[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[Â§ 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.