Effect of a Repeal of the Tonkin Gulf Resolution

Effect of a Repeal of the Tonkin Gulf Resolution
Because the President’s inherent constitutional authority to employ military force abroad depends to a
very considerable extent on the circumstances of the case, and, in particular, the extent to which
such use of force is deemed essential for the preservation of American lives and property or the
protection of American security interests, it is impossible to state in concrete terms the legal effect
of a repeal of the Tonkin Gulf Resolution.
Such a repeal standing alone would not only throw into question the legal basis for certain actions the
President might deem it desirable to take in the national interest, but would also demonstrate to
foreign powers lack of firm national support for the carrying out of the policies set forth in the joint
resolutions.

January 15, 1970

MEMORANDUM FOR THE DIRECTOR
BUREAU OF THE BUDGET

This is in response to your request for the views of the Department of Justice
on S.J. Res. 166, to repeal legislation relating to the use of the armed forces of the
United States in certain areas outside the United States and to express the sense of
the Congress on certain matters relating to the war in Vietnam, and for other
purposes.
Section 1 of S.J. Res. 166 would repeal four joint resolutions which have spe-
cifically or impliedly authorized the use of the armed forces at the discretion of the
President in circumstances not involving a declaration of war by the United States:
1. The joint resolution of January 29, 1955, Pub. L. No. 84-4, 69 Stat. 7, which
authorizes the President “to employ the Armed Forces of the United States as he
deems necessary for the specific purpose of securing and protecting Formosa and
the Pescadores against armed attack.”
2. The joint resolution of March 9, 1957, Pub. L. No. 85-7, 71 Stat. 5, “[t]o
promote peace and stability in the Middle East.” This resolution authorizes the
President to undertake military assistance programs in the general area of the
Middle East and states further that “if the President determines the necessity
thereof, the United States is prepared to use armed forces to assist” any Middle
Eastern nation or group of nations “against armed aggression from any country
controlled by international communism.” Id. § 2. (S.J. Res. 166 would repeal only
section 2 of the joint resolution; however, the other provisions of the resolution
have either been executed or depend for their effect on the continued effectiveness
of section 2.)
3. The joint resolution of October 3, 1962, Pub. L. No. 87-733, 76 Stat. 697,
“expressing the determination of the United States with respect to the situation in
Cuba.”
4. The joint resolution of August 10, 1964, the “Tonkin Gulf Resolution,” Pub.
L. No. 88-408, 78 Stat. 384, which “approves and supports the determination of

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the President, as Commander in Chief, to take all necessary measures to repel any
armed attack against the forces of the United States and to prevent further
aggression,” id., and states further that the United States is prepared, “as the
President determines, to take all necessary steps, including the use of armed force,
to assist any member or protocol state of the Southeast Asia Collective Defense
Treaty requesting assistance in defense of its freedom,” id. § 2.
It should be noted that the repeal would not be effective upon the enactment of
S.J. Res. 166, but upon the sine die adjournment of the 91st Congress.
The proposal to repeal these various statements of policy and grants of authori-
ty raises the question what would be the President’s authority to use the armed
forces in the absence of the legal support provided by these resolutions. No simple
answer can be given. While the Constitution reserves to Congress the authority to
declare war, Presidents have frequently employed military and naval forces abroad
in the absence of a declaration of war, sometimes with and sometimes without an
expression of congressional approval such as those contained in the joint resolu-
tions listed above. To cite a few examples, President Truman’s action in sending
American troops to Korea in 1950 and President Johnson’s action in sending
troops to the Dominican Republic in 1965 were taken without the benefit of any
specific congressional grant of authority. On the other hand, the authority to
conduct the Vietnam War derives, at least in part, from the Tonkin Gulf Resolu-
tion. President Eisenhower’s action in landing troops in Lebanon in 1958 was not
explicitly based on the joint resolution of March 9, 1957, but the existence of the
resolution undoubtedly strengthened the legal and political case for such action.
Presidents have traditionally sought this sort of congressional authority not only
to avoid legal questions in a somewhat shadowy area of constitutional law, but
also to demonstrate to present and prospective antagonists the American people’s
unity of purpose. Thus, in requesting from Congress a resolution regarding the
defense of Formosa, President Eisenhower stated that authority for some of the
actions he might find it necessary to take would be “inherent in the authority of the
Commander-in-Chief,” and that he would not hesitate, in the absence of authority
from Congress, to take emergency action “to protect the rights and security of the
United States.” Special Message to the Congress Regarding United States Policy
for the Defense of Formosa, Pub. Papers of Pres. Dwight D. Eisenhower 207, 209,
210 (Jan. 24, 1955). He added:

However, a suitable Congressional resolution would clearly and pub-
licly establish the authority of the President as Commander-in-Chief
to employ the armed forces of this nation promptly and effectively
for the purposes indicated if in his judgment it became necessary. It
would make clear the unified and serious intentions of our Govern-
ment, our Congress, and our people.

Id. at 210.

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Since the President’s inherent constitutional authority to employ military force
abroad depends to a very considerable extent on the circumstances of the case,
and, in particular, the extent to which such use of force is deemed essential for the
preservation of American lives and property or the protection of American
security interests, it is impossible to state in concrete terms the legal effect of the
repeals proposed by S.J. Res. 166. Then, too, much would depend on whether
Congress, by other policy statements or grants of authority, attempted to fill the
gaps left by the repeals. It seems safe to conclude, however, that the repeals
standing alone would not only throw into question the legal basis for certain
actions the President might deem it desirable to take in the national interest, but
would also demonstrate to foreign powers lack of firm national support for the
carrying out of the policies set forth in the joint resolutions.
Section 2 of S.J. Res. 166 would establish a joint Senate-House committee to
study the matter of terminating the national emergency proclaimed by the
President on December 16, 1950 (Proclamation No. 2914, 64 Stat. A454, 3 C.F.R.
99 (1949–1953)). This proclamation of a national emergency is still in effect and
as a result of the continued existence of this national emergency certain broad
statutory powers are available to the President. For example, the emergency
powers available under section 5(b) of the Trading with the Enemy Act (50 U.S.C.
App. § 5(b)) have furnished the basis for restrictions on trade with Mainland
China, the freezing of Cuban-owned assets, and the Foreign Direct Investment
Program established by Executive Order 11387 of January 1, 1968, 33 Fed. Reg.
47. See Validity of Executive Order Authorizing Program Restricting Transfers of
Capital to Foreign Countries by Substantial Investors in the United States and
Requiring Repatriation by Such Investors of Portions of Their Foreign Earnings
and Short-Term Financial Assets Held Abroad, 42 Op. Att’y Gen. 363 (1968).
We are doubtful that the time is ripe for a termination of the national emerg-
ency declared in 1950. However, S.J. Res. 166 provides only for a study of the
question by a congressional committee, a proposal to which we have no objection
and which, in any event, appears exclusively for Congress to pass upon.
Sections 3, 4 and 5 of S.J. Res. 166 are expressions of policy with regard to
Vietnam and Southeast Asia. They do not involve the responsibilities of this
Department, and we defer to the views of the agencies more directly concerned.

RICHARD G. KLEINDIENST
Deputy Attorney General

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