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Published online by Cambridge University Press: 28 March 2017
Rarely, if ever, has the relationship between the President’s authority as Commander-in-Chief and Congress’s power to declare war been thrown into such sharp relief as by the Cambodian incursion. The issue is quite simple: Was the President within his power under Article II, Section 2, of the Constitution in ordering United States ground troops into Cambodia on April 30, 1970? The Constitutional question stands alone, in this instance freed of the other issues which tended to divert debate over United States involvement in South Viet-Nam and recent Presidential actions elsewhere.
1 This is an issue different from that of the Constitutionality of the Cooper-Church Amendment, H.R. 15628, 91st Cong., 2d Sess. (1970), or the McGovern-Hatfield Amendment, H.R. 17123, 91st Cong., 2d Sess. (1970). The former restricts the use of appropriated funds in Cambodia after June 30, 1970; it therefore neither judges the Constitutionality of the incursion nor purports to restrict the President in the exercise of his authority as Commander-in-Chief in the future. In this fashion, Cooper-Church avoided the Constitutional conflict. McGovern-Hatfield is also an assertion of the Congress’s power over the purse. It would force a withdrawal—absent a declaration of war—from Indochina by June 30, 1971. Like Cooper-Church, it does not seek to judge the Constitutionality of either the initial commitment of force to Viet-Nam or the April 30 incursion into Cambodia.
2 Southeast Asia Collective Defense Treaty, Sept. 8, 1954, 6 U.S. Treaties 81, T.I.A.S., No. 3170; 60 A.J.I.L. 646 (1966). See U. S. Dept. of State, The Legality of United States Participation in the Defense of Viet-Nam, Part IV, B, 54 Dept. of State Bulletin 474 (March 4, 1966), 60 A.J.I.L. 565 (1966); reprinted in 1 The Vietnam War and International Law 583 et seq. (R. Falk ed., 1968) (hereinafter cited as Memorandum).
3 See Wormuth, , “The Vietnam War: the President versus the Constitution,” in 2 The Vietnam War and International Law 711, 767–780 (Falk, R. ed., 1969)Google Scholar.
4 In this respect, see the Legal Adviser’s statement at the Hammarskjöld Forum of the Association of the Bar of the City of New York on May 28, 1970, 62 Dept. of State Bulletin 765 (1970). It makes no mention of SEATO. Instead, Mr. Stevenson said:
“As the President has made clear, the purpose of our armed forces in Cambodia is not to help defend the Government of Cambodia, but rather to help defend South Viet Nam and the United States troops in South Viet Nam from the continuing North Vietnamese armed attack.” (Footnote omitted.)
5 Public Law 88-408, Aug. 10, 1964, 78 Stat. 384.
6 Memorandum, cited note 2 above, Part IV, C.
7 Respectively, S. J. Res. of Oct. 3, 1962, 76 Stat. 697; Ch. 4, Public Law No. 4 (H. J. Res. 159), approved Jan. 29, 1959, 69 Stat. 7, and H. J. Res. of March 9, 1957, 71 Stat. 5. See 2 Falk, note 3 above, at 790; Moore, , “The National Executive and the Use of the Armed Forces Abroad,” in 2 The Vietnam War and International Law 808, 817 (Falk, R. ed., 1969)Google Scholar.
8 As to the Constitutional effect of the Middle East resolution, Secretary Dulles had this to say at his news conference of May 20, 1958, a few days before the landing at Beirut:
“All I say is that, when the Congress by an overwhelming vote declares that the independence and integrity of a certain country is vital to the peace and national interest of the United States, that is certainly a meaningful declaration, and it places upon the President a greater responsibility to protect, in that area, the peace and interests of the United States than would have been the case had there not been such a declaration.” Doc. 316, 1958 American Foreign Policy, Current Documents 938-939 (May 20, 1958).
9 Presidential Proclamation No. 3504, Oct. 23, 1962, 27 Fed. Reg. 10,401; 57 A.J.I.L. 512 (1963).
10 See Wormuth, note 3 above, at 780-799; Velvel, , “The War in Viet Nam: Unconstitutional, Justiciable, and Jurisdictionally Attackable,” in 2 The Vietnam War and International Law 651, 674-681 (Falk, R. ed., 1969)Google Scholar.
11 116 Cong. Rec. S 9670 (June 24, 1970).
12 62 Dept. of State Bulletin 646 (May 25, 1970).
13 U. S. Constitution, Art. I, § 8, cl. 10, 11, 12, 13, and 14.
14 Ibid., Art. II, § 2, cl. 1.
15 Ibid., Art. I, § 8, cl. 18.
16 See, generally, Wormuth, note 3 above, at 718–726.
17 Ibid, at 724.
18 Ibid, at 725.
19 Rogers, G., World Policing and the Constitution 92-123 (1945)Google Scholar (lists 149 instances of the use of U. S. forces abroad); Offutt, M., The Protection of Citizens Abroad by the Armed Forces of the United States 1 (1928)Google Scholar (estimates that “United States [forces] have been landed on foreign soil . . . on more than one hundred occasions during the past hundred and fifteen years.”); Clark, J., Right to Protect Citizens in Foreign Countries by Landing Forces (Rev. ed., 1912)Google Scholar (appendix lists forty-one instances of landing United States forces).
20 Memorandum, p. 597.
21 See Wormuth, note 3 above, at 725.
22 He received ratification in the Act of Aug. 6, 1861, Ch. 63, § 3, 12 Stat. 326 (confirming all acts, proclamations, and orders of the President, after the 4th of March, 1861).
23 D. Acheson, Present at the Creation 415 (1969).
24 “If the incident [a complete usurpation by the President of authority to use the Armed Forces of this country] is permitted to go by without protest, at least from this body [the Senate], we would have finally terminated for all time the right of Congress to declare war, which is granted to Congress alone by the Constitution of the United States.” 96 Cong. Rec. 9323 (1950).
25 Hearings on S. Res. 151 relating to United States Commitments to Foreign Powers before the Committee on Foreign Relations, 90th Cong., 1st Sess., at 82 (1967). Furthermore, the Gulf of Tonkin debates were studded with assurances that the resolution was not intended to justify a widening of the war. And, indeed, the geographic boundaries of the ground war were not expanded until Cambodia. 2 The Vietnam War and International Law 678-681 (R. Falk ed., 1969).
26 Southeast Asia Resolution, Joint Hearing before the Committee on Foreign Relations and the Committee on Armed Services of the United States Senate, 88th Cong., 2d Sess. 3.
27 Mr. Webster, Secretary of State, to Mr. Fox, British Minister to the United States, April 24, 1841, 29 British and Foreign State Papers 1129, 1138 (1840–1841).
28 New York Times, June 19, 1970, at p. 7, col. 1 (City ed.).
29 We may leave to one side the techniques by which Congress could act. It would seem, in any event, that there are a variety of ways, in addition to more formalistic war declarations, by which Congress could exercise its Article I, Section 8, war powers. The point is not form, but the substance of shared responsibility.
30 343 U. S. 579, 654-655 (1952).