[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[Â§ 8. Legislation Authorizing Militray Action Prior to War Powers Act]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1806-1816]
 
                               CHAPTER 13
 
                  Powers and Prerogatives of the House
 
                             B. WAR POWERS
 
Sec. 8. Legislation Authorizing Military Action Prior to War Powers Act

    In several instances prior to the War Powers Act, Congress, usually 
in response to Presidential requests,(9) granted the Chief 
Executive express statutory authority to use force he deemed necessary 
in specific areas. These so-called ``area resolutions'' were short of 
formal declarations of war, but constituted either prior or subsequent 
acquiescence to Presidential use of force.
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 9. The exception is the Cuba resolution which was not requested by the 
        President. See Sec. Sec. 8.7, 8.8, infra, for discussion of 
        this resolution.
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    A question arose in such situations as to whether, if Congress 
could authorize the President to use force by approving a statute short 
of a declaration of war, it could divest the President of that 
authority merely by repealing the statute. The answer to that question 
depended on other congressional actions. Only one area resolution, the 
Gulf of Tonkin Resolution,(10) was repealed. Following 
repeal, the President continued to direct military operations and send 
troops to Vietnam, and Con

[[Page 1807]]

gress continued to approve legislation providing manpower and supplies 
for the war effort.
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10. See Sec. Sec. 8.1, 8.2, infra, for a discussion of approval and 
        repeal of this resolution.
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    Groups of servicemen who had received orders to fight in Vietnam 
filed suit contending that repeal of the Gulf of Tonkin Resolution had 
divested the President and other executive branch officials of 
authority to prosecute the war. Ruling on this challenge, the Court of 
Appeals for the Second Circuit held that authorization could be 
inferred from congressional approval of authorizations and 
appropriations for war supplies and personnel. (11)
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11. DaCosta v Laird, 448 F2d 1368 (1971); see also Orlando v Laird, 443 
        F2d 1039 (2d Cir. 1971), cert. denied 404 U.S. 869. Contra, 
        Mottola v Nixon, 318 F Supp 538 (N.D. Calif. 1970) which found 
        no ratification [reversed on grounds of lack of standing, 464 
        F2d 26 (9th Cir. 1972)]. The Supreme Court summarily affirmed a 
        three-judge district court opinion which dismissed a challenge 
        to the constitutionality of the war on political question 
        grounds. Altee v Richardson, 411 U.S. 911 (1973, aff'g. 347 F 
        Supp 689 (E.D.Pa. 1972).
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    The following precedents comprise some examples of congressional 
action prior to the War Powers Act, taken in most instances in response 
to Presidential requests for such 
action.                          -------------------

Gulf of Tonkin Resolution

Sec. 8.1 The House by yea and nay vote suspended the rules and agreed 
    to a House joint resolution (known as the Gulf of Tonkin 
    Resolution) supporting the President's actions to repel aggression 
    by North Vietnam.

    On Aug. 7, 1964,(12) the House by a vote of yeas 416, 
nays 0, present 1, not voting 14, suspended the rules and agreed to 
House Joint Resolution 1145, known as the Gulf of Tonkin Resolution, 
supporting the President's action to repel aggression by North Vietnam. 
The resolution was approved by the President on Aug. 10, 1964, in the 
following form: (13)
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12. 110 Cong. Rec. 18538-55, 88th Cong. 2d Sess.
13. This excerpt is taken from 78 Stat. 384, 88th Cong. 2d Sess. (Pub. 
        L. No. 88-408).
            See Sec. 8.2, infra, for Senate approval of this measure.
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                              Joint Resolution
    To promote the maintenance of international peace and security in 
        southeast Asia.

        Whereas naval units of the Communist regime in Vietnam, in 
    violation of the principles of the Charter of the United Nations 
    and of international law, have deliberately and repeatedly attacked 
    United States naval vessels

[[Page 1808]]

    lawfully present in international waters, and have thereby created 
    a serious threat to international peace; and
        Whereas these attacks are part of a deliberate and systematic 
    campaign of aggression that the Communist regime in North Vietnam 
    has been waging against its neighbors and the nations joined with 
    them in the collective defense of their freedom; and
        Whereas the United States is assisting the peoples of southeast 
    Asia to protect their freedom and has no territorial, military or 
    political ambitions in that area, but desires only that these 
    peoples should be left in peace to work out their own destinies in 
    their own way: Now, therefore, be it
        Resolved 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 attack against the forces of the United States and to prevent 
    further aggression.
        Sec. 2. The United States regards as vital to its national 
    interest and to world peace the maintenance of international peace 
    and security in southeast Asia. Consonant with the Constitution of 
    the United States and the Charter of the United Nations and in 
    accordance with its obligations under the Southeast Asia Collective 
    Defense Treaty, the United States is, therefore, prepared, as the 
    President determines, to take all necessary steps, including the 
    use of armed force, to assist any member or protocol state of the 
    Southeast Asia Collective Defense Treaty requesting assistance in 
    defense of its freedom.
        Sec. 3. This resolution shall expire when the President shall 
    determine that the peace and security of the area is reasonably 
    assured by international conditions created by action of the United 
    Nations or otherwise, except that it may be terminated earlier by 
    concurrent resolution of the Congress.

    Parliamentarian's Note: After conferring with the congressional 
leadership and others with respect to attacks by North Vietnamese 
torpedo boats against U.S. destroyers, President Johnson ordered 
retaliation against the bases from which the torpedo boats operated. In 
an address to the nation on radio and TV, late on Monday, Aug. 3, he 
stated that he had requested the Congress to support his action by a 
resolution. On Aug. 5, the President transmitted to the Congress a 
message on the developing situation in Southeast Asia and a draft of a 
resolution. The Committee on Foreign Affairs, to which the message was 
referred (H. Doc. 333), asked for and was granted permission to sit 
during the session of the House on Aug. 6.
    Authority granted by this resolution was repealed by approval, on 
Jan. 12, 1971, of section 12 of an act to amend the Foreign Military 
Sales Act.(14)
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14. 84 Stat. 2053, 2055,91st Cong. 1st Sess. (Pub. L. No. 91-672).
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Sec. 8.2 The Senate by yea and nay vote agreed to a House

[[Page 1809]]

    joint resolution known as the Gulf of Tonkin Resolution supporting 
    the President's actions to repel aggression by North Vietnam.

    On Aug. 7, 1964,(15) the Senate by a vote of yeas 88, 
nays 2, agreed to House Joint Resolution 1145, known as the Gulf of 
Tonkin Resolution, supporting the President's actions to repel 
aggression by North Vietnam.(16)
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15. 110 Cong. Rec. 18470, 18471, 88th Cong. 2d Sess.
16. See Sec. 8.1, supra, for the House vote and text of this measure.
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    Authority granted by this resolution was repealed by approval, on 
Jan. 12, 1971, of section 12 of an act to amend the Foreign Military 
Sales Act.(17)
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17. 84 Stat. 2053, 2055 (Pub. L. No. 91672) H.R. 15628, 91st Cong. 1st 
        Sess.
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Resolution to Protect Formosa and Pescadores

Sec. 8.3 The House by yea and nay vote agreed to a House joint 
    resolution authorizing the President to employ armed forces to 
    protect the security of Formosa, the Pescadores, and related 
    positions and territories of that area.

    On Jan. 25, 1955,(18) the House by a vote of yeas 410, 
nays 3, not voting 21, agreed to House Joint Resolution 
159,(19) which was approved by the President on Jan. 29, 
1955, in the following form: (20)
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18. 101 Cong. Rec. 659, 669, 680, 681, 84th Cong. 1st Sess.
19. See Sec. 8.4, infra, for Senate approval of this measure.
20. This excerpt is taken from 69 Stat. 7, 84th Cong. 1st Sess., Ch. 4 
        (Pub. L. No. 84-4).
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                              Joint Resolution
    Authorizing the President to employ the Armed Forces of the United 
        States for protecting the security of Formosa, the Pescadores 
        and related positions and territories of that area.

        Whereas the primary purpose of the United States, in its 
    relations with all other nations, is to develop and sustain a just 
    and enduring peace for all; and Whereas certain territories in the 
    West Pacific under the jurisdiction of the Republic of China are 
    now under armed attack, and threats and declarations have been and 
    are being made by the Chinese Communists that such armed attack is 
    in aid of and in preparation for armed attack on Formosa and the 
    Pescadores. . . . Therefore be it
        Resolved by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That the President 
    of the United States be and he hereby is authorized to employ the 
    Armed Forces of the United States as he deems necessary for the 
    specific purpose of securing and protecting Formosa and the 
    Pescadores against armed attack, this authority to include the 
    securing and protection of such related positions and territories 
    of that area now in friendly hands and the taking of such other 
    measures as he

[[Page 1810]]

    judges to be required or appropriate in assuring the defense of 
    Formosa and the Pescadores.
        This resolution shall expire when the President shall determine 
    that the peace and security of the area is reasonably assured by 
    international conditions created by action of the United Nations or 
    otherwise, and shall so report to the Congress.

Sec. 8.4 The Senate by yea and nay vote agreed to a House joint 
    resolution authorizing the President to employ armed forces to 
    protect the security of Formosa, the Pescadores, and related 
    positions.

    On Jan. 28, 1955,(1) the Senate by a vote of yeas 85, 
nays 3, agreed to House Joint Resolution 159, directing the President 
to employ armed forces to protect the security of Formosa, the 
Pescadores, and related positions in the area.(2)
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 1. 101 Cong. Rec. 994, 995, 84th Cong. 1st Sess.
 2. See Sec. 8.3, supra, for the text of and House vote on this 
        measure.
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Resolution to Protect Middle Eastern Nations

Sec. 8.5 The House by yea and nay vote agreed to a House joint 
    resolution to promote peace and stability in the Middle East by 
    authorizing the President to cooperate with and assist any nation 
    or group of nations in that area in the development of economic 
    strength, and to undertake programs of military assistance; the 
    resolution further stated congressional intent with respect to 
    using armed forces of the United States to secure and protect the 
    territorial integrity and political independence of any nation 
    which requests aid from armed aggression by any nation controlled 
    by communism.

    On Mar. 7, 1957,(3) the House by a vote of 350 yeas, 60 
nays, not voting 23, agreed to House Resolution 188, to accept House 
Joint Resolution 117, autllorizing the President to cooperate with 
nations of the Middle East in the development of economic strength, to 
undertake programs of military assistance, and to employ armed 
forces.(4)
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 3. 103 Cong. Rec. 3250, 3265, 3266, 85th Cong. 1st Sess.
 4. See Sec. 8.6, infra, for the Senate vote on the House joint 
        resolution.
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    The joint resolution was approved by the President in the following 
form on Mar. 9, 1957: (5)
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 5. This language is taken from 71 Stat. 5, 85th Cong. 1st Sess. [Pub. 
        L. No. 85-7] (footnotes omitted).

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[[Page 1811]]

        Resolved by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That:
        The President be and hereby is authorized to cooperate with and 
    assist any nation or group of nations in the general area of the 
    Middle East desiring such assistance in the development of economic 
    strength dedicated to the maintenance of national independence.
        Sec. 2. The President is authorized to undertake, in the 
    general area of the Middle East, military assistance programs with 
    any nation or group of nations of that area desiring such 
    assistance. Furthermore, the United States regards as vital to the 
    national interest and world peace the preservation of the 
    independence and integrity of the nations of the Middle East. To 
    this end, if the President determines the necessity thereof, the 
    United States is prepared to use armed forces to assist any such 
    nation or group of such nations requesting assistance against armed 
    aggression from any country controlled by international communism: 
    Provided, That such employment shall be consonant with the treaty 
    obligations of the United States and with the Constitution of the 
    United States.
        Sec. 3. The President is hereby authorized to use during the 
    balance of fiscal year 1957 for economic and military assistance 
    under this joint resolution not to exceed $200,000,000 from any 
    appropriation now available for carrying out the provisions of the 
    Mutual Security Act of 1954, as amended, in accord with the 
    provisions of such Act: Provided, That, whenever the President 
    determines it to be important to the security of the United States, 
    such use may be under the authority of section 401(a) of the Mutual 
    Security Act of 1954, as amended (except that the provisions of 
    section 105(a) thereof shall not be waived), and without regard to 
    the provisions of section 105 of the Mutual Security Appropriation 
    Act, 1957. . . .
        Sec. 5. The President shall within the months of January and 
    July of each year report to the Congress his action hereunder.
        Sec. 6. This joint resolution shall expire when the President 
    shall determine that the peace and security of the nations in the 
    general area of the Middle East are reasonably assured by 
    international conditions created by action of the United Nations or 
    otherwise except that it may be terminated earlier by a concurrent 
    resolution of the two Houses of Congress.

Sec. 8.6 The Senate agreed to a House joint resolution to promote peace 
    and stability in the Middle East by authorizing the President to 
    assist nations in that area in the development of economic 
    strength, and to undertake programs of military assistance; the 
    resolution also endorsed the concept of employing armed forces of 
    the United States to secure and protect the territorial integrity 
    and political independence of any nation which requests aid from 
    armed aggression by any nation controlled by communism.

[[Page 1812]]

    On Mar. 5, 1957,(6) the Senate by a vote of 72 yeas to 
19 nays, agreed to House Joint Resolution 117,(7) 
authorizing the President to cooperate with and assist any nation or 
group of nations in that area in the development of economic strength, 
to undertake programs of military assistance, and to employ American 
Armed Forces to resist aggression as stated above. This House joint 
resolution was approved in lieu of Senate Joint Resolution 19.
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 6. 103 Cong. Rec. 3127, 3129, 3130, 85th Cong. 1st Sess.
 7. See Sec. 8.5, supra, for the text of and House vote on this 
        measure.
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Resolution Regarding Soviet Weapons in Cuba

Sec. 8.7 The Senate agreed to a Senate joint resolution expressing the 
    position of the United States with respect to Soviet buildup of 
    weapons in Cuba.

    On Sept. 20, 1962,(8) the Senate by a vote of 86 yeas, 1 
nay, agreed to Senate Joint Resolution 230, expressing the position of 
the United States with respect to buildup of Soviet weapons in 
Cuba.(9)
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 8. 108 Cong. Rec. 20024, 20058, 87th Cong. 2d Sess.
 9. See Sec. 8.8, infra, for the text of and House vote on this 
        measure.
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Sec. 8.8 After rejecting a motion to recommit the measure, the House by 
    yea and nay vote agreed to a Senate joint resolution expressing the 
    position of the United States with respect to Soviet buildup of 
    weapons in Cuba.

    On Sept. 26, 1962,(10) the House by a vote of yeas 384, 
nays 7, not voting 44, agreed to a Senate joint resolution which was 
approved by the President on Oct. 3, 1962, in the following form: 
(11)
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10. 108 Cong. Rec. 20859, 20909-11, 87th Cong. 2d Sess.
11. See Sec. 8.7, supra, for Senate approval of this measure. This 
        excerpt is taken from 76 Stat. 697, 87th Cong. 2d Sess. (Pub. 
        L. No. 87-733).
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        Whereas President James Monroe, announcing the Monroe Doctrine 
    in 1823, declared that the United States would consider any attempt 
    on the part of European powers ``to extend their system to any 
    portion of this hemisphere as dangerous to our peace and safety''; 
    and
        Whereas in the Rio Treaty of 1947 the parties agreed that ``an 
    armed attack by any State against an American State shall be 
    considered as an attack against all the American States . . . one 
    of the said contracting parties undertakes to assist in meeting the 
    attack in the exercise of the inherent right of individual or 
    collective self defense recognized by article 51 of the Charter of 
    the United Nations''; and . . .

        Whereas the international Communist movement has increasingly 
    ex

[[Page 1813]]

    tended into Cuba its political, economic, and military sphere of 
    influence; Now, therefore, be it
        Resolved by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That the United 
    States is determined--
        (a) to prevent by whatever means may be necessary, including 
    the use of arms, the Marxist-Leninist regime in Cuba from 
    extending, by force or the threat of force, its aggressive or 
    subversive activities to any part of this hemisphere;
        (b) to prevent in Cuba the creation or use of an externally 
    supported military capability endangering the security of the 
    United States; and
        (c) to work with the Organization of American States and with 
    freedom- loving Cubans to support the aspirations of the Cuban 
    people for self-determination.

    Passage of the Senate joint resolution followed rejection by a vote 
of yeas 140, nays 251, not voting 46, of a motion to recommit with 
instructions which had been offered by Mr. William S. Broomfield. of 
Michigan.
    Parliamentarian's Note: This resolution was approved prior to the 
Cuban missile crisis of 1962.

Resolution to Protect Berlin

Sec. 8.9 The House and Senate agreed to a House concurrent resolution 
    expressing the determination of Congress to prevent by whatever 
    means, including the use of arms, Soviet violation of American, 
    British, and French rights to Berlin, including ingress and egress, 
    and to fulfill the American commitment to the people of Berlin.

    On Oct. 5, 1962, the House by a vote of yeas 312, nays 0, not 
voting 123,(12) and on Oct. 10, 1962, the Senate by voice 
vote,(13) agreed to House Concurrent Resolution 570, 
expressing the sense of the Congress with respect to Berlin in the 
following language:
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12. 108 Cong. Rec. 22618-38, 87th Cong. 2d Sess.
13. Id. at pp. 22964-66.
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        Whereas the primary purpose of the United States in its 
    relations with all other nations is and has been to develop and 
    sustain a just and enduring peace for all; and
        Whereas it is the purpose of the United States to encourage and 
    support the establishment of a free, unified, and democratic 
    Germany; and
        Whereas in connection with the termination of hostilities in 
    World War II of the United States, the United Kingdom, France, and 
    the Soviet Union freely entered into binding agreements under which 
    the four powers have the right to remain in Berlin, with the right 
    of ingress and egress, until the conclusion of a final settlement 
    with the Government of Germany; and
        Whereas no such final settlement has been concluded by the four 
    powers and the aforementioned agreements continue in force: Now, 
    therefore, be it

[[Page 1814]]

        Resolved by the House of Representatives (the Senate 
    concurring), That it is the sense of the Congress--
        (a) that the continued exercise of United States, British, and 
    French rights in Berlin constitutes a fundamental political and 
    moral determination;
        (b) that the United States would regard as intolerable any 
    violation by the Soviet Union directly or through others of those 
    rights in Berlin, including the right of ingress and egress;
        (c) that the United States is determined to prevent by whatever 
    means may be necessary, including the use of arms, any violation of 
    those rights by the Soviet Union directly or through others, and to 
    fulfill our commitment to the people of Berlin with respect to 
    their resolve for freedom.

Authorization to Activate Reserve Forces

Sec. 8.10 The House agreed to a Senate joint resolution authorizing the 
    President to order units and members of the Ready Reserve to active 
    duty for not more than 12 months.

    On July 31, 1961,(14) the House by a vote of yeas 403, 
nays 2, not voting 32, agreed to Senate Joint Resolution 120, 
authorizing the President to order units and members of the Ready 
Reserve into active military service. The joint resolution, passed by 
the Senate on a vote of yeas 75, nays 0, on July 28, 
1961,(15), and approved by the President on Aug. 1, 
1961,(16) reads as follows: (17)
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14. 107 Cong. Rec. 14051, 14061, 14062, 87th Cong. 1st Sess.
15. Id. at pp. 13930, 13942.
16. See 107 Cong. Rec. 14370, 87th Cong. 1st Sess., Aug. 2, 1961, for 
        announcement in the Senate of Presidential approval.
17. This excerpt is taken from 75 Stat. 242, 87th Cong. 1st Sess. (Pub. 
        L. No. 87-117).
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                              Joint Resolution
    To authorize the President to order units and members in the Ready 
        Reserve to active duty for not more than twelve months, and for 
        other purposes.

        Resolved by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That 
    notwithstanding any other provision of law, until July 1, 1962, the 
    President may, without the consent of the persons concerned, order 
    any unit, and any member not assigned to a unit organized to serve 
    as a unit, in the Ready Reserve of an armed force to active duty 
    for not more than twelve consecutive months. However, not more than 
    two hundred and fifty thousand members of the Ready Reserve may be 
    on active duty (other than for training), without their consent, 
    under this section at any one time.

        Sec. 2. Notwithstanding any other provision of law, until July 
    1, 1962, the President may authorize the Secretary of Defense to 
    extend enlistments, appointments, periods of active duty, periods 
    of active duty for training, peri

[[Page 1815]]

    ods of obligated service, or other military status, in any 
    component of an armed force or in the National Guard that expire 
    before July 1, 1962, for not more than twelve months.

    Parliamentarian's Note: In an address to the Nation on July 25, 
1961, President John F. Kennedy requested authority to call up the 
Ready Reserves to respond to the Berlin crisis.(18)
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18. This address is reprinted at 107 Cong. Rec. 13460-62, 87th Cong. 
        1st Sess., July 26, 1961.
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Sec. 8.11 During the Cuban missile crisis, the Senate and House agreed 
    to a Senate joint resolution authorizing the President to activate 
    units and members of the Ready Reserve, for not more than 12 
    months.

    On Sept. 13, 1962, the Senate by a vote of 76 yeas, 0 
nays,(19) and on Sept. 24, 1962, the House by a vote of 342 
yeas, 13 nays, 80 not voting,(20) agreed to Senate Joint 
Resolution 224, authorizing the President to activate units and members 
of the Ready Reserve. The measure was approved on Oct. 3, 1962, in the 
following form: (1)
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19. 108 Cong. Rec. 19349, 19365, 87th Cong. 2d Sess.
20. Id. at pp. 20489, 20521, 20522
 1. This excerpt is taken from 76 Stat. 710, 87th Cong. 2d Sess. (Pub. 
        L. No. 87-736).
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                              Joint Resolution
    To authorize the President to order units and members in the Ready 
        Reserve to active duty for not more than twelve months, and for 
        other purposes.

        Resolved by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That, 
    notwithstanding any other provision of law, until February 28, 
    1963, the President may, without the consent of the persons 
    concerned, order any unit, or any member, of the Ready Reserve of 
    an armed force to active duty for not more than twelve consecutive 
    months. However, not more than one hundred and fifty thousand 
    members of the Ready Reserve may be on active duty (other than for 
    training), without their consent, under this section at any one 
    time.
        Sec. 2. Notwithstanding any other provision of law until 
    February 28, 1963, the President may authorize the Secretary of 
    Defense to extend enlistments, appointments, periods of active 
    duty, periods of active duty for training, periods of obligated 
    service or other military status, in any component of an armed 
    force or in the National Guard that expire before February 28, 
    1963, for not more than twelve months. However, if the enlistment 
    of a member of the Ready Reserve who is ordered to active duty 
    under the first section of this Act would expire after February 28, 
    1963, but before he has served the entire period for which he was 
    so ordered to active duty, his enlistment may be extended until the 
    last day of that period.
        Sec. 3. No member of the Ready Reserve who was involuntarily 
    ordered to

[[Page 1816]]

    active duty or whose period of active duty was extended under the 
    Act of August 1, 1961, Public Law 87-117 (75 Stat. 242), may be 
    involuntarily ordered to active duty under this Act.