From the Gulf of Tonkin to Syria: The Limits of Legislative Entrenchment in AUMFs
VJTL guest blogger Sam Kleiner is a student at Yale Law School, where he serves as an editor on the Yale Journal of International Law. He has a BA from Northwestern University and a DPhil from Oxford in International Relations.
Overview: When Presidents want to take unpopular actions, such as starting a military conflict, they oftentimes will seek Congressional support as a mechanism to entrench Congressional support if the policy fails. This Comment combines an in-depth case study of the Gulf of Tonkin Resolution and analysis of the Obama administration’s decision to seek Congressional support for potential airstrikes in Syria to argue that legislative entrenchments don’t work in the context of using military force. Congressional leaders can invoke the haste and secrecy involved in the process as a basis to sever their earlier support for an authorization to use military force. While scholars such as Eric Posner and Adrian Vermeuele have emphasized the power of legislative entrenchments, this Comment argues that a Congressional resolution will pose only a limited restraint on subsequent Congressional opposition to the conflict. Resolutions supporting the use of war are weak legislative entrenchments.
When President Obama in September 2013 asked Congress to pass a resolution supporting strikes in Syria, he made sure that he was reserving the Constitutional authority to carry out strikes to the President alone.[i] In the administration’s framing, the authorization for use of military force (AUMF) was an expression of political support for the strikes, and the President can use force beyond the time frame set forward in them.[ii] Obama may have been seeking to share responsibility with Congress in case the strikes went poorly.[iii] While the strikes didn’t occur, the debate raised the question of when the President should go to Congress for a resolution.
Seeking a resolution in such a circumstance is a form of creating a “legislative entrenchment.”[iv] A legislative entrenchment is “the enactment of either statutes or internal legislative rules that are binding against subsequent legislative action in the same form.”[v] When a legislative entrenchment is created, a later Congress will have a difficult time undoing the commitment of an earlier Congress because of the statute enacted by the earlier Congress. The resolutions build “commitments” from Congress to a policy.”[vi] By placing Congressional will on the record, the President can gain “predictability” and “stability” from Congress.[vii]
While scholars debated the question of whether the Constitution required the resolution, the more important question was whether or not the resolution would actually have secured its objective, in Obama’s own framework, of building a legislative entrenchment.
This Comment uses a study of the Gulf of Tonkin resolution to argue that the President cannot effectively entrench Congressional support for a use of military force when he asks for a resolution during a crisis. If Congress signs onto a resolution, they will invoke the haste and limited amount of information they received during the crisis as justifications for why the fault lies with the President.
While much of the scholarship on the Gulf of Tonkin resolution has been haphazard,[viii] this Comment builds on original archival research to demonstrate that the resolution was an attempt by the Johnson administration to entrench Congressional support for the war without ceding the President’s Constitutional power to use military force.
Part 1 argues that the Johnson administration decided to seek a resolution to lock in Congressional support for the war but decided to wait for an incident that would minimize Congressional opposition. Part 2 argues that that the resolution was ineffective for creating legislative entrenchment because senators, including William Fulbright, claimed that they had been forced into a resolution that they neither agreed with nor understood during the haste of the crisis. In Part 3, the Comment argues that the President’s ability to create legislative entrenchment is limited on resolutions concerning the use of force that are created during a crisis. As is the case with Syria, Congressional leaders will argue that they lack enough information to make a decision, and then they will be able to use that argument to sever their support for the use of force if the operation goes poorly.
The Comment expands our understanding of the history behind the Gulf of Tonkin Resolution and aptly applies it to an ongoing debate about Executive power. The note does not seek to make a Constitutional claim about the nature of the President’s power as Commander-in-Chief. Rather, it directly addresses the political strategy under-girding why a President may seek Congressional support for a risky use of military force.
Part I: The Gulf of Tonkin Resolution’s Objective of Legislative Entrenchment
The Gulf of Tonkin Resolution was carefully created by the Johnson administration as a form of political support for the war. It was designed expressly to offer Congressional support, rather than authorization, for the conflict.
A) Developing a Resolution
In June 1964, Johnson called for a meeting with his top national security advisers in Honolulu to discuss the new Vietnam strategy and to consider the possibility of a Congressional resolution.[ix] Throughout the spring, Johnson had been pressing his aides to come up with a Congressional resolution. Jack Valenti, the Press Secretary, said that Johnson wanted “something in writing at some point. He wanted to go to the Congress and get the Congress to approve and to authorize the Southeast Asia adventure.”[x] Johnson told his aides that if he was still in the Senate “the idea of some president doing this without getting the Congress to come aboard—by God, Lyndon Johnson would have torn his balls off.”[xi]
Johnson assigned William Bundy at the State Department to get a draft ready, but Johnson was still hesitating on the timing. The President thought that pushing the resolution “would undermine his chances of getting the civil rights bill passed and might cause his defeat in the presidential election,” as Robert Dallek notes.[xii] While there was a consensus at the Honolulu conference that the President should go to Congress to get support, the decision was to wait for a more opportune moment.
Bundy delivered a memorandum arguing that the resolution should be designed to gain support from the Senate’s Democrats in a way that would place them in line with the administration’s policies. The resolution would be a “demonstration of US firmness” and serve as the basis “for complete flexibility in the hands of the Executive in the coming political months,” as Bundy said.[xiii] The “resolution must support any action required” by the President while still emphasizing “our peaceful objectives” in order to win over moderate Democrats such as “Senator Mansfield and Senator Aiken and leave ourselves with die-hard opposition mainly from Senator Morse and his very few cohorts,” Bundy argued.[xiv] Bundy was preparing a resolution that would hand the President the long-term ability to use force without Congressional oversight while packaging it in a manner in which it would encounter only minimal Congressional criticism. The resolution would not reflect a “desire for a blank check” but a political sensibility in which Johnson could not “ignore the realities ahead during an election period.”[xv]
The Johnson administration maintained throughout the period that it had the Constitutional power to carry out strikes without going to Congress. McGeorge Bundy, the National Security Adviser, was adamant that no Congressional authorization was needed.[xvi] Without Congressional authority, the White House could encourage a strategy of “reasonably broad planning authority within which operating officers would be encouraged to work with a relatively free sense” of their power to use force.[xvii] This policy would “not preclude a shift to a higher level of action if actions of the other side should justify it or require it.”[xviii] The administration established the Constitutional authority to use force without Congressional authorization while keeping open the possibility of a Congressional resolution for political reasons.
As his administration prepared to obtain a resolution, Johnson was thinking of it as a political strategy to contain later outrage from Congress. Johnson believed that he had the authority to use military force but he had seen as a young congressman how Truman’s decision to avoid obtaining a Congressional resolution had been politically dangerous because the war’s failure could be blamed solely on Truman.[xix] Johnson later recalled how Senator Taft had opposed the intervention and noted that Truman “should have asked the Congress not necessarily for a declaration but for an opinion—for a resolution.”[xx]
B) The Gulf of Tonkin Incident and a Resolution
On August 2, 1964, the U.S.S. Maddox sent a radio message that it was under attack from North Vietnamese torpedo boats in international waters. While historians have questioned whether the U.S. Navy initiated that engagement, Johnson was furious and ordered U.S. naval ships deployed into North Vietnamese waters. In the early hours of August 4, the U.S.S. Maddox and the U.S.S. Turner Joy reported that they had been under attack. Despite officers questioning the validity of the second attack, the administration ordered ‘Operation Pierce Arrow’ to conduct reprisals against North Vietnamese torpedo boat bases and an oil-storage depot.[xxi]
More importantly, Johnson decided to use the opportunity to finally push through a Congressional resolution. This was the incident he had been waiting for. On the evening of August 4, Johnson called for a meeting with leaders from the Senate to discuss the situation and to introduce the resolution that he wanted them to pass.[xxii]
The Senate was largely resistant of having to be forced into signing on to the war and argued that using force was already within President’s power. Senator Hickenlooper argued, “There should be no doubt as to whether the President should have the right to order the Armed Forces into action. [We] should not have to quarrel for weeks as to whether he had the authority or not.”[xxiii] If Johnson felt the need to have a resolution, Hickenlooper said that “it is up to the President to prepare the kind and type of resolution he believes would be proper. It is up to Congress to say whether they will pass it or not. I have no doubt in my mind that concrete action would be taken.”[xxiv] The Senators were convinced that the President had the Constitutional authority to launch military action without any Congressional resolution.
Johnson told the Congressional leaders that he wanted to “to keep the Congress informed, to keep them in place, and to keep them in agreement with what our action should be there in case of contingencies.”[xxv] The resolution did not ask for their authorization but instead said that under U.S. obligations in the Southeast Asia Treaty Organization, the “United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force” in the conflict.[xxvi]
C) Passing the Resolution
When the bill was introduced in the Senate, the White House’s allies defended it. Senator William Fulbright was one of the administration’s strongest defenders. When Senator Cooper asked, “Are we now giving the President advance authority to take whatever action he may deem necessary respecting South Vietnam and its defense or with respect to the defense of any other country included in the SEATO treaty?,” Senator Fulbright replied, “I think that is correct.”[xxvii] Cooper, agitated by the answer, inquired, “If the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution,” and Senator Fulbright succinctly replied, “That is the way I would interpret it.”[xxviii]
Johnson knew that Congressional support for the war would wane, as it had in the Korean War, and he wanted the resolution to bind Congress to support him. On his transcript of the meeting with Congressional leaders where they pledged their support for the Gulf of Tonkin Resolution and the war in Vietnam, Johnson scribbled, “Put that on my desk, I’ll need it every day.”[xxix]
Part II: The Congressional Backlash
As the war in Vietnam escalated, with a bombing campaign and a major increase in troop levels, the Congressional leadership began to demand a higher level of Congressional authorization. Democratic Senators, primarily Mike Mansfield and William Fulbright, began to turn on the Johnson administration as it became increasingly clear that the administration was unwilling to cooperate with them in a quest to seek peace in Vietnam.[xxx] Fulbright severed cooperation with the White House in 1965.[xxxi]
The administration’s attempt to bind Congress in support of the war failed. In building his case against the war, Fulbright had to escape from the fact that he had voted for the Gulf of Tonkin Resolution and been one of the administration’s most vocal supporters. He argued that he had been “hoodwinked” into voting for the resolution and that, “Insofar as the consent of this body is said to derive from the Gulf of Tonkin Resolution, it can only be said that the resolution, like any other contract based on misrepresentation, in my opinion, is null and void.”[xxxii] In distancing himself from his vote, Fulbright relied on the speed of passing the resolution. The Johnson administration’s objective of creating legislative entrenchment through a resolution had failed.
Part III: The Limits of Legislative Entrenchment
The Executive frequently seeks to entrench Congress to foster Congressional support for potentially unpopular policies, such as a use of military force. Scholars such as Posner and Vermeule argue that this can be an effective strategy for the administration to build a “commitment” from Congress for the policy.[xxxiii]
However, this Comment demonstrates that the strategy may not actually be effective. When the President seeks authorization for a conflict in the middle of a crisis, the Congress is later able to invoke the limited information and the haste as reasons to distance themselves from Congressional support for the war.
If the President seeks to build legislative entrenchment for a use of force, the Executive should seek a resolution at a time preceding any major crisis. While the Executive prefers to pass legislation in the midst of a crisis that makes Congressional dissent difficult, this limits the law’s legislative entrenchment.
[i] President Barack Obama, Remarks at the Rose Garden (Aug. 31, 2013)
[ii] Jack Goldsmith, It is Hard to Write an AUMF, Lawfare (Sep 3, 2013, 8:24 AM), http://www.lawfareblog.com/2013/09/it-is-hard-to-write-an-aumf/
[iii] Peter Grier, Syria Airstrike: Can Obama Persuade Congress to Share Responsibility? Christian Science Monitor, Sep, 4, 2013.
[iv] See, Eric Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L.J, 1665, (2001).
[v] Id. at 1667.
[vi] Id. at 1671.
[vii] Id. at 1672.
[viii] Even the definitive Constitutional history of the war, John Hart Ely’s War and Responsibility ignored archival sources on the creation of the resolution, see John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath 15-16 (1993).
[ix] Robert Dallek, Flawed Giant: Lyndon Johnson and His Times, 1961-1973 105 (1998).
[xii] Id. at 106.
[xiii] Memorandum from William Bundy “On the Southeast Asia Situation: Probable Development and the Case for a Congressional Resolution,” 6 (June 12, 1964), (on file with Lyndon Johnson Library).
[xiv] Id. at 7.
[xv] William Bundy, “Basic Themes in Presenting the Resolution,” 13 June 1964. Lyndon Johnson Library: National Security File, Vietnam; Box 54.
[xvi] McGeorge Bundy, Elements of a Southeast Asian Policy that Does Not Include a Congressional Resolution, (June 16 1964), in Foreign Relations of the United States: Vietnam 1964, 516, 516 (2001).
[xix] Robert Caro, Master of the Senate 307 (2009)
[xx] Lyndon Johnson, Press Conference, Miller Center Presidential Archives (Aug. 19, 1967) available at http://millercenter.org/president/speeches/detail/5919.
[xxii] “Notes of the Leadership Meeting, White House,” Aug. 4 1964 in Foreign Relations of the United States: Vietnam 1964, 615, 615 (2001).
[xxvi] Gulf of Tonkin Resolution, Pub. L. No. 88-408 § 2 (1964).
[xxvii] Ely, supra note 1, at 18.
[xxix] Leadership Meeting, supra note 17.
[xxx] William Fulbright, Foreword to Michael Glennon, Constitutional Diplomacy, i, xiii (1990).
[xxxi] Randall Woods, Fulbright: A Biography, 384 (1995).
[xxxii] Ely, supra note 1, at 19.
[xxxiii] Posner & Vermeuele, supra note 4, at 1671.