Footnotes
\1412\2
M. Farrand, The Records of the Federal Convention of
1787 (New Haven: rev. ed. 1937), 313.
\1413\Mr.
Butler favored ``vesting the power in the President,
who will have all the requisite qualities, and will not make war but
when the Nation will support it.'' Id., 318.
\1414\Mr.
Pinkney thought the House was too numerous for such
deliberations but that the Senate would be more capable of a proper
resolution and more acquainted with foreign affairs. Additionally,
with
the States equally represented in the Senate, the interests of all
would
be safeguarded. Ibid.
\1415\Hamilton's
plan provided that the President was ``to make
war or peace, with the advice of the senate . . .'' 1 id., 300.
\1416\2
id., 318-319. In The Federalist, No. 69 (J. Cooke ed.
1961), 465, Hamilton notes: ``[T]he President is to be commander-in-
chief of the army and navy of the United States. In this respect his
authority would be nominally the same with that of the king of Great
Britain, but in substance much inferior to it. It would amount to
nothing more than the supreme command and direction of the military
and
naval forces, as first General and admiral of the confederacy; while
that of the British king extends to the declaring of war and to the
raising and regulating of fleets and armies,--all which, by the
Constitution under consideration, would appertain to the legislature.''
(Emphasis in original). And see id., No. 26, 164-171. Cf. C. Berdahl,
War Powers of the Executive in the United States (Urbana, Ill.: 1921),
ch. V.
\1417\The
Federalist, No. 69 (J. Cooke ed. 1961), 464-465, 470.
During the Convention, Gerry remarked that he ``never expected to hear
in a republic a motion to empower the Executive alone to declare war.''
2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven:
rev. ed. 1937), 318.
\1418\The
Articles of Confederation vested powers with regard to
foreign relations in the Congress.
\1419\2
M. Farrand, The Records of the Federal Convention of
1787 (New Haven: rev. ed. 1937), 318-319.
\1420\Jointly
introducing the amendment to substitute
``declare'' for ``make,'' Madison and Gerry noted the change would
``leav[e] to the Executive the power to repel sudden attacks.'' Id.,
318.
\1421\Connecticut
originally voted against the amendment to
substitute ``declare'' for ``make'' but ``on the remark by Mr. King
that
`make' war might be understood to `conduct' it which was an Executive
function, Mr. Ellsworth gave up his opposition, and the vote of
Connecticut was changed. . . .'' Id., 319. The contemporary and
subsequent judicial interpretation was to the understanding set out
in
the text. Cf. Talbot v. Seeman, 1 Cr. (5 U.S.), 1, 28 (1801) (Chief
Justice Marshall: ``The whole powers of war being, by the Constitution
of the United States, vested in congress, the acts of that body alone
can be resorted to as our guides in this inquiry.''); Ex parte Milligan,
4 Wall. (71 U.S.) 2, 139 (1866).
\1422\Messages
and Papers of the Presidents, J. Richardson ed.
(Washington: 1896), 326, 327.
\1423\7
Works of Alexander Hamilton, J. Hamilton ed. (New York:
1851), 746-747.
\1424\2
Stat. 129, 130 (1802) (emphasis supplied).
\1425\Of
course, Congress need not declare war in the all-out
sense; it may provide for a limited war which, it may be, the 1802
statute recognized. Cf. Bas v. Tingy, 4 Dall. (4 U.S.) 37 (1800).
\1426\The
Prize Cases, 2 Bl. (67 U.S.) 635 (1863).
\1427\12
Stat. 326 (1861).
\1428\The
Prize Cases, 2 Bl. (67 U.S.) 635, 669 (1863).
\1429\Id.,
682.
\1430\The
Protector, 12 Wall. (79 U.S.) 700, 702 (1872).
\1431\The
controversy, not susceptible of definitive resolution
in any event, was stilled for the moment, when in 1973 Congress set
a
cut-off date for United States military activities in Indochina, P.L.
93-52, 108, 87 Stat. 134, and subsequently, over the President's veto,
Congress enacted the War Powers Resolution, providing a framework for
the assertion of congressional and presidential powers in the use of
military force. P.L. 93-148, 87 Stat. 555 (1973), 50 U.S.C.
Sec. Sec. 1541-1548.
\1432\In
Atlee v. Richardson, 411 U.S. 911 (1973), aff'g. 347 F.
Supp. 689 (E.D.Pa., 1982), the Court summarily affirmed a three-judge
court's dismissal of a suit challenging the constitutionality of United
States activities in Vietnam on political question grounds. The action
constituted approval on the merits of the dismissal, but it did not
necessarily approve the lower court's grounds. See also Massachusetts
v.
Laird, 400 U.S. 886 (1970); Holtzman v. Schlesinger, 414 U.S. 1304,
1316, 1321 (1973) (actions of individual justices on motions for stays).
The Court simply denied certiorari in all cases on its discretionary
docket.
\1433\E.g.,
Velvel v. Johnson, 287 F. Supp. 846 (D.Kan. 1968),
aff'd sub nom. Velvel v. Nixon, 415 F.2d 236 (10th Cir., 1969), cert.
den., 396 U.S. 1042 (1970); Luftig v. McNamara, 252 F. Supp. 819 (D.D.C.
1966), aff'd 373 F.2d 664 (C.A.D.C. 1967), cert. den., 389 U.S. 945
(1968); Mora v. McNamara, 387 F.2d 862 (D.C.Cir., 1967), cert. den.,
389
U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970),
and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and
aff'd, 443 F.2d 1039 (2d Cir., 1971), cert. den., 404 U.S. 869 (1971);
Massachusetts v. Laird, 451 F.2d 26 (1st Cir., 1971); Holtzman v.
Schlesinger, 484 F.2d 1307 (2d Cir., 1973) cert. den., 416 U.S. 936
(1974); Mitchell v. Laird, 488 F.2d 611 (D.C.Cir., 1973).
During the 1980s, the courts
were no more receptive to suits,
many by Members of Congress, seeking to obtain a declaration of the
President's powers. The political question doctrine as well as certain
discretionary authorities were relied on. See, e.g., Crockett v. Reagan,
558 F.Supp. 893 (D.D.C. 1982) (military aid to El Salvador), affd.
720
F.2d 1355 (D.C.Cir. 1983), cert. den., 467 U.S. 1251 (1984); Conyers
v.
Reagan, 578 F.Supp. 324 (D.D.C. 1984) (invasion of Grenada), dismd.
as
moot, 765 F.2d 1124 (D.C.Cir. 1985); Lowry v. Reagan, 676 F.Supp. 333
(D.D.C. 1987) (reflagging and military escort operation in Persian
Gulf), affd. No. 87-5426 (D.C.Cir. 1988); Dellums v. Bush, 752 F.Supp.
1141 (D.D.C. 1990) (U.S. Saudia Arabia/Persian Gulf deployment).
\1434\For
further discussion, see under section on President's
commander-in-chief powers.
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