The Historical Battle Over DISPATCHING AMERICAN TROOPS.

• Author: LEAHY, STEPHEN M.

Ignoring Congress' constitutional role, presidents continue to dispatch troops first and ask for approval later. The NATO military action against Yugoslavia put the issue on the front burner again.

UNDER THE WAR POWERS clauses of the Constitution, who has the power to dictate when American soldiers should fight--and die? Since the creation of the Republic, presidents and Congress have fought over who should control the power to involve the nation in war. This debate assumed a new form after World War II. Increasingly after 1950, politicians endorsed a bipartisan foreign policy which, in effect, ceded the leadership role to the president and a consultative role to Congress.

This relationship first was challenged directly during the Vietnam War era. As did his predecessors--Pres. Harry Truman (in 1950 concerning Korea) and Pres. Lyndon Johnson (in 1965 about Vietnam)--when ordering the 1970 invasion of Cambodia, Pres. Richard Nixon argued that, as Commander-in-Chief, he possessed the authority to commit troops into combat. Nixon's action motivated Congress to enact the War Powers Resolution in 1973 to assert its formerly dominant foreign policy role. While the courts have not ruled on the constitutionality of its proposed limits, the law effectively has institutionalized the bipartisan foreign policy.

The War Powers Resolution inevitably involved a debate over the meaning of two complementary (if not conflicting) provisions of the Constitution. Under it, Congress is empowered "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" and "To make rules for the Government and Regulation of the,land "and naval forces," while the president "shall be Commander-in-Chief of the Army and Navy of the United States." These seemingly complementary provisions have provoked debate over the scope of presidential prerogative, and specifically whether presidents unilaterally can commit troops into military conflicts ostensibly to preserve the nation.

Complicating this debate, the Federalist Papers--and many Supreme Court rulings --seem to support three contradictory interpretations on this claimed prerogative. One is that the Constitution supports the president's right to commit troops into combat. Another view denies any such ability to involve U.S. armed forces in any conflict without a Congressional declaration of war. A final view argues that the Constitution forbids any unqualified presidential power, but practicality dictates that the president must act during emergencies.

World War II and the Cold War eventually led to acceptance of the third interpretation. Because of revolutions in communications and armaments, crises and wars could break out at a moment's notice. Consequently, American legislators adopted what Sen. Arthur Vandenberg (R.-Mich.) called "the bipartisan foreign policy." In theory, a president informally should consult with Congress before considering military action. During a crisis, the president should act and Congress uncritically should support the nation's leader. (In April, 1999, Congress denied Pres. Clinton such support after he committed U.S. air power to the Balkans.) The U.S. needed to demonstrate its determination to prevail in any situation. Opposition would undermine confidence in the president and thereby harm the national security. According to this way of thinking, politics had to "stop at the water's edge."

In practice, the bipartisan foreign policy for a time reduced Congress to rubber-stamping presidential decisions. In 1954-55, the People's Republic of China shelled two offshore islands, Quemoy and Matsu, occupied by the Republic of China (Nationalist China, or Taiwan). As Congress went into session in 1955, Pres. Dwight Eisenhower asked for a "fight if we must" resolution. After one day of hearings, Congress quickly authorized the President to use force to defend those islands.

When Great Britain abandoned its historic role in the Middle East after 1956...