THE
AT WAR
CONSTITUTION
War powers during
the Johnson Years
BY ALI S. ZAIDI
DEPARTMENT OF GOVERNMENT
THE UNIVERSITY OF TEXAS AT AUSTIN
Winner of the 2021 William Jennings Bryan Prize for best undergraduate thesis
Dr. Michael Mosser: “I find Ali’s thesis to be a great example of “old school” diplomatic history/political science…
in terms of quality of writing and research, it stands above the others”
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LBJ Library video, MP891. December 1967.
SYNOPSIS
Despite the dramatic rise in the use of military force by the United States in the twentieth century, presidents have asked for a congressional declaration of war only twice in this period and have increasingly asserted their own powers as commander-in-chief. The changing character of war, and the global presence of the United States as a military superpower, have both complicated the question of war powers and underscored its immense importance. In the course of the erosion of shared responsibility for war as envisioned by the Constitution, the passage of the Gulf of Tonkin resolution stands as a watershed moment in the consolidation of war powers in the executive, shifting war-making prerogatives from Congress to the president. Any study of the modern constitutional crisis concerning war powers, therefore, must come to terms with the largest military engagement of the last sixty years: the Vietnam War.
Second, the Johnson administration’s interpretation of the war powers conferred to the president, as well as Congress’ approach to war-making during the Johnson years, represent the highwater mark of a postwar transformation of American constitutionalism. Despite the passage of the War Powers resolution in 1973—in response to the prosecution of the Vietnam War—the theory of presidential power developed over these years became the authoritative view that presidents and proponents of strong executive power maintain till today. As such, the Johnson years provide an invaluable study in order to understand the present.
The purpose of this paper is narrow: to account for how President Johnson used the Gulf of Tonkin resolution, paired with congressional cooperation and abdication, in order to expand and consolidate war powers in the executive branch. Rather than engaging strictly in a historical or legal accounting of the Vietnam War, as numerous efforts have done in great depth, this paper seeks to reconcile the constitutional questions concerning war with the actual functioning of government in prosecuting war during the Johnson years. Through such examination, this paper seeks to answer whether President Johnson acted without Congress and usurped powers not sanctioned to him or to his office by the Constitution.
To be sure, this paper is not the first to explore the constitutionality of the military intervention in Vietnam, but nevertheless is distinctive on two fronts. First, robust scholarship about war powers within our constitutional framework is notoriously difficult. A proper and honest accounting of war powers requires a thorough understanding of the internal deliberations within the White House and Congress. Throughout the history of the United States, sufficiently detailed records have evaded historians, with one exception—Lyndon B. Johnson. President Johnson preserved extensive records of administration papers throughout his time in the White House, as well as recorded most of his phone calls with aides, cabinet secretaries, and congressional leaders. Thanks to historical happenstance, the breadth of these archives remain unique—before Johnson’s presidency, technological limitations precluded the possibility of such extensive records, while after Johnson’s presidency the Watergate Scandal guaranteed a swift death to the brief existence of recording devices within the Oval Office. Accordingly, though much ink has been spilled about the constitutionality of the war in Vietnam, nearly all such scholarship was written contemporaneously to the conflict—before the unsealing of the vast Johnson archives.
We Americans know, although others appear to forget, the risks of spreading conflict. We still seek no wider war.
President Lyndon B. Johnson
LBJ Library photo by Yoichi Okamoto
The Paper
This Website
This website serves as a supplement to the overall project, that can be found in full here, in order to display the rich and important archival sources that are foundational to this paper. President Lyndon Johnson's lively personality paired with his commitment to record keeping for the future provide a unique as well as an invaluable insight into understanding the practical functioning of executive war powers throughout the Vietnam War.
Though many legal scholars wrote about the topic contemporary to LBJ, they lacked access to vast archives that have only recently become fully open to the public and paint a more complete picture of how the Administration and how Congress approached war powers. As such, this website seeks to share some of the key documents and sources found within the archives in the sincere hope that they may guide and assist future scholarship.
All sources can be found at the Lyndon B. Johnson Library in Austin, TX and are cited as appropriate. The staff and archivists at the LBJ Library have been instrumental to the completion of this effort.
LBJ Library photo by Yoichi Okamoto
It is all here: the story of our time with the bark off...This library will show the facts, not just the joy and triumphs, but the sorrow and failures, too.
Audio Resources
all phone calls are sourced from Recordings and Transcripts of Telephone Conversations and Meetings, LBJ Presidential Library
Ahead of testifying before Congress, Secretary McNamara discusses his testimony with President Johnson. Johnson counsels McNamara that he is likely to get questions about the Gulf of Tonkin resolution and the authority that he believes it conferred. McNamara points to earlier testimony made by Secretary of State Dean Rusk that he thought was effective at addressing war power questions. Johnson proceeds to coach McNamara about what to say about the resolution and about the "inherent powers of the commander-in-chief."
First referenced in Section II, page 37
President Johnson checks Majority Leader Mike Mansfield's temperature on LBJ's wartime constitutional authorities to see if he was moved by Fulbright's arguments in the Senate. He emphasizes to Mansfield that he should shut down any discussions questioning his authority as they could not have soldiers deployed in Vietnam "in doubt about my ability as commander-in-chief." Mansfield affirms LBJ's authority as Commander-in-Chief as well as under the Gulf of Tonkin Resolution.
First referenced in Section III, page 69.
President Johnson speaks with Senator Russel Long concerning an effort by Senator Wayne Morse, possible endorsed by Fulbright, to rescind the Gulf of Tonkin Resolution. Johnson walks through the Resolution clause-by-clause to explain that "anyone that can read or write" knows what the Resolution met. He characterized efforts to question his constitutional authority as cowardly, exclaiming "don't be a chicken, be an American!"
First referenced in Section II, page 56.
Documentary Resources
all documents are sourced from the Vietnam, National Security File, LBJ Presidential Library
LBJ Library photo by Yoichi Okamoto
Memorandum for the President
written by Leonard C. Meeker (Legal Adviser at State Department)
June 24, 1964
Vietnam Country File, National Security File, LBJ Presidential Library.
In June of 1964, two preliminary memos produced by Walt P. Rostow at the State Department and McGeorge Bundy at the White House were sent to Leonard C. Meeker to be put in the form of full legal memo for President Johnson's direct review. The lengthy memo is organized by points, each addressing an aspect of legal authority over war that the president is already furnished with under the Constitution.
Produced before the Gulf of Tonkin incident, the Meeker advances a broad interpretation of executive power over war, asserting that no supplemental congressional authority whatsoever was needed if the president authorized armed action in Vietnam.
First referenced in Section II, page 43.
President's Authority to Send American Troops to Viet-Nam
written by Leonard C. Meeker (Legal Adviser at State Department)
April 6, 1965
Vietnam Country File, National Security File, LBJ Presidential Library.
In 1965, President Johnson intended to escalate the U.S. presence in Vietnam to include up to 95,000 ground forces. The critical question was sent to Leonard Meeker at the Department of State’s Office of the Legal Adviser: Did the President have the authority under the Constitution and Gulf of Tonkin Resolution without having to seek further congressional approval. In this memo, Meeker, a methodical lawyer as any, laid out that there are “four aspects of the question of presidential authority” that must be considered. First, does the President have the unilateral power to send soldiers into combat? Second, what does the Gulf of Tonkin resolution authorize or empower President Johnson to do? Third, does the President need to consult with Congress before deploying combat troops to the region? And fourth, would the President need a declaration of war from Congress in order to send combat troops to Vietnam?
First referenced in Section II, page 56.
Legality of U.S. Participation in the Defense of Viet-Nam
produced by the Department of State
March 4, 1966
Vietnam Country File, National Security File, LBJ Presidential Library.
Ahead of the Fulbright Hearings in 1966, Secretary of State Dean Rusk had his staff proliferate a baby blue pamphlet amongst members of the Senate Committee on Foreign Relations. Annotated copies of this pamphlet can be found both in the files of Walt P. Rostow and Nicholas Katzenbach.
The memo lays out, in brief paragraphs, every legal argument in defense of the legality of the U.S. involvement in Vietnam, both under domestic laws as well as under international law. As a whole, it largely outlines the testimony Rusk later delivered before the Fulbright committee.
First referenced in Section III, page 73.
LBJ Library photo by Yoichi Okamoto
LBJ Library photo by Jack Kightlinger
Serial Number: B1274-16
The last thing I wanted to do was to be a wartime President.
President Lyndon B. Johnson
Video Resources
all videos are sourced from the LBJ Presidential Library
Finally, I have today met with the leaders of both parties in the Congress of the United States and I have informed them that I shall immediately request the Congress to pass a resolution making it clear that our Government is united in its determination to take all necessary measures in support of freedom and in defense of peace in southeast Asia.
President Johnson
In one of the most memorable political ads of the last hundred years, an LBJ commercial shows a little girl standing in a field counting the petals off of a flower as the numbers quickly transition into a countdown of a nuclear detonation. The ad captured the existential security threat that was pervasive throughout the Cold War.
These are the stakes, to make a world in which all of God's children can live or to go into the dark. We must either love each other or we must die.
President Johnson
The Author
Ali S. Zaidi is a graduating Liberal Arts Honors senior at the University of Texas at Austin where he is double majoring in Government and Middle Eastern Studies. As a Thomas Jefferson Scholar, he has focused on constitutional law and theory over his undergraduate education.
Professionally, he has actively worked in politics throughout his education at the State Capitol, for Biden for President, and currently as the Deputy Campaign Manager for Mike Collier for Texas Lieutenant Governor.
He will be graduating in May of 2021 with Highest Honors and as a member of Phi Betta Kappa.
This work was generously supported by grants and scholarships awarded by the UT College of Liberal Arts, the University of Texas Office of Undergraduate Research, and the Liberal Art Honors program at UT Austin.
LBJ Library photo by Yoichi Okamoto
@AliZaidiTX