Congressman Ted Weiss called the recent Foley Amendment ostensibly limiting the use of U.S. combat forces in Nicaragua a “blueprint for American involvement” and compared it with the 1964 Gulf of Tonkin resolution legitimizing American involvement in Vietnam. Unfortunately, that comparison is accurate. Both unconstitutionally delegate to the President the authority to determine when the U.S. goes to war.
In effect, the Amendment sets forth a series of exceptions to its prohibition which would give the President a green light to invade Nicaragua. These exceptions include a clear and present danger of an attack by Nicaragua on U.S. allies (there need not even be an attack), Nicaragua’s obtaining of fighter planes, the protection of American citizens and acts of terrorism.
The dangers of this proposed legislation are readily apparent. The recent claim by the U.S. that Nicaraguan soldiers while in pursuit of contras attacked Costa Rica could, if the President desired, lead to a full-scale war against Nicaragua. This could be accomplished without any consultation, much less authorization, from Congress. Once again, as with the Vietnam war, the people of the United States could, at the behest of the President, find themselves in a long, drawn out, and bloody war.
Members of Congress have apparently learned little from history. The Gulf of Tonkin Resolution authorized the President to take necessary measures to repel an armed attack against U.S. forces and to use armed force “to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.” For a period of six years this resolution was the principal authority relied on by the President to wage war. Only two Senators and no representatives voted against the Resolution. One of the two, Senator Wayne Morse, complained at the time of passage that it provided the Executive with a “predated declaration of war” and warned of an “historic mistake” that subverted and circumvented the Constitution of the United States.” Likewise, the Nicaragua legislation provides the President, contrary to the Constitution, with a “predated declaration of war.”
There is a striking parallel between the sentiment in Congress now and those at the time of the passage of the Gulf of Tonkin Resolution. In 1964 feelings ran high because of an alleged attack on U.S. destroyers by Vietnam. “There is a time to question the route of the flag, and there is a time to rally around it, lest it be routed,” said Senator Frank Church in a Senate speech approving of the Resolution. Today, members of Congress speak of “trampling the flag in Beirut” and “killing American marines in El Salvador.” [Cong. Duncan L. Hunter].
Such sentiments and breast-beating should not lead Congress to discard the Constitutional requirement that Congress is to “declare war and grant letters of marque and reprisal.” This clause gives Congress virtually exclusive power to initiate war, whether declared or undeclared, all out or limited. Had the Framers wished this power given to the Executive they would have so stated. Even the mention of executive-initiated wars led one delegate to the Constitutional Convention, Mr. Elbridge Gerry, to declare that “he never expected to hear, in a republic, a mention to empower the Executive alone to declare war.”
Yet this is precisely what the legislation passed by the House does: it delegates the President the power to initiate war in circumstances which the Constitution forbids. Only in one instance under the Constitution can the President initiate war-to repel sudden attacks on the United States.
The reasons that the Framers insisted that the power to initiate war rest with Congress have continuing validity today. War posed dangers to the nation and raised serious moral and legal issues. It was felt that Congress would be less likely to get the country involved in unwise wars than the President who might enter conflicts for self-aggrandizement. Requiring joint action of both Houses would make initiation of war more difficult and be more likely to ensure that wars were initiated with broad public support. As George Mason, one of the Framers, stated, he was “for clogging rather than facilitating war.”
We have come to a sad state of affairs in this nation. There has been a complete and dangerous reversal of the Constitutional scheme. The President initiates war and Congress, usually in vain and too late, tries to stop it.
Now we are poised on the edge of another Vietnam. This last vote gives the President the blank check he has been seeking. All that now remains is for the President to find an excuse to take advantage of Congress’ surrender of its power to declare war.