Ask the Scholar

{
    "localId": "159441220",
    "label": "Memorandum, Powers of the President to Send the Armed Forces Outside the United States (B)",
    "core": "doc",
    "dtoType": "document",
    "citationUrl": "https://catalog.archives.gov/id/159441220"
}

{
    "id": "159441220",
    "sourceUrl": "https://catalog.archives.gov/id/159441220",
    "contentType": "document",
    "title": "Memorandum, Powers of the President to Send the Armed Forces Outside the United States (B)",
    "citationUrl": "https://catalog.archives.gov/id/159441220",
    "collections": [
        "President's Secretary's Files (Truman Administration)",
        "General Files"
    ],
    "iiifBase": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-psf/602190/876515/876515-04-01.jpg",
    "thumbnailUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-psf/602190/876515/876515-04-01.jpg",
    "largeImageUrl": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-psf/602190/876515/876515-04-01.jpg",
    "imageCount": 44,
    "hasImages": true,
    "source": "import",
    "hasTranscription": false
}

{
    "url": "https://catalog.archives.gov/id/159441220",
    "naId": 159441220,
    "levelOfDescription": "item",
    "productionDates": [
        {
            "day": 16,
            "logicalDate": "1951-02-16",
            "month": 2,
            "year": 1951
        }
    ],
    "recordType": "description",
    "ocrSource": "nara-archive"
}

{
    "seq": 44,
    "pageIndex": 0,
    "type": "document",
    "url": "https://s3.amazonaws.com/NARAprodstorage/lz/presidential-libraries/truman/hst-psf/602190/876515/876515-04.pdf",
    "mediaId": "4747c793b5331189",
    "ocrText": "February 16, 1951\nMemorandum\nPOWERS OF THE PRESIDENT TO SEND THE ARMED FORCES\nOUTSIDE THE UNITED STATES\nTHE\nTRUGHE\n\"NATIONAL\nARCHIVES AND\nTable of Contents\nRECORDS\nCHEARY\n5.5.\nSERVICE\nI\nThe Question\nGOVERNMENT\np. 1\nII\nSummary of Conclusions\np. 1\nIII Discussion\np. 5\nA.\nIntroductory\np. 5\nB.\nPowers of the President and the Congress\np. 6\n1. Of the President\np. 6\n2. Of the Congress\np. 9\nC.\nGrounds for Presidential Action in\nsending Troops Abroad\np. 10\n1. General Constitutional Limitations\np. 10\n2. Protection of U. S. Citizens or\nTheir Property Abroad\np. 10\n3. Protection of the Honor of the\nUnited States\np. 12\n4. Expansion of Foreign Commerce\np. 12\n5.\nDefense of the United States\np. 13\na. Doctrine of The Prize Cases\np. 13\nb. Sending Troops to Florida (1818)\np. 15\nc. Sending Troops to Texas (1845)\np. 15\nd. Sending Troops to Latin American\nCountries\np. 16\ne. Sending Troops to Iceland and\nthe British Bases (1941)\np. 17\n6.\nExecution of a Treaty\np. 17\na. The Doctrine\np. 17\nb. Under the Platt Amendment\np. 18\nC. Under the Treaty with Colombia\np. 19\nd. Treaty Need Not Be Explicit\np. 19\n7.\nOccupation of a Vanquished Enemy\nNation\np. 20\nD.\nCongressional Limitations on the power\nof the President to Send Troops Abroad\np. 22\n1. By Virtue of Congressional Powers over\nthe Armed Forces\np. 22\nS.\nANOHIVED NAVIONAL ECORDS AND\n- 2 -\nSERVICE\ngovernment\na.\nPower of the Purse\np. 22\nb.\nPower to Govern and Regulate\nArmed Forces\np. 22\n(1) Selective Service Act of 1940 p. 23\n(2) Lend Lease Act and\nNeutrality Act of 1939\np. 24\n2.\nBy Virtue of the Congressional Power\nto Declare War\np. 26\na.\nEffect of the \"Danger of War\" on\nPresidential Powers\np. 26\nb. Limitations on the Power to\nDeclare War\np. 27\nc. Neutrality Statutes\np. 29\n3. By virtue of the Congressional Power\nto Enact Legislation to\nImplement Treaties\np. 30\nE.\nPowers of the President under the United\nNations Charter and the United Nations\nParticipation Act - Action in Korea\np. 32\n1.\nProvisions of the United Nations\nCharter\np. 32\n2.\nProvisions of the United Nations\nParticipation Act\np. 34\n3. Attempts to curb Presidential Powers -\nthe Wheeler Amendment and the\nTaft Amendment\np. 35\n4.\nEffect of Failure of Article 43 on\nthe President's Powers\np. 37\nF.\nPowers of the President under the North\nAtlantic Treaty - Action in Europe\np. 38\n1.\nProvisions of the North Atlantic Treaty\np. 38\n2.\nAttempts to curb the President's\npowers under the Treaty\np. 38\nG.\nNeed for Collaboration between the Presi-\ndent and the Congress\np. 41\nI.\nThe Question.\nIt is contended that the President does not have\nthe power at the present time to send the armed forces abroad\nin the interest of the United States, unless there is prior\nauthorization by the Congress. This view has been widely\nasserted in recent months. (See 97 Cong. Rec. 58ff, Jan. 5,\n1951; 97 Cong. Rec. 531ff, Jan. 22, 1951; S. Res. 8, 82d\nCong., 1st Sess., Jan. 8, 1951; H.J. Res. 9, 82d Cong., 1st\nSess., Jan. 3, 1951.)\nIt is the purpose of this memorandum to determine\nwhether the President has the power to employ the armed\nforces of the United States abroad under present circum-\nstances, with particular reference to Korea and the North\nAtlantic Treaty, and to discuss the extent of such power and\nthe objectives for which it may be exercised.\nII.\nSummary of Conclusions.\nA survey of the authorities leads to the following\nconclusions:\nThe President was acting lawfully and constitu-\ntionally in sending troops to Korea in response to the\nresolution of the United Nations. He will be acting law-\nfully and constitutionally if he sends troops to Europe to\nimplement the North Atlantic Treaty.\nThe President's powers in this connection are\nderived from those portions of the Constitution which\nmake him the Commander-in-Chief of the Army and the\nNavy of the United States, which give him special\nresponsibilities in the field of foreign affairs and\nwhich impose upon him the duty to take care that the\nlaws be faithfully executed. (Const. Art. II, Sect. 2,\ncl. 1; Art. II, Sect. 2, cl. 2; Art. II, Sect. 3.)\nIn addition to these specific grants of authority\nthe courts have recognized that the President, as that\nbranch of the Government vested with the \"Executive power\"\n(Ibid, Art. II, Sect. 1), has certain powers in the field\nof foreign affairs which are not conferred expressly by\nthe Constitution but are derived from the fact that the\nUnited States is a sovereign nation, with rights and\n- 2 -\nobligations under the law of nations. In the field of\nforeign affairs the courts have called the President\nthe \"sole organ of the nation.\" (U.S. V Curtis-Wright,\n299, U.S. 304, 318ff; see Cunningham V Neagle 135 (U.S. 1,\n64 (1889).)\nWhile the Congress has power to declare war,\nto raise and support armies, to make rules for the\ngovernment and regulation of the land and naval forces,\nand other powers important and necessary to the conduct\nof foreign policy and to the defense of the United States,\n(Const., Art. I, Sect. 8, Cl. 11; Art. I, Sect. 8, Cl. 12;\nArt. I, Sect. 8, Cl. 13; Art. I, Sect. 8, Cl. 14) these\npowers are not to be so construed as to curb or cripple\nthe powers of the President as Commander-in-Chief. (See\nSwaim V U. S., 28 Court of Claims, p. 173, 221.)\nIn time of war, the powers of the President as\nCommander-in-Chief are full and complete. (Flemming V\nPage, 9 How., p. 615 (1850).)\nThe power to declare war, which is vested in the\nCongress by the Constitution, does not impair the author-\nity of the President, in the absence of a declaration of\nwar, to do all that may be needful as Commander-in-Chief\nto repel invasion, to repress insurrection, and to use\nthe armed forces for the defense of the United States.\n(The Prize Cases, 2 Black 635, 666ff.)\nSince the Constitution was adopted there have been\nat least one hundred and twenty-five incidents in which\nthe President, without Congressional authorization, and in\nthe absence of a declaration of war, has ordered the armed\nforces to take action or maintain positions abroad. These\nincidents range from the war against the Barbary pirates\nin Jefferson's time, to the occupation of Iceland under\nPresident Franklin D. Roosevelt. In many instances of\nthis character the President has acted in accordance\nwith the general opinion of Congress or has sought\nCongressional ratification later. Many such incidents,\nhowever, have not been referred to Congress at all.\n3 -\nWhile the most numerous class of these incidents\nis that involving the protection of American property\nor American citizens in foreign lands, many of them ---\nsuch as the intervention in Texas in 1845 and in Mexico\nRECORDARD\nSERVICE\nin 1917, the intervention in Panama in 1903-04, the dis-\nREVERNMENT\npatch of troops to Iceland in 1941, -- are not concerned\nwith the interests of individual citizens but with the\ngeneral defense of the United States or the protection\nof some national interest or some concern of American\nforeign policy.\nIn addition to this power to use the armed\nforces for the defense of the country and its foreign\npolicy interests, the President has the authority and\nthe duty to carry out treaties of the United States.\nTreaties, duly approved, are the law of the land and it\nbecomes the President's duty to \"take care that they be\nfaithfully executed\" as laws. (Const. Art. 2, Sect. 3;\nWare v Hylton, 3 Dall, 199 (1796); U.S. v Schooner Peggy\n1 Cr. 103, 110 (1801).\nThe President has discretion to decide what\nmeasures, within the sphere of his Constitutional powers,\nshall be adopted to carry out the purpose of a treaty\n(See Ware V Hylton (Supra) at p 272; 5 Wheaton, appendix,\nNote I, 26.) He does not depend on implementing legisla-\ntion when the purpose of the treaty can be served by some-\nthing that he has the power to do. (see Taft, W. H., Our\nChief Magistrate and His Powers, 1916, pp. 85-88, 98-99.)\nThe President can go beyond implementing legislation in\norder to carry out a treaty. (Taft, idem. p. 93-94 see\nalso; Works of Alexander Hamilton (J. C. Hamilton, ed)\nVII, 76ff, Charlton V Kelly, 229 U. S. 449, 473 (1912)).\nIn sending armed forces to carry out a treaty,\nthe President does not have to have the statutory\nauthorization of Congress. (See Taft, op. cit. p. 88;\nPresident Tyler, in Richardson J. E., Messages and Papers\nof the Presidents, IV, pp. 317-318).\n- 4 -\nIn the case of Korea, the President, by virtue of\nhis powers as Commander-in-Chief, acted to carry out rec-\nommendations made by the Security Council in accordance with\nthe Charter of the United Nations . a treaty to which the\nUnited States is a party. The United Nations Participation\nAct of 1945, which was adopted to implement this treaty,\ndoes not prohibit the President from acting as he did\nwith respect to Korea.\nIt has been contended that Section 6 of this Act\nforbids the President to make armed forces available to\nthe Security Council unless, in accordance with Article\n43 of the Charter, special agreements with respect to such\nforces have been entered into with the Security Council\nand approved by the Congress. As is well known, Russian\nopposition has prevented the making of any such agreements\nbetween the members of the United Nations and the Security\nCouncil.\nSection 6 of the United Nations Participation\nAct, however, does not prevent the President, in the absence\nof such agreements, from sending troops to carry out recom-\nmendations of the Security Council. The language of the\nAct does not, by its terms, attempt to interdict action\nwhich the President may take by virtue of his own power\nand responsibility in foreign affairs. If the Act were\nconstrued to prohibit such action, it would nullify the\nintended purpose and effect of the treaty it is sup-\nposed to implement.\nWith respect to Europe, the President has\nauthority to send troops there not only because of the\ndefense needs of the United States, but also because of\nthe purposes and objectives of the North Atlantic treaty.\nThe legislative history of the ratification of this treaty\nnegatives the thought that prior Congressional authoriza-\ntion is necessary before troops can be sent to Europe.\nThe Mutual Defense Assistance Act of 1949 implements the\ntreaty with respect to the provision of equipment,\nmaterial, and services, but contains no limitations\nupon the power of the President in other respects.\n- 5 -\nTHUMAN\nThe magnitude of our present problems in world\nMICHIVED CORDS AND\naffairs makes it clear that whatever the respective con-\nSERVICE\nSOVERNMENT\nstitutional powers of the President and the Congress may\nbe, there is great need for close collaboration and coop-\neration. It will be impossible for the President to carry\nout for any long period of time the objectives of our for-\neign policy without appropriations and authorizing legis-\nlation of various kinds from the Congress. The circum-\nstances of the present crisis make any debate over prerog-\natives and power essentially sterile, if not dangerous to\nthe success of our foreign policy. Congressional approval\nhas been sought and obtained with respect to the major\nelements of our foreign policy since 1945. This has not\ncreated any limitations on the powers of the President.\nIt has created an atmosphere in which cooperation and col-\nlaboration on both sides are expected, and are, therefore,\nmore necessary than ever before.\nIII. Discussion\nA. Introductory\nIn approaching this field of constitutional law\nit should be noted that the Constitution does not clearly\nand explicitly define the respective powers of the President\nand the Congress in the field of military and foreign affairs.\nWhile the Constitution allocates certain large powers in gen-\neral terms to one or the other, it does not prevent conflicts\nbetween them. Such conflicts have been common in American\nhistory and of tremendous political and historical importance\nto the country. Over the years certain defined patterns of\nconduct have grown up based upon the actions taken by\nthe President or the Congress. These acts are not prec-\nedents in the legal sense, but in this field of consti-\ntutional law they have great value in defining the mean-\ning of the Constitution.\nBy the nature of things the courts have not been\ncalled upon to decide the major conflicts between the Pres-\nident and the Congress in this field. Such clashes seldom\npresent justiciable issues. Where private rights have been\ninvolved, the courts have been very careful not to infringe\n- 6 -\nupon the powers of either the President or the Congress.\nWhere possible, they have side-stepped the issue. where\nevasion has not been possible, they have acted almost with-\nout exception to affirm the views taken by the President as\nto the extent of his own authority.\nIt will not be possible, therefore, in this memoran-\ndum to cite judicial authority for some of the major propo-\nsitions advanced. Some of these propositions rest upon the\nsuccessful exercise of Presidential power by past Presidents.\nOthers are buttressed by commentators or writers in this\nfield, including such founders of the country as Alexander\nHamilton and John Marshall.\nIllustrative incidents may be found throughout the\nentire range of American History since the Articles of Con-\nfederation, and this memorandum should not be regarded as an\nexhaustive treatment of historical examples or constitutional\nauthorities, but only as a broad preliminary survey.\nB. Powers of the President and the Congress\n1. Of the President\nThe Constitution grants powers to the\nPresident which are relevant to his authority to send\nAmerican troops abroad. Similarly, the Congress is\nendowed with constitutional powers affecting the\narmed forces and foreign affairs which have consider-\nable bearing on the subject.\nOne of the widest powers conferred\nupon the President by the Constitution is the function\nof acting as Conmander-in-Chief of the Army and Navy\nof the United States. (Const. Art. II, Sect. 2, Cl. 1).\nIt is generally admitted that in time of war\nthe President's powers as Commander-in-Chief are full and complete.\nAs former Chief Justice Hughes has said:\n\"The power to use an army is coextensive with the power\nto make war; and the army may be used wherever the war is carried\non, here or elsewhere. There is no limitation upon the authority\nof Congress to create an army and it is for the President as\nCommander-in-Chief to direct the campaigns of that army wherever\nhe may think they should be carried on.\" (Hughes, Chas. E.,\nWar Powers under the Constitution, Sen. Doc. No. 105, 65th Cong.\n1st Sess. (1917) an address delivered by former Justice\nHughes before the American Bar Association.)\nThis plenary power as Commander-in-Chief in time\nof war has been emphasized by Chief Justice Taney in the follow-\ning words:\n- 7 -\n\"As Commander-in-Chief he is authorized to\nRECORDAND\nSERVICE\ndirect the movements of the naval and military forces placed\nSOVERN\nWENT\nby law at his command, and to employ them in the manner he\nmay deem most effectual to harass and conquer and subdue the\nenemy. He may invade thechostile country and subject it to\nthe sovereignty and authority of the United States.' (Fleming\nV. Page, 9 How. p. 615 (1850.))\nIn time of peace the President is just as much\nCommander-in-Chief as he is in time of war. His power\nover the armed forces remains the same. But in time of\npeace the exercise of that power is directed not at sub-\nduing an enemy, but at broader considerations of national\npolicy in general. In particular, the peace-time functions\nof the Commander-in-Chief are related to our defense needs\nand to the responsibilities of the President in the field of\nforeign affairs.\nThe President has a preeminent power\nto conduct the foreign relations of the United States.\nThis power is not explicitly defined by the Constitu-\ntion, but is derived from various clauses.\nThe first of these is the treaty-making\npower authorizing the President \"by and with the\nadvice and consent of the Senate to make treaties,\nprovided two-thirds of the Senators present concur.\"\n(Ibid, Cl. 2). Also significant are the powers to\nappoint and receive ambassadors and ministers (Ibid,\nalso Sect. 3).\nThe broad nature of the authority derived\nfrom these functions is described by the Supreme\nCourt in the following terms:\n\"In this vast external realm (foreign\naffairs) with its important, complicated, delicate\nand manifold problems, the President alone has the\npower to speak or listen as a representative of the\nnation. He makes treatics with the advice and consent\nof the Senate; but he alone negotiates. Into the\nfield of negotiation the Senate cannot intrude; and\nCongress itself is powerless to invade it. As (John)\nMarshall said in his great argument of March 7, 1800,\nin the House of Representatives, 'The President is\nthe sole organ of the nation in its external relations,\nand its sole representative with foreign nations.\nAnnals, 6th Cong., col. 613. The Senate Committee on\nForeign Relations at a very early day in our history\n(February 15, 1816), reported to the Senate, among other\nthings, as follows:\n\"The President is the constitutional\nrepresentative of the United States with regard to foreign\nnations. He manages our concerns with foreign nations and\nmust necessarily be most competent to determine when, how,\nand upon what subjects negotiation may be urged with the\ngreatest prospect of success. For his conduct he is\nresponsible to the Constitution.\n8 -\nThe committee consider this responsibility the surest\npledge for the faithful discharge of his duty. They\nthink the interference of the Senate in the direction\nof foreign negotiations calculated to diminish that\nresponsibility and thereby to impair the best security\nfor the national safety. The nature of transactions\nwith foreign nations, moreover, requires caution and\nunity of design, and their success frequently depends\non secrecy and dispatch. U. S. Senate, Reports,\nCommittee on Foreign Relations, vol. 8, p. 24.\n\"It is important to bear in mind that\nwe are here dealing not along with an authority\nvested in the President by an exertion of legislative\npower, but with such an authority plus the very\ndelicate, plenary and exclusive power of the President\nas the sole organ of the federal government in the\nfield of international relations -- a power which does\nnot require as a basis for its exercise an act of\nCongress, but which, of course, like every other gov-\nernmental power, must be exercised in subordination\nto the applicable provisions of the Constitution.\"\n(U. S. V Curtiss-Wright Corporation, 299 U.S. 304,\n319-20 (1936).)\nIn addition the President's powers in\nthe field of international affairs are enlarged by the\nconstitutional injunction that \"he shall take care that\nthe laws be faithfully executed.\" (Const. Art. II, Sect. 3)\nThis duty extends to executing treaties of the United\nStates, which are the law of the land (Ibid., Art VI, Cl. 2),\nand may in certain cases involve the sending of troops\nabroad.\nIt is important to note that the Con-\nstitution treats the powers of the President very dif-\nferently from those of Congress.\nWhile the powers of Congress are ex-\npressly enumerated and limited, the powers of the Pres-\nident are outlined in very general terms. Professor\nCorwin says, \"Article II is the most loosely drawn chapter\nof the Constitution.\" (Corwin, E.S., The President;\nOffice and Powers, 3rd Ed. 1948, p. 2)\nThe first sentence of Article II states\nthat \"the executive power shall be vested in a President\nof the United States of America.\" There has been much de-\nbate as to whether these words constitute a grant of power\nor whether they are-merely a description of the functions\nof the President. Whatever the merits of this debate may\nbe with respect to the domestic powers of the President,\nit is clear that the words in question have been construed\nto give the President wide powers in the field of foreign\naffairs. Chief Justice Marshall laid the proposition down\n- 9 -\nTREEND\nin broad terms. He did this first in a speech made\nRECORDAND\nU.S.\nSERVICE\"\nNAME\nwhen he was a member of the House of Representatives\nGOVERNMENT\non March 7, 1800:\n...\"The president is the sole organ\nof the nation in its external relations, and its\nsole representative with foreign nations. Of con-\nsequence, the demand of a foreign nation can only\nbe made on him.\n\"He possesses the whole executive\npower. He holds and directs the force of the nation.\nOf consequence, any act to be performed by the force\nof the nation is to be performed through him.\" (5\nWheaton, appendix, note I, p. 26, cited above in the\nexcerpt from the opinion of the court in U.S. V\nCurtiss Wright.)\nMarshall followed this up in\nMarbury V Madison when he delivered the opinion of\nthe Court:\n\"By the constitution of the United\nStates, the president is invested with certain important\npolitical powers, in the exercise of which he is to use\nhis own discretion, and is accountable only to his coun-\ntry in his political character, and to his own conscience.\nThe subjects are political: they respect the nation,\nnot individual rights, and being entrusted to the execu-\ntive, the decision of the executive is conclusive. The\napplication of this remark will be perceived, by adverting\nto the act of congress for establishing the department\nof foreign affairs. This officer (the Secretary of\nState), as his duties were prescribed by that act, is\nto conform precisely to the will of the president:\nhe is the mere organ by whom that will is communi-\ncated. The acts of such an officer, as an officer,\ncan never be examinable by the courts.\" (Marbury V\nMadison, 1 Cr. 137, 165-66 (1803).)\nThe bearing which these concepts\nhave upon the authority of the President to send\ntroops abroad will be discussed more fully below.\n2.\nOf the Congress\nThe powers of the Congress which\nhave a bearing on this subject are: the power to\ndeclare war (Const., Art. I, Sect. 8, Cl. 11), the\npower to raise and support armies (Ibid., Cl. 12),\nthe power to provide and maintain a navy (Ibid., Cl.\n13), and the power to make rules \"for the government\nand regulation of land and naval forces,\" (Ibid., Cl.\n14).\nFurthermore, the power of Congress\nto \"lay and collect taxes\" to \"provide for the common\ndefense\" (Ibid. Cl. 1) -- the power of the purse --\ngenerally determines the size and character of the armed forced\n- 10 -\nThe Congress also has power, under Article I, Section\n2, Clause 18 of the Constitution, to make laws to carry into\neffect the treaty-making power, which is shared by the President\nwith the Senate. (Ibid., Art. II, Sect. 2, Cl. 2.)\nFrom time to time these various powers have been ap-\npealed to as restricting, or as affording the Congress the power\nto restrict, the authority of the President with respect to send-\ning troops abroad. Examples of historical conflicts between those\npowers and the powers of the President will be treated more fully\nbelow.\n.It is important to note that the provisions of the Con-\nstitution having to do with the state militia are not applicable\nto the present situation. Congress and the President both have\npowers with respect to the milita (Ibid., Art. I, Sect. 8, Cl.\n15 & 16; Art. II, Sect. 2, Cl. 1) but it has been held that the\nConstitution prohibits the militia from being used outside the\nUnited States. (29 Ops. Attorney-General, 322; See Hughes, Op.\nCit. pp 6-7.) Today, however, the Army of the United States, the\nreserves, and the National Guard have taken the place of the old\nstate militia system.\nC. Grounds for Presi dential Action in Sending\nTroops Abroad\n1. General Constitutional Limitations.\nWhile the Presidential powers mentioned above are very\nbroad, they are, of course, not without limits. The President may no\nobviously, use his power as Commander-in-Chief to overthrow the Con-\nstitution or destroy the laws of the United States. In Ex parte\nMilligan, 4 Wall, 2(1866) the Supreme Court held that neither Congres\nnor the President, acting pursuant to their war powers, could abrogat\nthe Bill of Rights, specifically the guarantees of grand jury action\nand petit jury trial in the Fifth and Sixth Amendments, in an area\nwhere the civil courts were in full operation.\nFurthermore, it seems clear that the President may se:\ntroops abroad only in the interests of the United States or for the\nprotection of the rights of its citizens.\n2. Protection of U. S. Citizens or Their\nProporty Abroad\nIn the absence of war or organized hostilities,\nand without Congressional authorization, the President has fre-\nquently ordered the armed forces of the United States to protect\nUnited States citizens or their property abroad.\n- 11 -\nIn one notable instance this authority\nwas challenged in the courts. In 1854 Lieutenant\nHollins, commanding the USS Cyane, bombarded the city\nof Greytown, Nicaragua, and burned most of it to the\nground, in retaliation against a revolutionary govern-\nment that had refused to make reparation for damage\nand violence done to citizens of the United States\nlocated there. The property destroyed by this bom-\nbardment included the belongings of one Durand, who\nupon his return to the United States sued Hollins for\ndamages. Hollins demurred, pleading that he had acted\npursuant to the orders of the President and the Secretary\nof the Navy. Mr. Justice Nelson of the Supreme Court\nsitting as trial judge in the Second Circuit, decided\nfor the defendant. The case did not reach the Supreme\nCourt.\nSeveral passages in the Court's opinion are\nof interest. They have been cited by authoritative com-\nmentators, and clearly express accepted doctrines in\nthis field.\n\"As the Executive head of the nation, the\nPresident is made the only legitimate organ of the General\nGovernment, to open and carry on correspondence or negoti-\nations with foreign nations, in matters concerning the\ninterests of the country or of its citizens. It is to him,\nalso, the citizens abroad must look for protection of\nperson and of property, and for the faithful execution of\nthe laws existing and intended for their protection. For\nthis purpose, the whole Executive power of the country is\nplaced in his hands, under the Constitution, and the laws\npassed in pursuance thereof; and different Departments of\ngovernment have been organized, through which this power\nmay be most conveniently executed, whether by negotiation\nor by force a Department of State and a Department of\nthe Navy.\n\"Now as it respects the interposition\nof the Executive abroad, for the protection of the lives\nor property of the citizen, the duty must, of necessity,\nrest in the discretion of the President. Acts of law-\nless violence, or of threatened violence to the citizen\nor his property, cannot be anticipated and provided for;\nand the protection, to be effectual or of any avail, may,\nnot infrequently require the most prompt and decided\naction. Under our system of government, the citizen\nabroad is as much entitled to protection as the citizen at\nhome. The great object and duty of Government is the pro-\ntection of the lives, liberty, and property of the people\ncomposing it, whether abroad or at home; and any Govern-\nment failing in the accomplishment of the object, or the\nperformance of the duty, is not worth preserving.\"\n*****\n\"The question whether it was the duty\nof the President to interpose for the protection of the\n- 12 -\ncitizens at Greytown against an irresponsible and maraud-\ning community that had established itself there, was a\npublic political question, in which the government, as\nwell as the citizens whose interests were involved, was\nconcerned, and which belonged to the Executive to de-\ntermine; and his decision is final and conclusive, and\njustified the defendant in the execution of his orders\ngiven through the Secretary of the Navy.\" (Durand\nHollins 4 Blatch 451, 454-455; (1860) 8 Fed. Cas. 111, 112.)\nThere have been, in all probability, at least\none hundred examples of Presidential action of this sort\nin which the protection and the interests of American\ncitizens or American property abroad has been a factor.\n(For a complete list of all such incidents, see Rogers,\nJ. G., World Policing and the Constitution (1945)). So\ncommon has this practice been that some people have been\nmisled into thinking that the protection of American rights\nabroad is almost the only justification for the use of\ntroops abroad in the absence of organized hostilities,\nand without the specific authority of Congress.\nBut this position is clearly erroneous.\n3. Protection of the Honor of the United States.\nThe President is entitled, without the authority\nof Congress, to use the armed forces outside the United\nStates for purposes more intangible than the protection of\nAmerican citizens or American property. For example, in\n1856, President Buchanan, without Congressional authority,\napproved an attack of American war vessels upon the barrier\nforts of Canton, China in order to avenge an alleged insult\nto the flag. (See \"Foster,\" American Diplomacy in the\nOrient,\" pp. 225-227, cited in Berdahl, C.A., \"War Powers\nof the Executive in the United States\" (1920), p. 51.)\nSimilarly, in April 1914 President Wilson\nordered a force of sailors and marines to capture Vera\nCruz in Mexico by way of reparation of Huerta's affront\nto the flag of the United States. This action was approved\nby Congress in a resolution adopted after Vera Cruz had\nbeen captured.\n4. Expansion of foreign commerce.\nThe President has also used the armed forces\nto open areas to the commerce of the United States,\n- 13 -\nRECORDAND\nas was done over a considerable period of years in Japan,\nSERVICE\nGOVERNMENT\nfrom Commodore Perry's expedition in 1853 to the partioi-\npation of the United States naval vessels in the inter-\nnational fleet which bombarded the Japanese town of\nShimoneseki, in 1863. These various acts of force had\nno Congressional authority. After the success of this\nintervention in Japan, the Senate ratified various treaties\nwith that country.\nAnother instance of a similar nature having\nmuch the same objectives was the American participation\nin 1900 in an international expedition to Peking to put\ndown the Boxer uprising. President McKinley, without\nCongressional authorization, ordered 5,000 American troops\nto take part in this expedition. Involved was the element\nof protecting American property and American citizens in China,\nbut the ultimate objective of the expedition was broader.\nIt was to bring about safety and peace in China, and protect\nrights established by treaties or by international law.\n(See note of Secretary of State Hay, July 3, 1900, cited\nin Foster, op.cit., p. 423)\n5. Defense of the United States\nSuch exercises of Presidential authority to\nprotect the honor or the prestige of the United States\nare of less significance in the present situation than\nthe incidents in which the President has used his power\nas Commander-in-Chief for the defense of the United States.\na.\nDoctrine of the Prize Cases\nIn The Prize Cases (2 Black 635, (1863)) the\nSupreme Court upheld the authority of the President to\nuse the armed forces for the defense of the country without\nCongressional authority. These cases arose out of steps\ntaken by President Lincoln following his inauguration in\n1861 and prior to the convening of Congress, to deal with\nthe outbreak of the war between the States. Among other\nacts taken by President Lincoln without Congressional\nauthority in this period was a blockade of the ports of the\n14\n-\nConfederate states. President Lincoln established this\nblockade by proclamation and enforced it with vessels\nof the U. S. Navy. Pursuant to this authority a number\nof merchant ships trying to run the blockade were\ncaptured, and their cargoes were confiscated. The owners\nof these cargoes sued in the federal court to recover\ntheir value. Under international law, citizens of neutral\ncountries may be punished for failure to respect a blockade\nestablished by one belligerent power against another in a\nwar. Citizens of Neutral Countries are not, however, re-\nquired to respect blockades established in time of\npeace or for other purposes than those of carrying on\na war.\nThe plaintiffs, in The Prize Cases contended\nthat the President could not lawfully establish a blockade\nof the Southern ports because, at the time, there was no\nwar between the federal government and the Confederate\nstates. The court held to the contrary, on the ground\nthat the President was not only authorized but bound to\nresist hostile military forces, and that when he did the\ncondition resulting was a war, whether Congress had declared\nwar or not, and whether the war was a civil war or an\ninternational war.\nMr. Justice Grier, speaking for the Court said:\n\"The Constitution confers on the President\nthe whole Executive power. He is bound to take care\nthat the laws be faithfully executed. He is Commander-\nin-Chief of the Army and Navy of the United States and\nof the militia of the several States when called into\nthe actual service of the United States. He has no\npower to initiate or declare a war either against a\nforeign nation or a domestic State. But by the Acts\nof Congress of February 28th, 1795, and 3d of March,\n1807 he is authorized to call out the militia and\nuse the military and naval forces of the United States\nin case of invasion by foreign nations, and to sup-\npress insurrection against the government of a State\nor of the United States.\nIf a war be made by invasion of a foreign\nnation, the President is not only authorized but bound\nto resist force, by force. He does not initiate the\nwar, but is bound to accept the challenge without waiting\nfor any special legislative authority. And whether\nthe hostile party be a foreign invader, or States\norganized in rebellion, it is none the less a war,\nalthough the declaration of it be 'unilateral. 111\n(2 Black 635, 668 (1863).)\n- 15 -\nTRUBLE\nThese cases established that the Presi-\nRECORDAND\nSERVICE**\ndent, without Congressional authorization, has all the\nGOVERNMENT\nauthority necessary under the Constitution to use his\npowers for the defense of the United States in the\nevent of an attack. If he may resist actual hostilities\nit would seem to follow that he could anticipate the\noutbreak of hostilities and dispose the forces of the\nUnited States to meet such an outbreak. In effect, it\nwould seem to be his duty to do SO.\nOur history shows this to be the case.\nIn early days, there were cases when the President sent\ntroops into immediately adjacent territory, not as an\nact of war, and without the authorization of Congress,\nfor the purpose of protecting the country. With the\nimprovement of means of transportation and communication,\nthe necessity of placing armed forces outside our borders\nfor our protection has grown.\nb. Sending troops to Florida (1818)\nIn 1818 the Indians in the South\nwere receiving aid and support from the territory of\nFlorida, then a Spanish possession, in making raids upon\nsettlements in our Southern states. The Spanish\nauthorities failed to control the situation. President\nMonroe asserted his authority to send United States\ntroops into Florida in pursuit of these Indians, and\nauthorized General Andrew Jackson to enter Florida for\nthis purpose. General Jackson carried out his orders\nso well that he embarrassed President Monroe and his\nCabinet, and was reprimended for his conduct, but the\nauthority of the President was not challenged. (See\nBerdahl, op. cit. pp., 65-66.)\nc. Sending troops to Texas (1845)\nIn 1845 President Polk sent\nGeneral Taylor and the American Army across the Nueces\nRiver in Texas. Texas, at that time, was not a part\nof the United States, although a treaty of annexation\nhad been accepted by Texas and was then pending before\nthe Senate. The area between the Nueces River and the\n- 16 -\nRio Grande River was in dispute between Texas and\nMexico. Mexican forces crossed the Rio Grande and\nattacked General Taylor's troops, thereby bringing on\nthe Mexican war. This act of President Polk was\nvigorously attacked by various members of Congress, including\nSenator Calhoun, but the Congress sustained the President, by\nadopting an Act that recognized a state of war with Mexico.\nThis incident is also cited as an\nexample of the power of the President to protect a\nterritory in which the United States has an \"inchoate\ninterest.\" But whatever the status of the territory\nbetween the nueces River and the Rio Grande at that\ntime it was clearly not a part of the recognized area\nof the United States.\nd. Sending troops to Latin American\nCountries\nUnder the Monroe Doctrine, American\nPresidents have taken a number of measures to intervene\nin Latin American countries and to send troops there for\nthe purpose of protecting them against the intervention\nof foreign powers. These inst nces are usually not\ndiscussed as examples of the Presidential power to use the\narmed forces for the defense of the country. Yet it is\nclear that the Presidents themselves have often con-\nsidered them in this light. President Grant's inter-\nvention in Santo Domingo (1869-1871) is illustrative.\nGrant negotiated a treaty of annexation with Santo\nDomingo which was rejected by the Senate. Nevertheless,\nhe sent a strong naval force to that island with the\nstatement that, \"the Government of the United States is\npeculiarly interested in the exemption of the Dominican\nRepublic both from internal commotions and from in-\nvasions from abroad.\" A number of senators attacked\nthis action of the President and offered a resolution\ncondemning it, but the resolution was laid on the table\nby a large majority. Professor Corwin in commenting on\nthis incident remarked that it \"at least demonstrated\n- 17 -\nSERVICE RECORDAND TRUMEN 1\nthe futility of attempting to confine the President's protective\nNERT\nfunction to the mere duty of repelling invasion or immediate\nphysical attack.\" (See Berdahl op. cit. pp. 48-49.)\ne. Sending troops to Iceland (1941)\nThe most outstanding example, of course,\nof the President's power to send troops to outlying areas for\nthe defense of the country was President Franklin D. Roosevelt's\naction in 1941 in sending American forces to Iceland.\nThis exercise of the Presidential power is\nvery much in point. Like the situation in Korea, or that in\nEurope today, the government of the area involved invited the\nsending of our troops.\nThe Prime Minister of Iceland, speaking for his\ncountry as an \"absolutely free and sovereigh state\" \"entrusted\"\nthe protection of Iceland to the United States on certain\nconditions. President Roosevelt in his message to the Congress\njustified his action on the ground that this country could not\npermit Germany to occupy strategic outposts in the Atlantic as\nbases for eventual attack against the Western hemisphere or\nagainst the steady flow of munitions to Britain, which, he said,\nwas a matter of national policy clearly approved by the Congress\nin the Lend-Lease Act.\n6. Execution of a Treaty\na. The doctrine\nThe President's authority as Commader-in-Chief to\nsend troops abroad may also be exercised in order to execute\na treaty. This ground of action is particularly important in\nthe present situation because the sending of troops to Korea and\nto Europe is appropriate to the carrying out of the purposes of\ntwo great treaties duly ratified by the Senate, namely the\nCharter of the United Nations and the North Atlantic Treaty.\nIt has been established from the beginning that the\nPresident must carry out a treaty as the law of the land.\nJohn Marshall in his famous speech in the House of Representatives\n- 18 -\nin 1800 laid the doctrine down very clearly. He said:\n\"He / the President7 is charged to execute the laws.\nA treaty is declared to be a law. He must then execute a\ntreaty where he, and he alone, possesses the means of\nexecuting it. (5 Wheaton, Appendix, Note I, 26.)\nThis doctrine received judicial confirmation in\nWare V Hylton, 3 Dall, 199 (1796). This case stands for the\nproposition that a duly ratified treaty overrules or nullifies\na conflicting act of a state legislature even without an ex-\nplicit reference thereto. Each justice of the court gave a\nlearned opinion in this case. Mr. Justice Iredell, in his\nopinion, stated that a treaty:\n\"is valid and obligatory, in point of moral obligation, on all,\nas well on the Legislative, executive and judicial departments\n(so far as the authority of either extends, which in regard\nto the last, must, in this respect, be very limited), as on\nevery individual of the nation, unconnected officially with\neither; because it is a promise, in effect, by the whole nation\nto another nation, and if not in fact complied with, unless\nthere be valid reasons for non-compliance, the public faith\nis violated.\" (Ibid. p. 272).\nOne of the powers which the President has to carry\nout the \"moral obligation\" of a treaty is his power as Commander-\nin-Chief. Where necessary, he may use this power by sending\ntroops abroad. The clearest example of this is, perhaps, the\nsending of troops to Cuba under the Platt amendment.\nb. Under the Platt amendment\nA treaty between the United States and Cuba, after\nthe Spanish-American war, provided that:\n\"The Government of Cuba consents that the United\nStates may exercise the right to intervene for the preservation\nof Cuban independence, and the maintenance of a government\nadequate for the protection of life, property, and individual\nliberty.\"\nA revolution broke out in Cuba. President Roosevelt\nsent an American army and navy to Cuba to maintain law and order.\nWilliam Howard Taft was then Secretary of War and he describes\nthis incident as follows:\n\"I advised the President that this treaty, pro tanto,\nextended the jurisdiction of the United States to maintain law\nand order over Cuba in case of threatened insurrection, and of\ndanger of life, property and individual liberty, and that under\nhis duty to take care that the laws be executed this was la law'\nand his power to see that it was executed was clear. Events\nfollowed quickly our investigation and recommendations, and I\nwas obliged to ask for the army and navy and by authority of\nPresident Roosevelt to institute a provisional government, which\nlasted nearly two years. It restored order and provided a fair\n- 19 -\nelection law, conducted a fair election, and turned that\ngovernment over to the officers elected under the Constitution\nof Cuba. There were some mutterings by Senators that under\nthe Platt Amendment, Congress only could decide to take action.\nHowever, the matter never reached the adoption of a resolution.\nCongress appropriated the money needed to meet the extraordin-\nary military and naval expenditures required, and recognized\nthe provisional government in Cuba in such a way as to make\nthe course taken a precedent.\" (Taft, op. cit., p. 88.)\nc. Under the treaty with Colombia\nAnother example is offered by President Cleveland's\nintervention in Panama in 1885. In a treaty of 1846 the govern-\nment of Colombia (then New Granada) had guaranteed to the United\nStates that the right of way across the isthmus of Panama should\nbe open and free, and the United States in return had guaranteed\nto protect the neutrality of the isthmus and the sovereignty of\nColombia over it. (Treaties, etc. Senate Doc. No. 357, 61st\nCong. 2nd sess., vol. 1, p. 312.) Civil war broke out in\nColombia, and Cleveland sent troops to keep open the passage\nacross the isthmus. There was no Congressional authorization\nfor this act. President Cleveland explained to Congress that\nit was taken under the treaty and \"in aid of the sovereignty\nof Colombia.' (Message to Congress, Dec. 8, 1885. Richardson,\nop. cit. VIII, (p. 326).\nIn 1901, 1902, and 1903, President Theodore Roosevelt\nsent troops to Panama to protect this same treaty right.\nd. Treaty Need Not Be Explicit\nIt should be noted that neither of these treaties\nby its terms explicitly required the United States to send\ntroops. Nevertholess, the President, in his discretion, found\nthat the purposes of the treaty could best be served, in the\nparticular circumstances confronting him, by sending troops.\nIn the international field, the President has the duty to carry\nout not only the letter but the spirit of the nation's treaties.\nOtherwise, the foreign policy of the United States is likely to\nbe frustrated.\nThe Supreme Court in the Curtis-Wright case (299 U. S.\n304) clearly laid down these principles of broad interpretation\nwith respect to the exercise of Presidential authority in foreign\naffairs under federal statutes. It said:\n- 20 -\n\"When the President is to be authorized by legis-\nlation to act in respect of a matter intended to affect a\nsituation in foreign territory, the legislator properly bears\nin mind the important consideration that the form of the\nPresident's action -- or, indeed, whether he shall act at all --\nmay well depend, among other things, upon the nature of the\nconfidential information which he has or may thereafter receive,\nor upon the effect which his action may have upon our foreign\nrelations. This consideration, in connection with what we have\nalready said on the subject, discloses the unwisdom of requiring\nCongress in this field of governmental power to lay down narrowly\ndefinite standards by which the President is to be governed. As\nthis court said in Mackenzie V Hare, 239 U. S. 299, 311, 'As a\ngovernment, the United States is invested with all the attrib-\nutes of sovereignty. As it has the character of nationality it\nhas the powers of nationality, especially those which concern\nits relations and intercourse with other countries. We should\nhesitate long before limiting or embarrassing such powers. 111\n(Ibid. p. 321, 322.)\nIf this is the rule with respect to Presidential\naction in foreign affairs under a statute, it must a fortiori\nbe the rule with respect to treaties, which are not only laws\nof this government, but international obligations affecting\nforeign countries as well.\n7. Occupation of a Vanquished Enemy Nation\nThere is another class of circumstances in which\nthe President is entitled to exercise his authority as Commander-\nin-Chief to send troops abroad, and that is, to perform functions\nrequired or authorized by international law. The old law of\nnations or ius gentium has been drawn on by the courts in various\ncases to define the powers of our government in international\naffairs. The Prize Cases offer one example.\nThe most outstanding instance of this type of case is\nthe right of the President to use the armed forces to maintain\nthe occupation of a conquèred enemy.\nThere is no doubt that under international law, the\nvictorious belligerent may occupy the territory of the vanquished.\nWhether an occupation may continue after a treaty of peace depends\non the terms of the treaty. In the past, the purpose of continuing\nan occupation after the conclusion of a treaty has generally been\nto secure the payment of an indemnity. (1 Oppenheim, INTERNATIONAL\nLAW, Para. 4/4, 527 (7th ed. Lauterpacht 1948)). But there does\nnot appear to be any logical reason against continuing an occupation\nto enforce any reasonable treaty terms.\nTRUNKY\nAND\nAROHIVENAM\n- 21 -\nRECORDAND\n8.8.\nSERVICES\nTHE\nThe courts have stated that the President can\nSOVERNMENT\ncarry out this function of occupation by virtue of his powers\nas Commander-in-Chief. In Cross V. Harrison 16 How. 164 (1853),\nAmerican forces under the direction of the President had\nsuccessfully invaded an area including San Francisco, and the\nmilitary and naval Commander there had formed a civil govern-\nment, and imposed duties on imports. The Court said at p. 190:\n\"No one can doubt that these orders of the President,\nand the action of our army and navy commander in California, in\nconformity with them, was according to the law of arms and the\nright of conquest, or that they were operative until the ratifi-\ncation and exchange of a Treaty of Peace.\"\nIt appears always to have been assumed not only by\nthe courts, but by the Congress as well, that the President can\nauthorize the armed forces to carry out such an occupation.\nThere is no direct statutory authority for the present occupations\nin Germany and Japan, although the Congress has acquiesced in, if\nnot ratified, the Presidential action in occupying those areas,\nby various statutes: See 58 Stat. 593.\n\"Appropriations for the Military Establishment for\nthe fiscal year 1945 shall be available for expenses in\nconnection with the administration by the Army of occupied areas; If\nSimilar language is contained in P. L. 759, 81st Cong.,\n2nd Sess. para 619. As examples of appropriations for civil\nfunctions \"in connection with the government or occupation of\ncertain foreign areas\", see P. L. 327, 81st Cong., 1st Sess.,\nand P. L. 759, 81st Cong., 2nd Sess.\nThe following cases in the Supreme Court involved\nquestions resulting from the successful wartime invasion of enemy\nterritory by the United States at the direction of the President:\nCross V Harrison, supra: Fleming V Page, 9 How. 605 (U. S. 1850);\nLeitensdorfer V Webb, 20 How. 176 (U. S. 1857); The Grapeshot, 9\nWall. 129 (U. S. 1869); and Dooley V U.S., 182 U. S. 222 (1901)\nSee also 183 U. S. In some of these cases annexation followed\ninvasion, but the President's power to direct invasion and\noccupation is hardly greater when annexation follows than when\nit does not. The decision in each case, in opinion, required\nthe tacit assumption by the Court of the right of the President\n- 22 -\nas Commander-in-Chief to unilaterally direct occupation of\nterritory invaded by us in time of war.\nA corollary of this authority is the right of the\nPresident to take such action, as Commander-in-Chief, as may be\nnecessary to protect occupation forces and maintain the occupation,\nif it is threatened by hostile powers. It stands to reason that\nif occupation troops are attacked or endangered, the President\nmay reinforce them or take such other action as may be needed to\nmeet the danger. This consideration is of some importance in\nrelation to the aggression in Korea, and the possibility of\naggression in Europe.\nD. Congressional Limitations on the Powers of the\nPresident to Send Troops Abroad\nThe question arises whether the Congress in the exercise\nof its powers can constitutionally limit or curb the exercise by\nthe President of his powers to send troops abroad in pursuit of the\nlegitimate objectives discussed above.\n1.\nBy Virtue of Congressional Powers over the Armed\nForces.\nIt may be well to consider first the powers which the\nCongress has over the armed forces.\n(a). Power of the Purse\nIt is obvious that the power of Congress over appropria-\ntions is very great, and that if the Congress fails to provide\nsufficient money for defense, the armed forces may be inadequate\nto the responsibilities which the Commander-in-Chief may wish to\nimpose on them.\n(b). Power to Govern and Regulate Armed Forces\nAt times it has been argued that the power of the Congress\nto make rules for the government and regulation of the land and\nnaval forces (Const. Art. I, Sect. 8, CI. 14) enables the Congress\nto limit the exercise of the Presidential power as Commander-in-\nChief. This contention has been firmly rejected by the courts.\nIt was well stated by the Court of Claims in Swaim V U. S. 28\nCourt of Claims 173, 221; (Affirmed, 165 U. S. 553 (1897))\n- 23 -\n\"Congress may increase the Army, or reduce the Army,\nSERVICE RECURDAND TRUMB\nor abolish it altogether; but so long as we have a military\nGOVERNMENT\nforce Congress can not take away from the President the supreme\ncommand. It is true that the Constitution has conferred upon\nCongress the exclusive power \"to make rules for the government\nand regulation of the land and naval forces;\" but the two powers\nare distinct; neither can trench upon the other; the President\ncan not, under the disguise of military orders, evade the\nlegislative regulations by which he in common with the Army\nmust be governed; and Congress can not in the disguise of 'rules\nfor the government' of the Army impair the authority of the\nPresident as commander in chief.\"\nThis statement does not, of course, define the area of\nthe President's authority as Commander-in-Chief. In the Swaim\ncase there was a Congressional statute providing for courts martial.\nThe President established a court martial of his own to try the\nJudge Advocate General. This court martial was not established in\naccordance with the statute. However, the statute did not\nexpressly prohibit it. In deciding the case the Court of Claims\nheld that it would not construe the statute to conflict with the\naction of the President.\n(1) Solective Service Act of 1940.\nIn 1940 the Congress enacted a geographical limitation\non the use of U. S. troops abroad. Both the Act of August 27,\n1940, dealing with the reserves, (Pub. Res. 96, 54 Stat. 858, 859;\n50 U.S.C. App. 401) and the Solective Service Act of 1940 (P. L.\n783, Sept. 16, 1940, 54 Stat. 885, 886, 50 U.S.C. App. 303 (e))\nprovided that persons called thereunder into the land forces of\nthe United States could not be employed beyond the limits of the\nWestern Hemisphere except in the territories and possessions of\nthe United States.\nOn July 7, 1941 President Roosevelt notified the\nCongress that pursuant to agreement with the Government of Iceland\nand the Government of Great Britain he had sent American troops\nto Iceland. (Vol. 87, Cong. Rec. July 7, 1941 pp. 5841-5842).\nWhether the troops sent included any inducted or called up under\nthe statutes in question is not clear, but it is significant that\nthe Presidential notification did not attempt to justify the\naction on the ground that no such inductees had been sent. Few\npeople were bold enough to claim that Iceland, which is only 700\nmiles from Europe, and east of the Azores, lay in the Western\n- 24\nHemisphere.\nThis territorial limitation on the use of troops was\nsuspended in 1941, Act of Dec. 13, 1941, C. 571, Sect. 3, 55,\nStat. 799, 50 U.S.C. App. 731, and is no longer in effect.\n(2) Lend Lease Act and Neutrality Act of 1939\nAnother example of conflict between Presidential\naction and Congressional policy is provided by the controversy\nover the use of naval convoys in the Atlantic in 1941. In\nadopting the Lend Lease Act, the Congress had added a provision\nreading as follows:\n\"Nothing in this Act shall be construed to authorize\nor to permit the authorization of convoying vessels by naval\nvessels of the United States.\" (Act of March 11, 1941, C. 11,\nSect. 3 (d) U. S. C. h. Title 22, Sect. 411(d); 55 Stat. 31.)\nThe statute also had a provision (Section 3(c) referring\nto the Neutrality Act of 1939;\n\"Nothing in this Act shall be construed to authorize\nor to permit the authorization of the entry of any American vessel\ninto a combat area in violation of Section 3 of the Neutrality Act\nof 1939.\nUnder the Neutrality Act (U.S.C.A., Title 22, Sect. 441,)\nthe President was to define \"combat areas\" by proclamation. He\ndid not so define the North Atlantic area in which the convoying\nlater took place. Consequently, the use of naval vessels in the\nNorth Atlantic did not violate the Neutrality Act.\nThe Lond Lease Act contained a further provision intended\nto curb the use of the armed forces. This was Sect 10 which reads:\n\"Nothing in this Act shall be construed to change exist-\ning law relating to the use of the land and naval forces of the\nUnited States, except insofar as such use relates to the ... non-\ncombatant purposes ennumerated in this Act.\"\nNone of these provisions were regarded by the President\nas a limitation on his power to use the navy in the North Atlantic\narea, or send troops to Iceland and Greenland and other places.\nThe provisions of the Act were not flat prohibitions. They merely\nasserted that the Act itself, which had to do with supplying war\nmaterials to other nations, should not be construed as an authoriza-\ntion for the use of the armed forces of the United States. Obviously,\nthere were other circumstances entering into the situation. The\nPresident might feel that the defense needs of the United States\n- 25 -\nauthorized the use of the armed forces to resist Nazi warfare\nin the Atlantic, regardless of the objectives of the Lend Lease\nAct.\nThere were some attempts, nevertheless, to read these\nprovisions of the Lend Lease Act as a limitation on the President's\nauthority. (See vol. 87 Cong. Rec. P 5841 ff. July 7, 1941)\nHowever, whether or not President Reosevelt actually\nviolated either the Selective Service Law or the Lend Lease\nAct by his use of the armed forces in 1941, there was plenty\nof support in the Senato itself for the view that these statutes\ncould not constitutionally curb his power. The argument was made\nthat since the direction of the armed forces is the basic\ncharacteristic of the office of the Commander-in-Chief, the\nCongress cannot constitutionally impose limitations upon it.\nThis view had been expressed in the Senato as far back as 1922,\nwhen Senator Reed of Missouri suggested that the Congress could make\nthe President bring home cortain troops then stationed in Europe.\nSenator Borah had replied:\n\"We could not make the President do it. He is\nCommander in Chief of the Army and Navy of the United States,\nand if in the discharge of his duty he wants to assign them\nthere, I do not know of any power that we can exert to compel\nhim to bring them home. We may refuse to create an army, but\nwhen it is created he is the commander.\" (Vol. 64, Cong. Rec.,\nDec. 27, 1922, p. 933)\nDuring the debate in the Senate in 1940 on the Selective\nService Act several of the older members took the position that\nthe Congress could not constitutionally keep the President from\nsending the armed forces out of the Western Hemisphere. Senator\nLodge, who supported this linitation, was answered by Senator\nAshurst, in the following words:\n\"I fear the Senator's amendment is what we call a\nbrutum fulmen, a harmless thunderbolt, though it is a provision\nwhich should be in this bill. I am of the opinion that the present\nChief Executive, or any other Chief Executive, would be inclined\nto respect an expression of this sort by the Congress, incorpor-\nating into the bill certainly the legislative wish and hope, the ex-\npression of our opinion that drafted troops should not be sent to\nEurope to participate in the wars of Europe, but such an expression\nis not legally binding on the Executive.' (Vol. 86, Cong. Rec.,\nAug. 26, 1940, p. 10896)\nSenator Wiley supported Senator Ashurst:\n- 26 -\n\"Why is the Senator from Arizona correct? Because,\nunder our form of government, the Executive is given constitutional\npowers with which the legislature cannot interfere. We claim as\na legislature that we have constitutional powers with which the\nExecutive cannot interfere. We have had example after example\nof the Executive power in the use of the Army. It seems to me\nthat while we can suggest to the President that it is well to\ntake a certain course, at the same time there is no need of our\ntrying to give the impression to our boys and to our citizens that\nthat language is of any legal effect. il (Ibid.)\nSenator Ashurst had ample authority for his statement.\nPresident Taft laid it down flatly that Congress may not inter-\nfere with the powers of the President, when he wrote:\n\"In the first place, it is clear that Congress may not\nusurp the functions of the Executive by an appointment to office,\nby pardoning a criminal, or one accused of crime, by initiating\nor making a treaty, by providing for the reception of particular\nambassadors, and thus recognizing a foreign government, or by\nforbidding or directing the movements of the army and navy. \"\n(underlining supplied; Taft 25 Yale Law Jour. 599, 606 (1916).\nOn at least two occasions, President Wilson ignored\nCongressional enactments that interfered with his power in\nforeign affairs. (See Corwin E. S. The President, Office and\nPowers, (1948) p. 231) and at another time attacked a Congressional\nattempt to intervene in diplomatic relations, (Corwin, earlier\nedition, p. 409)\n2. By virtue of the Congressional power to\ndeclare war\n(a) Effect of the \"Danger of War\" on Presidential\nPower\nThe argument on this point does not rest wholly on\nthe powers of the Congress over the armed forces. It is often\ncontended that the President by sending troops abroad, may be\nbringing the country into the danger of war, and that such action\nis unconstitutional because only the Congress has the power, under\nthe Constitution, to declare war. This argument is so vigorously\nadvanced that it deserves careful examination. (See, for example,\nVol. 87, Cong. Rec. July 10, 1941 p. 5926).\nIn The Prize Cases in 1852 the minority of the Supreme\nCourt contended that whatever the powers of the President might\nbe to defend the country, he could not create a state of war, in\nthe legal sense, without a declaration of war by the Congress.\nMr. Justice Nelson summarized the views of the minority on this\npoint as follows:\nTRUMPS\nRECORDAND\n:\nSERVICE\n- 27 -\nOCVERNMENT\n\"that the President does not possess the power under\nthe Constitution to declare war or recognize its existence within\nthe meaning of the law of nations, which carries with it bellig-\nerent rights and thus change the country and all its citizens\nfrom a state of peace to a state of war; that this power belongs\nexclusively to the Congress of the United States and, consequently,\nthat the President had no power to set on foot a blockade under\nthe law of nations.' (The Prize Cases, 2 Black, 635, 698.)\nThis view was overruled by the majority of the Court,\nand has not been law from that day to this.\nToday, however, the contention is not that the Presi-\ndent has no power to create a legal state of war, but that he has\nno power to take steps which are in his judgment necessary for\ndefense or to the carrying out of our foreign policy, if those\nsteps may lead to war. This argument, in short, is that the\nConstitutional power of the President is limited by the possibility\nthat our adversaries may take hostile action, even though the con-\nduct of the President is entirely defensive. There is no consti-\ntutional doctrine to this effect, and there obviously can be none\nif the nation is to survive.\nThe constitutional power of the President obviously ex-\ntends to situations where the risk of war exists as well as to\nthose where it does not. Indeed, in such situations it has been\nexercised in such a way as to prevent war. Scholars believe that\nby such exercise of power President Adams prevented a general war\nwith France in 1798, and Presidents Jefferson and Johnson averted\nwar with England in 1807, and 1868-1869. (See McDougall and Lans,\n54 Yale Law Jour. 181, 534, at 614 (1945)\n(b) Limitations on the power to declare war.\nThe Constitutional Convention was quite aware of these\nproblems. The first draft of the Constitution gave the Congress\nthe power \"to make war.\" On August 17, 1787 Pinckney objected,\nsaying Congress would be too slow \"to make war.\" Mr. Madison and\nMr. Gerry moved to substitute \"declare\" for \"make\", leaving to\nthe Executive the power to repel sudden attack. On a vote, eight\nstates were in favor of \"declare\", to one against. (Rogers, J. F.,\nWorld Policing and the Constitution (1945), p. 29, Berdahl, op cit,\np. 62.)\nThus, the Constitutional Convention trimmed down the\n- 28 -\nwar power of Congress even before the Constitution was submitted\nto the states.\nLater on, the point came up again, when President\nWashington issued a proclamation of neutrality upon the outbreak\nof war between France and Great Britain in 1793. Washington's\nopponents immediately challenged this as being outside the\nPresident's constitutional powers. Hamilton replied, and in\nthe course of his argument in favor of broad executive power,\nhe pointed out that while treaties could only be made by the\nPresident and the Senate jointly, they might be suspended by the\nPresident alone. He then went on to say:\n\"This serves as an example of the right of the\nexecutive, in certain cases, to determine the condition of the nation,\nthough it may, in its consequences, affect the exercise of the power\nof the legislature to declare war. Nevertheless, the executive\ncannot thereby control the exercise of that power. The legisla-\nture is still free to perform its duties according to its own sense\nof them; though the executive, in the exercise of its constitutional\npowers, may establish an antecedent state of things, which ought to\nweigh in the legislative decision.\n\"The division of the executive power in the Constitution\ncreates a concurrent authority in the cases to which it relates.\"\n218) (Hamilton, op cit, VII, 76 ff, cited in Corwin, op cit (1948) p.\nWhat Hamilton meant, in plain language, is that the\nPresident can create an actual conflict which Congress would have\nto recognize in the exercise of its power to declare war.\nNaturally, the Jeffersonian party protested violently\nagainst this doctrine, and President Jefferson went so far in 1801\nas to forbid our warships, which he had sent to the Barbary coast,\nto take any offensive acts against the pirates until Congress formally\ndeclared war. This aroused Hamilton's contempt, and in 1801 he\nwrote:\n\"But when a foreign nation declares, or openly and avowedly\nmakes war upon the United States, they are then by the very fact\nalready at war, and any declaration on the part of Congress is\nnugatory; it is at least unnecessary.\" (Works of Hamilton, VII p.\n745; Corwin, op. cit. p. 243.)\nComing down to our own times the idea has been even more\nbluntly and firmly asserted by President Taft in his famous lectures\nat Columbia in 1916. He said:\n\"The President is the Commander-in-Chief of the army and\nnavy, and the militia when called into the service of the United\nStates. Under this, he can order the army and navy anywhere he will,\n29 -\nif the appropriations furnish the means of transportation.\nOf course the instrumentality which this power furnishes,\ngives the President an opportunity to do things which\ninvolve consequences that it would be quite beyond his power\nunder the Constitution directly to effect. Under the\nConstitution, only Congress has the power to declare war,\nbut with the army and the navy, the President can take\naction such as to involve the country in war and to leave\nCongress no option but to declare or to recognize its\nexistence. This was the charge made against President\nPolk in beginning the Mexican War. War as a legal fact,\nit was decided by the Supreme Court in Prize cases, can\nexist by invasion of this country by a foreign enemy or\nby such an insurrection as occurred during the Civil War,\nwithout any declaration of war by Congress at all, and it\nis only in the case of a war of our aggression against a\nforeign country that the power of Congress must be\naffirmatively asserted to establish its legal existence.\"\n(Taft, op. cit. pp 94-95)\nIndeed, the power of Congress to declare war has\nbeen very little used, compared to the number of occasions\non which American armed forces have been employed abroad.\nCongress has declared war five times. There are at least\nfour other conflicts which amounted to war in the eyes of\nhistorians -- the naval war with France (1798-1800), The\nBarbary War (1801-1805), the Second Barbary War (1815), and\nthe Mexican hostilitics of (1914-1917). In these cases the\nPresident carried on the conflict thout a declaration of\nwar.\n(c) Neutrality Statutes\nWhile Congress has seldom had occasion to exercise\nits power to declare war, there is a good deal of weight to\nthe view that during times of peace, Congress can restrain\nthe Prosident from using the armed forces, through the enact-\nment of noutrality statutes. In 1794 Congress passed our\nfirst Noutrality Act and ever since then it appears to be\ntaken for granted that Congress has the constitutional power\nto adopt such statutes. (Corwin op. cit. p. 220.) However,\nthe Neutrality laws adopted by Congress have always by the\nnature of the case vested considerable discretion in the\nExecutive.\nThe Neutrality Act of 1939 rigorously prohibited\nvarious types of contact with belligerent nations but it only\nbecame effective after the President by proclamation named\n30 -\nthe belligerent states and found that a war existed. Another\ndiscrotionary power conferred upon the President by this\nNeutrality Act was that permitting him to establish \"combat\narcas\", from which areas the statute barred American vessols.\nPresident Roosevelt used these discretionary powers in such\na way as not to cut off our assistance to Britain or our\nconvoys in the North Atlantic. (See Koenig, L.W., The Presi-\ndency And the Crisis, (1944) Ch. II.)\nWhatever the power of Congress may be, it is clear\nthat under modern conditions any Noutrality Act will have to\nleave a wide discretion in the Exocutive to adapt to changing\nconditions. It is not likely that Congress would adopt a\nNeutrality law so comprehensive and so rigid as to prevent\nthe President from taking measures, in his discretion, to\nprotect the United States against the threats of hostile\npowers. If it did, such an Act might well be unconstitutional.\nThis point has apparently never been judicially decided or\ndiscussed, but it seems clear that in the face of a real\nthreat to the security of the country the President would\nbe justified in using his powers as Commander-in-Chief to\nprotect the United States, even in contravention of a duly\nenacted neutrality law, and the courts would probably sustain\nhim.\nHere, however, as in all these matters, it is im-\nportant to point out that the concepts of constitutional\npower do not provide the final answer. The President and\nthe Congress together must cooporate to defend and protect\nthe United States. Congress may want to outline the general\npolicy for the President to follow, but it must be careful\nnot to bind his hands. These are matters of discretion and\njudgment in which public opinion has to be respected and in\nwhich cooperation among all branches of the Government is\nessential.\n3. By Virtue of the Congressional Power to\nEnact Legislation to Implement Treaties.\n:: RECORDAND THE 1\nSERVICE\n- 31 -\nBOYERNMENT\nThe next question of constitutional authority has to\ndo with the power of Congress to implement treaties. Does the\nCongress have any power, arising from participation of the\nSenate in treaty-making, or from clause 18 of Section 8 of the\nfirst Article, to bind the discretion of the Executive in\ncarrying out a treaty? Recent speeches seem to hint at a\ndoctrine that legislation must be enacted in order to carry\nout a treaty, and that the President cannot act either in\nviolation of, or beyond the scope of such logislation. This\nis not a proposition for which there appears to be any\nauthority. As we have seen above, following Ware V Hylton,\nthe doctrine is that a treaty is binding on the various organs\nof the government in accordance with their respective duties\nand functions. Professor Corwin puts it this way:\n\"Treaty provisions are sometimes addressed\nexclusively to the President, as for instance were\ncertain articles of the treaties which resulted from\nthe Washington Conference of 1921, and which provided\nfor conference among the high contracting parties in\nnamed contingencies. The duty of communication thus\ncast upon the President was, obviously, well within\nhis diplomatic prerogative. Other treaty provisions,\nhowever, are addressed primarily to Congress. (Corwin,\nop. cit. p. 237.)\nThe power to send troops abroad is certainly one\nof the powers which the Prosident may exercise in carrying\nout such a treaty as the North Atlantic treaty or the United\nNations Charter. Since it is a power which only he can exercise,\nprovisions of these treaties which have to do with such measures\nof defense may certainly be decmed to be \"addressed\" to the\nPresident.\nIn the absence of a clear indication in a treaty\nas to the exact nature of the action required to carry it out,\nthere arises the question as to which branch of the government\nhas the duty of interproting the international obligation which\nit imposes. Is it the Congress or the President which must say\nwhether or not the purposes and commitments of a treaty require\nthe sending of troops abroad? Alexander Hamilton clearly\nexpressed the view that it is up to the President to interpret\n32 -\nthe international obligations arising under a treaty. He wrote:\n\"The President is the Constitutional EXECUTOR of the\nlaws. Our treaties, and the laws of nations, form a part of\nthe law of the land. He, who is to execute the laws, must\nfirst judge for himself of their meaning. In order to the\nobservance of that conduct which the laws of nations, combined\nwith our treaties, prescribed to this country, in reforence\nto the present war in Europe, it was necessary for the Presi-\ndent to judge for himself, whether there was anything in our\ntreaties, incompatible with an adherence to neutrality.\"\n(Corwin, op. cit. p. 237.)\nCertainly in the absence of Congressional prohibitions\nthe President is entitled to interpret the obligations of the\ntreaty to meet the circumstances as they arise and to act upon\nhis own intorpretation to the extent that it is within his\nconstitutional functions to do SO.\n(c) Powers of the President under the United\nNations Charter and the United Nations\nParticipation Act. Action in Korea.\nIt now remains to consider the specific actions taken\nby the President, under the United Nations Charter, with regard\nto the aggression in Korea, and the proposed sending of additional\ntroops to Europe under the North Atlantic Treaty. Each of these\ngreat treaties has a legislative history of its own, and imple-\nmenting legislation, all of which has considerable bearing upon\nthe application of the general principles outlined above.\n1. Provisions of the United Nations\nCharter\nThe action of the Security Council in June, 1950 was\ntaken under Articles 39 and 40 of the Charter. These Articles\nread as follows:\n\"Article 39 The Security Council shall determine\nthe existence of any threat to the peace, breach of the peace,\nor act of aggression and shall make recommendations, or decide\nwhat measures shall be taken in accordance with Articles 41 and\n42, to maintain or restore international peace and security.\n\"Article 40 - In order to prevent an aggravation of\nthe situation, the Security Council may, before making the\nrecommendations or deciding upon the measures provided for in\nArticle 39, call upon the parties concerned to comply with\nsuch provisional measures as it deems necessary or desirable.\nSuch provisional measures shall be without prejudice to the\nrights, claims, or position of the parties concerned. The\nSecurity Council shall duly take account of failure to comply\nwith such provisional measures. \"\nActing pursuant to these Articles, the Security\nCouncil on June 25 adopted a resolution calling for the\n- 33 -\ncessation of hostilities in Korea. This resolution was not\ncomplied with, and on June 27 the Security Council adoptod\nanother resolution rocommending that the members of the United\nNations render to the Republic of Korea such assistance as might\nbe necessary to repel the armed attack and restore international\npeace and security.\nThis was an application of the principle set forth\nin Article 2, sect. 5, of the Charter, which provides that\nall members shall give the United Nations \"every assistance\nin any action it takes in accordance with the present charter.\"\nThe Security Council resolutions were an appeal to the member\nnations to act in accordance with their capabilities to support\nthe Charter and the great principles for which it stands.\nIn response to the recommendations of the Security\nCouncil, the President exercised his constitutional authority\nand dispatched armed forces to Korea.\nIt is contended, however, that, because of Article\n43 of the Charter and the provisions of the United Nations\nParticipation Act relating to it, he had no authority to do\nSO.\nArticle 43 of the Charter spells out the procedure\nto be followed by the member nations in providing the national\ncontingents which the Security Council was originally intended\nto have permanently at its disposal. This Article reads as\nfollows:\n\"Article 43 - 1. All Members of the United Nations,\nin order to contribute to the maintonance of international\npeace and security, undertake to make available to the Security\nCouncil, on its call and in accordance with a special agreement\nor agreements, armed forces, assistance, and facilities, including\nrights of passage, necessary for the purpose of maintaining\ninternational peace and security.\n\"2. Such agreement or agreements shall govern the\nnumbers and types of forces, their degree of readiness and\ngeneral location, and the nature of the facilities and\nassistance to be provided.\n\"3. The agreement or agreements shall be negotinted\nas soon as possible on the initiative of the Security Council.\nThey shall be concluded between the Security Council and Members\nor between the Security Council and groups of Members and shall\nbe subject to ratification by the signatory states in accordance\nwith their respective constitutional processes.'\n- 34 -\nThe purpose of this Article is obviously to ensure\nthat there will be forces which the Security Council can call\nupon in the event of an energency. The Article can hardly be\nconstrued to impair or modify the powers of the Security Council\nto make roconmendations under Article 39, or the authority of\nthe Member states to carry out such recommendations.\n2. Provisions of the United Nations\nParticipation Act\nWhen the Charter of the United Nations was submitted\nto the Senate for ratification in 1945 a controversy arose\nconcerning the method to be followed in \"ratifying\" the agree-\nments required under Article 43. On July 27, 1945, the Presi-\ndont sent a message from Potsdam to Senator McKellar stating:\n\"when any such agreement or agreements are\nnegotiated it will be my purpose to ask the Congress for\nappropriate legislation to approve them.' (Vol. 91, Cong. Rec.,\nJuly 28, 1945, p. 8185)\nFollowing this Presidential lead, the Senate Committee\non Foreign Relations found that:\n\"all were agreed on the basic proposition\nthat the military agreements (under Article 43) could not be\nentered into solely by executive action.\" (Son. report 717\nto accompany S. 1580, Nov. 8, 1945, 79 Cons., lst session p. 6).\nIn November, 1945, the Senate Committee reported the\nUnited Nations Participation Act to the Senate (P. L. 264, 79th\nCong., 1st session C. 583.) In its report, the Committee took\nthe view that the agreements required under Article 43 were\nnot to be considered as treaties, but as matters for legisla-\ntive sanction by the Congress under its constitutional powers\nwith relation to the armed forces. Accordingly, the Committee\nrecommended that Congress approve such agreements by appropriate\nAct or by joint resolution. The same view was taken by the\nHouse Committee on Foreign Affairs.\nThe Connittee anticipated that an effort would be\nmade to require the President to go to Congress for approval\nin every instance of the use of armed force on the request of\nthe Security Council. To forestall this crippling requirement,\nit devised specific language exempting the President from\n- 35 -\nU.S.\nCongressional control with respect to the use of the armed\nBOYERWHENT\nforces, but withholding Congressional authorization from the\ncommitment of troops or forces boyond those specified in the\nagreements. This language io embodied in Section 6 of the Act:\n\"The President is authorized to negotiate a special\nagreement or agreements with the Socurity Council which shall\nbe subject to the approval of the Congress by appropriate Act\nor joint resolution, providing for the numbers and types of\narmed forces, their degree of readiness and general location,\nand the nature of facilities and assistance, including rights\nof passage, to be made available to the Security Council on\nits call for the purpose of maintaining international peace\nand security in accordance with Article 43 of said Charter.\nThe Prosident shall not be deemod to require the authorization\nof the Congress to make available to the Security Council on\nits call in order to take action under article 42 of said\nCharter and pursuant to such special agreement or agreements\nthe armed forces, facilities, or assistance provided for\ntherein: Provided; That nothing herein contained shall be\nconstrued as an authorization to the President by the Congress\nto make available to the Socurity Council for such purpose\narmed forces, facilities, or assistance in addition to the\nforces, facilities, and assistance provided for in such\nspecial agreement or agreements.' (P.L. 264, 79th Cong. 1st\nsess. 59 Stat. 619, 22 U.S.C. 287, Sec. 6: later amended by\nP.L. 341 81st Cong. 1st sess. Act of Oct. 10, 1949, 63 Stat.\n734, in aspects not relevant to this discussion.)\nThe reasons bohind this position were stated in\nboth House and Senate Committee reports in the same language:\n\"\nthe committee is convinced that any reservation\nto the Charter, or any subsequent congressional limitation\ndesigned to provide, for example, that employment of the armed\nforces of the United States to be made available to the Security\nCouncil under special agreements referred to in article 43 could\nbe authorized only after the Congress had passed on each\nindividual case would clearly violate the spirit of one of the\nmost inportant provisions of the Charter. One of the fundamental\npurposes of the Charter is to provide forces which will be\ninmodiately available to the Security Council to take action\nto prevent a breach of the peace. Morcover, if a reservation\nto this effect were to be adopted by the Senate, the very nature\nof the Charter itself would be changed, and further nogotiations\nwith the other signatories of the Charter would unquestionably\nbe necessary.\n\"Preventive or enforcement action by those forces\nupon the order of the Security Council would not be an act\n02 war but would be international action for the preservation\nof the peace and for the purpose of proventing war. Consequontly,\nthe provisions of the Charter do not affect the exclusive power\nof Congress to declare war.\n\"The Committee feels that a reservation or other\ncongressional action such as that referred to above would\nalso violate the spirit of the United States Constitution\nunder which the President has well established powers and\nobligations to use our armed forces without specific approval\nof\nCongress.\n(Son. Report. 717, pp. 6-8)\n3. Attempts to Curb Presidential Powers -\nThe Whecler Amendment and the Taft\nAmendment\nOn the Senate floor the attack was led by Senator\nWheeler. Ho introduced un amendment reading as follows:\n- 36 -\n\"Nothing in such agreement or agreements shall authorize\nthe President, and the President shall have no authority to make\navailable to the Security Council any armed forces to enable the\nSecurity Council to take action under article 42 of said charter,\nunless the Congress has by appropriate act or joint resolution\nauthorized the President to make such forces available to enable\nsuch Council to take action in the specific case in which the\nCouncil proposes to take action. (Vol. 91, Cong. Rec. Dec. 4,\n1945, p. 11392.)\nHe supported this amendment by a long argument based on\nthe Constitutional power of Congress to declare war, which, he said,\nwould be infringed if the President were to have the authority to\nsend troops to the support of the Security Council. The amendment\nwas defeated by a vote of 65 to 9.\nEarly in the debate Senator Taft had introduced an amendment\nto curb the authority of the United States representative on the\nSecurity Council. The United Nations Participation Act in Section 3\nprovides that the United States representative on the Security Council\nshall be answerable to the President and shall \"at all times act\nin accordance with the instructions of the President.' Senator Taft\nwanted to require the United States representative to act according\nto the direction of Congress in any matters pertaining to the use of\nsanctions or force under Articles 39, 41 or 42 of the Charter. (91 Cong.\nRec. Part 9, p. 1159, Nov. 29, 1945.)\nAfter much debate, Senator Taft modified his own amendment,\nbut even after this modification it was overwhelmingly defeated.\n(Ibid. 1167.)\nSenator Taft opposed the Wheeler amendment, because, in his\nview, the President already had the power to use troops without Con-\ngressional sanction by virtue of section 3.\nWith respect to both these amendments, debate centered on\naction under Article 42 of the Charter, which deals with the use\nof security forces provided by the members under Article 43. Noth-\ning was said that could be construed as a limitation on the President's\nconstitutional authority to use troops to carry out other provisions\nof the Charter, or to respond to Security Council action under Article\n39.\n37\n4. Effect of Failure of Article 43\non the President's Powers\nIt is being argued, however, that the debate in\nthe Senate in December 1945 was based on the assumption that the con-\nsummation of agreements under Article 43 is a condition precedent to\nany action by the President in sending any troops whatever.\nThe flaw in this argument, however, is that the President\nhas authority to use the troops irrespective of the Charter. This\nis authority arrising from the Constitution, and may be exercised\nby the President to carry out the foreign policy of the United\nStates, of which the Charter is a principal element.\nThe U. N. Participation Act does not purport to limit or\ncontrol this general authority. It merely provides that the Act is not\nto be construed to authorize the President to send more troops under\nArticle 42 than are provided for in the agreement under Article 43.\nArticle 43 has never been put into effect, because of Russian\nopposition, so the Act refers to a situation which does not exist.\nEven if the Act were construed as a limitation in the narrow\ncircumstances envisaged under Articles 42 and 43 it might well prove\nto be ineffective. The fate of similarly worded provisions in the\nSelective Service Act of 1940 and the Lend Lease Act (See supra)\nis illustrative.\nBut the main point is that Articles 42 and 43 are not the\nwhole of the Charter; that the President can act under Article 39,\nand that he is under a duty as Chief Executive to see that the great\nobjectives of the Charter are carried on so far as it lieswithin his\npower to do SO. All that has been said above concerning the power\nof the President to interpret a treaty, and to execute a treaty when\nthe means of action lie in his jurisdiction, confirms such a conclu-\nsion.\nThe Charter of the United Nations, implemented by the United\nNations Participation Act, is great international commitment. It is\nnot to be construed like a corporation mortgage.\n- 38 -\nF. Powers of the President under the North\nAtlantic Treaty - Action in Europe\nThe authority of the President to send troops abroad\nunder the North Atlantic treaty presents even fewer difficulties\nthan his authority under the United Nations Charter.\n1. Provisions of the North Atlantic Treaty\nThe North Atlantic treaty is in many of its aspects a\ndefensive alliance. Its pertinent provisions are as follows:\n\"Article 3 - In order more effectively to achieve the\nobjectives of this Treaty, the Parties, separately and jointly,\nby means of continuous and effective self-help and mutual aid,\nwill maintain and develop their individual and collective capacity\nto resist armed attack.\"\n\"Article 5 - The Parties agree that an armed attack\nagainst one or more of them in Europe or North America shall be\nconsidered an attack against them all; and consequently they agree\nthat, if such an armed attack occurs, each of them, in exercise of\nthe right of individual or collective self-defense recognized by\nArticle 51 of the Charter of the United Nations, will assist the\nParty or Parties so attacked by taking forthwith, individually and\nin concert with the other Parties, such action as it deems neces-\nsary, including the use of armed force, to restore and maintain\nthe security of the North Atlantic area.\"\n\"Article 6 - For the purpose of Article 5 an armed\nattack on one or more of the Parties is deemed to include an armed\nattack on the territory of any of the Parties in Europe or North\nAmerica, on the Algerian departments of France, on the occupation\nforces of any Party in Europe, on the islands under the jurisdic-\ntion of any Party in the North Atlantic area north of the Tropic\nof Cancer or on the vessels or aircraft in this area of any of the\nParties.\"\n\"Article 11 - This treaty shall be ratified and its pro-\nvisions carried out by the Parties in accordance with their respec-\ntive constitutional processes\n\"\nIn the public discussion of the treaty and the debate\nleading to its ratification, attention was concentrated on the\nkind of measures that would have to be taken to provide mutual aid\nand to exercise the right of self-defense in the event of an armed\nattack.\nIt was, of course, recognized that U. S. occupation\nforces stationed in Germany are part of the defensive strength of\nthe treaty nations. This is clearly established by the reference\nto occupation forces in article 6 of the treaty.\n2. Attempts to curb the President's powers\nunder the Treaty.\nIn presenting the treaty to the Senate for ratification,\nthe Senate Committee on Foreign Relations indicated that the\ntreaty was confirmatory of the powers already possessed by the\nPresident, as Commander-in-Chief. The committee said:\n- 39 -\n\"Article 5 records what is a fact, namely, that an\narmed attack within the meaning of the treaty would in the\npresent-day world constitute an attack upon the entire community\ncomprising the parties to the treaty, including the United States.\nAccordingly, the President and the Congress, within their sphere\nof assigned constitutional responsibilities, would be expected to\ntake all action necessary and appropriate to protect the United\nStates against the consequences and dangers of an armed attack\ncommitted against any party to the Treaty. The committee does\nnot believe it appropriate in this report to undertake to define\nthe authority of the President to use the armed forces. Nothing\nin the treaty, however, including the provision that an attack\nagainst one shall be considered an attack against all, increases\nor decreases the constitutional powers of either the President or\nthe Congress or changes the relationship between them.\" (81st\nCong. 1st session, Sen. Executive Report No. 8, June 6, 1949,\np. 14.)\nThe committee returned to this proposition in explain-\ning what is meant by \"constitutional processes\" in Article 11.\nIt said:\n\"The treaty in no way affects the basic division of\nauthority between the President and the Congress as defined in\nthe Constitution. In no way does it alter the constitutional\nrelationship between them. In particular, it does not increase,\ndecrease, or change the power of the President as Commander in\nChief of the armed forces or impair the full authority of Congress\nto declare war.\n\"Except for the proposed foreign military assistance\nprogram, no legislation related to the treaty is presently con-\ntemplated or considered necessary. The treaty would constitute\nlegislative authorization for our share of the expenses of the\norganization contemplated in article 9, but appropriations by\nCongress would be necessary.\" (Ibid. p. 19.)\nThat Article 5 might require the President to order the\narmed forces into action was clearly foreseen by the opponents to\nthe treaty in the Senate. To forestall this possibility Senator\nWatkins introduced a reservation to the treaty which read as\nfollows:\n\"The United States understands and construes Article V\nof the treaty as follows:\n\"That the United States assumes no obligation to re-\nstore and maintain the security of the North Atlantic area or to\nassist any other party or parties in said area, by armed force\nor to employ the military, air, or naval forces of the United\nStates under Article V or any article of the treaty, for any pur-\npose, unless in any particular case the Congress, which under the\nConstitution has the sole power to declare war or authorize the\nemployment of the military, air or naval forces of the United\nStates, shall by act or joint resolution so provide.\" (Vol. 95,\nCong. Rec., July 21, 1949, pg. 9898.)\nThis reservation was rejected by a vote of 84 to 11.\n(Ibid. p. 9916.) The Senate thus clearly repudiated the idea\nthat the President could not use the armed forces of the U. S. to\ncarry out Article 5 without Congressional authority.\nThe treaty was ratified by a vote of 82 to 13 (Ibid.)\n- 40 -\nIt should be noted that Presidential action in sending\ntroops to Europe might rest as much upon broad considerations of\nforeign policy and national defense as on the purposes of the treaty.\nStrategic considerations vary from time to time, but at the present\nmoment no one can maintain that, even in the absence of the treaty,\nthe defense of the United States might not require U. S. armed\nforces in Europe. Certainly, as has been pointed out above, the\nPresident can send armed forces to protect and defend our occupa-\ntion of the United States zone in Germany. Sending armed forces\nto Europe may be as necessary to national defense in these days of\nthe airplane and the atomic bomb as sending troops to Florida Was in\nthe days of President Monroe.\nIt is true that the treaty does not impose a legal obliga-\ntion on the President to send troops, but neither does it impair his\nauthority to do so. As we have noted above, the interpretation of\nwhat a treaty may call for in the way of sending troops is up to the\nCommander-in-Chief. The absence of a legal obligation to send troops\nis not a prohibition on sending them, if the Chief Executive deter-\nmines that they are necessary to carry out the purpose of the treaty.\nIn the face of the Senate's action on the Watkins reserva-\ntion it should be unnecessary to argue this question at all.\nSome participants in the current debate are, trying to\ndraw a distinction between Article 3 of the treaty and Article 5,\ncontending that whatever the President's powers may be under Article\n5 in the event of attack, he has no power to send troops under Article 3\nin advance of attack. It is hard to SEE what this alleged distinction\nwhich was\nis based upon. The Mutual Defense Assistance Act, /adopted to implement\nthe mutual aid provisions of the treaty, principally under Article 3,\nimposes no limitations on the President's powers to send troops.\nIn the hearings on the treaty, Administration witnesses said that it\nwas not contemplated that troops would be sent under Article 3, but\nthis statement was not inconsistent with the possibility that troops\nmight be sent by the President if circumstances changed, as they cer-\ntainly have since 1949.\n- 41 -\n3.3.\nSERVICE\nG. Need for Collaboration between the President\nGOVERNMENT\nand the Congress.\nAs this long discussion of the respective\npowers of the President and the Congress in this field has made clear,\nconstitutional doctrine has been largely molded by practical necessi-\nties. Use of the Congressional power to declare war, for example, has\nfallen into abeyance because wars are no longer declared in advance.\nThe Constitutional power of the Commander-in-Chief has been exercised\nmore often because the need for armed international action has grown\nmore acute. The long delays occasioned by the slowness of communica-\ntion in the 18th century have given place to breath-taking rapidity\nin the tempo of history. Repelling aggression in Korea or Europe can-\nnot wait upon Congressional debate. However, while the need for\nspeed and the growth in the size and complexity of the armed forces\nhave enlarged the area in which the powers of the Commander-in-Chief\nare to be wielded, the magnitude of present day military operations\nand international policies requires a degree of Congressional support\nthat was unnecessary in the days of the 19th Century. Professor\nCorwin has expressed this very well.\n\"The point is that the sort of foreign policy which present-\nday conditions require can never be kept going by attributing to the\nPresident, as in the past, the simple power to order the Navy around\nwithout consulting Congress. Far otherwise; Congress must be con-\nstantly asked to exercise powers which no President has ever ventured\nto exercise on any scale the power to tax, to pledge the credit of\nthe United States, to raise armies, to regulate commerce, and SO forth,\nand SO forth. And if Congress cannot be persuaded to back presidential\npolicy by bringing these powers to its support, then -- the idea of\na presidential coup d'etat being dismissed -- the policy fails, and\nthat is all there is to it.\" (Corwin op. cit. p. 271.)\n-\n-\n-\n-\n-"
}