Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

In 1912, the Department of State published a memorandum prepared by its Solicitor which set out to justify the Right to Protect Citizens in Foreign Countries by Landing Forces.1 In addition to the justification, the memorandum summarized forty-seven instances in which force had been used, in most of them without any congressional authorization.2 Twice revised and reissued, the memorandum was joined by a 1928 independent study and a 1945 work by a former government official in supporting conclusions that drifted away from the original justification of the use of United States forces abroad to the use of such forces at the discretion of the President and free from control by Congress.3

New lists and revised arguments were published to support the actions of President Harry Truman in sending troops to Korea and of Presidents John Kennedy and Lyndon Johnson in sending troops first to Vietnam and then to Indochina generally,4 and new lists have since been propounded.5 The great majority of the instances cited involved fights with pirates, landings of small naval contingents on barbarous or semibarbarous coasts to protect commerce, the dispatch of small bodies of troops to chase bandits across the Mexican border, and the like, and some incidents supposedly without authorization from Congress did in fact have underlying statutory or other legislative authorization.6 Some instances, e.g., President James Polk’s use of troops to precipitate war with Mexico in 1846, President Ulysses Grant’s attempt to annex the Dominican Republic, President William McKinley’s dispatch of troops into China during the Boxer Rebellion, involved considerable exercises of presidential power, but in general purposes were limited and congressional authority was sought for the use of troops against a sovereign state or in such a way as to constitute war. The early years of the twentieth century saw the expansion in the Caribbean and Latin America both of the use of troops for the furthering of what was perceived to be our national interests and of the power of the President to deploy the military force of the United States without congressional authorization.7

The pre-war actions of Presidents Woodrow Wilson and Franklin Roosevelt advanced in substantial degrees the fact of presidential initiative, although the theory did not begin to catch up with the fact until the “Great Debate” over the commitment of troops by the United States to Europe under the Atlantic Pact. While congressional authorization was obtained, that debate, the debate over the United Nations charter, and the debate over Article 5 of the North Atlantic Treaty of 1949, declaring that “armed attack” against one signatory was to be considered as “an attack” against all signatories, provided the occasion for the formulation of a theory of independent presidential power to use the armed forces in the national interest at his discretion.8 Thus, Secretary of State Dean Acheson told Congress: “Not only has the President the authority to use the armed forces in carrying out the broad foreign policy of the United States implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution.” 9

President Truman did not seek congressional authorization before sending troops to Korea, and subsequent Presidents similarly acted on their own in putting troops into many foreign countries, including the Dominican Republic, Lebanon, and most notably Indochina.10 Eventually, public opposition precipitated another constitutional debate whether the President had the authority to commit troops to foreign combat without the approval of Congress, culminating in the enactment of the War Powers Resolution.11 The Resolution did little to inhibit Presidents from sending troops abroad without prior congressional authorization, and the Supreme Court has not squarely addressed the issue.12

Footnotes

1

J. Clark, Memorandum by the Solicitor for the Department of State, Right to Protect Citizens in Foreign Countries by Landing Forces (1912).

2

Id. appendix.

3

Id. Milton Offutt, The Protection of Citizens Abroad by the Armed Forces of the United States (1928); James Grafton Rogers, World Policing and the Constitution app. (1945). The last volume examined whether the President was empowered to participate in United Nations peacekeeping actions absent congressional authorization.

4

E.g., H. Rep. No. 127 55–62 (1951); Edward Corwin, Who Has the Power to Make War?, N.Y. Times Mag. 11 (July 31, 1949); Authority of the President to Repel the Attack in Korea, 23 Dep’t State Bull. 173 (1950); U.S. Dep’t of State, Historical Studies Div., Armed Actions Taken by the United States Without a Declaration of War, 1789–1967 (1967). One commentator stated:

“There has never, I believe, been any serious doubt—in the sense of non-politically inspired doubt—of the President’s constitutional authority to do what he did. The basis for this conclusion in legal theory and historical precedent was fully set out in the State Department’s memorandum of July 3, 1950, extensively published. But the wisdom of the decision not to ask for congressional approval has been doubted.”

After discussing several reasons establishing the wisdom of the decision, the Secretary continued:

“The President agreed, moved also, I think, by another passionately held conviction. His great office was to him a sacred and temporary trust, which he was determined to pass on unimpaired by the slightest loss of power or prestige. This attitude would incline him strongly against any attempt to divert criticism from himself by action that might establish a precedent in derogation of presidential power to send our forces into battle. The memorandum that we prepared listed eighty-seven instances in the past century in which his predecessors had done this. And thus yet another decision was made.”

Dean Acheson, Present at the Creation 414, 415 (1969).

5

War Powers Legislation: Hearings Before the S Foreign Rels. Comm., 92d Cong. 347, 354–355, 359–379 (1971) (Sen. Barry Goldwater); J. Terry Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53 (1972). United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990) (citing Cong. Rsch. Serv., Instances of Use of United States Armed Forces Abroad, 1798–1989 (1989). For an effort to reconstruct the development and continuation of the listings, see Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War 142–145 (1989).

6

See, e.g., Act of Mar. 3, 1819, ch. 77, §1, 3 Stat. 510; extended by Act of Jan. 30, 1823, ch. 7, 3 Stat. 721 (codified as amended at 33 U.S.C. § 381) (authorizing public armed vessels of the United States to suppress piracy).

7

Considerable debate continues with respect to the meaning of the historical record. For reflections of the narrow reading, see Nat’l Commitments Res., Rep. of the Sen. Comm. on Foreign Rels., S. Rep. No. 91-129, 91st Cong. (1969); John Hart Ely, War And Responsibility: Constitutional Lessons Of Vietnam And Its Aftermath (1993). See Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (1976); J. Terry Emerson, Making War Without a Declaration, 17 J. Legis. 23 (1990).

8

For some popular defenses of presidential power during the “Great Debate,” see Corwin, supra note 4; Henry Commager, Presidential Power: The Issue Analyzed, N>Y. Times Mag. 11 (January 14, 1951). Cf. The Constitutional and Legal Basis for the President’s Action in Using Armed Forces to Repel the Invasion of South Korea, 96 Cong. Rec. 9647–49 (1950) (statement of Sen. Paul Douglas). President Truman and Secretary Acheson used the argument from the U.N. Charter in defending the United States’ actions in Korea. See, e.g., Jane Stromseth, Rethinking War Powers: Congress, the President, and the United Nations, 81 Geo. L. J. 597 (1993).

9

Assignment of Ground Forces of the United States to Duty in the European Area: Hearings Before the S. Foreign Rels. and Armed Servs. Comms., 82 Cong. 92 (1951).

10

See the discussion in Nat’l Commitments Res., Rep. of the S. Comm. on Foreign Rels., S. Rep. No. 91–129, 91st Cong. (1969); U.S. Commitments to Foreign Powers: Hearings Before the S. Comm. on Foreign Rels., 90th Cong. 16–19 (1967) (Prof. Bartlett).

11

Pub. L. No. 93-148, 87 Stat. 555 (codified as amended at 50 U.S.C. §§ 1541–1548).

12

Lower courts have largely avoided resolving challenges to presidential authority to insert U.S. forces into hostile situations without congressional authorization on grounds of non-justiciability, mootness, ripeness, or standing. See, e.g., Kucinich v. Obama, 821 F. Supp. 2d 110, 125 (D.D.C. 2011) (finding that Members of the House of Representatives and group of taxpayers lacked standing to challenge military operations in Libya); Doe v. Bush, 323 F.3d 133, 139 (1st Cir. 2003) (holding challenge to planned military action under the Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub L. No. 107–243, 116, 1498, not ripe for adjudication); Campbell v. Clinton, 52 F. Supp.2d 34 (D.D.C. 1999) (dismissing challenge to military air campaign in Kosovo for lack of standing), aff’d, 203 F.2d 19 (D.C. Cir.), cert. den., 531 U.S. 815 (2000); Dellums v . Bush, 752 F.Supp. 1141 (D.D.C. 1990) (dismissing suit to enjoin military intervention in Iraq on ripeness grounds); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (dismissing lawsuit to require reporting of reflagging of Kuwaiti vessels on grounds of equitable discretion and political question doctrines), aff’d, No. 87–5426 (D.C. Cir. 1988); Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984), aff’d, 765 F.2d 1124 (D.C. Cir. 1985) (dismissing challenge by Members of Congress to military intervention in Grenada on the basis of the doctrine of equitable/remedial discretion); Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), aff’d, 770 F.2d 202 (D.C. Cir. 1985) (dismissing challenge to military support to paramilitary operations designed to overthrow the government of Nicaragua as a nonjusticiable political question); dismissing House Members’ challenge to military aid supplied to the government of El Salvador, including sending U.S. military advisers, on political question grounds); Holtzman v. Schlesinger, 484 F.2d 1307, 1309–11 (2d Cir. 1973) (rejecting challenge to hostilities in Cambodia as political question).