constitutionality of anti-war amendments

Now that I've had a chance to look at some of the recently released historical memos by the Office of Legal Counsel at Justice, I want to comment on one that strikes me as significant for the future.

In the spring of 1970, after the Nixon administration's invasion of Cambodia prompted widespread public outcry, especially among the student population, the major anti-war measure was the McGovern-Hatfield amendment that would have required the withdrawal of all U.S. military personnel from Vietnam by June 30, 1971 and would have limited funds after December 31, 1970 only for actions connected to such withdrawal.

I was caught up in this legislative struggle, first on campus and then when I started working in the Senate in August. We certainly thought that the amendment was constitutional, as an exercise of the Congress' power of the purse.

What's interesting now is the OLC memo by William Rehnquist, then an assistant attorney general and later Chief Justice.[See page 341] Rehnquist clearly wants to rule against the amendment, but he can't find the legal justification. In fact, he suggests that no court would outlaw the amendment because it was a "political question" rather than a Constitutional one. He cites arguments on both sides, but concludes:

"A satisfactory resolution of these constitutional arguments cannot be made in the time available, and very likely could not be made with any confidence even were a good deal more time available. Questions of the distribution of power in the field of external affairs are not traditionally justiciable, and their settlement is frequently accomplished in the political arena, rather than in the judicial forum."

At the end of the memo. Rehnquist falls back on a foreign policy argument to justify his position.

"Since the constitutional and policy issues involved in this section of the Amendment seem to me to be inextricably intertwined, it is not possible to state that the Department’s recommendation is based wholly on constitutional grounds. Having said that, I recommend that the Administration oppose this subsection of the Hatfield-McGovern Amendment in Congress, and that the President veto the Amendment if it be adopted by both houses of Congress. To do less means, I think, surrender of presidential initiative to Congress in a manner that cannot but have the most serious adverse consequences to our efforts in Southeast Asia."

If a strong, pro-war conservative couldn't find a legal basis to oppose the amendment, maybe such measures can succeed.

In 1970, however, the measure was soundly defeated, 39-55 by the Senate. Only in 1973 did Congress muster majorities to halt funding for the Vietnam war.