31 U. Pitt. L. Rev. 205 (1969-1970)
The Vietnam War under the Constitution: Legal Issues Involved in the United States Military Involvement in Vietnam

handle is hein.journals/upitt31 and id is 229 raw text is: THE VIETNAM WAR UNDER THE CONSTITUTION: LEGAL
ISSUES INVOLVED IN THE UNITED STATES MILITARY
INVOLVEMENT IN VIETNAM
by
Stuart S. Malawer*
The question of the legality of the Vietnam conflict has been the subject of a
continuing debate. The legality of American military involvement in Southeast
Asia has been challenged under international law, and the cohstitutionality of
such involvement has been challenged under domestic law. This Article deals
with the latter challenge. The author outlines the arguments on both sides of the
question whether the executive branch has exceeded the limits of its
constitutional authority in committing the nation to war. Following an analysis
of the arguments, the author concludes that the executive has committed the
nation to war without valid congressional authorization, thereby exceeding its
constitutional authority. The author closes with a call for an effective
congressional reassertion of its constitutional power to control the use of force
in foreign affairs.- The Editors.
INTRODUCTION
There has been much criticism of the various aspects of American
policy in Vietnam. The two major areas of controversy concern the
position of the United States under international law, and the
constitutionality of the executive's actions in committing the nation to
war.' This essay reviews the fundamental constitutional arguments and
analyzes their merits. Finally, the status of domestic law in relation to,
and as a result of, the executive's policy in Vietnam is considered. The
constitutional issue is a viable topic today, despite the expiration of the
Johnson Administration. The validity of this proposition is supported
by the recent decision of the Senate Foreign Relations Committee
to hold renewed hearings on the Vietnam war.2
The Nixon administration is now responsible for the executive
policy in Southeast Asia, notwithstanding the fact that it did not
initiate that policy. Thus, what follows is not a personalized debate
involving one president and his administration, but rather an analysis
of the constitutional issue, centering around the conflict between the
congressional war powers and the President's responsibilities as
* M.A., University of Pennsylvania; J.D., Cornell Law School; certificate, Hague Acad-
emy of International Law; Instructor, University of Pennsylvania, Whorton School, Political
Science Department. Assisted by Stanley Shior, Research Assistant, Temple University, Political
Science Department.
1. THE VIETNAM WAR AND INTERNATIONAL LAW (R. Falk ed. 1968). For a short statement of
the problems involving the Constitution, see, Andonian, Law and Vietnam, 54 A. B.A.J. 457 (1968).
For a recent study on the specific question of the constitutionality of Executive actions relating to
Vietnam, see, M. PusEY, THE WAY WE Go TO WAR, (1969).
2. N.Y. Times, Oct. 5, 1969, at 24, col. 5. The hearings were held in February, 1970.

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