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.

The ambiguous wording appears to have been the result of the administration in September 1962—several weeks before the Soviet missiles were discovered—not wanting the United States to be perceived as having offensive intentions against Cuba (and, thus, incentivize the Soviets to deploy missiles to Cuba). Congress was unambiguously clear in its intent, however: If the Soviet Union attempted to deploy nuclear missiles to Cuba, the president was to use force if necessary to remove them.

While the administration had originally sought a nonbinding single-house or concurrent resolution, Congress explicitly rejected this and passed the measure as a joint resolution with binding force of law. Congress stated that it wanted to render moot any “constitutional arguments over the relative powers of the President and the Congress respecting the use of American Armed Forces” and “remov[e] any possible confusion about” Congress’s position on what American policy required if missiles were to show up. The measure then passed nearly unanimously in both houses, with the few dissenters arguing it was not aggressive enough in its language. Thus, while the wording might have been ambiguous, Congress’s intent at the time could not have been clearer.

While war powers scholars often claim Kennedy acted unilaterally during the crisis, this was the view of neither the administration nor members of Congress at the time. The administration itself clearly considered the Cuba Resolution to be a source of legal authority. George Ball recalled “on October 3, a Congressional resolution had authorized the President to prevent ‘by whatever means may be necessary, including the use of arms, the creation in Cuba of a foreign military base that endangered United States security.’” As early as the first two days of the crisis (Oct. 16 and 17), the administration was already considering the legal basis—under both domestic and international law—for a response. CIA Director John McCone recorded the option ultimately chosen a few days later as a “[b]lockade with no warning and no advance notice such as a declaration of war, with the President depending upon existing Congressional resolutions for authority” (emphasis added). Assistant to the President Ted Sorensen similarly recorded the option as a “naval blockade, under the authority of the Rio Pact and either a Congressional Declaration of War on Cuba or the Cuban Resolution” (emphasis added). Kennedy himself reportedly “stated Congressional resolutions gave him all authority he needed.”

Moreover, this position was consistent with the position of executive branch lawyers in the crisis. On Oct. 19, there was again discussion of the legal authority needed for blockade, this time with the relevant lawyers in the administration. This included Assistant Attorney General Nicholas Katzenbach and Deputy Legal Adviser to the State Department Leonard Meeker. Katzenbach said that due to both the constitutional powers of the president and the Cuba Resolution, “he believed the President had ample constitutional and statutory authority to take any needed military measures. He considered a declaration of war unnecessary” (emphasis added). Katzenbach would reiterate his position that the Cuba Resolution served as formal authorization for the use of military force five years later when testifying before the Senate on the proposed National Commitments Resolution.

Meeker concurred with Katzenbach’s assessment. On the day Katzenbach made his above statement, Meeker prepared a formal legal memorandum for the administration specifically regarding the planned blockade, concluding that “[t]he President has the power to establish a blockade of Cuba under the laws of the United States without further congressional action” (emphasis added). Meeker explained in the memorandum, “I believe with or without the [Cuba Resolution], the President could declare a blockade of Cuba” but that the Cuba Resolution had made this a moot point. He analogized the situation to a sequence of events prior to the Spanish American War: “On April 20, 1898, a joint resolution of Congress directed the President to use the land and naval forces of the United States to compel the Government of Spain to relinquish its authority over Cuba …. In accordance with this resolution, President McKinley, on April 22, issued a proclamation instituting a naval blockade of Cuba.” He argued that the 1962 Cuba Resolution “serve[d] a purpose analogous to that of the 1898 Resolution,” in authorizing the use of force. In other words, while Meeker believed the president could act unilaterally, the Cuba Resolution from Congress also served as a source of legal authority and thus rendered the point less important.

Perhaps the most important authority on the matter, however, was Abram Chayes, the head legal adviser for the State Department. Chayes had personally testified before Congress in September during hearings on the Cuba Resolution but was in Paris during the discussions on Oct. 18 and 19. When he returned to Washington, he unambiguously embraced the position that the Cuba Resolution served as legal authorization from Congress. Chayes helped write Kennedy’s official proclamation of the blockade, whose legal logic was then used in Kennedy’s Oct. 22 public address. In his televised speech, Kennedy cited the resolution as a source of authority, stating, “Acting, therefore, in the defense of our own security … and under the authority entrusted to me by the Constitution as endorsed by the resolution of the Congress …” (emphasis added). The blockade order was also quite explicit: “I, JOHN F. KENNEDY, President of the United States of America, acting under and by virtue of the authority conferred upon me by the Constitution and statutes of the United States, in accordance with the aforementioned resolutions of the United States Congress …” (emphasis added). 

In an Oct. 23 press conference specifically focused on the blockade proclamation, Press Secretary Pierre Salinger had Chayes answer legal questions concerning the proclamation. Chayes, again, specifically cited “the joint resolution passed by Congress” as a “source[] of law, source[] of legal justification.” Chayes was a leading legal academic on international law and war powers, serving as a professor of law at Harvard for decades. Frequently sought by Congress as a source of authority on legal matters, he would testify before Congress in 1970 that the Cuba Resolution had been a primary source of domestic authority for Kennedy’s action in 1962: “[T]he President, in announcing the quarantine, specifically cited the resolution of Congress as one of the bases of his authority for doing so …. Congress fully, in my belief, authorized the President to act as he did, and the President relied on that authorization in the quarantine.”

Chayes would again cite the Cuba Resolution as formal authorization when testifying before Congress in 1988. In a hearing chaired by then-Sen. Joe Biden, Chayes reiterated his position, saying that, in the crisis, Kennedy was 

acting under congressional authorization. A resolution by the Congress had been passed maybe 3 weeks before in anticipation of this very event. John Kennedy recited it in his speech, as well as in the Quarantine Proclamation that he later made as authority for the action. He did not act on the basis of prerogative power or his power as Commander in Chief, although he recited his power as the Commander in Chief. But he also recited the authority granted by this congressional resolution. [Emphasis added.]

Thus, those within the administration believed that Kennedy’s action had been fully authorized by Congress via the Cuba Resolution. Congress, moreover, overwhelmingly supported the president’s action. Press Secretary Salinger noted in an Oct. 23 press conference that in the few hours since the president’s national address the night prior, the White House had received messages from “about 50” members of Congress—including both Republicans and Democrats—and that every message supported “the President’s stand.” The New York Times similarly consistently reported unanimous support for the president’s action by members of Congress.

For years thereafter, members of Congress would repeatedly cite the Cuba Resolution as an example of legitimate statutory authority to use force. In debates over war powers during the Vietnam War, members of Congress would frequently cite the measure—alongside the 1955 Formosa Resolution and the 1957 Middle East resolution. For example, Sen. Robert Byrd—a jealous guard of Congress’s war powers in the 2000s—noted in a floor debate that in “the Cuban missile crisis in 1962, Congress ha[d] given advance authorization for military action by the President without declaring war.” Chairman of the Senate Armed Service Committee John C. Stennis similarly highlighted the Cuba Resolution as specific, formal authorization for the use of force. And, again, the 1973 Senate report on the War Powers Resolution specifically cites and endorses the Cuba Resolution as formal authorization for the use of military force. 

Last, it seems the OLC has consistently considered the Cuba Resolution as formal authorization for the use of military force. Two OLC opinions from 1970 (here and here) classify it as “authorization for military action by the President.” And a 2001 opinion classifies the Cuban missile crisis as an example, alongside the Gulf War, in which “Congress has in fact authorized deployments of troops in hostilities,” but the president disclaimed actually needing such authorization (note, this is true of every AUMF issued after World War II).

Moreover, in public, the resolution was seen as authorizing the use of force, even before the crisis broke out. On Sept. 20, 1962, a front-page article in the New York Times said the resolution “sanction[ed] the use of force, if necessary.” The following day, another front-page article described the measure as a “resolution endorsing the use of force.” Similarly, Congressional Quarterly’s summary of the crisis stated that the Cuba Resolution “authorized [Kennedy] to take whatever actions were necessary.”

So What?

One might ask why any of this is important—who cares? The administration easily could have acted unilaterally even without the Cuba Resolution (I do not think many would seriously dispute the proposition that Kennedy could have ordered the blockade solely under Article II). Thus, some might conclude the Cuba Resolution had no real effect and, therefore, that none of this is important.

Such a conclusion would be misguided, however. 

First, it is far from clear that Kennedy would have taken such a firm stand in the crisis absent the enormous pressure put on the administration by Congress in the months leading up to October 1962—including that created by its passage of the Cuba Resolution. It is clear both from the transcript evidence and the work of historians that one, if not the, primary reason Kennedy felt forced into a strong response to the deployment of missiles was precisely because of pressure from Congress. Under massive pressure from lawmakers in late August and early September 1962, Kennedy had made unambiguous statements on Sept. 4 and 13 warning against such Soviet deployments. When missiles were discovered a month later, the administration felt it had no choice but to back up Kennedy’s words with action. The Cuba Resolution both caused and augmented this pressure (the Sept. 13 statement was made in the context of trying to cool congressional nerves when drafting the resolution). Kennedy’s national security adviser, McGeorge Bundy, for example, was clear about this in his recollection of the events:

The United States Congress, on September 26, less than three weeks before the missiles were discovered, formally adopted [the Cuba Resolution] …. The vote in the House was 386-7, and in the Senate 86-1, and the one senator in opposition argued that the resolution was not strong enough. The meaning [was] unmistakable. It would thereafter have been impossible for any American president to deny that it was firmly declared national policy to keep nuclear missiles that could reach the United States out of Cuba …. An overwhelming majority of Americans and their representatives in Congress would expect and demand the action that Kennedy had promised. 

Secretary of Defense Robert McNamara had similarly opined upon discovery of the missiles, “I don’t believe it’s primarily a military problem. It’s primarily a domestic political problem.” The president and his brother, likewise, stated that they felt cornered into acting because otherwise Congress would have impeached the president. Hence, while some might argue that Kennedy would have acted the same in the crisis with or without the passage of the Cuba Resolution three weeks prior, it is far from clear whether Kennedy would have brought the world to the edge of nuclear war absent the immense pressure put on him by Congress.

Second, the Cuban missile crisis is often given as the archetype of a crisis in which there was no possibility of congressional action. But this is incorrect. It suggests that citations of it as the ultimate precedent for unilateral action should be reconsidered. Congress pre-authorized the use of force three weeks prior.

Last, if our poster child example of unilateral action really is not an example of unilateral action, this suggests we might need to reexamine our premises—specifically with regard to Congress’s ability to exert influence in a crisis. Perhaps Congress is exerting great influence in crises, and we are just looking for its influence in the wrong places.