VI. CONGRESSIONAL AUTHORIZATION WITHOUT A DECLARATION OF WAR

Congress might authorize or approve and support a President's action in sending troops abroad by methods other than a formal declaration of war (or it might disapprove such actions), although some might dispute whether a particular authorization is adequate in any specific situation involving serious hostilities. In fact, there appears to be a trend toward use of authorizations in forms other than a declaration of war as a more usual method of expressing congressional decision. Reveley states:

Congressional authorization need not be by formal declaration of war: "[N]either in the language of the Constitution, the intent of the framers, the available historical and judicial precedents nor the purposes behind the clause" is there a requirement for such formality, particularly under present circumstances when most wars are deliberately limited in scope and purpose. A joint resolution, signed by the President, is the most tenable method of authorizing the use of force today. To be meaningful, the resolution should be passed only after Congress is aware of the basic elements of the situation, and has had reasonable time to consider their implications. The resolution should not, as rule, be a blank check leaving the place, purpose and duration of hostilities to the President's sole discretion to respond to changing circumstances. If the legislators wish to delegate full responsibility to the President, it appears that such action would be within the constitutional pale so long as Congress delegates with full awareness of the authority granted.1

In a footnote he adds:

Senate approval of a treaty would not suffice, as that would exclude the House from the decision-making process. An executive agreement, approved by the entire Congress and specifically described as authorization to use force, should be acceptable. Simliarly, legislation to increase the size of the armed forces or to appropriate additional money to sustain a use of force might be regarded as authorization if legislative intent to that effect is made abundantly clear. Absent such clarity, simple legislation ought not to be regarded as implied approval, since it may have been adopted for reasons other than to ratify a presidential fait accompli*** Nothing can be assumed from a congressional failure to act. The burden is not upon Congress to make its views clear or be deemed to have acquiesced, but rather upon the President to obtain legislative approval before he acts."

The lack of specific congressional sanction for the Korean War contributed to the criticism which President Truman received in Congress about the war. On four occasions from 1955 through 1964 Congress, in response to requests by the President, passed joint resolutions expressing support of foreign policy. These were the Formosa resolution of 1955, the Middle East resolution of 1957, the Cuban resolution of 1962 and the Vietnam or "Gulf of Tonkin" resolution of 1964.

Although two of the resolutions have been repealed and views on their significance have varied, they played an important role at the time of each crisis and in bringing about the War Powers Resolution.

1 Reveley, W. Taylor, III, op cit., p. 1289. Footnotes omitted.

2 Ibid., p. 1290.

On March 12, 1970, the Department of State commented on a joint. resolution which would, among other things, have repealed four joint foreign-policy-support resolutions effective with the sine die adjournment of the Ninety-first Congress. The relevant portions of the letter from H. G. Torbert, Jr., Acting Assistant Secretary for Congressional Relations, to Chairman Fulbright of the Senate Foreign Relations Committee follow: ^

For reasons discussed in detail below, the Department believes that repeal of the resolutions specified in section 1 is a matter within the discretion of the Congress. We neither advocate nor oppose congressional action *

**

Each of the resolutions specified in section 1 was passed in response to a crisis situation in the affected area. Thus, the Formosa Straits resolution dealt with a direct military threat against the offshore islands; the Mid-East resolution arose from the threat of Soviet expansionism in the area and the situation following the 1956 Suez/Sinai war; the Cuba resolution was passed in the context of adventuristic Soviet military policies directly threatening our security; and the Tonkin Gulf resolution responded to an assault upon our naval forces in international waters.

In these moments of crisis, the use of these resolutions as a highly visible means of executive-legislative consultation was instrumental in demonstrating unified support for our policies to the world and the American public and in indicating congressional approval for the possible employment of U.S. military forces in support of those policies.

The crisis circumstances giving rise to these resolutions have long since passed. As indicated by the specific analyses below, the administration is not depending on any of these resolutions as legal or constitutional authority for its present conduct of foreign relations, or its contingency plans.

Equally important, the administration does not consider the continued existence of these resolutions as evidence of congressional authorization for or acquiescence in any new military efforts or as a substitute for the policy of appropriate and timely congressional consultation to which the administration is firmly committed.

Should a situation arise calling into play our treaty commitments or otherwise seriously and immediately affecting vital United States interests in the areas affected by these resolutions, we would wish to see Congress at that time fulfill its proper role under the Constitution in the decisionmaking process. We would keep the appropriate committees and the congressional leadership fully informed and would cooperate to the maximum in Congress' fulfillment of its responsibilities. Should circumstances warrant, and after consultation with appropriate committees and the Congressional leadership, we might indeed seek further resolutions in fresh crises.

In short, as a functional matter, these resolutions have no continuing significance in the foreign policy formulation process, and it is for Congress to determine whether they should be terminated or simply allowed to fade away.

This section presents brief synopses of these resolutions and notes on their background. Also included is a resolution in some ways similar to them, the Berlin resolution of 1962.5

A. The Formosa Resolution, 1955.-Public Law 84-4, H.J. Res. 159, approved January 29, 1955, authorized the President to employ the U.S. Armed Forces as he deemed necessary to protect Formosa and the Pescadores against armed attack, and also to protect such related positions and to take such other measures as he judged to be required or appropriate for this purpose. It provided that the resolution shall

*S.J. Res. 166, introduced by Senators Mathias and Mansfield, Dec. 8, 1969, to repeal legislation relating to the use of the Armed Forces of the United States in certain areas outside the United States and to express the sense of the Congress on certain matters relating to the war in Vietnam, and for other purposes.

4U.S. Congress. Senate. Committee on Foreign Relations. Termination of Southeast Asia Resolution. Report, May 15, 1970. Washington. U.S. Govt. Print. Off., 1970, pp. 2024. (91st Congress, 2d sess. Senate. Report no. 91-872.)

The synopses and notes on these resolutions are adapted from U.S. Library of Congress. Legislative Reference Service. Foreign Policy Resolutions by the Congress [by] Ernest Lent. [Washington] 1966. Report F-170.

expire when the President shall determine that the peace and security of the area is reasonably assured and shall so report to the Congress. President Eisenhower had submitted a Mutual Defense Treaty with the Republic of China to the Senate on January 6, 1955. There had been intermittent shelling of the Nationalist-held island of Quemoy, near the Chinese Communist port of Amoy, for some months. Climaxing a long series of threats and actions against Chiang's government, Chinese Communist forces seized the small Nationalist-held island of Yichiang some 210 miles north of Formosa on January 18. In a special message to the Congress on January 24, President Eisenhower stated that Congress should "make clear the unified and serious intentions" of the U.S. and its "readiness to fight if necessary." He added that "authority for some of the actions which might be required" was inherent in his authority as Commander in Chief. The resolution was passed by the House by 310 votes to 3 on January 25 after a day of hearings and a day of debate. The Senate followed suit on January 28, after two days of hearings and three days of debate. The Senate vote was 75-3.

Controversy centered on the failure of the resolution to spell out the specific area which the U.S. would fight to defend. Administration spokesmen declined to specify whether the U.S. would defend Quemoy and nearby Matsu, and these islands were not mentioned in the resolution. It left the way open for U.S. defense of these and other. islands if the President deemed their defense essential to that of Formosa and the Pescadores.

The Nationalist-held Tachen island group was evacuated February 7-11. The Senate approved ratification of the defense treaty with Nationalist China on February 9, adding a number of understandings, one of which stated that no military operations would be undertaken from the territories covered by the treaty except by joint U.S.-Nationalist Chinese agreement. The President remained publicly uncommitted about Quemoy and Matsu, and the crisis gradually lessened.

The Formosa Resolution was repealed by section 3 of the State Department/USIA Authorization Act, Fiscal Year 1975 (P.L. 93-475). B. The Middle East Resolution, 1957.--Public Law 85-7, H.J. Res. 117, approved March 9, 1957, authorized the President to extend military and economic aid to Middle East nations. It stated that the U.S. "regards as vital to the national interest and world peace the preservation of the independence and integrity of the nations of the Middle East." It declared that, if the President determines the necessity of it, the U.S. is prepared to use armed forces to assist nations requesting assistance against armed aggression from any Communist-controlled country, provided this is consonant with the Constitution and treaty obligations of the U.S. The resolution authorized the use of $200 million of previously appropriated funds, required certain reports, and said the President should continue to support the U.N. Emergency Force in the Middle East. It required the President to report his action under the resolution in January and July of each year, a provision changed in 1961 to "whenever appropriate." It provided that the resolution would expire on a Presidential finding concerning peace and security in the area or earlier by concurrent resolution.

The reduced power and influence of Britain and France in the Middle East following the Suez Crisis of 1956 had left what Secretary Dulles considered a dangerous power vacuum there. President Eisenhower's message to Congress on January 5, 1957 enunciated the so-called Eisenhower Doctrine and urged its support by congressional resolution. House J. Res. 117, amended in both chambers, passed the Senate 72-19, and the House accepted the Senate version by 370-60. C. The Cuban Resolution, 1962.-Public Law 87-733, S.J. Res. 230, approved October 3, 1962, expressed the determination of the U.S. to prevent the Marxist-Leninist regime in Cuba, by whatever means may be necessary, including the use of arms, from extending its aggressive or subversive activities to any part of the Hemisphere; to prevent the creation of an externally supported military capability there endangering U.S. security; and to work with the Organization of American States and with liberty-loving Cubans to support the aspirations of the Cuban people for self-determination.

Amid expressions of mounting concern in the Congress over reports of Soviet missiles in Cuba, President Kennedy stated on September 13, 1962, that the Soviet arms shipments did not constitute a serious threat and that, if the Communist buildup were to interfere with national security in any way, the United States would do whatever must be done to protect its security and that of its allies. At that time, he stated that a congressional resolution was not necessary to his authority. After its adoption, he referred to "the authority entrusted to me by the Constitution, as endorsed by the Resolution of the Congress."

Senator Sparkman, Acting Chairman of the Foreign Relations Committee, presented the resolution to the Senate as an original resolution by that Committee and the Senate Armed Services Committee, which had met jointly to consider a number of resolutions on Cuba, some of them much stronger than S.J. Res. 230. Senator Sparkman stated that the resolution was the product of these committees and of the executive branch, and was entirely consistent with the President's September 13 statement. In his 1965 book Kennedy, Theodore Sorensen suggests some direct involvement by President Kennedy. So it is clear that there was interplay between the Congress and the Executive in developing the resolution.

The resolution was adopted 86-1 in the Senate on September 20. In the House, Representative Broomfield (R.-Mich.) offered a motion. to recommit the resolution with instructions to the House Foreign Affairs Committee to include a provision urging the President to implement and enforce the Monroe Doctrine throughout the Hemisphere. The Broomfield motion was defeated 140-251. S.J. Res. 230 was then adopted 384-7.

On the same day President Kennedy signed this resolution, he also signed S.J. Res. 224, Public Law 87-736, authorizing the callup of 150,000 members of the ready reserve.

The famous aerial photographs of medium-range ballistic missile sites in Cuba were seen by the President on October 16, about three weeks after S.J. Res. 230 cleared the Congress. The President's demand that Khrushchev withdraw the missiles was made on October 22.

The Cuban resolution is probably the least typical of the major "foreign-policy-support" resolutions, differing in several respects from the Formosa, Middle East, and "Gulf of Tonkin" resolutions. Who

made the initiative is unclear, although its origin in the broades sense appears to have been the pressure of the Congress on the Admin istration for a stronger approach to the Cuban problem. The resolu tion contains no clauses "authorizing" the President to do anything and the President took the position that he needed no authorization although he welcomed an appropriate endorsement. There are specific provisions on terminating the resolution.

D. The Berlin Resolution, 1962.-House Con. Res. 570, concurred in on October 10, 1962, states the sense of the Congress that the continued exercise of U.S., British and French rights in Berlin constituted a fundamental political and moral determination; that the U.S would regard any violation of those rights, including the rights of ingress and egress, as intolerable; and that the U.S. was determined to prevent any such violation by whatever means may be necessary. including the use of arms; and to fulfill its commitment to the people of Berlin.

The Berlin Crisis of 1961 faded in October of that year, with Khrushchev's downplaying of the importance of a deadline for the signing of an East German peace treaty. In 1962, Berlin corridor harassment had continued, as did incidents involving the Berlin wall, construction of which had begun the previous August. The Soviet Union continued to assert the intention to sign a separate peace pact unless the Western powers came to terms on a new regime for Berlin, but Khrushchev refrained from imposing a new deadline. Meanwhile, as indicated in the previous section on the Cuban resolution, the nation was debating whether there was a serious threat from Soviet missiles shipped to Cuba.

Representative Zablocki, sponsor of the resolution, pointed out that the Congress, representing the American people, had not yet been heard from in support of President Kennedy's position on Berlin. The resolution cleared the House 312-0 October 5 and the Senate five days later by voice vote, with six Senators on the floor at the time.

The resolution, while clearly supporting U.S. foreign policy against threatened Communist pressure, is not usually considered in quite the same category as the four major foreign-policy-support resolutions, in that the President apparently did not request it and it did not take the form of a joint resolution.

E. The "Gulf of Tonkin" Resolution, 1964.-Sometimes called the "Southeast Asia" Resolution, Public Law 88-108, H.J. Res. 1145, approved August 10, 1964, approved and supported the "determination of the President as Commander in Chief, to take all necessary measures to repeal any armed attack" on U.S. forces and to prevent further aggression. It affirmed that the United States was "prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom." It provided that the resolution expire by presidential determination concerning the peace and security of the area or by congressional concurrent resolution.

The two Gulf of Tonkin incidents occurred on August 2 and 4, 1964, with U.S. air retaliation following on August 4. In a special message on August 5, President Johnson recommended prompt enactment of a resolution expressing support for all necessary action to protect