Veto of the Military Authorization Bill.
To the House of Representatives:
I regret that I must return H.R. 8439 without my approval.
I have been advised by the Attorney General that certain provisions of the bill are repugnant to the Constitution. Its enactment would represent a fundamental encroachment on one of the great principles of the American Constitutional system--the separation of powers between the Legislative and Executive branches.
The bill authorizes a military construction program. The objectionable provisions appear in Section 611 which applies to all military installations in the United States and Puerto Rico. The only exceptions are the movement of men and equipment solely for tactical purposes and minor posts manned by less than 250 people.
Section 611 provides that no military camp, post, station, base, yard, or other installation or facility shall be closed, abandoned, or substantially reduced in mission until 120 days after reports of the proposed action are made to the Committees on Armed Services of the Senate and House of Representatives. A further restriction is that such reports can be submitted only between January x and April 30 of each year. If Congress adjourns sine die before 120 days pass, the report must be resubmitted to the next regular session of the Congress.
These limitations could seriously interfere with and adversely affect the administration of our military program and our continuing efforts to improve our defense posture.
We cannot commit ourselves, for the prolonged period required by this bill, to delay action necessary to meet the realities of the troubled world in which we live.
By the Constitution, the executive power is vested in the President. The President is the Commander in Chief of the armed forces. The President cannot sign into law a bill which substantially inhibits him from performing his duty. He cannot sign into law a measure which deprives him of power for eight months of the year even to propose a reduction of mission or the closing of any military installation, and which prohibits him from closing, abandoning or substantially reducing in mission any military facility in the country for what could be a year or more and must be 120 days. The times do not permit it. The Constitution prohibits it.
The limitations upon the Commander in Chief and the executive branch of the government here sought to be imposed are a clear violation of separation of powers. The Attorney General has so advised me. The Congress enacts the laws. Their execution must be left to the President. The President must be free, if the need arises, to reduce the mission at any military installation in the country if and when such becomes necessary.
The legislative and executive branches share responsibility for the security of the nation, and each has a vital role to play. But under the separation of powers decreed by the Constitution, the responsibility of each is distinct and each must avoid interfering in the proper sphere of the other. Under the Constitution Congress has the power to enact laws to "raise and support" armed forces, and only Congress can provide the necessary appropriations for maintaining our fighting forces. In turn, the President is responsible for the direction and operation of those forces, for the faithful execution of the laws enacted by Congress, and for the most effective use of appropriated funds.
In our history, the Congress has occasionally passed bills which have required, in various circumstances, that executive action must be deferred until the proposed action has been reported to specified Congressional committees, and the Congress has provided a waiting period during which the Congress may, if it sees fit, enact appropriate legislation. Some of these bills received Presidential approval. Others have been vetoed.
For example, Attorneys General in unbroken succession since at least the time of President Wilson have advised their Chief Executives that so-called "come-into-agreement" clauses, requiring approval of executive action by legislative committees, are unconstitutional. Although Section 611 is not literally a "come-into-agreement" clause, its limitations upon effective executive action, in the critical area of national defense, go substantially further than any hill heretofore enacted and approved by any President.
In addition to the constitutional principle involved, effective national defense in this nuclear age requires flexibility in the management of our defense installations, including the assignment of their respective missions.
Further, the American people are entitled to a dollar's worth of defense for every dollar spent. The base closure program is a vital element in effecting important economies within the military establishment. Actions have been taken under it to reduce or close more than 600 bases with an estimated ultimate saving of more than $1 billion annually. At the same time that these savings have been realized, we have been strengthening and modernizing our military program. Also we have done much to soften the effect on the communities and individuals involved. I deem it to be of primary importance that our base closure program not be impaired.
Also a President, under his oath of office, must be concerned about the cumulative erosion of the executive power by legislation such as Section 611 of this bill. The power of the Congress in which I served for nearly two dozen years, is not served by assuming executive functions. The need for wise legislative action, and the dependency of our welfare upon it, was never greater. The legislative burdens of the Congress were never greater. Not only does separation of powers fail when Congress impairs the executive function, but the sheer inability of the Congress to deal meaningfully with the multitudinous details of execution of its laws weakens government.
By my action here, I do not mean to imply that a reasonable reporting provision, consistent with the legislative powers of the Congress, would warrant a veto.
We should recall James Madison's words spoken on the floor of the House of Representatives in the first session of the first Congress in 1789:
"If there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is just that which separates the Legislative, Executive and Judicial powers."
For these reasons, I am compelled to return this bill without my approval.
LYNDON B. JOHNSON
The White House
August 21, 1965
Note: The Congress reenacted the bill as the Military Construction Authorization Act of 1966. In its revised form it was approved by the President on September 16, 1965 (see Item 518).
Lyndon B. Johnson, Veto of the Military Authorization Bill. Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/240880