Congress v. the President

THE more implacable Capitol Hill opponents of the Viet Nam War have for years sought--with no success--to turn the dispute into a conflict pitting Congress's authority to declare war v. the President's right as Commander in Chief to wage war. Now, because the Nixon Administration underestimated the domestic reaction to its Cambodian expedition, doves who have stressed constitutional arguments have the fulcrum they have been looking for.

By failing to inform Congress of his plans, Richard Nixon gained recruits for the opposition, particularly in the Senate. By overreacting to the challenge from a bipartisan group of antiwar Senators, the White House magnified the contest of wills into both a constitutional question and a personal test of confidence in Nixon's leadership. The President has much to lose and almost nothing to gain.

The Senate is the cockpit. This week it is due to vote on the first of two measures aimed at asserting Congress's role in making war--and peace. As approved 9 to 4 by the Senate Foreign Relations Committee last week, the amendment would bar the expenditure of funds for U.S. combat activity in Cambodia after June 30. It would also prohibit financing of American personnel acting "directly or indirectly" in support of Cambodian forces either on Cambodian territory or in Cambodian airspace. The amendment, originally introduced by Republican John Sherman Cooper and Democrat Frank Church, had picked up an additional 30 cosponsors by last week, including Democratic Majority Leader Mike Mansfield and George Aiken, senior Republican on the Foreign Relations Committee.

A far more ambitious measure, drafted by Democrat George McGovern and Republican Mark Hatfield, would set a time limit on U.S. combat in South Viet Nam. As an amendment to the military procurement authorization bill, the McGovern-Hatfield scheme would prevent the expenditure of any funds for U.S. military forces in Viet Nam after Dec. 31, except for one purpose: the "safe and systematic withdrawal" of remaining American units. Money would be cut off altogether after June 30, 1971, though continued aid to the South Vietnamese would be permitted. McGovern-Hatfield would also eliminate support for operations in Cambodia 30 days after the bill's enactment, and in Laos, by Dec. 31. A vote is expected next month.

No Confidence. The Administration vehemently opposes both the Cooper-Church and McGovern-Hatfield amendments. Last week in a closed meeting with G.O.P. Senators, Administration spokesmen argued that any restraint on the President would be a show of no confidence. Next day White House Press Secretary Ronald Ziegler stated Nixon's case strongly and publicly. "The White House feels," he said, "that there should be no restraint on the powers of the President as Commander in Chief, as stated by the Constitution. It is the role of the Commander in Chief to protect the security of forces in the field."

That language might have been appropriate for combatting the sweeping McGovern-Hatfield provision, known as the "amendment to end the war." Actually, there is little chance that even the Senate, where antiwar sentiment is stronger than in the House, will enact the McGovern-Hatfield amendment in its present form. But the Ziegler blast was aimed at the more imminent and modest Cooper-Church measure on Cambodia.

Hence the White House statement widened a dispute that could have been minimized. The Republican Senate leadership was prepared to try to modify Cooper-Church to make it less restrictive. A variation drawn by Minority Leader Hugh Scott would change the amendment so that the President could send forces back into Cambodia if he found it necessary to do so--and if he consulted congressional leaders. After first encouraging this tactic, the White House backed away from it. much to Scott's embarrassment. Republican Senators were irate. Said New Jersey's Clifford Case: "If the President stands on his constitutional rights and seeks a confrontation, as his advisers indicate he will do, then God help the country!"

The constitutional issue is far less clear than it is held to be either by the White House or by antiwar leaders. Article II, Section 2 of the Constitution simply 'states: "The President shall be Commander in Chief of the Army and Navy of the United States . . ." The Constitution is silent regarding the President's powers to deploy forces. Article I, Section 8 gives Congress the authority "To declare War ... To raise and support Armies ... To provide and maintain a Navy; To make Rules for the Government and Regulation of land and naval forces." There is no reference to congressional participation in the direction of forces being used against a foreign adversary. Historically, Presidents have committed forces at their own discretion, as Woodrow Wilson did in Mexico. Truman in Korea and Johnson in the Dominican Republic. Congress has retained the final word as to the size and weaponry of the military establishment, thereby exercising an indirect check on how and where they could be used. Last year Congress went further by barring the introduction of U.S. ground-combat units in Laos and Thailand. Rather than object, the White House said that the restriction was in keeping with Administration policy.

Momentum. If the prohibition concerning Laos and Thailand was not an infringement of the President's power as Commander in Chief, then the constitutional argument concerning Cambodia would seem to be weakened. On the other hand, if restrictions on the President's flexibility were accepted as commonplace, they could proliferate to excess. Both law and common sense dictate that the President respond as quickly as necessary to threats to U.S. security. The air and nuclear age make it impossible for the President to seek congressional approval, formal or otherwise, in every contingency. Because the issues are gray in both legal and military terms, it might be more realistic and less confusing if both the doves and the President foreswore the constitutional issue.

At stake really are politics and psychological momentum. In a period when he is besieged by protest, the President cannot afford an official Senate rebuke, even if the House modified it enough to make it meaningless in material terms. Also, Cooper-Church and McGovern-Hatfield serve as rallying points for the moderate majority of the protest movement. In the upcoming fall congressional elections, the way legislators voted on the amendments will also represent tests by which candidates may be judged on the war issue. From the Administration's viewpoint, then, it would have been far better to keep the amendments in perspective by arguing their merits, rather than inflate them into cosmic questions of power.

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