Remembering the Cuban Missile Crisis: Executive Unilateralism or Congressional Drive Toward the Brink?

Sixty-one years ago this week, President John F. Kennedy addressed the nation and announced the discovery of Soviet surface-to-surface nuclear missiles in Cuba, declaring that the United States would conduct a “quarantine” of the island. For “Thirteen Days,” the world stood on the brink of nuclear war. Did Congress authorize this? “No,” we are always taught—Congress was not even in session at the time and was barely even informed of Kennedy’s actions before they were undertaken. As the great scholar of the presidency Richard Neustadt testified soon after the crisis, “[W]hen it comes to action risking war, technology has modified the Constitution.”

While this is the conventional wisdom of the crisis, I believe it is incorrect. A few years back, while teaching a class on the Cold War, I took an interest in the “Cuba Resolution” passed by Congress shortly before the Cuban missile crisis in 1962. I argued that regardless of whether the Cuba Resolution “counted” as formal authorization for the use of military force, congressional sentiment still mattered greatly in the encounter. It seemed there was scattered evidence that some observers thought the measure qualified as formal authorization, but it was hard to tell conclusively. I have recently uncovered far more evidence that suggests Congress had delivered formal congressional authorization for the use of military force at the time and reaffirmed its belief that it had done so in subsequent decades. Indeed, even the Office of Legal Counsel (OLC) has characterized it as such three times.

While working on a Lawfare piece with Matthew Waxman looking at debates over the War Powers Resolution a few months ago, I inadvertently kept encountering references to the Cuba Resolution (as well as the three other so-called area resolutions passed in the 1950s and 1960s—Formosa (1955), Middle East (1957), and Southeast Asia (or “Gulf of Tonkin,” 1964). While the latter three are conventionally considered formal authorizations for the use of force from Congress, the Cuba Resolution is usually not. Scholars focused on war powers consistently either ignore it or argue it was not formal authorization. 

Curiously, lawmakers and scholars nevertheless frequently referred to the Cuba Resolution as formal authorization for the use of force in the 1970s, analogous to the other three resolutions. My interest was really piqued, however, when I noticed this in the official 1973 Senate report on the War Powers Resolution, describing what we now call AUMFs: "There is a clear precedent for [AUMFs]–the ‘area resolution.’ Over the past two decades, the Congress and the President have had considerable experience with area resolutions …. The [War Powers Resolution] holds the validity of three area resolutions currently on the statute books. These are: the ‘Formosa Resolution’ …[,] the ‘Middle East Resolution’ ……[,]  and the ‘Cuban Resolution.’"

Congress thus seemingly believed, and formally reendorsed, the Cuba Resolution to be formal authorization for the use of military force, and even cited the measure as precedent for the AUMFs we have today. After seeing this, I began digging more deeply into the events surrounding the resolution in 1962. How did the executive branch, Congress, and the public view the resolution at the time? As background, this is the text of the resolution:

The United States is determined:

(a) to prevent by whatever means may be necessary, including the use of arms, the Marxist-Leninist regime in Cuba from extending, by force or the threat of force, its aggressive or subversive activities to any part of this hemisphere;

(b) to prevent in Cuba the creation or use of an externally supported military capability endangering the security of the United States; and

(c) to work with the Organization of American States[.]

Ambiguous? Yes. Would it count as formal authorization if passed today, presumably subject to Section 8(a)(1) of the War Powers Resolution, which requires that a statute "specifically authorize" the use of force? I would think probably not (although, again, the above-quoted 1973 Senate report on the War Powers Resolution specifically holds it does). But the Cuba Resolution was passed well before the War Powers Resolution, and as I will show below, the clear majority of the evidence suggests it was viewed by Congress, the executive branch, and the public as formal authorization for the use of force at the time....