congress shall have the power to make all laws neces- title 1.
sary and proper for carrying into execution, not only its own powers
3
but also all other powers vested by the Constitution in the Govern-
ment of the United States, or in any department or officer thereof.
(c) The constitutional powers of the President as Commander-in-
Chief to introduce United States Armed Forces into hostilities, or
into situations where imminent involvement in hostilities is clearly
indicated by the circumstances. are exercised only pursuant to (1) a
declaration of war, (2) specific statutory authorization. or (3) a
national emergency created by attack upon the United States, its ter-
ritories or possessions, or its armed forces.
CONSULTATION
SEC. 3. The President in every possible instance shall consult with
Congress before introducing United States Armed Forces into hostili-
ties or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances, and after every such introduc-
tion shall consult regularly with the Congress until United States
Armed Forces are no longer engaged in hostilities or have been removed
from such situations.
REPORTING
SEC. 4. (a) In the absence of a declaration of war, in any case in
which United States Armed Forces are introduced-
(1) into hostilities or into situations where imminent involve-
ment in hostilities is clearly indicated by the circumstances:
87 STAT. 555
(2) into the territory, airspace or waters of a foreign nation, 87 STAT. 556
while equipped for combat, except for deployments which relate
solely to supply, replacement, repair, or training of such forces;
or
(3) in numbers which substantially enlarge United States
Armed Forces equipped for combat already located in a foreign
nation;
FORD
GERALD
LIBRAR
Pub, Law 93-148
- 2 -
November 7, 1973
the President shall submit within 48 hours to the Speaker of the House
of Representatives and to the President pro tempore of the Senate a
report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United
States Armed Forces;
(B) the constitutional and legislative authority under which
such introduction took place; and
(C) the estimated scope and duration of the hostilities or
involvement.
(b) The President shall provide such other information as the
Congress may request in the fulfillment of its constitutional responsi-
bilities with respect to committing the Nation to war and to the use of
United States Armed Forces abroad.
(c) Whenever United States Armed Forces are introduced into
hostilities or into any situation described in subsection (a) of this
section, the President shall. so long as such armed forces continue to be
engaged in such hostilities or situation, report to the Congress periodi-
cally 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 the Congress less often than once every six months.
CONGRESSIONAL ACTION
SEC. 5. (a) Each report submitted pursuant to section 4(a) (1) shall
be transmitted to the Speaker of the House of Representatives and to
the President pro tempore of the Senate on the same calendar day.
Each report SO transmitted shall be referred to the Committee on
Foreign Affairs of the House of Representatives and to the Committee
on Foreign Relations of the Senate for appropriate action. If, when
the report is transmitted. the Congress has adjourned sine die or has
adjourned for any period in excess of three calendar days. the Speaker
of the House of Representatives and the President pro tempore of the
Senate, if they deem it advisable (or if petitioned by at least 30 per-
cent of the membership of their respective Houses) shall jointly request
the President to convene Congress in order that it may consider the
report and take appropriate action pursuant to this section.
(L) Within sixty calendar days after a report is submitted or is
required to be submitted pursuant to section 4(a) (1), whichever is
earlier, the President shall terminate any use of 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. Such sixty-day period shall be extended for not more
than an additional thirty days if the President determines and certi-
fies 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.
(c) Notwithstanding subsection (b). at any time that United States
Armed Forces are engaged in hostilities outside the territory of the
87 STAT. 556
United States, its possessions and territories without a declaration of
87 STAT. 557
war or specific statutory authorization, such forces shall be removed
by the President if the Congress so directs by concurrent resolution.
November 7, 1973
- 3 -
Pub. Law 93-148
87 STAT. 557
CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL
Sec. 6. (a) Any joint resolution or bill introduced pursuant to sec-
tion (b) at least thirty calendar days before the expiration of the
sixty-day period specified in such section shall be referred to the Com-
mittee on Foreign Affairs of the House of Representatives or the
Committee on Foreign Relations of the Senate, as the case may be, and
such committee shall report one such joint resolution or bill, together
with its recommendations, not later than twenty-four calendar days
before the expiration of the sixty-day period specified in such section,
unless such House shall otherwise determine by the yeas and nays.
(b) Any joint resolution or bill SO reported shall become the pend-
ing business of the House in question (in the case of the Senate the
time for debate shall be equally divided between the proponents and
the opponents), and shall be voted on within three calendar days there-
after, unless such House shall otherwise determine by yeas and nays.
(e) Such a joint resolution or bill passed by one House shall be
referred to the committee of the other House named in subsection
(a) and shall be reported out not later than fourteen calendar days
before the expiration of the sixty-day period specified in section (b).
The joint resolution or bill so reported shall become the pending
business of the House in question and shall be voted on within three
calendar days after it has been-reported, unless such House shall other-
wise determine by yeas and navs.
(d) In the case of any disagreement between the two Houses of
Congress with respect to a joint resolution or bill passed by both
Houses, conferees shall be promptly appointed and the committee of
conference shall make and file a report with respect to such resolution
or bill not later than four calendar days before the expiration of the
sixty-day period specified in section (b). In the event the conferees
are unable to agree within 48 hours, they shall report back to their
respective Houses in disagreement. Notwithstanding any rule in either
House concerning the printing of conference reports in the Record or
concerning any delay in the consideration of such reports. such report
shall be acted on by both Houses not later than the expiration of such
sixty-day period.
CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION
Sec. 7. (a) Any concurrent resolution introduced pursuant to sec-
tion 5 (c) shall be referred to the Committee on Foreign Affairs of the
House of Representatives or the Committee on Foreign Relations of
the Senate, as the case may be, and one such concurrent resolution shall
be reported out by such committee together with its recommendations
within fifteen calendar days, unless such House shall otherwise deter-
mine by the yeas and nays.
(b) Any concurrent resolution SO reported shall become the pending
business of the House in question (in the case of the Senate the time
for debate shail be equally divided between the proponents and the
opponents) and shall be voted on within three calendar days there-
after, unless such House shall otherwise determine by yeas and nays.
.
(c) Such a concurrent resolution passed by one House shall be
referred to the committee of the other House named in subsection (a)
and shall be reported out by such committee together with its recom-
mendations within fifteen calendar days and shall thereupon become
the pending business of such House and shall be voted upon within
Pub. Law 93-148
- 4 -
November 7, 1973
87 STAT. 558
three calendar days, unless such House shall otherwise determine
by yeas and nays.
(d) In the case of any disagreement between the two Houses of
Congress with respect to a concurrent resolution passed by both
Houses, conferees shall be promptly appointed and the committee of
conference shall make and file a report with respect to such concurrent
resolution within six calendar days after the legislation is referred to
the committee of conference. Notwithstanding any rule in either House
concerning the printing of conference reports in the Record or con-
cerning any delay in the consideration of such reports, such report
shall be acted on by both Houses not later than six calendar days after
the conference report is filed. In the event the conferees are unable to
agree within 48 hours, they shall report back to their respective Houses
in disagreement.
INTERPRETATION OF JOINT RESOLUTION
SEC. 8. (a) 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—
(1) from any provision of law (whether or not in effect before
the date of the enactment of this joint resolution), including any
provision contained in any appropriation Act, unless such pro-
vision specifically authorizes the introduction of United States
Armed Forces into hostilities or into such situations and states
that it is intended to constitute specific statutory authorization
within the meaning of this joint resolution; or
(2) 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.
(b) Nothing in this joint resolution shall be construed to require
any further specific statutory authorization to permit members of
United States Armed Forces to participate jointly with members of
the armed forces of one or more foreign countries in the headquarters
operations of high-level military commands which were established
prior to the date of enactment of this joint resolution and pursuant to
59 Stat. 1031.
the United Nations Charter or any treaty ratified by the United States
prior to such date.
"Introduction
(c) For purposes of this joint resolution, the term "introduction of
of United
United States Armed Forces" includes the assignment of members of
States Armed
such armed forces to command, coordinate, participate in the move-
Forces."
ment of, or accompany the regular or irregular military forces of any
foreign country or government when such military forces are engaged,
or there exists an imminent threat that such forces will become
engaged, in hostilities.
(d) Nothing in this joint resolution—
(1) is intended to alter the constitutional authority of the Con-
gress or of the President, or the provisions of existing treaties; or
(2) shall be construed as granting any authority to the President
with respect to the introduction of United States Armed Forces
into hostilities or into situations wherein involvement in hostilities
is clearly indicated by the circumstances which authority he would
not have had in the absence of this joint resolution.
THE WHITE HOUSE
WASHINGTON
April 30, 1975
Dear Mr. Speaker:
On April 4, 1975, I reported that U.S. naval vessels had
been ordered to participate in an international humanitarian
relief effort to transport refugees and U.S. nationals to
safety from Danang and other seaports in South Vietnam.
This effort was undertaken in response to urgent appeals
from the Government of South Vietnam and in recognition of
the large-scale violations by the North Vietnamese of the
Agreement Ending the War and Restoring the Peace in Vietnam.
In the days and weeks that followed, the massive North
Vietnamese attacks continued. As the forces of the Government
of South Vietnam were pushed further back toward Saigon, we
began a progressive withdrawal of U.S. citizens and their
dependents in South Vietnam, together with foreign nationals
whose lives were in jeopardy.
On April 28, the defensive lines to the northwest and south
of Saigon were breached. Tan Son Nhut Airfield and Saigon
came under increased rocket attack and for the first time
received artillery fire. NVA forces were approaching within
mortar and anti-aircraft missile range. The situation at
Tan Son Nhut Airfield deteriorated to the extent that it
became unusable. Crowd control on the airfield was breaking
down and the collapse of the Government forces within Saigon
appeared imminent. The situation presented a direct and
imminent threat to the remaining U.S. citizens and their
dependents in and around Saigon.
On the recommendation of the American Ambassador there, I
ordered U.S. military forces to proceed by means of rotary
wing aircraft with an emergency final evacuation out of
consideration for the safety of U.S. citizens.
In accordance with my desire to keep the Congress fully
informed on this matter, and taking note of the provision
of section 4 of the War Powers Resolution (Public Law 93-148),
I wish to report to you that at about 1:00 A.M. EDT,
April 29, 1975, U.S. forces entered South Vietnam airspace.
A force of 70 evacuation helicopters and 865 Marines
evacuated about 1400 U.S. citizens, together with
approximately 5500 third country nationals and South
Vietnamese, from landing zones in the vicinity of the
U.S. Embassy, Saigon, and the Defense Attache Office at
Tan Son Nhut Airfield. The last elements of the ground
security force departed Saigon at 7:46 P.M. EDT April 29,
1975. Two crew members of a Navy search and rescue
helicopter are missing at sea. There are no other known
U.S. casualties from this operation, although two U.S.
Marines on regular duty in the compound of the Defense
Attache Office at Tan Son Nhut Airfield had been killed
on the afternoon (EDT) of April 28, 1975, by rocket attacks
into a refugee staging area. U.S. fighter aircraft provided
protective air cover for this operation, and for the with-
drawal by water of a few Americans from Can Tho, and in one
instance suppressed North Vietnamese anti-aircraft artillery
firing upon evacuation helicopters as they departed. The
ground security forces on occasion returned fire during the
course of the evacuation operation.
The operation was ordered and conducted pursuant to the
President's Constitutional executive power and his authority
as Commander-in-Chief of U.S. Armed Forces.
The United States Armed Forces performed a very difficult
mission most successfully. Their exemplary courage and
discipline are deserving of the nation's highest gratitude.
Sincerely,
GERALD R. FORD
The Honorable
The Speaker
United States House of Representatives
Washington, D. C. 20515