b'The Legal Significance of Presidential Signing Statements\n\nM any Presidents have used signing statem ents to make substantive legal, constitutional, or adm inistra\xc2\xad\ntive pronouncem ents on the bill being signed. These uses of Presidential signing statem ents gener\xc2\xad\nally serve legitim ate and defensible purposes.\n\nNovember 3, 1993\nM e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s id e n t\n\nThis memorandum provides you with an analysis of the legal significance of\npresidential signing statements. It is addressed to the questions that have been\nraised about the usefulness or validity of such statements. We believe that such\nstatements may on appropriate occasions perform useful and legally significant\nfunctions. These functions include: (1) explaining to the public, and particularly to\nconstituencies interested in the bill, what the President believes to be the likely\neffects of its adoption; (2) directing subordinate officers within the executive\nbranch how to interpret or administer the enactment; and (3) informing Congress\nand the public that the Executive believes that a particular provision would be un\xc2\xad\nconstitutional in certain of its applications, or that it is unconstitutional on its face,\nand that the provision will not be given effect by the executive branch to the extent\nthat such enforcement would create an unconstitutional condition.1\nThese functions must be carefully distinguished from a much more controversial\n\xe2\x80\x94 and apparently recent \xe2\x80\x94 use of presidential signing statements, i.e., to create\nlegislative history to which the courts are expected to give some weight when con\xc2\xad\nstruing the enactment. In what follows, we outline the rationales for the first three\nfunctions, and then consider arguments for and against the fourth function.2 The\nAppendix to the memorandum surveys the use of signing statements by earlier\nPresidents and provides examples of such statements that were intended to have\nlegal significance or effects.\nI.\nTo begin with, it appears to be an uncontroversial use of signing statements to\nexplain to the public, and more particularly to interested constituencies, what the\n\n1 In addition, signing statem ents have frequently been used for purposes o f little or no legal or c o n stitu \xc2\xad\ntional significance, e.g., to applaud o r criticize the policy behind certain provisions, to advise C ongress how\nthe President will respond lo future legislation, to condem n practices such as attaching riders to om nibus\nbills, to congratulate m em bers o f C ongress or the public w ho have assisted in the b ill\xe2\x80\x99s p assage, and so forth\n2 We d o not in this m em orandum attem pt to reach a definitive conclusion on the question w hether the use\no f signing statem ents to create legislative history on w hich the courts are to rely is or is not legitim ate W e\nw ould be p leased to provide you w ith further research and analysis on that question should you so desire.\n\n131\n\n\x0cO pinions o f th e Office o f L egal C ounsel\n\nPresident understands to be the likely effects of the bill, and how the bill coheres or\nfails to cohere with the Administration\xe2\x80\x99s views or programs.3\nA second, and also generally uncontroversial, function of presidential signing\nstatements is to guide and direct executive officials in interpreting or administering\na statute. The President has the constitutional authority to supervise and control\nthe activity of subordinate officials within the executive branch. See Franklin v.\nMassachusetts, 505 U.S. 788, 800 (1992). In the exercise of that authority he may\ndirect such officials how to interpret and apply the statutes they administer.4 Cf\nBowsher v. Synar, 478 U.S. 714, 733 (1986) (\xe2\x80\x9c[interpreting a law enacted by\nCongress to implement the legislative mandate is the very essence of \xe2\x80\x98execution\xe2\x80\x99 of\nthe law.\xe2\x80\x9d). Signing statements have frequently expressed the President\xe2\x80\x99s intention\nto construe or administer a statute in a particular manner (often to save the statute\nfrom unconstitutionality), and such statements have the effect of binding the statu\xc2\xad\ntory interpretation of other executive branch officials.5\nA third function, more controversial than either of the two considered above, is\nthe use of signing statements to announce the President\xe2\x80\x99s view of the constitution\xc2\xad\nality of the legislation he is signing. This category embraces at least three species:\nstatements that declare that the legislation (or relevant provisions) would be uncon\xc2\xad\nstitutional in certain applications; statements that purport to construe the legislation\nin a manner that would \xe2\x80\x9csave\xe2\x80\x9d it from unconstitutionality; and statements that state\nflatly that the legislation is unconstitutional on its face. Each of these species of\nstatement may include a declaration as to how \xe2\x80\x94 or whether \xe2\x80\x94 the legislation will\nbe enforced.\nThus, the President may use a signing statement to announce that, although the\nlegislation is constitutional on its face, it would be unconstitutional in various ap\xc2\xad\nplications, and that in such applications he will refuse to execute it. Such a Presi\xc2\xad\ndential statement could be analogized to a Supreme Court opinion that upheld\n3 For ex am p le, on signing the Omnibus C rim e C ontrol and Safe S treets Act o f 1968, President Johnson\ne x plained in som e d etail how the w iretapping and eav esd ro p p in g provisions of the bill both agreed w ith and\ndiffered fro m his A d m in istra tio n \xe2\x80\x99s original p ro p o sals to C ongress, criticized C o n g ress\xe2\x80\x99s decision to sanction\ncertain law en fo rcem en t eavesdropping and w iretap p in g , ask ed C ongress to reconsider that decision, served\nnotice that the D epartm ent o f Ju stice would co n tin u e to follow a n arro w er policy o f confining w iretapping\nand e a v e sd ro p p in g to n ational security cases o n ly , and urged caution and restraint on the states m exercising\nthe pow ers th at the bill allo w ed them See I Pub. P apers o f Lyndon B Johnson 726-27 (1968-69). And\nPresident K en n ed y sig n ed an education bill \xe2\x80\x9c w ith extrem e relu ctan ce,\xe2\x80\x9d objecting to several provisions, in\xc2\xad\ncluding \xe2\x80\x9cthe co n tin u atio n o f the discrim inatory and in effectiv e non-C om m um st disclaim er affidavit.\xe2\x80\x9d Pub.\nP apers o f J o h n F. K ennedy 637 (1961)\n4 T h e re are, o f co u rse, lim its to this Presidential authority Thus, the President cannot read into the Im m i\xc2\xad\ngration and N atio n ality A ct protection for a c la ss o f asylum seekers w hom C ongress did not include am ong\nthose e lig ib le for asylum S ee M em orandum fo r the A ttorney G eneral, from W alter D ellinger, A cting A ssis\xc2\xad\ntant A tto rn e y G en eral, O ffice o f Legal C ounsel at 3 (A ug. 20, 1993)\n5 F or ex am p le, w hen signing legislation g o v ern in g the recruitm ent o f agricultural w orkers from M exico,\nP residen t K en n ed y m ade c le a r that the L abor D epartm ent w ould ad m inister it so as to protect \xe2\x80\x9cthe w ages and\nw orking c o n d itio n s o f dom estic agricultural w o rk ers.\xe2\x80\x9d Pub. P apers o f John F K ennedy at 640 Sim ilarly,\nP resident T ru m a n ex p lain ed that the National S ecurity C ouncil w ould m ake broad use o f the pow ers given to\nit u n d e r a rid e r to a foreign aid bill restncting trade w ith the C o m m u nist bloc to create exceptions from such\nrestrictio n s S e e P u b P a p ers o f H arry S. T ru m a n 319 (1951).\n\n132\n\n\x0cThe Legal Significance o f P residential Signing Statem ents\n\nlegislation against a facial constitutional challenge, but warned at the same time\nthat certain applications of the act would be unconstitutional. Cf. Bowen v. Ken\xc2\xad\ndrick, 487 U.S. 589, 622-24 (1988) (O\xe2\x80\x99Connor, J., concurring). Relatedly, a sign\xc2\xad\ning statement may put forward a \xe2\x80\x9csaving\xe2\x80\x9d construction of the bill, explaining that\nthe President will construe it in a certain manner in order to avoid constitutional\ndifficulties. See FEC v. NRA Political Victor)\xe2\x80\x99 Fund, 6 F.3d 821, 824-25 (D.C.\nCir. 1993) (Silberman, J., joined by Wald, J.) (citing two presidential signing\nstatements adopting \xe2\x80\x9csaving\xe2\x80\x9d construction of legislation limiting appointment\npower), cert, dismissed, 513 U.S. 88 (1994). This, too, is analogous to the Su\xc2\xad\npreme Court\xe2\x80\x99s practice of construing statutes, if possible, to avoid holding them\nunconstitutional, or even to avoid deciding difficult constitutional questions.\nMore boldly still, the President may declare in a signing statement that a provi\xc2\xad\nsion of the bill before him is flatly unconstitutional, and that he will refuse to en\xc2\xad\nforce it. This species of statement merits separate discussion.6\nIn each of the last three Administrations, the Department of Justice has advised\nthe President that the Constitution provides him with the authority to decline to\nenforce a clearly unconstitutional law.7 This advice is, we believe, consistent with\nthe views of the Framers.8 Moreover, four sitting Justices of the Supreme Court\nhave joined in the opinion that the President may resist laws that encroach upon his\npowers by \xe2\x80\x9cdisregard[ing] them when they are unconstitutional.\xe2\x80\x9d Freytag v. Com\xc2\xad\nmissioner, 501 U.S. 868, 906 (1991) (Scalia, J., joined by O\xe2\x80\x99Connor, Kennedy and\nSouter, JJ., concurring in part and concurring in judgment).9\n6 O ne reason such signing statem ents may be controversial is that the refusal to execute a statutory p ro v i\xc2\xad\nsion has substantially the effect o f a line-item veto.\n7 See, e.g , The A tto rn ey G e n e r a l\xe2\x80\x99s D u ty to D efen d a n d E nforce C onstitutionally O b jectionable L e g isla \xc2\xad\ntion, 4 A Op O L C 55, 59 (1980) (C iviletti, A G ) ; R ecom m endation that the D epartm ent o f Ju stice not\nD efend the C onstitutionality o f C ertain P rovisions o f the B a nkruptcy A m endm ents a n d F ed era l Ju d g esh ip\nA c t o f 1984, 8 Op. O .L C 183, 195 (1984). This advice is consistent w ith that given by A ttorneys G eneral to\nearlier Presidents, including Presidents B uchanan, see M e m o ria l o f C aptain M eigs, 9 O p A tt\'y G en. 462,\n469-70 (I8 6 0 ), and W ilson, see Incom e Tax \xe2\x80\x94 Salaries o f P resident a n d F ederal J u d g e s, 3 1 O p A tt\xe2\x80\x99y G en\n475, 4 7 6 (1919), that the P resident was not bound by a law that unconstitutionally encroached on his pow ers\n8 For exam ple, Jam es W ilson, a prom inent Fram er, legal theorist, and later A ssociate Justice o f the S u \xc2\xad\nprem e C ourt, told the P ennsylvania ratifiers that\nthe pow er o f the C onstitution w as param ount to the pow er o f the legislature acting under that\nC onstitution; for it is possible that the legislature . . . m ay transgress the bounds assigned to u,\nand an act may pass, in the usual m ode, notw ithstanding that transgression; but w hen it co m es to\nbe discussed before the ju d g e s .\nit is their duty to pronounce it void . .\nIn the sam e m anner,\nth e P resident o f the U nited S tates co u ld sh ield him self, a n d refuse to carry into effect an a ct that\nviolates the C onstitution\n2 The D ebates in the S evera l State C onventions on th e A doption o f the Federal C onstitution 4 4 6 (Jonathan\nElliot, ed., 2d ed 1836) (third em phasis added).\nA lso relevant (despite the fact that he did not attend the Philadelphia C onvention) are the view s o f T h o \xc2\xad\nm as Jefferson. Believing that the Sedition Law was unconstitutional even though it had been upheld by the\ncourts, Jefferson used his pow er as President to (in his ow n w ords) \xe2\x80\x9crem it the e xecution" o f the A ct by p a r\xc2\xad\ndoning all offenders See N orm an J. Sm all, Som e P resid en tia l Interpretations o f the P resid en cy 21 (D a\nC ap o Press 1970) (1932).\nFurther, as form er A ttorney General C iviletti has noted, the President refused to com ply w ith the A ct o f\nC ongress at issue in M yers v U nited States, 272 J S. 52 (1926), and the S olicitor G eneral argued that that\nA ct was unconstitutional. Yet the C ourt ruled that the P resid en t\xe2\x80\x99s action in defiance o f the statute had been\n\n133\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nIf the President may properly decline to enforce a law, at least when it uncon\xc2\xad\nstitutionally encroaches on his powers, then it arguably follows that he may prop\xc2\xad\nerly announce to Congress and to the public that he will not enforce a provision of\nan enactment he is signing. If so, then a signing statement that challenges what the\nPresident determines to be an unconstitutional encroachment on his power, or that\nannounces the President\xe2\x80\x99s unwillingness to enforce (or willingness to litigate) such\na provision, can be a valid and reasonable exercise of Presidential authority.10 And\nindeed, in a recent decision by the United States Court of Appeals for the District\nof Columbia Circuit, FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir.\n1993), cert, dism issed, 513 U.S. 88 (1994), the court cited to and relied upon a\nPresidential signing statement that had declared that a Congressionally-enacted\nlimitation on the President\xe2\x80\x99s constitutional authority to appoint officers of the\nUnited States was without legal force or effect. Id. at 824-25.\nThe contrary view \xe2\x80\x94 that it is the President\xe2\x80\x99s constitutional duty not to sign\nlegislation that he believes is unconstitutional \xe2\x80\x94 has been advanced on occasion.\nFor example, Secretary of State Thomas Jefferson advised President Washington in\n1791 that the veto power \xe2\x80\x9cis the shield provided by the constitution to protect\nagainst the invasions of the legislature 1. [of] the rights of the Executive 2. of the\nJudiciary 3. of the states and state legislatures.\xe2\x80\x9d Opinion on the Constitutionality\nof the Bill for Establishing a National Bank (Feb. 15, 1791), reprinted in 3 The\nFounders\xe2\x80\x99 Constitution 247 (Philip B. Kurland & Ralph Lerner eds., 1987). James\nMadison appears to have held a similar view and as President once vetoed a bill on\nconstitutional grounds even though he supported it as a matter of policy. See 2 A\nCompilation o f the M essages and Papers o f the Presidents 569, 570 (James D.\nRichardson ed., 1897) (\xe2\x80\x9cMessages\xe2\x80\x9d) (while praising the bill\xe2\x80\x99s \xe2\x80\x9cbeneficial objects,\xe2\x80\x9d\nMadison wrote that he \xe2\x80\x9cha[d] no option but to withhold [his] signature from it\xe2\x80\x9d\nbecause he thought it unconstitutional). Jefferson and Madison, however, did not\nin fact always act on this understanding of the President\xe2\x80\x99s duties: in 1803 Presi\xc2\xad\ndent Jefferson, with Secretary of State Madison\xe2\x80\x99s agreement, signed legislation\nappropriating funds for the Louisiana Purchase even though Jefferson thought the\npurchase unconstitutional. See 1 William M. Goldsmith, The Growth o f Presidenlaw ful. It g av e rise to n o actio n ab le claim fo r dam ag es under the C onstitution or an A ct o f C ongress in the\nC ourt o f C la im s . . .\nM y e rs h o ld s that the P resident\'s c o n stitu tio n al duty does not require him to execute uncon\xc2\xad\nstitu tio n a l statu tes; n o r does it require h im to execute them provisionally, against the day they are\nd e clared u n co n stitu tio n al by the courts.\n4A O p O L .C at 59\n10\nIn deed, m ore b ro ad ly , the President m ay use a signing statem ent as a vehicle to announce his unw ill\xc2\xad\ningness to a ccep t a b latan tly unconsututional statute, even if it d o es not encroach upon his prerogatives, but\no therw ise violates a c o n stitu tio n al mandate. T h e ex ecu tiv e branch has from tim e to tim e challenged A cts o f\nC ongress for such reaso n s fo r exam ple, it jo in e d the plaintiffs in U nited S tates v Lovett, 328 U S. 303, 306\n(1946), in a tta ck in g an unconstitutional bill o f attainder, and it intervened in S im km s v. M oses H C one\nM e m o ria l H o sp ., 211 F. S u p p 628, 640 (M .D N C. 1962), rev \'d , 323 F 2d 959 (4th C ir. 1963), cert denied,\n376 U S 938 (1 9 6 4 ), to co n test the constitutionality o f an A ct o f C ongress that provided Federal funding for\nracially seg reg a te d hospitals.\n\n134\n\n\x0cThe L egal Significance o f P residential Signing Statem ents\n\ntial Power 438-50 (1974). In light of our constitutional history, we do not believe\n\nthat the President is under any duty to veto legislation containing a constitutionally\ninfirm provision, although of course it is entirely appropriate for the President to\ndo so.\nII.\nSeparate and distinct from all the preceding categories of signing statements,\nand apparently even more controversial than any of them, is the use of such state\xc2\xad\nments to create legislative (or \xe2\x80\x9cexecutive\xe2\x80\x9d) history that is expected to be given\nweight by the courts in ascertaining the meaning of statutory language. See Marc\nN. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations\no f Legislative Intent: An Executive Aggrandizement o f Power, 24 Harv. J. on Legis. 363, 366 (1987). Although isolated examples can perhaps be found earlier,\nsigning statements of this kind appear to have originated (and were certainly first\nwidely used) in the Reagan Administration.\nIn 1986, then-Attorney General Meese entered into an arrangement with the\nWest Publishing Company to have Presidential signing statements published for\nthe first time in the U.S. Code Congressional and Administrative News, the stan\xc2\xad\ndard collection of legislative history. Mr. Meese explained the purpose of the\nproject as follows:\nTo make sure that the President\xe2\x80\x99s own understanding of what\xe2\x80\x99s in a\nbill is the same . . . or is given consideration at the time of statutory\nconstruction later on by a court, we have now arranged with the\nWest Publishing Company that the presidential statement on the\nsigning of a bill will accompany the legislative history from Con\xc2\xad\ngress so that all can be available to the court for future construction\nof what that statute really means.\nAddress by Attorney General Edwin Meese III, National Press Club, Washington,\nD.C. (Feb. 25, 1986), quoted in Garber and Wimmer, supra at 367.\nWe do not attempt finally to decide here whether signing statements may legiti\xc2\xad\nmately be used in the manner described by Attorney General Meese. We believe it\nwould be useful, however, to outline the main arguments for and against such use.\nIn support of the view that signing statements can be used to create a species of\nlegislative history, it can be argued that the President as a matter both of constitu\xc2\xad\ntional right and of political reality plays a critical role in the legislative process.\nThe Constitution prescribes that the President \xe2\x80\x9cshall from time to time . . . recom\xc2\xad\nmend to [Congress\xe2\x80\x99s] Consideration such Measures as he shall judge necessary and\nexpedient.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 3, cl. 1. Moreover, before a bill is enacted into\nlaw, it must be presented to the President. \xe2\x80\x9cIf he approve he shall sign it, but if not\n135\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nhe shall return it, with his Objections to that House in which it shall have origi\xc2\xad\nnated.\xe2\x80\x9d U.S. Const, art. I, \xc2\xa7 7, cl. 2.11 Plainly, the Constitution envisages that the\nPresident will be an important actor in the legislative process, whether in originat\xc2\xad\ning bills, in signing them into law, or in vetoing them. Furthermore, for much of\nAmerican history the President has de facto been \xe2\x80\x9ca sort of prime minister or \xe2\x80\x98third\nHouse of Congress.\xe2\x80\x99 . . . [H]e is now expected to make detailed recommendations\nin the form of messages and proposed bills, to watch them closely in their tortuous\nprogress on the floor and in committee in each house, and to use every honorable\nmeans within his power to persuade . . . Congress to give him what he wanted in\nthe first place.\xe2\x80\x9d Clinton Rossiter, The American Presidency 96 (Johns Hopkins\nPress 1987) (1956). It may therefore be appropriate for the President, when sign\xc2\xad\ning legislation, to explain what his (and Congress\xe2\x80\x99s) intention was in making the\nlegislation law, particularly if the Administration has played a significant part in\nmoving the legislation through Congress. And in fact several courts of appeals\nhave relied on signing statements when construing legislation. See United States v.\nStory, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) (citation omitted) (\xe2\x80\x9cthough\nin some circumstances there is room for doubt as to the weight to be accorded a\npresidential signing statement in illuminating congressional intent, President Rea\xc2\xad\ngan\xe2\x80\x99s views are significant here because the Executive Branch participated in the\nnegotiation of the compromise legislation.\xe2\x80\x9d); Berry v. Department o f Justice, 733\nF.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson\xe2\x80\x99s signing statement\non goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413\nF.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman\xe2\x80\x99s description in\nsigning statement of proper legal standard to be used in Portal-to-Portal Act).\nOn the other side, it can be argued that the President simply cannot speak for\nCongress, which is an independent constitutional actor and which, moreover, is\nspecifically vested with \xe2\x80\x9c[a]ll legislative Powers herein granted.\xe2\x80\x9d U.S. Const, art.\nI, \xc2\xa7 1, cl. 1. Congress makes legislative history in committee reports, floor debates\nand hearings, and nothing that the President says on the occasion of signing a bill\ncan reinterpret that record: once an enrolled bill has been attested by the Speaker\nof the House and the President of the Senate and has been presented to the Presi\xc2\xad\ndent, the legislative record is closed. See Field v. Clark, 143 U.S. 649, 672 (1892).\nA signing statement purporting to explain the intent of the legislation is, therefore,\nentitled at most to the limited consideration accorded to other kinds of post\xc2\xad\npassage legislative history, such as later floor statements, testimony or affidavits by\nlegislators, or amicus briefs filed on behalf of members of Congress. See Regional\nRail Reorganization A ct Cases, 419 U.S. 102, 132 (1974) (citation omitted) (\xe2\x80\x9cpost\xc2\xad\npassage remarks of legislators, however explicit, cannot serve to change the legis\xc2\xad\nlative intent of Congress expressed before the act\xe2\x80\x99s passage. Such statements\n11\nS ig n ifican tly , the P resid e n t\'s veto pow er is placed in A rticle I, thereby indicating that he has a share o f\nthe leg islativ e pow er, ra th e r than in Article II, w hich deals w ith the executive pow er See 1 W illiam C ross\xc2\xad\nkey, P o litic s a n d the C o n stitu tio n 4 1 9 (1953)\n\n136\n\n\x0cThe L egal Significance o f P residential Signing Statem ents\n\n\xe2\x80\x98represent only the personal views of these legislators.\xe2\x80\x99\xe2\x80\x9d) (quoting National\nWoodwork Manufacturers Ass\'n v. NLRB, 386 U.S. 612, 639 n.34 (1967)).12 Fi\xc2\xad\nnally, it is arguable that \xe2\x80\x9cby reinterpreting those parts of congressionally enacted\nlegislation of which he disapproves, the President exercises unconstitutional lineitem veto power.\xe2\x80\x9d Garber & Wimmer, supra at 376; see also Constitutionality o f\nLine-Item Veto Proposal , 9 Op. O.L.C. 28, 30 (1985) (\xe2\x80\x9cunder the system of checks\nand balances established by the Constitution, the President has the right to approve\nor reject a piece of legislation, but not to rewrite it or change the bargain struck by\nCongress in adopting a particular bill\xe2\x80\x9d).\nConclusion\n\nMany Presidents have used signing statements to make substantive legal, con\xc2\xad\nstitutional or administrative pronouncements on the bill being signed. Although\nthe recent practice of issuing signing statements to create \xe2\x80\x9clegislative history\xe2\x80\x9d re\xc2\xad\nmains controversial, the other uses of Presidential signing statements generally\nserve legitimate and defensible purposes.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n12\nB u t see S ea tra in Shipb u ild in g Corp v S h ell O il Co , 444 U .S 572, 596 (1980) (according \xe2\x80\x9csignificant\nweight\'* to post-passage statem ents, particularly \xe2\x80\x99\xe2\x80\x98w hen the precise intent o f the enacting C ongress is o b \xc2\xad\nscure\xe2\x80\x9d ).\n\n137\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nAPPENDIX\nSo\nfar as we have been able to determine, the practice of using presidential\nsigning statements to create legislative history for the use of the courts was un\xc2\xad\ncommon \xe2\x80\x94 if indeed it existed at all \xe2\x80\x94 before the Reagan and Bush Presidencies.\nHowever, earlier Presidents did use signing statements to raise and address the\nlegal or constitutional questions they believed were presented by the legislation\nthey were signing. Examples of signing statements of this kind can be found as\nearly as the Jackson and Tyler Administrations, and later Presidents, including\nLincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Tru\xc2\xad\nman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged in the\npractice.\nAccording to Louis Fisher of the Congressional Research Service,\nAndrew Jackson sparked a controversy in 1830 when he signed a\nbill and simultaneously sent to Congress a message that restricted\nthe reach of the statute. The House, which had recessed, was pow\xc2\xad\nerless to act on the message. A House report later interpreted his\naction as constituting, in effect, an item veto of one of the bill\xe2\x80\x99s\nprovisions. President Tyler continued the custom by advising the\nHouse in 1842 that after signing a bill, he had deposited with the\nSecretary of State \xe2\x80\x9can exposition of my reasons for giving it my\nsanction.\xe2\x80\x9d He expressed misgivings about the constitutionality and\npolicy of the entire act. A select committee of the House issued a\nspirited protest, claiming that the Constitution gave the President\nonly three options upon receiving a bill: a signature, a veto, or a\npocket veto. To sign a bill and add extraneous matter in a separate\ndocument could be regarded \xe2\x80\x9cin no other light than a defacement of\nthe public records and archives.\xe2\x80\x9d\nLouis Fisher, Constitutional Conflicts between Congress and the President 128 (3d\nrev. ed. 1991) (citations omitted).\nPresident Lincoln stated that he was signing the Confiscation Bill on the under\xc2\xad\nstanding that the bill and the joint resolution explaining it were \xe2\x80\x9csubstantially one.\xe2\x80\x9d\nHe attached to his signing statement the draft veto message he had prepared before\nthe joint resolution was adopted. In that draft, he raised various objections to the\nbill, some of which appear to be constitutionally-based. Thus, the draft singled out\na provision that \xe2\x80\x9cassumes to confer discretionary powers upon the Executive;\xe2\x80\x9d but\nLincoln stated that he would have \xe2\x80\x9cno hesitation to go as far in the direction indi\xc2\xad\ncated\xe2\x80\x9d even without such legislative authority. 8 M essages , supra at 3287; see also\nNorman Small, Some Presidential Interpretations o f the Presidency 183 (1932).\n\n138\n\n\x0cThe Legal Significance o f P residential Signing Statem ents\n\nPresident Andrew Johnson signed but protested against an Army appropriations\nbill, claiming that one of its sections \xe2\x80\x9cin certain cases virtually deprives the Presi\xc2\xad\ndent of his constitutional functions as Commander in Chief of the Army.\xe2\x80\x9d 8 Mes\xc2\xad\nsages, supra at 3670.\nIn 1876, when signing a river and harbor appropriations bill that included\n\xe2\x80\x9cmany appropriations . . . for works of purely private or local interest, in no sense\nnational,\xe2\x80\x9d President Grant issued a signing statement saying that \xe2\x80\x9c[u]nder no cir\xc2\xad\ncumstances will I allow expenditures upon works not clearly national.\xe2\x80\x9d 10 Mes\xc2\xad\nsages, supra at 4331. On the same day, Grant sent the House another signing\nstatement relating to an appropriation for consular and diplomatic services that had\nin part prescribed the closing of certain consular and diplomatic offices. Grant\nobjected that \xe2\x80\x9c[i]n the literal sense of this direction it would be an invasion of the\nconstitutional prerogatives and duty of the Executive,\xe2\x80\x9d and announced his intention\nof construing the section as intended merely \xe2\x80\x9cto fix a time at which the compensa\xc2\xad\ntion of certain diplomatic and consular officers shall cease, and not to invade the\nconstitutional rights of the Executive.\xe2\x80\x9d Id. at 4331-32.\nPresident Theodore Roosevelt established several volunteer unpaid commis\xc2\xad\nsions to investigate certain factual situations and report back their findings to him.\nThis practice \xe2\x80\x9ccame to be denounced in Congress as \xe2\x80\x98unconstitutional,\xe2\x80\x99 and an\namendment to the Sundry Civil Act of 1909 undertook to forbid the practice. Mr.\nRoosevelt signed the measure but proclaimed his intention of ignoring the restric\xc2\xad\ntion. \xe2\x80\x9c \xe2\x80\x98Congress,\xe2\x80\x99 he argued, \xe2\x80\x98cannot prevent the President from seeking advice.\xe2\x80\x99\xe2\x80\x9d\nEdward Corwin, The President: Office and Powers 67 (1940) (citation omitted).\nPresident Wilson signed a merchant marine bill in 1920, but determined not to\nenforce a provision he found unconstitutional. He stated that executing the provi\xc2\xad\nsion \xe2\x80\x98\xe2\x80\x9c would amount to nothing less than the breach or violation\xe2\x80\x99\xe2\x80\x9d of some thirtytwo treaties. See Fisher, supra at 130 (quoting 17 Messages at 8871-72).\nIn 1941, President Franklin Roosevelt confided an unpublished Presidential le\xc2\xad\ngal opinion objecting to the \xe2\x80\x9ctwo-House veto\xe2\x80\x9d provision in the Lend Lease bill to\nthen-Attorney General Robert Jackson. Roosevelt found the provision \xe2\x80\x9cclearly\nunconstitutional,\xe2\x80\x9d but signed the bill as a matter of diplomatic and political neces\xc2\xad\nsity. Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353,\n1357 (1953). President Roosevelt also signed the Urgent Deficiency Appropria\xc2\xad\ntions Act of 1943, which included a section prohibiting the payment of a govern\xc2\xad\nment salary or other compensation to certain named government employees\ndeemed to be subversive. While signing the bill because it appropriated funds ur\xc2\xad\ngently needed to carry on the war, Roosevelt \xe2\x80\x9c\xe2\x80\x98plac[ed] on record my view that this\nprovision is not only unwise and discriminatory, but unconstitutional.\xe2\x80\x99\xe2\x80\x9d United\nStates v. Lovett, 328 U.S. 303, 313 (1946).\nPresident Truman issued a statement on the occasion of signing the General\nAppropriation Act of 1951 in which he addressed a provision of the bill authoriz\xc2\xad\ning loans to Spain. Truman construed the provision in a manner that avoided what\n139\n\n\x0cOpinions o f ih e O ffice o f L egal Counsel\n\nhe thought would be an unconstitutional outcome, declaring that \xe2\x80\x9cI do not regard\nthis provision as a directive, which would be unconstitutional, but instead as an\nauthorization, in addition to the authority already in existence under which loans to\nSpain may be made.\xe2\x80\x9d Pub. Papers o f Harry S. Truman 616 (1950).\nPresident Eisenhower sought to put a \xe2\x80\x9csaving\xe2\x80\x9d construction on a 1959 bill\namending the Mutual Security Act. He stated that\nI have signed this bill on the express premise that the three amend\xc2\xad\nments relating to disclosure are not intended to alter and cannot al\xc2\xad\nter the recognized Constitutional duty and power of the Executive\nwith respect to the disclosure of information, documents, and other\nmaterials. Indeed, any other construction of these amendments\nwould raise grave Constitutional questions under the historic Sepa\xc2\xad\nration of Powers Doctrine.\nPub. Papers o f Dwight D. Eisenhower 549 (1959). And in 1960, on the occasion\nof signing a bill providing for the admission of refugees, Eisenhower noted that\n\xe2\x80\x9c[t]he Attorney General has advised me that there is a serious question as to\nwhether this [one-House veto] provision is constitutional,\xe2\x80\x9d but declared that \xe2\x80\x9cit\nwould be better to defer a determination of the effect of such possible action [i.e., a\nlegislative veto] until it is taken.\xe2\x80\x9d Pub. Papers o f Dwight D. Eisenhower 579\n(1960-61).\nOn the occasion of signing the Omnibus Crime Control and Safe Streets Act of\n1968, President Lyndon Johnson criticized as \xe2\x80\x9cvague and ambiguous\xe2\x80\x9d certain pro\xc2\xad\nvisions dealing with Federal rules o f evidence in criminal cases, but stated that the\nAttorney General had advised him that those provisions could \xe2\x80\x9cbe interpreted in\nharmony with the Constitution, and Federal practices in this field [e.g., the Federal\nBureau of Investigation\xe2\x80\x99s practice of warning suspects of their constitutional\nrights] will continue to conform to the Constitution.\xe2\x80\x9d 1 Pub. Papers o f Lyndon B.\nJohnson 727 (1968-69).\nPresident Nixon signed a 1971 military authorization bill, but objected to a pro\xc2\xad\nvision in it (the Mansfield Amendment, which set a final date for the withdrawal of\nU.S. Forces from Indochina) as being \xe2\x80\x9cwithout binding force or effect.\xe2\x80\x9d Pub. Pa\xc2\xad\npers o f Richard Nixon 1114 (1971).\nPresident Ford, upon signing the Defense Appropriation, 1976, objected to a\nprovision of that bill that restricted the Executive\xe2\x80\x99s ability to obligate funds for\ncertain purposes until it received approval from several Congressional committees.\nFord stated that he could not \xe2\x80\x9cconcur in this legislative encroachment,\xe2\x80\x9d and that\nconsequently he would treat the restriction \xe2\x80\x9cas a complete nullity.\xe2\x80\x9d 1 Pub. Papers\no f G erald R. Ford 242 (1976-77).\nPresident Carter issued several signing statements, including statements on the\nFY 1980-81 Department of State Appropriations Act, the FY 1981 Department of\n140\n\n\x0cThe Legal Significance o f P residential Signing Statem ents\n\nDefense Authorization Act and the International Security and Development Coop\xc2\xad\neration Act of 1980. The first of these cases was a bill which, like the 1876 bill\nPresident Grant had objected to but signed, purported to mandate the closing of\ncertain consular posts. Carter objected that Congress \xe2\x80\x9ccannot mandate the estab\xc2\xad\nlishment of consular relations at a time and place unacceptable to the President,\xe2\x80\x9d\nand accordingly stated his determination to construe the provision as merely\nprecatory. 2 Pub. Papers o f Jimmy Carter 1434 (1979).\nAs noted above, the Reagan and Bush Administrations made frequent use of\nPresidential signing statements, not only to declare their understanding of the con\xc2\xad\nstitutional effect of the statutory language, but also to create evidence on which the\ncourts could rely in construing such language. See, e.g., President\xe2\x80\x99s Statement on\nSigning S. 1200 Into Law, 22 Weekly Comp. Pres. Doc. 1534, 1536 (Nov. 6,\n1986) (interpreting language of Immigration Reform and Control Act); President\xe2\x80\x99s\nStatement on Signing S. 124 Into Law, 22 Weekly Comp. Pres. Doc. 831, 832\n(June 19, 1986) (interpreting language of Safe Drinking Water Act); Issues Raised\nby Foreign Relations Authorization Bill, 14 Op. O.L.C. 37 (1990) (provision of\nforeign relations authorization bill unconstitutionally infringed on President\xe2\x80\x99s\nauthority to conduct negotiations; if President chose to sign bill, he would be enti\xc2\xad\ntled not to enforce provision); Appointments to the Commission on the Bicenten\xc2\xad\nnial o f the Constitution, 8 Op. O.L.C. 200, 201-02 (1984) (discussing Senator\nHatch\xe2\x80\x99s objections to constitutional claims made by President Reagan\xe2\x80\x99s signing\nstatement on bill).\n\n141\n\n\x0c'


b'The President and the War Power:\nSouth Vietnam and the Cambodian Sanctuaries\nRecognizing congressional sanction for the Vietnam conflict by the Gulf of Tonkin resolution, even\nthough it was not in name or by its terms a formal declaration of war, the President\xe2\x80\x99s determination\nto authorize incursion into the Cambodian border area by United States forces in order to destroy\nsanctuaries utilized by the enemy is the sort of tactical decision traditionally confided to the Commander in Chief in the conduct of armed conflict.\nOnly if the constitutional designation of the President as Commander in Chief conferred no substantive\nauthority whatever could it be said that prior congressional authorization for such a tactical decision\nwas required. Since even those authorities least inclined to a broad construction of the executive\npower concede that the Commander in Chief provision does confer substantive authority over the\nmanner in which hostilities are conducted, the President\xe2\x80\x99s decision to invade and destroy the border\nsanctuaries in Cambodia was authorized under even a narrow reading of his power as Commander in\nChief.\n\nMay 22, 1970\n\nMEMORANDUM OPINION FOR THE SPECIAL COUNSEL TO THE PRESIDENT*\nThe recent decision by President Nixon to use United States armed forces to\nattack sanctuaries employed by the North Vietnamese and the Viet Cong which\nwere located across the Cambodian border from South Vietnam has raised the\nissue of the scope for the President\xe2\x80\x99s power to conduct military operations such as\nthose now underway in Southeast Asia. This memorandum addresses itself to that\nissue.\nI. Division of the War Power by the Framers of the Constitution\nThe draftsmen of the Constitution clearly intended to divide the war power\ninhering in any sovereign nation between the President and Congress, and just as\nclearly did not intend to precisely delimit the boundary between the power of the\nExecutive Branch and that of the Legislative Branch. They rejected the traditional\npower of kings to commit unwilling nations to war to further the king\xe2\x80\x99s international political objectives. At the same time, they recognized the need for quick\nexecutive response to rapidly developing international situations.\nThe accommodation of these two interests took place in the session of the\nConstitutional Convention on Friday, August 17, 1787. The enumeration of the\npowers of Congress was in the process of being submitted to the delegates, and\ndiscussion occurred following the submission to vote of the draft language\nempowering Congress \xe2\x80\x9cto make war.\xe2\x80\x9d\n*\nEditor\xe2\x80\x99s Note: This memorandum was addressed to Charles W. Colson, Special Counsel to the\nPresident. The cover memorandum explained as follows: \xe2\x80\x9cEnclosed is an expanded version of the\nmemorandum on Presidential power entitled The President and the War Power: South Vietnam and the\nCambodian Sanctuaries. I am sending copies to Jack Stevenson and John Lehman.\xe2\x80\x9d\n\n321\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe full text of the discussion, as reflected in Madison\xe2\x80\x99s notes of the proceedings, is set forth as an appendix to this memorandum. * The upshot was that the\nauthority conferred upon Congress was changed from the power \xe2\x80\x9cto make war\xe2\x80\x9d to\nthe power \xe2\x80\x9cto declare war.\xe2\x80\x9d 3 The Papers of James Madison 1351\xe2\x80\x9353 (Henry D.\nGilpin ed., 1841) (\xe2\x80\x9cMadison Notes\xe2\x80\x9d). Charles Pinckney urged that the war-making\npower be confided to the Senate alone, id. at 1351, while Pierce Butler urged that\nthe power be vested in the President, id. at 1352. James Madison and Elbridge\nGerry then jointly moved to substitute the word \xe2\x80\x9cdeclare\xe2\x80\x9d for the word \xe2\x80\x9cmake,\xe2\x80\x9d\n\xe2\x80\x9cleaving to the Executive the power to repel sudden attacks.\xe2\x80\x9d Id. John Sherman\nexpressed a preference for \xe2\x80\x9cmake\xe2\x80\x9d as opposed to \xe2\x80\x9cdeclare,\xe2\x80\x9d because the latter was\ntoo narrow a grant of power. However, he expressed the view that the grant of\npower to Congress to \xe2\x80\x9cmake\xe2\x80\x9d war would nonetheless permit the Executive to repel\nattack, although not to commence war. Id. Gerry and George Mason opposed the\ngiving of the power to declare war to the Executive. Id. Rufus King supported the\nsubstitution of the word \xe2\x80\x9cdeclare,\xe2\x80\x9d urging that the word \xe2\x80\x9cmake\xe2\x80\x9d might be understood to mean \xe2\x80\x9cconduct\xe2\x80\x9d war, which latter was an executive function. Id. at 1353\nn.*.\nWith only New Hampshire dissenting, it was agreed that the grant to Congress\nshould be of the power to declare war. Pinckney\xe2\x80\x99s motion to strike out the whole\nclause, and thereby presumably to leave the way open to vest the entire warmaking power in the Executive, was then defeated by a voice vote. Id. at 1353.\nThe framers of the Constitution, in making this division of authority between\nthe Executive and the Legislative Branches, were painting with a broad brush on a\nconstitutional fabric, and not endeavoring to accomplish a detailed allocation of\nauthority between the two branches. Nearly 200 years of practice under the\nconstitutional system has given rise to a number of precedents and usages,\nalthough it cannot be confidently said that any sharp line of demarcation exists as\na result of this history.\nII. Recognition of Armed Conflict Short of \xe2\x80\x9cWar\xe2\x80\x9d\nBefore turning to historical practice for the light which it throws upon the\nproper interpretation of the President\xe2\x80\x99s power, it is well to first dispel any notion\nthat the United States may lawfully engage in armed hostilities with a foreign\npower only if Congress has declared war. From the earliest days of the republic,\nall three branches of the federal government have recognized that this is not so,\nand that not every armed conflict between forces of two sovereigns is \xe2\x80\x9cwar.\xe2\x80\x9d This\nfact affords no final answer to the constitutional question of the division of\nauthority between the President and Congress in exercising the war power, but it\n\n*\nEditor\xe2\x80\x99s Note: That appendix was not preserved in the OLC daybooks and so it is not included\nhere. Instead we have inserted citations to the appropriate parts of Madison\xe2\x80\x99s notes on the Constitutional Convention.\n\n322\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\ndoes suggest that the effort to find an answer is not advanced by a mechanical\napplication of labels to various fact situations.\nCongress, during the so-called \xe2\x80\x9cundeclared war\xe2\x80\x9d with France which lasted from\n1798 to 1800, authorized limited use of this nation\xe2\x80\x99s armed forces against those of\nFrance. The Fifth Congress authorized President Adams to take the following\nmeasures:\nThat the President of the United States shall be, and is hereby authorized to instruct the commanders of the public armed vessels which\nare, or which shall be employed in the service of the United States,\nto subdue, seize and take any armed French vessel, which shall be\nfound within the jurisdictional limits of the United States, or elsewhere, on the high seas, and such captured vessel, with her apparel,\nguns and appurtenances, and the goods or effects which shall be\nfound on board the same, being French property shall be brought\nwithin some port of the United States, and shall be duly proceeded\nagainst and condemned as forfeited . . . .\nAct of July 9, 1798, ch. 68, \xc2\xa7 1, 1 Stat. 578, 578.\nThe Supreme Court in a case arising out of this \xe2\x80\x9cundeclared war\xe2\x80\x9d described\nthese differences between war and other armed conflicts as being differences\nbetween \xe2\x80\x9csolemn war\xe2\x80\x9d and \xe2\x80\x9cimperfect war\xe2\x80\x9d:\nIf it be declared in form, it is called solemn, and is of the perfect\nkind; because one whole nation is at war with another whole nation;\nand all the members of the nation declaring war, are authorized to\ncommit hostilities against all the members of the other, in every\nplace, and under every circumstance. In such a war all the members\nact under a general authority, and all the rights and consequences of\nwar attach to their condition.\nBut hostilities may subsist between two nations more confined in\nits nature and extent; being limited as to places, persons, and things;\nand this is more properly termed imperfect war; because not solemn,\nand because those who are authorized to commit hostilities, act under special authority, and can go no farther than to the extent of their\ncommission.\nBas v. Tingy (The Eliza), 4 U.S. (4 Dall.) 37, 40 (1800) (opinion of Washington,\nJ.).\nWhile the Court termed both forms of military action \xe2\x80\x9cwar,\xe2\x80\x9d the distinction\nwhich it drew likewise separates the declared wars of the Twentieth Century, such\nas the two World Wars, and the undeclared armed conflicts such as have more\nrecently occurred in Korea and in Southeast Asia. In both of the two World Wars,\nthe declarations of war were viewed by the Executive Branch to authorize\n\n323\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ncomplete subjugation of the enemy, and some form of \xe2\x80\x9cunconditional surrender\xe2\x80\x9d\non the part of the enemy was the announced goal of the allied nations. In Korea\nand Vietnam, on the other hand, the goals have been the far more limited ones of\nthe maintenance of territorial integrity and of the right of self-determination.\nAs has been chronicled many times, the United States throughout its history has\nbeen involved in armed conflicts short of declared war, from the undeclared war\nwith France in 1798\xe2\x80\x931800 to Vietnam. See, e.g., H.R. Rep. No. 82-127 (1951);\nH.R. Doc. No. 84-443 (1956); James Grafton Rogers, World Policing and the\nConstitution 92\xe2\x80\x93123 (1945). The more significant of these involvements are\nseparately discussed in a following section of this memorandum.\nIII. Designation of the President as Commander in Chief Is a\nGrant of Substantive Power\nBecause of the nature of the President\xe2\x80\x99s power as Commander in Chief and\nbecause of the fact that it is frequently exercised in external affairs, there are few\njudicial precedents dealing with the subject. Such judicial learning as there is on\nthe subject, however, makes it reasonably clear that the designation of the\nPresident as Commander in Chief of the Armed Forces is a substantive grant of\npower, and not merely a commission which entitles him to precedence in a\nreviewing stand.1\nChief Justice Marshall, writing for the Supreme Court in Little v. Barreme,\nconcluded that the seizure of a ship on the high seas had not been authorized by an\nact of Congress. In the course of the opinion, he stated:\nIt is by no means clear that the President of the United States\nwhose high duty it is to \xe2\x80\x9ctake care that the laws be faithfully executed,\xe2\x80\x9d and who is Commander in Chief of the armies and navies of the\nUnited States, might not, without any special authority for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and\n\n1\nA statement of Alexander Hamilton in The Federalist 69 has been quoted in support of the notion\nthat the designation of the President as Commander in Chief does nothing more than place him at the\nhead of the military establishment. The full text of Hamilton\xe2\x80\x99s comment does not support such a\nnarrow construction:\n\nThe President is to be Commander-in-Chief of the army and navy of the United States.\nIn this respect his authority would be nominally the same as that of the King of Great\nBritain, but in substance much inferior to it. It would amount to nothing more than the\nsupreme command and direction of the military and naval forces, as first general and\nadmiral of the Confederacy; while that of the British king extends to the declaring of\nwar and to the raising and regulating of fleets and armies\xe2\x80\x94all which, by the Constitution under consideration, would appertain to the Legislature.\nThe Federalist No. 69, at 417\xe2\x80\x9318 (Clinton Rossiter ed., 1961).\n\n324\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\nsend into port for adjudication, American vessels which were forfeited by being engaged in this illicit commerce.\n6 U.S. (2 Cranch) 170, 177 (1804).\nJustice Grier, speaking for the Supreme Court in its famous decision in the\nPrize Cases, likewise viewed the President\xe2\x80\x99s designation as Commander in Chief\nas being a substantive source of authority on which he might rely in putting down\nrebellion:\nWhether the President in fulfilling his duties, as Commander in\nChief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will\ncompel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the\ndecisions and acts of the political department of the Government to\nwhich this power was entrusted. \xe2\x80\x9cHe must determine what degree of\nforce the crisis demands.\xe2\x80\x9d The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed\nwhich demanded and authorized a recourse to such a measure, under\nthe circumstances peculiar to the case.\n67 U.S. (2 Black) 635, 670 (1862).\nMore recently, Justice Jackson, concurring in Youngstown Sheet & Tube Co. v.\nSawyer, said:\nWe should not use this occasion to circumscribe, much less to\ncontract, the lawful role of the President as Commander in Chief.\nI should indulge the widest latitude of interpretation to sustain his\nexclusive function to command the instruments of national force, at\nleast when turned against the outside world for the security of our\nsociety.\n343 U.S. 579, 646 (1952).\nThe limits of the President\xe2\x80\x99s power as Commander in Chief are nowhere defined in the Constitution, except by way of negative implication from the fact that\nthe power to declare war is committed to Congress. However, as a result of\nnumerous occurrences in the history of the Republic, more light has been thrown\non the scope of this power.\nIV. Scope of President\xe2\x80\x99s Power as Commander in Chief\nThe questions of how far the Chief Executive may go without congressional\nauthorization in committing American military forces to armed conflict, or in\ndeploying them outside of the United States and in conducting armed conflict\nalready authorized by Congress, have arisen repeatedly throughout the Nation\xe2\x80\x99s\n\n325\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nhistory. The Executive has asserted and exercised at least three different varieties\nof authority under his power as Commander in Chief:\n(a) Authority to commit military forces of the United States to armed\nconflict, at least in response to enemy attack or to protect the lives of\nAmerican troops in the field;\n(b) Authority of deploy United States troops throughout the world,\nboth to fulfill United States treaty obligations and to protect American interests; and\n(c) Authority to conduct or carry on armed conflict once it is instituted, by making and carrying out the necessary strategic and tactical\ndecisions in connection with such conflict.\nCongress has on some of these occasions acquiesced in the President\xe2\x80\x99s action\nwithout formal ratification; on others it has ratified the President\xe2\x80\x99s action; and on\nstill others it has taken no action at all. On several of the occasions, individual\nmembers of Congress, and, at the close of the Mexican War, one house of\nCongress on a preliminary vote, have protested executive use of the armed forces.\nWhile a particular course of executive conduct to which there was no opportunity\nfor the Legislative Branch to effectively object cannot establish a constitutional\nprecedent in the same manner as it would be established by an authoritative\njudicial decision, a long continued practice on the part of the Executive, acquiesced in by the Congress, is itself some evidence of the existence of constitutional\nauthority to support such a practice. United States v. Midwest Oil Co., 236 U.S.\n459 (1915). As stated by Justice Frankfurter in his concurring opinion in Youngstown Sheet & Tube:\nThe Constitution is a framework for government. Therefore the way\nthe framework has consistently operated fairly establishes that it has\noperated according to its true nature. Deeply embedded traditional\nways of conducting government cannot supplant the Constitution or\nlegislation, but they give meaning to the words of a text or supply\nthem.\n343 U.S. at 610.\nA. Commitment of Military Forces to Armed Conflict Without\nCongressional Authorization\nPresident Jefferson, in 1801, sent a small squadron of American naval vessels\ninto the Mediterranean to protect United States commerce against threatened\nattack by the Barbary pirates of Tripoli. In his message to Congress discussing his\n\n326\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\naction, Jefferson took the view that it would require congressional authorization\nfor this squadron to assume an offensive, rather than a defensive, stance.\nIn May 1845, President Polk ordered military forces to the coasts of Mexico\nand to the western frontier of Texas (still at that time an independent republic) in\norder to prevent any interference by Mexico with the proposed annexation of\nTexas to the United States. Following annexation, Polk ordered General Zachary\nTaylor to march from the Nueces River, which Mexico claimed was the southern\nborder of Texas, to the Rio Grande River, which Texas claimed was the southern\nboundary of Texas. While so engaged, Taylor\xe2\x80\x99s forces encountered Mexican\ntroops, and hostilities between the two nations commenced on April 25, 1846.\nWhile Polk two and a half weeks later requested a declaration of war from\nCongress, there had been no prior authorization for Taylor\xe2\x80\x99s march south of the\nNueces.\nJustice Grier, in his opinion for the Supreme Court in the Prize Cases, commented on this fact, stating:\nThe battles of Palo Alto and Rasaca de la Palma had been fought\nbefore the passage of the act of Congress of May 13, 1846, which\nrecognized \xe2\x80\x9ca state of war as existing by the act of the Republic of\nMexico.\xe2\x80\x9d\n67 U.S. at 668.\nIn 1854, President Pierce approved the action of a naval officer who bombarded Greytown, Nicaragua, in retaliation against a revolutionary government that refused to make reparations for damage and violence to United States citizens. This\naction was upheld by Samuel Nelson, then a judge of the Southern District of New\nYork and later a Justice of the Supreme Court of the United States, in Durand v.\nHollins, 8 F. Case. 111 (C.C.D.N.Y. 1860) (No. 4186). In his opinion in that case,\nJudge Nelson said:\nAs the executive head of the nation, the president is made the only legitimate organ of the general government, to open and carry on\ncorrespondence of negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look for protection of person and of\nproperty, and for the faithful execution of the laws existing and\nintended for their protection. For this purpose, the whole executive\npower of the country is placed in his hands, under the constitution,\nand the laws passed in pursuance thereof. . . .\n. . . Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and for\nthe protection, to be effectual or of any avail, may, not unfrequently,\nrequire the most prompt and decided action. . . .\n\n327\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n. . . The question whether it was the duty of the president to interpose for the protection of the citizens at Greytown against an irresponsible and marauding community that had established itself there,\nwas a public political question, in which the government, as well as\nthe citizens whose interests were involved, was concerned, and\nwhich belonged to the executive to determine; and his decision is final and conclusive, and justified the defendant in the execution of his\norders given through the Secretary of the Navy.\nId. at 112.\nIn April 1861, President Lincoln called for 75,000 volunteers to suppress the\nrebellion by the southern states, and proclaimed a blockade of the Confederacy.\nThe Supreme Court in the Prize Cases upheld the acts taken by President Lincoln\nprior to their later ratification by Congress in July 1861, saying:\nIf a war be made by invasion of a foreign nation, the President is\nnot only authorized but bound to resist force by force. He does not\ninitiate the war, but is bound to accept the challenge without waiting\nfor any special legislative authority.\n67 U.S. at 668.\nIn 1900 President McKinley sent an expedition of 5,000 United States troops as\na component of an international force during the Boxer Rebellion of China. While\nCongress recognized the existence of the conflict by providing for combat pay,\nAct of Mar. 2, 1901, ch. 803, 31 Stat. 895, 903, it neither declared war nor\nformally ratified the President\xe2\x80\x99s action. A federal court, however, reiterated the\nearly recognition of limited or undeclared war:\nIn the present case, at no time was there any formal declaration of\nwar by the political department of this government against either the\ngovernment of China or the \xe2\x80\x98Boxer\xe2\x80\x99 element of that government. A\nformal declaration of war, however, is unnecessary to constitute a\ncondition of war.\nHamilton v. McClaughry, 136 F. 445, 449 (C.C.D. Kan. 1905).\nPresidents Theodore Roosevelt, Taft, and Wilson on more than one occasion\ncommitted American troops abroad to protect American interests. In November\n1903, President Roosevelt ordered the United States Navy to guard the Panama\narea and prevent Colombian troops from being landed in Panama in order to\nsuppress the Panamanian insurrection against Colombia. In his annual report to\nCongress in 1912, President Taft reported the sending of some 2,000 Marines to\nNicaragua (at the request of the President of Nicaragua) and the use of warships\nand troops in Cuba. H.R. Doc. No. 62-927, at 8\xe2\x80\x939, 21 (1912). He merely advised\nCongress of these actions without requesting any statutory authorization.\n\n328\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\nPresident Wilson on two separate occasions committed American armed forces\nto hostile actions in Mexican territory. In April 1914, he directed a force of sailors\nand Marines to occupy the City of Vera Cruz, during the revolution in that\ncountry. The city was seized and occupied for seven months without congressional\nauthorization. In 1916, Wilson ordered General Pershing and more than 10,000\ntroops to pursue Pancho Villa, the Mexican outlaw, into Mexican territory\nfollowing the latter\xe2\x80\x99s raid on Columbus, New Mexico.\nThe most recent example of presidential combat use of American armed forces\nwithout congressional declaration of war, prior to the Vietnam conflict, was\nPresident Truman\xe2\x80\x99s intervention in the Korean conflict. Following invasion of\nSouth Korea by North Koreans on June 25, 1950, and a request for aid by the\nUnited Nations (\xe2\x80\x9cUN\xe2\x80\x9d) Security Council (S.C. Res. 83, U.N. Doc. S/RES/83 (June\n27, 1950)), President Truman ordered the United States air and sea forces to give\nSouth Korean troops cover and support. He ordered the Seventh Fleet to guard\nFormosa. On June 30, the President announced that he had authorized the use of\nUnited States ground forces in the Korean War, following the collapse of the\nSouth Korean Army. Ultimately, the number of troops engaged in the Korean\nconflict reached 250,000, and the conflict lasted more than three years. President\nTruman\xe2\x80\x99s action without congressional authorization precipitated the \xe2\x80\x9cGreat\nDebate\xe2\x80\x9d in Congress which raged from January to April 1951.\nWhile the President relied upon the UN Charter as a basis for his action, as well\nas his power as Commander in Chief, his action stands as a precedent for executive action in committing United States armed forces to extensive hostilities\nwithout any formal declaration of war by Congress.\nThe UN Charter as a result of its ratification by the Senate has the status of a\ntreaty, but it does not by virtue of this fact override any constitutional provision.\nThough treaties made in pursuance of the Constitution under the Supremacy\nClause may override a state statute, Missouri v. Holland, 252 U.S. 416 (1920),\nthey may not override specific constitutional limitations, Geofroy v. Riggs, 133\nU.S. 258 (1890); Reid v. Covert, 354 U.S. 1 (1957). If a congressional declaration\nof war would be required in other circumstances to commit United States forces to\nhostilities of the extent and nature of those undertaken in Korea, the ratification of\nthe UN Charter would not obviate a like requirement in the case of the Korean\nconflict. While the issue of presidential power which was the subject of the great\ndebate in Congress was never authoritatively resolved, it is clear that Congress\nacquiesced in President Truman\xe2\x80\x99s intervention in Korea. See David Rees, Korea:\nThe Limited War (1964); Merlo J. Pusey, The Way We Go to War (1969).\n\n329\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nB. Deployment of United States Troops Throughout the World 2\nIn February 1917, President Wilson requested from Congress authority to arm\nAmerican merchant vessels. When that authority failed of passage in Congress as\na result of a filibuster, Wilson proceeded to arm them without congressional\nauthority, stating that he was relying on his authority as Commander in Chief.\nNear the close of the First World War, President Wilson announced a decision\nto send American troops to Siberia. The troops so sent remained for over a year,\nwith their withdrawal beginning in January, 1920. There was no congressional\nauthorization for such disposition of troops, and the United States had not declared\nwar on Russia.\nIn 1941, prior to Pearl Harbor, President Roosevelt utilized his power as Commander in Chief to undertake a series of actions short of war designed to aid the\nallied forces in the Second World War. On April 9, 1941, he made an agreement\nwith the Danish Minister for the occupation of Greenland by American forces. In\nMay 1941, Roosevelt issued a proclamation declaring an unlimited national\nemergency, and he ordered American naval craft to \xe2\x80\x9csink on sight\xe2\x80\x9d foreign\nsubmarines found in the \xe2\x80\x9cdefensive waters\xe2\x80\x9d of the United States. In July 1941, the\nPresident announced that United States forces would occupy Iceland in order to\nrelieve British forces there, and that the Navy would perform convoy duty for\nsupplies being sent to Great Britain under Lend-Lease. In September 1941,\nRoosevelt stated that he had given orders to the United States Army and Navy to\nstrike first at any German or Italian vessels of war in American \xe2\x80\x9cdefensive\nwaters\xe2\x80\x9d; the following month, he decided to carry 20,000 British troops from\nHalifax to the Middle East in American transports.\nPresident Truman\xe2\x80\x99s decision in 1951 to send four United States divisions to\nEurope in discharge of the nation\xe2\x80\x99s NATO commitment occasioned prolonged\ndebate in Congress over his powers to take such action without congressional\napproval. Congress ultimately acquiesced in the President\xe2\x80\x99s action without\nactually resolving the question, and all of President Truman\xe2\x80\x99s successors have\nasserted and exercised similar authority.\nC. Authority to Conduct or Carry on Armed Conflict Once It Has\nBeen Lawfully Instituted\nIt has never been doubted that the President\xe2\x80\x99s power as Commander in Chief\nauthorizes him, and him alone, to conduct armed hostilities which have been\nlawfully instituted. Chief Justice Chase, concurring in Ex parte Milligan, said:\n2\nThe line between \xe2\x80\x9cdeploying\xe2\x80\x9d forces and \xe2\x80\x9ccommitting them to combat\xe2\x80\x9d may be razor thin. Had\nZachary Taylor not encountered Mexican resistance below the Nueces, that example could be classified\nas a \xe2\x80\x9cdeployment,\xe2\x80\x9d while if under the orders of President Franklin Roosevelt, discussed infra, American naval vessels had sunk on sight a German submarine in the mid-Atlantic, that example could be\ntreated as a \xe2\x80\x9ccommitment to armed conflict.\xe2\x80\x9d\n\n330\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\nCongress has the power not only to raise and support and govern\narmies but to declare war. It has, therefore, the power to provide by\nlaw for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct\nof campaigns. That power and duty belong to the President as commander-in-chief.\n71 U.S. (4 Wall.) 2, 139 (1866) (emphasis supplied).\nIn the First World War, it was necessary to decide whether United States troops\nin France would fight as a separate command under General Pershing, or whether\nUnited States divisions should be incorporated in existing groups or armies\ncommanded by French or British generals. President Wilson and his military\nadvisers decided that United States forces would fight as a separate command.\nIn the Second World War, not only similar military decisions on a global scale\nwere required, but also decisions that partook as much of political strategy as they\ndid of military strategy: Should the United States concentrate its military and\nmateriel resources on either the Atlantic or Pacific fronts to the exclusion of the\nother, or should it pursue the war on both fronts simultaneously? Where should the\nreconquest of allied territories in Europe and Africa which had been captured by\nthe Axis powers begin? What should be the goal of the allied powers? Those who\nlived through the Second World War will recall without difficulty, and without the\nnecessity of consulting works of history, that this sort of decision was reached by\nthe allied commanders in chief, and chief executive officers of the allied nations,\nwithout (on the part of the United States) any formal congressional participation.\nThe series of conferences attended by President Roosevelt around the world\xe2\x80\x94at\nQuebec, Cairo, Casablanca, Teheran, Yalta, and by President Truman at Potsdam,\nultimately established the allied goals in fighting the Second World War, including\nthe demand for unconditional surrender on the part of the Axis nations.\nSimilar strategic and tactical decisions were involved in the undeclared Korean\nWar under President Truman. Questions such as whether United States forces\nshould not merely defend South Korean territory, but pursue North Korean forces\nby invading North Korea, and as to whether American Air Force planes should\npursue North Korean and Chinese Communist planes north of the Yalu River,\nseparating Red China from North Korea, were of course made by the President as\nCommander in Chief without any formal congressional participation.\nV. Constitutional Practice Requires Executive to Obtain Sanction of\nCongress for Conduct of Major Hostilities\nIt is too plain from the foregoing discussion to admit of denial that the Executive, under his power as Commander in Chief, is authorized to commit American\nforces in such a way as to seriously risk hostilities, and also to actually commit\nthem to such hostilities, without prior congressional approval. However, if the\n\n331\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\ncontours of the divided war power contemplated by the framers of the Constitution\nare to remain, constitutional practice must include executive resort to Congress in\norder to obtain its sanction for the conduct of hostilities which reach a certain\nscale. Constitutional practice also indicates, however, that congressional sanction\nneed not be in the form of a declaration of war.\nIn the case of the Mexican War which was brought about, if not initiated, by\nthe Executive, the President requested and obtained a declaration of war. Congress, meeting in 1861 pursuant to the call of President Lincoln, ratified all of the\nactions he had taken on his own initiative, and apparently refrained from declaring\nwar on the Confederate States only because it did not wish to recognize them as a\nsovereign nation.\nHowever, as previously noted, the Fifth Congress authorized President Adams\nto take certain military action against France without going so far as to declare\nwar. More recently, in connection with President Eisenhower\xe2\x80\x99s landing of troops\nin Lebanon and with the Cuban missile crisis in 1962, Congress has given advance\nauthorization for military action by the President without declaring war. Pub. L.\nNo. 85-7, 71 Stat. 5 (1957); Pub. L. No. 87-733, 76 Stat. 697 (1962).\nThe notion that such advance authorization by Congress for military operations\nconstitutes some sort of an invalid delegation of congressional war power simply\nwill not stand analysis. A declaration of war by Congress is in effect a blank check\nto the Executive to conduct military operations to bring about subjugation of the\nnation against whom war has been declared. The idea that while Congress may do\nthis, it may not delegate a lesser amount of authority to conduct military operations, as was done in the instances referred to above, is both utterly illogical and\nunsupported by precedent. While cases such as A.L.A. Schechter Poultry Corp. v.\nUnited States, 295 U.S. 495 (1935), hold that Congress in delegating powers to\ndeal with domestic affairs must establish standards for administrative guidance, no\nsuch principle obtains in the field of external affairs. The Supreme Court in United\nStates v. Curtiss-Wright Exp. Corp. made this distinction clear:\nWhether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful\ndelegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the\ncategory of foreign affairs. . . .\nIt will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government\nin respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them,\nand that these differences are fundamental, may not be doubted.\n....\n\n332\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\nIt results that the investment of the federal government with the\npowers of external sovereignty did not depend upon the affirmative\ngrants of the Constitution. The powers to declare and wage war, to\nconclude peace, to make treaties, to maintain diplomatic relations\nwith other sovereignties, if they had never been mentioned in the\nConstitution, would have vested in the federal government as necessary concomitants of nationality. . . .\n....\nIn the light of the foregoing observations, it is evident that this\ncourt should not be in haste to apply a general rule which will have\nthe effect of condemning legislation like that under review as constituting an unlawful delegation of legislative power. The principles\nwhich justify such legislation find overwhelming support in the unbroken legislative practice which has prevailed almost from the inception of the national government to the present day.\n299 U.S. 304, 315, 318, 322 (1936).\nWhat must be regarded as the high water mark of executive action without\nexpress congressional approval is, of course, the Korean War. Although Congress\nnever expressly sanctioned the President\xe2\x80\x99s action in committing United States\nforces in the hundreds of thousands to the Korean conflict, it repeatedly voted\nauthorizations and appropriations to arm and equip the American troops. This is\nnot to say that such appropriations are invariably the equivalent of express\ncongressional approval; the decision as to whether limited hostilities, commenced\nby the Executive, should be sanctioned by Congress may be one quite different\nfrom the decision as to whether American troops already committed and engaged\nin such hostilities shall be equipped and supplied.\nVI. Extent to Which Congress May Restrict by Legislation the\nSubstantive Power Granted the President by Virtue of His Being\nDesignated as Commander in Chief\nWhile the President may commit armed forces of the United States to hostile\nconflict without congressional authorization under his constitutional power as\nCommander in Chief, his authority exercised in conformity with congressional\nauthority or ratification of his acts is obviously broader than if it stood alone. By\nthe same token, Congress undoubtedly has the power in certain situations to\nrestrict the President\xe2\x80\x99s power as Commander in Chief to a narrower scope than it\nwould have had in the absence of legislation. Chief Justice Marshall strongly\nintimates in his opinion in Little v. Barreme that the executive action directing the\nseizure of a ship on the high seas would have been valid had not Congress enacted\nlegislation restricting the circumstances under which such a seizure was author-\n\n333\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nized. Congress, exercising its constitutional authority to \xe2\x80\x9cmake rules concerning\ncaptures on land and water,\xe2\x80\x9d may thus constrict the President\xe2\x80\x99s power to direct the\nmanner of proceeding with such captures.\nCongress has similarly sought to restrain the authority of the President in the\nexercise of its power to \xe2\x80\x9craise and support Armies.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8, cl. 12.\nIn the Selective Service and Training Act of 1940, it was provided that:\nPersons inducted into the land forces of the United States under this\nAct shall not be employed beyond the limits of the Western Hemisphere except in the Territories and possessions of the United States,\nincluding the Philippine Islands.\nPub. L. No. 76-783, \xc2\xa7 3(e), 54 Stat. 885, 886 (1940).\nIn the year following enactment of this law, President Roosevelt determined to\nsend United States troops, including draftees, to Iceland in order to relieve British\ntroops garrisoned there. He chose to strain geography, rather than the law, and\nobtained the opinion of what was apparently a minority-view geographer that\nIceland was actually in the Western Hemisphere.\nVery recently, Congress has enacted legislation providing that United States\nforces shall not be dispatched to Laos or Thailand in connection with the Vietnam\nconflict. This proviso was accepted by the Executive.\nThis is not to say, however, that every conceivable condition or restriction\nwhich Congress may by legislation seek to impose on the use of American\nmilitary forces would be free of constitutional doubt. Even in the area of domestic\naffairs, where the relationship between Congress and the President is balanced\ndifferently than it is in the field of external affairs, virtually every President since\nWoodrow Wilson has had occasion to object to certain conditions in authorization\nlegislation as being violative of the separation of powers between the Executive\nand the Legislative Branch.3 The problem would be met in exacerbated form\nshould Congress attempt by detailed instructions as to the use of American forces\nalready in the field to supersede the President as Commander in Chief of the\narmed forces. Surely this is the thrust of Chief Justice Chase\xe2\x80\x99s concurring opinion\nin Ex parte Milligan, quoted earlier in this text:\n[Congressional] power necessarily extends to all legislation essential\nto the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.\nThat power and duty belong to the President as commander-in-chief.\n71 U.S. at 139.\n\n3\nAll of those Presidents have stated in one way or another that just because Congress concededly\nmay refrain from appropriating any money at all, it does not necessarily follow that it may attach\nwhatever condition it desires to an appropriation which it does make.\n\n334\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\nNor is the manner in which armed hostilities may be terminated altogether free\nfrom doubt. All declared wars in our history have been customarily concluded by\ntreaties negotiated by the President and ratified by the Senate. An effort in the\nConstitutional Convention to give Congress the power to declare \xe2\x80\x9cpeace\xe2\x80\x9d as well\nas \xe2\x80\x9cwar\xe2\x80\x9d was unanimously turned down at the session of August 17, 1787.\n3 Madison Notes at 1353.\nVII. The Vietnam Conflict: Relation Between the Power of the\nPresident and the Power of Congress\nThe duration of the Vietnam conflict, and its requirements in terms of both men\nand materiel, have long since become sufficiently large so as to raise the most\nserious sort of constitutional question had there been no congressional sanction of\nthat conflict. However, as is well known, the conflict in its present form began\nfollowing an attack on U.S. naval forces in the Gulf of Tonkin in August 1964. At\nthat time President Johnson took direct air action against the North Vietnamese,\nand he also requested Congress \xe2\x80\x9cto join in affirming the national determination\nthat all such attacks will be met\xe2\x80\x9d and asked for \xe2\x80\x9ca resolution expressing the\nsupport of the Congress for all necessary action to protect our Armed Forces and\nto assist nations covered by the SEATO [Southeast Asia Treaty Organization]\nTreaty.\xe2\x80\x9d H.R. Doc. No. 88-333, at 2 (1964).\nOn August 10, 1964, Congress passed the following resolution:\nResolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed\nattack against the forces of the United States and to prevent further\naggression.\nSec. 2. The United States regards as vital to its national interest\nand to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United\nStates and the Charter of the United Nations and in accordance with\nits obligations under the Southeast Asia Collective Defense Treaty,\nthe United States is, therefore, prepared, as the President determines,\nto take all necessary steps, including the use of armed force, to assist\nany member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.\nSec. 3. The resolution shall expire when the President shall determine that the peace and security of the area is reasonably assured\nby international conditions created by action of the United Nations\n\n335\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nor otherwise, except that it may be terminated earlier by concurrent\nresolution of the Congress.\nPub. L. No. 88-408, 78 Stat. 384, 384 (1964).\nIn connection with this resolution, Congress noted that whatever the limits of\nthe President\xe2\x80\x99s authority acting alone might be, whenever Congress and the\nPresident act together \xe2\x80\x9c\xe2\x80\x98there can be no doubt\xe2\x80\x99\xe2\x80\x9d of the constitutional authority.\nH.R. Rep. 88-1708, at 4 (1964) (committee report on Gulf of Tonkin resolution,\nquoting committee report on Formosa resolution).\nSince that time, Congress has repeatedly adopted legislation recognizing the\nsituation in Southeast Asia, providing the funds to carry out United States\ncommitments there, and providing special benefits for troops stationed there. By\nvirtue of these acts, and by virtue of the provision in the Gulf of Tonkin resolution\nas to the manner in which it may be terminated, there is long-standing congressional recognition of a continuing United States commitment in Southeast Asia.4\nPresident Nixon has continued to maintain United States troops in the field in\nSouth Vietnam, in pursuance of his policy to seek a negotiated peace which will\nprotect the right of the South Vietnamese people to self-determination. The\nlegality of the maintenance of these troops in South Vietnam, and their use to\nrender assistance to the South Vietnamese troops in repelling aggression from the\nViet Cong and the North Vietnamese, would admit of reasonable doubt only if\ncongressional sanction of hostilities commenced on the initiative of the Executive\ncould be manifested solely by a formal declaration of war. But the numerous\nhistorical precedents previously cited militate against such a formal type of\nreasoning.\nA requirement that congressional approval of executive action in this field can\ncome only through a declaration of war is not only contrary to historic constitutional usage, but as a practical matter could not help but curtail effective congressional participation in the exercise of the shared war power. If Congress may\nsanction armed engagement of United States forces only by declaring war, the\npossibility of its retaining a larger degree of control through a more limited\napproval is foreclosed. While in terms of men and materiel the Vietnam conflict is\none of large scale, the objectives for which the conflict may be carried on, as set\nforth in the Gulf of Tonkin resolution, are by no means as extensive or allinclusive as would have resulted from a declaration of war by Congress. Con4\n\xe2\x80\x9cLegislative history\xe2\x80\x9d surrounding the Gulf of Tonkin resolution may be cited for a number of\nvarying interpretations of exactly what Congress was authorizing. In view of the very plain text of the\nresolution, which authorizes the use of military force \xe2\x80\x9cas the President determines\xe2\x80\x9d to assist Southeast\nAsian countries, including South Vietnam, in defense of their freedom, Pub. L. No. 88-408, \xc2\xa7 2, 78\nStat. at 384, it is all but impossible to argue that substantial military operations in support of the South\nVietnamese against North Vietnam and the Viet Cong were not thereby authorized. The fact that\nCongress did not by adopting this resolution intend to declare war does not detract from this\nconclusion; the authority conferred by the resolution is a good deal short of that which would be\nconferred by a declaration of war.\n\n336\n\n\x0cThe President and the War Power: South Vietnam and the Cambodian Sanctuaries\n\nversely, however, there cannot be the slightest doubt from an examination of the\nlanguage of the Gulf of Tonkin resolution that Congress expressly authorized\nextensive military involvement by the United States, on no less a scale than that\nnow existing, by virtue of its adoption of this resolution. To reason that if the\ncaption \xe2\x80\x9cDeclaration of War\xe2\x80\x9d had appeared at the top of the resolution, this\ninvolvement would be permissible, but that the identical language without such a\ncaption does not give effective congressional sanction to it at all, would be to treat\nthis most nebulous and ill defined of all areas of the law as if it were a problem in\ncommon law pleading. Justice Grier, more than a century ago, in the Prize Cases\nsaid:\nThis greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it\nnevertheless sprung forth suddenly from the parent brain, a Minerva\nin the full panoply of war. The President was bound to meet it in the\nshape it presented itself, without waiting for Congress to baptize it\nwith a name; and no name given to it by him or them could change\nthe fact.\n67 U.S. at 668\xe2\x80\x9369. If substance prevailed over form in establishing the right of the\nfederal government to fight the Civil War in 1861, substance should equally\nprevail over form in recognizing congressional sanction for the Vietnam conflict\nby the Gulf of Tonkin resolution, even though it was not in name or by its terms a\nformal declaration of war.\nViewed in this context, the President\xe2\x80\x99s determination to authorize incursion\ninto the Cambodian border area by United States forces in order to destroy\nsanctuaries utilized by the enemy is the sort of tactical decision traditionally\nconfided to the Commander in Chief in the conduct of armed conflict. From the\ntime of the drafting of the Constitution it has been clear that the Commander in\nChief has authority to take prompt action to protect American lives in situations\ninvolving hostilities. Faced with a substantial troop commitment to such hostilities\nmade by the previous Chief Executive, and approved by successive Congresses,\nPresident Nixon has an obligation as Commander in Chief of the country\xe2\x80\x99s armed\nforces to take what steps he deems necessary to assure their safety in the field. A\ndecision to cross the Cambodian border, with at least the tacit consent of the\nCambodian government, in order to destroy sanctuaries being utilized by North\nVietnamese in violation of Cambodia\xe2\x80\x99s neutrality, is wholly consistent with that\nobligation. It is a decision made during the course of an armed conflict as to how\nthat conflict shall be conducted, rather than a determination that some new and\npreviously unauthorized military venture shall be undertaken.\nBy crossing the Cambodian border to attack sanctuaries used by the enemy, the\nUnited States has in no sense gone to \xe2\x80\x9cwar\xe2\x80\x9d with Cambodia. United States forces\nare fighting with or in support of Cambodian troops, and not against them.\n\n337\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nWhatever protest may have been uttered by the Cambodian government was\nobviously the most perfunctory, formal sort of declaration. The Cambodian\nincursion has not resulted in a previously uncommitted nation joining the ranks of\nour enemies, but instead has enabled us to more effectively deter enemy aggression heretofore conducted from the Cambodian sanctuaries.\nOnly if the constitutional designation of the President as Commander in Chief\nconferred no substantive authority whatever could it be said that prior congressional authorization for such a tactical decision was required. Since even those\nauthorities least inclined to a broad construction of the executive power concede\nthat the Commander in Chief provision does confer substantive authority over the\nmanner in which hostilities are conducted, the President\xe2\x80\x99s decision to invade and\ndestroy the border sanctuaries in Cambodia was authorized under even a narrow\nreading of his power as Commander in Chief.\nWILLIAM H. REHNQUIST\nAssistant Attorney General\nOffice of Legal Counsel\n\n338\n\n\x0c'