[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[§ 10. Vietnam Era Restrictions on Military Activity]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1824-1830]
CHAPTER 13
Powers and Prerogatives of the House
B. WAR POWERS
Sec. 10. Vietnam Era Restrictions on Military Activity
As debate over American involvement in Indochina intensified
following the 1968 elections, Congress, exercising its constitutional
authority to raise and support armies,(9) imposed
restrictions on the obligation and expenditure of funds relating to
military activity in Vietnam and neighboring areas. These restrictions,
which were placed in authorization (10) as well as
appropriation bills,(11) in some instances prohibited
obligation or expenditure of funds in particular countries after a
fixed date,(12) and in other instances did not specify such
a date.(13)
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9. U.S. Const. art. I, Sec. 8, clause 12.
10. Sec. Sec. 10.2, 10.3, infra.
11. Sec. Sec. 10.1, 10.4, infra.
12. Sec. Sec. 10.4, 10.5, infra.
13. Sec. Sec. 10.1-10.3, infra.
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The precedents in this section comprise a few examples of the many
initiatives undertaken by Congress in response to the Vietnam crisis.
Collateral References (14)
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14. The articles in this section relate to military involvement during
the Vietnam era. See collateral references in Sec. 3, supra,
war powers generally, and Sec. 4, supra, War Powers Act, for
other articles relating to those subjects.
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Bickel, Alexander M. The Constitution and the War. 54 Commentary 49
(July 1972).
Dvorin, Eugene, ed. The Senate's War Powers; Debate on Cambodia from
the Congressional Record. Markham Pub. Co., Chicago [c1971].
Faulkner, S. War in Vietnam: Is it Constitutional? 56 Georgetown
U.L.J.1132 (1968).
Goldman, Eric F. The President, the People and the Power to Make War.
21 American Heritage 4 (1970), reprinted in The Vietnam War and
International Law: The Widening Context, Princeton University
Press, Princeton, N.J. 489 (1972).
Katzenbach, Nicholas deB. Congress and Foreign Policy. 3 Cornell
International L.J. (1970), reprinted in The Vietnam War and
International Law: The Widening Context, Princeton University
Press, Princeton, N.J. 595 (1972).
Malawer, Stuart S. The Vietnam War Under the Constitution: Legal Issues
Involved in the United States Military Involvement in Vietnam. 31
U. of Pitt. L.R. 205 (Winter 1969).
Meeker, Leonard C. The Legality of United States Participation in the
Defense of Vietnam. 54 Dept. of State Bulletin 474 (Apr. 28, 1966).
Moore, John Norton, James L. Underwood, and Myres S. McDougall The
Lawfulness of United States Assistance to the Republic of North
Vietnam. 112 Cong. Rec. 15519-67, July 13, 1966.
Moore, John Norton. Law and the IndoChina War. Princeton University
Press, Princeton, N.J. (1972).
Moore, John Norton. Legal Dimensions of the Decision to Intercede in
Cambodia.
[[Page 1825]]
65 American J. of International Law 38 (Jan. 1971).
Norton, Patrick M. Constitutional Law--Justicabi1ity--Veto Power--
Standing--No Judicially Discoverable and Manageable Standards Exist
by Which to Ascertain Whether Bombing of Cambodia Required New
Congressional Authorization. 15 Harv. International L. Jour. 143-17
(Winter 1974).
Van Alstyne, William. Congress, the President, and the Power to Declare
War: A Requiem for Vietnam. 121 U. of Pa. L. Rev. 1-28 (Nov. 1972).
Wenner, Scott J. The Indochina War Cases in the United States Court of
Appeals for the Second Circuit: The Constitutional Allocation of
War Powers. 7 N.Y.U. Jour. of International Law and Politics 137-61
(Spring 1974). -------------------
Prohibition of American Forces in Laos or Thailand
Sec. 10.1 The Department of Defense appropriations bill for fiscal year
1970 was amended to prohibit use of funds to finance introduction
of ground combat troops into Laos or Thailand.
On Dec. 15, 1969,(15) the Senate by a vote of yeas 73,
nays 17, agreed to an amendment offered by Senator Frank Church, of
Idaho, to House bill 15090, making appropriations for the Department of
Defense for the fiscal year ending June 30, 1970. The provision
appeared in the bill approved by the President in the following form:
(16)
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15. 115 Cong. Rec. 39168, 39172, 91st Cong. 1st Sess.
16. 83 Stat. 469, 487, 91st Cong. 1st Sess. (Pub. L. No. 91-171).
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Sec. 643. In line with the expressed intention of the President
of the United States, none of the funds appropriated by this Act
shall be used to finance the introduction of American ground combat
troops into Laos or Thailand.
Because it was a substitute for an amendment offered by Senator
John Sherman Cooper, of Kentucky, this provision came to be known as
the Cooper-Church amendment.
Prohibition of Military Support for Cambodia and Laos
Sec. 10.2 A bill authorizing appropriations for military procurement
for fiscal year 1971 was amended to prohibit use of funds to
support Vietnamese or other freeworld forces in actions designed to
provide military support and assistance to the Government of
Cambodia or Laos.
On Aug. 21, 1970,(17) the Senate by voice vote agreed to
amend
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17. 116 Cong. Rec. 29686, 29688, 91st Cong. 2d Sess. See also 116 Cong.
Rec. 29572-83, 91st Cong. 2d Sess., Aug. 20, 1971, for debate
on amendment No. 812; and 116 Cong. Rec. 34580-602, 91st Cong.
2d Sess., Oct. 1, 1970, for debate on and approval of the
conference report in the Senate.
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[[Page 1826]]
ment No. 812, ordered by Senator J. William Fulbright, of Arkansas, to
H.R. 17123, to authorize appropriations for military procurement for
the fiscal year 1971. The provision appeared in the form passed by the
Senate (18) in the bill approved by the President on Oct. 7,
1970.(19)
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18. See 116 Cong. Rec. 33924, 33925, 33933, 91st Cong. 2d Sess., Sept.
28, 1970, for the text of the House conference report, H. Rept.
No. 91-1473, which states that the House conferees agreed to
the Senate amendment and deleted the words ``in Vietnam'' after
the words ``and other free world forces'' and before the words
``and local''; and 116 Cong. Rec. 34149, 34161, 34162, 91st
Cong. 2d Sess., Sept. 29, 1970, for House approval of the
conference report by a vote of yeas 341, nays 11, not voting
77.
19. This excerpt is taken from 84 Stat. 905, 910, 91st Cong. 1st Sess.
(Pub. L. No. 91-441). The italicized sentence is the Fulbright
amendment. amended, is hereby amended to read as follows:
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An Act
To authorize appropriations during the fiscal year 1971 for
procurement of aircraft, missiles, naval vessels, and tracked
combat vehicles, and other weapons, and research, development,
test, and evaluation for the Armed Forces, and to authorize
real estate acquisition and construction at certain
installations in connection with the Safeguard anti-ballistic
missile system, and to prescribe the authorized personnel
strength of the Selected Reserve of each Reserve component of
the Armed Forces, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled . . .
Sec. 502. Subsection (a) of section 401 of Public Law 89-367,
approved March 15, 1966 (80 Stat. 37), as
``(a) (1) Not to exceed $2,800,000,000 of the funds authorized
for appropriation for the use of the Armed Forces of the United
States under this or any other Act are authorized to be made
available for their stated purposes to support: (A) Vietnamese and
other free world forces in support of Vietnamese forces, (B) local
forces in Laos and Thailand; and for related costs, during the
fiscal year 1971 on such terms and conditions as the Secretary of
Defense may determine. None of the funds appropriated to or for the
use of the Armed Forces of the United States may be used for the
purpose of paying any overseas allowance, per diem allowance, or
any other addition to the regular base pay of any person serving
with the free world forces in South Vietnam if the amount of such
pay
[[Page 1827]]
ment would be greater than the amount of special pay authorized to
be paid, for an equivalent period of service, to members of the
Armed Forces of the United States (under section 310 of title 37,
United States Code) serving in Vietnam or in any other hostile fire
area, except for continuation of payments of such additions to
regular base pay provided in agreements executed prior to July 1,
1970. Nothing in clause (A) of the first sentence of this paragraph
shall be construed as authorizing the use of any such funds to
support Vietnamese or other free world forces in actions designed
to provide military support and assistance to the Governments of
Cambodia or Laos.''
Prohibition of American Ground Forces From Cambodia
Sec. 10.3 The Special Foreign Assistance Act of 1971 was amended to
prohibit use of funds to finance introduction of United States
ground combat troops into Cambodia, or to provide United States
advisers to or for Cambodian military forces in Cambodia, and to
assert that American military and economic assistance should not be
construed as a commitment by the United States to Cambodia.
On Dec. 16, 1970,(20) the Senate by a vote of yeas 72,
nays 22, agreed to strike out all after the enacting clause of the
Special Foreign Assistance Act of 1971, H.R. 19911, which had been
approved by the House, and insert an amendment, described above,
reported from the Committee on Foreign Relations. The provisions
(1) became law when approved by the President on Jan. 5,
1971, in the same form as the Senate amendment: (2)
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20. 116 Cong. Rec. 41788, 91st Cong. 2d Sess. See also 116 Cong. Rec
41616, 91st Cong. 2d Sess., Dec. 15, 1970, for the text of the
amendment from the Committee on Foreign Relations; and 116
Cong. Rec. 43221-23, 91st Cong. 2d Sess., Dec. 22, 1970, for
Senate approval of the conference report by a vote of yeas 41,
nays 20.
1. See 116 Cong. Rec. 43133, 43134, 91st Cong. 2d Sess., Dec. 21,
1970; and 116 Cong. Rec. 43342, 43343, 91st Cong. 2d Sess.,
Dec. 22, 1970, for the text of and House approval of the
conference report in the House, respectively.
2. This excerpt is taken from 84 Stat. 1942, 1943, 91st Cong. 2d Sess.
(Pub. L. No. 91-652).
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An Act
To provide additional foreign assistance authorizations, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the ``Special Foreign Assistance Act of 1971''. . . .
Sec. 7. (a) In line with the expressed intention of the
President of the
[[Page 1828]]
United States, none of the funds authorized or appropriated
pursuant to this or any other Act may be used to finance the
introduction of the United States ground combat troops into
Cambodia, or to provide United States advisers to or for Cambodian
military forces in Cambodia.
(b) Military and economic assistance provided by the United
States to Cambodia and authorized or appropriated pursuant to this
or any other Act shall not be construed as a commitment by the
United States to Cambodia for its defense.
Prohibition of Military Funds After Fixed Date
Sec. 10.4 A House joint resolution continuing appropriations for the
fiscal year 1974 was amended to prohibit after a fixed date
obligation or expenditure of funds to finance combat activities by
United States military forces in, over, or off the shores of North
Vietnam, South Vietnam, Laos, or Cambodia.
On June 29, 1973,(3) during consideration of House Joint
Resolution 636, the Senate agreed to an amendment, described above,
offered by Senator J. William Fulbright, of Arkansas, on behalf of the
Committee on Foreign Relations. The joint resolution as amended
(4) was approved by the President on July 1,
1973.(5)
3. 119 Cong. Rec. 22305, 22325, 22326, 93d Cong. 1st Sess. See also
119 Cong. Rec. 22603, 22604, 93d Cong. 1st Sess., June 30,
1973, for Senate agreement to the conference report. Senate and
House conferees agreed to modify the language of this amendment
from ``. . . no funds herein, heretofore or hereafter
appropriated . . .'' in the version which originally passed the
Senate to ``. . . no funds herein or heretofore appropriated .
. .'' in the version approved by the President.
4. See 119 Cong. Rec. 21306, 21309, 21315, 21319, 21320, 93d Cong. 1st
Sess., June 26, 1973, for House approval of a substitute
amendment offered by Mr. George H. Mahon (Tex.), as amended by
an amendment offered by Mr. Clarence D. Long (Md.), prohibiting
expenditure of funds under H.J. Res. 636 to support combat
activities in, over, or off the shores of Cambodia or Laos. See
also 119 Cong. Rec. 22632-37, 93d Cong. 1st Sess., June 30,
1973, for House approval of the conference report, H. Rept. No.
93-364.
5. This excerpt is taken from 87 Stat. 130, 93d Cong. 1st Sess. (Pub.
L. No. 93-52).
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Joint Resolution making continuing appropriations for the fiscal
year 1974, and for other purposes.
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That:
The following sums are appropriated out of any money in the
Treasury not otherwise appropriated and, out of applicable
corporate or other revenues, receipts, and funds, for the several
de
[[Page 1829]]
partments, agencies, corporations, and other organizational units
of the Government for the fiscal year 1974, namely:
Sec. 108. Notwithstanding any other provision of law, on or
after August 15, 1973, no funds herein or heretofore appropriated
may be obligated or expended to finance directly or indirectly
combat activities by United States military forces in or over or
from off the shores of North Vietnam, South Vietnam, Laos or
Cambodia.
Prohibition of Military Involvement After Fixed Date
Sec. 10.5 The Senate and House agreed to a conference report (on the
Department of State Appropriations Authorization Act of 1973) which
included a provision prohibiting, after a fixed date, obligation or
expenditure of funds to finance involvement of United States
military forces in hostilities in, over, or off the shores of North
Vietnam, South Vietnam, Laos, or Cambodia, or to provide assistance
to North Vietnam, unless specifically authorized by Congress.
On Oct. 10, 1973, the Senate (6) and House
(7) by voice vote agreed to the conference report (H. Rept.
No. 93-563) to H. R. 7645, the Department of State Appropriations Act
of 1973. The report included a provision prohibiting, after Aug. 15,
1973, obligation or expenditure of funds as described above. This
provision, which originated in the Senate as an amendment by the
Committee on Foreign Relations to S. 1248,(8) was approved
by the President on Oct. 18, 1973, in the following form:(9)
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6. See 119. 33577, 33578, 93d Cong. 1st Sess., for Senate approval of
the conference report.
7. See 119 Cong. Rec. 33609, 93d Cong. 1st Sess., for House approval;
and 119 Cong. Rec. 33413-15, 93d Cong. 1st Sess., Oct. 9, 1973,
for text of the conference report.
8. See 119 Cong. Rec. 18901-03, 93d Cong. 1st Sess., June 8, 1973, for
the text of this amendment, which did not set a date certain
but instead made the prohibition effective ``. . . upon
enactment of this Act. . . .'' The date was established in
conference. On June 14, 1973, the Senate struck all after the
enacting clause of H.R. 7645, and substituted the provisions of
S. 1248 (119 Cong. Rec. 19648, 93d Cong. 1st Sess.).
9. This excerpt is taken from 87 Stat. 451, 93d Cong. 1st Sess. (Pub.
L. No. 93-126).
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Department of State Appropriations Authorization Act of 1973
* * * * *
An Act to authorize appropriations for the Department of State, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That:
[[Page 1830]]
This Act may be cited as the ``Department of State
Appropriations Authorization Act of 1973''. . . .
requirements for congressional authorization for the
involvement of american forces in further hostilities in
indochina, and for extending assistance to north vietnam
Sec. 13. Notwithstanding any other provision of law, on or
after August 15, 1973, no funds heretofore or hereafter
appropriated may: be obligated or expended to finance the
involvement of United States military forces in hostilities in or
over or from off the shores of North Vietnam, South Vietnam, Laos,
or Cambodia, unless specifically authorized hereafter by the
Congress. Notwithstanding any other provision of law, upon
enactment of this Act, no funds heretofore or hereafter
appropriated may be obligated or expended for the purpose of
providing assistance of any kind, directly or indirectly, to or on
behalf of North Vietnam, unless specifically authorized hereafter
by the Congress.