Congress, the President and the Power to Declare War: A Requiem for Vietnam

Abstract:     
Several arguments have been advanced in support of the President's authority to continue use of the Armed Forces in Vietnam without a congressional declaration of war as provided by the Constitution. Congressional ratification of the Southeast Asia Treaty and the Charter of the United Nations, as well as enactment of the Gulf of Tonkin Resolution, are often urged as constituting sufficient congressional authorization for the President's actions. Some have gone further and contended that congressional authorization was not a prerequisite in the Vietnam conflict because the President never exceeded his historically recognized authority to act unilaterally in defense of the security of the United States. In this Article and the one that follows, the authors respond to each of these arguments. Professor Van Alstyne examines whether delegation of Congress' authority to declare war is ever permissible either by treaty or by joint resolution. He concludes that while enactment of the Gulf of Tonkin Resolution may have constituted a sufficient congressional authorization, the President has acted illegally since that resolution's repeal. Professor Berger argues that the President's unilateral acts in Vietnam can find no justification in either the text of the Constitution or in past presidential practices; Taking issue with Professor Eugene V. Rostow, Professor Berger concludes that the recently considered War Powers Bill, designed to curtail future unilateral acts of war by the President, is a return to constitutional precepts which has long been necessary.

Number of Pages in PDF File: 29

Keywords: Congress, President, War Power, war

Accepted Paper Series