Legality of the Vietnam War

The Gulf of Tonkin Resolution, passed in 1964, authorized U.S. President Lyndon Johnson to use military force in Southeast Asia. The resolution was repealed in 1971, but President Richard Nixon cited his power as commander-in-chief of U.S. forces under Article Two of the United States Constitution as the legal authority for operations in Vietnam. No formal declaration of war was ever made, which was, according to many, a violation of the U.S. Constitution

Chapter VII of the United Nations Charter prohibits war except to maintain or to restore international peace (Article 42) or in self-defense (Article 51). According to Richard Falk, "If the US Government had abided by international law, the dreadful experience of the Vietnam War would not have occurred."[1] However, according to Benjamin B. Ferencz,[2]

The legal right of any lawful government to defend itself against violent overthrow can hardly be questioned. The right of any government to join in the defense of its allies or friends to protect their or its own vital interests is an ancient and well established practice. It is, however, also part of the American heritage that the people, feeling themselves aggrieved by a foreign power or a tyrannical regime, have the legal right and "it is their duty to throw off such government." The United States has the legal right to assist in the defense of the government of South Vietnam.

In United States v. Sisson, a federal judge dismissed a challenge to the Vietnam War's constitutionality because it involved "just the sort of evidence, policy considerations, and constitutional principles which elude the normal processes of the judiciary and which are far more suitable for determination by coordinate branches of the government."

In Sarnoff v. Shultz, the U.S. Ninth Circuit Court ruled on, and the U.S. Supreme Court was petitioned to reconsider, the constitutionality of then Treasury Secretary, George Schultz, allocating funds to the Vietnam War in spite of the fact that an official Declaration of War had never been made. The Supreme Court voted 6-3 to not reconsider the lower court's ruling, thus upholding Ninth Circuit's ruling that George Shultz had been tacitly authorized by the U.S. Congress to allocate funds to the Vietnam War by virtue of Congress's approval of the federal budgets which included these war funds.

• Tonkin incident

3. United States Supreme Court SARNOFF v. SHULTZ, (1972) No. 71-1652 Argued:N/A Decided: October 16, 1972