Article 1, Section 8, Clause 1 — Post Cold War Presidential Authority And Persian Gulf War Of 1991

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Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

After the end of the Vietnam War and enactment of the War Powers Resolution, Presidents continued to claim constitutional authority to introduce troops into hostile circumstances without congressional authorizations. In the period between the close of the Vietnam War and the First Persian Gulf War, examples include:

• President Gerald Ford’s evacuation of individuals from Vietnam and Cambodia despite Vietnam-era appropriations restrictions;[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn1art1 " Letter from President Gerald R. Ford to the Speaker of the House (Apr. 30, 1975), in War Powers: A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon, and the Mayaguez Incident: Hearings Before the Subcomm. on International Security and Scientific Affairs of the H. Comm. on International Relations, 94th Cong. 7 (1975) [hereinafter Test of Compliance Hearings]; Letter from President Gerald R. Ford to the Speaker of the House (May 15, 1975), in Test of Compliance Hearings, supra, at 76;

  Introduction & Summary to Opinions of the Off. of Legal Couns. Relating to the Iranian Hostage Crisis,

  4A U.S. Op. O.L.C. 71, 74 (1984)
  . ")

  Introduction & Summary to Opinions of the Off. of Legal Couns. Relating to the Iranian Hostage Crisis,

  4A U.S. Op. O.L.C. 71, 74 (1984)

  .

• President Jimmy Carter’s order to rescue hostages held in the American Embassy in Tehran;[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn2art1 " Letter from President Carter to Hon. Thomas P. O’Neill, Jr., Speaker of the U.S. House of Representatives (Apr. 26, 1980), in Use of U.S. Armed Forces in Attempted Rescue of Hostages in Iran: Communication from the President of the United States, H.R. Doc. No. 96-303, at 2 (1980). ")

• President Ronald Reagan’s introduction of 1,900 land forces into the Caribbean country of Grenada to protect American citizens during a violent transition in government;[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn3art1 " Letter to the Speaker of the House and the President Pro Tempore of the Senate on the Deployment of United States Grenada (Oct. 25, 1983), >https://www.reaganlibrary.gov/archives/speech/letter-speaker-house-and-president-pro-tempore-senate-deployment-united-states-0. ") and

• President George H.W. Bush’s deployment of 11,000 ground forces into Panama resulting in U.S. forces’ arrest of Panamanian leader Manuel Noriega.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn4art1 " Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Military Action in Panama (Dec. 21, 1989), >https://bush41library.tamu.edu/archives/public-papers/1364. ")

After President Reagan sent a contingent of U.S. forces to Lebanon in 1982 as part of a multinational peacekeeping mission, Congress passed the Multinational Force in Lebanon Resolution, which authorized participation in the mission, but limited that authorization for eighteen months.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn5art1 " Pub. L. No. 98-119 § 6, 97 Stat. 807 (1983). ") President Reagan signed the joint resolution, but noted in a statement that the law should not be interpreted to acknowledge that Congress could intrude on the President’s power to use force beyond statutory time-lines.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn6art1 " Ronald Reagan, Statement on Signing the Multinational Force in Lebanon Resolution, 2 Pub. Papers 1444, 1444 (Oct. 12, 1983). ")

When a contingent of Iraqi forces entered Kuwait in 1990, the U.N. Security Council issued a series of resolutions authorizing countries to take “all necessary means” to force Iraqi withdrawal.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn7art1 " See S.C. Res. 678, ¶ 2 (Nov. 29, 1990). See id. pmbl. ¶ 1 (recalling prior UN Security Council Resolutions concerning the invasion). ") In January 1991, Congress authorized the President to use military force to achieve the Security Council resolutions’ objectives, provided the President determined that diplomatic and other peaceful means were not successful in obtaining compliance with the Security Council’s aims.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn8art1 " Authorization for Use of U.S. Armed Forces Pursuant to UN Security Council Resolution 78 with Respect to Iraq, Pub. L. No. 102-1 § 2, 105 Stat. 3 (1991). ") Although President Bush requested the congressional authorization, he and officials in his Administration also expressed the view that the President possessed constitutional authority for the military action even if Congress had not enacted the resolution.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn9art1 " See The President’s News Conference on the Persian Gulf Crisis, 1 Pub. Papers 17, 20 (Jan. 9. 1991) (statement of President George H. W. Bush) ( “I still feel that I have the constitutional authority—many attorneys have advised me so.” ). See also Crisis in the Persian Gulf Region: U.S. Policy Options and Implications, Hearing the S. Comm. on Armed Services, 101 Cong. 701 (1990) (testimony of then-Secretary of Defense Richard B. Cheney) ( “I do not believe the President requires any additional authorization from Congress before committing U.S. forces to achieve our objectives in the Gulf.” ). ")

President Clinton claimed authority for several military actions overseas, including deployment of up to 20,000 troops in Haiti,[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn10art1 "

. ")

Deployment of United States Armed Forces into Haiti,

18 U.S. Op. O.L.C. 173, 179 (1994)

. multi-year military intervention with air campaigns in Bosnia and Kosovo,[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn11art1 "

; (relying on a combination of constitutional authorities and congressional appropriations). ") and a humanitarian relief mission in Somalia.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn12art1 "

Authority to Use United States Military Forces in Somalia,

16 Op. O.L.C. 6, 6 (1992)

. See also

April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities the President,

42 Op. O.L.C., slip op. at 6 (2018)

(summarizing missions during the Clinton Administration). ") Among other legal rationales, Clinton Administration attorneys opined that these operations were not of sufficient significant nature, scope, and duration to interfere with Congress’s power to declare war.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn13art1 "

Deployment of United States Armed Forces into Haiti,

18 U.S. Op. O.L.C. at 179

;

Deployment of United States Armed Forces into Bosnia,

19 U.S. Op. O.LC. at 331–32

. ") In some cases, the executive branch argued that Congress provided funding or enacted other measures that authorized or contemplated military action.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn14art1 " See

Authorization for Continuing Hostilities in Kosovo,

24 Op. O.L.C. at 346

. ") Congress also exerted some influence over these missions through limitations on appropriations of funds. For example, Congress passed, and President Clinton signed into law without constitutional objections, legislation that set specific end dates after which funds could no longer be used to support the action and limited the scope of some missions during this period.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/post-cold-war-presidential-authority-and-persian-gulf-war-of-1991#fn15art1 " See Pub. L. No.

103-139

§ 8141, 107 Stat. 1418 (1993) (approving use of armed forces for certain purposes, including combat forces in a security role to protect United Nations units in Somalia, but cutting off funding after March 31, 1994, except for a limited number of military personnel to protect American diplomatic personnel and American citizens, unless further authorized by Congress); Pub. L. No.

103-335

§ 8135, 108 Stat. 2599 ( “None of the funds appropriated by this Act may be used for the continuous presence in Somalia of United States military personnel, except for the protection of United States personnel, after September 30, 1994.” ); Pub. L. No.

103-335

tit. IX, 108 Stat. 2599 ( “[N]o funds provided in this Act are available for United States military participation to continue Operation Support Hope in or around Rwanda after October 7, 1994, except for any action that is necessary to protect the lives of United States citizens.” ). See also David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - A Constitutional History, 121 Harv. L. Rev. 941, 1089–90 (2008). ")

Footnotes

1

Letter from President Gerald R. Ford to the Speaker of the House (Apr. 30, 1975), in War Powers: A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon