McN A I R PAPERS 

NUMBER THREE 

PRESIDENT, 

PRIME MINISTER, O

CONSTITUTIONAL 

MONARCH? 

By EUGENE V. ROSTOW 

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PRESIDENT, PRIME MINISTER, OR 

CONSTITUTIONAL MONARCH.'? 
PRESIDENT, PRIME MINISTER, OR 

CONSTITUTIONAL MONARCH? 

By EUGENE V. ROSTOW 

I 

Introduction 

~ N THE MAKING and conduct of foreign policy, 

Congress and the President have been rivalrous partners for two hundred years. It is not hyperbole to call 

the current round of that relationship a crisis--the most serious 

constitutional crisis since President Franklin D. Roosevelt tried 

to pack the Supreme Court in 1937. Roosevelt's court-packing 

initiative was highly visible and the reaction to it violent and 

widespread. It came to an abrupt and dramatic end, some said 

as the result of Divine intervention, when Senator Joseph T. 

Robinson, the Senate Majority leader, dropped dead on the 

floor of the Senate while defending the President's bill. 

Everyone knew that Robinson hated the proposal, and was 

speaking for it only as a matter of political duty. The bill was 

discreetly buried shortly thereafter, the Court having meanwhile 

adjusted some of its doctrine to the prevailing winds. One 

justice resigned. 1 

The present constitutional crisis cannot be so neatly 

resolved. It is insidious, diffuse, and largely invisible, like the 

early stages of a cancer. Its roots are deep, and it has been 

spreading at an accelerating pace since 1932, when the 

legislative veto was invented. Few people realize that a crisis 

is going on, particularly because congressional accretions 

Various parts of this paper draw on testimony presented to the Permanent Select Committee on Intelligence of the House of Representatives 

during 1988 in hearings on H.R. 3822, a bill to amend the Intelligence 

Surveillance Act of 1980. And sections of it are scheduled for publication 

in the American Journal of International Law and the University of Pennsylvania Law Review in the near future. 
4 EUGENE V. ROSTOW 

of power are invariably explained as moves to take back 

legislative prerogatives recently seized by a succession of 

"imperial" Presidents. Congress' thrust for dominion has not 

so far aroused much political resistance, and the professional 

writing on the subject has been largely an apology for the claims 

of Congress. Many members of Congress are concerned about 

the constitutional implications of what they are doing, but institutional or political loyalties constrain most of them from 

speaking out. 

While Congress' attempt to control foreign policy is only 

part of a wider congressional assault on the authority of the 

Executive, it is more acute than the struggle on other fronts 

because public concern over foreign affairs is more anxiously 

aroused than is the case for most other issues of public policy. 

The role of the President in relation to Congress on foreign 

policy is inherently more prominent than it is, for example, 

on tax policy. Furthermore, after Korea and Vietnam, the nation is no longer so strongly united in supporting the foreign 

policy initiated forty years ago by President Truman and 

Secretary of State Acheson, and followed in broad outline by 

all the Presidents and by Congress since that time. 

I have been asked to address one phase of the controversy between Congress and the President: the question whether 

the Constitution--the Constitution of usage, that is, and not 

the text alone--establishes an adequate procedure for making and carrying out American foreign policy. That question 

necessarily implies another: Are our constitutional law and 

practice in the field of foreign relations not simply adequate 

but satisfactory, or even excellent, taking into account not only 

the problems of foreign policy confronting the nation but 

the imperatives of governmental accountability and responsibility which are and should remain among the most jealously guarded values of American society? In short, do our 

constitutional foreign policy arrangements require structural 

reform? 

I should summarize my answer to the question in these 

terms: Until the mid-1970s our strenuously balanced Constitution was not only adequate but altogether satisfactory. 

Since that time, however, an unusually vigorous and sustained 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 5 

congressional bid for supremacy over the Executive, stimulated 

by the Vietnam war and the Watergate scandal, has threatened to convert the American President into a Prime Minister 

or even a benign constitutional monarch. This possibility will 

not materialize over the long run, because what Madison called 

"the impulse of self-preservation" will prevail: the security 

of the United States requires a strong President working in 

harness with a strong Congress. The long run may be too long 

for comfort, however. In the modern world, the nation's 

safety is at risk so long as the foreign policy process is 

dominated by a Congress aspiring to take over the executive 

power. During his campaign for the Presidency in 1988, VicePresident Bush said that he regarded the constitutional defense 

of the Presidency as one of the President's major responsibilities. The Reagan administration, like the Ford and Carter 

administrations before it, was not notably active on this front, 

and it is to be hoped that President Bush will succeed quickly 

in restoring the constitutional balance between the Presidency and Congress. Much turns on the outcome of his effort. 

The remedies President Bush should seek are not structural but substantive. Preaching or even practicing consultation and cooperation, desirable as they are if not indulged to 

excess, is no panacea. The conflict is about power, and cannot be solved by tinkering with tables of organization and flow 

charts, by passing more statutes which purport to regulate the 

President's work habits, or even by amending the Constitution. If the extraordinary gains in power Congress has achieved 

during this period are to be undone, the change will have to 

be achieved by the President and the federal courts acting 

together. Congress cannot be expected to give up its hardwon modern privileges voluntarily. Therefore, the judiciary 

should act. The courts are often called the balance wheel of 

the Constitution. In this case, the rhetorical clich~ is apt. The 

judiciary is the only institution of government directly 

charged with the task of enforcing the constitutional limits 

of power. The judiciary cannot act, however, without test 

cases, and the President has always been an important initiator 

of test cases. 
6 EUGENE V. ROSTOW 

This paper is divided into three parts: an introduction, 

a brief statement on the issues of constitutional theory involved, 

and comments on four recent controversies involving these 

questions: (1)the Iran-Contra affair; (2)the Intelligence 

Surveillance legislation passed after the Watergate scandal, and 

the revisions considered by the 100th Congress; (3) the proposals to amend the War Powers Resolution of 1973; (4) and 

the violent political conflict about the interpretation of the 

ABM Treaty of 1972, which is reflected in turn in the history 

of the ratification of the INF Treaty. 

H 

Constitutional Policies at Stake 

In the field of international relations, the government 

of the United States has all the rights, powers, privileges, 

immunities, and duties of nationhood or "sovereignty" 

recognized in international law. The international powers of 

the nation are not to be deduced from the few spare words 

of the constitutional text, but from their matrix in international 

law. Those powers are divided by the Constitution between 

Congress and the President. In this as in other areas of governmental responsibility, Congress is entrusted with specified 

legislative powers and the President with "the" executive power 

of the United States, save for a number of exceptions noted 

in the document itself, i.e., the Senate's voice in the making 

of appointments and the ratification of treaties, and Congress' 

power to declare war. 

No one has ever improved on Hamilton's definition of 

executive power. All governmental power which is neither 

legislative nor judicial, he said, is executive. 2 For nearly two 

hundred years, that simple division of authority, interpreted 

in the light of experience, permitted effective policy making 

through the only constitutional pattern for conducting foreign relations compatible with the nature of world politics, 

on one hand, and with the American political culture, on the 

other. 

The President is not elected by Congress. He is not a 

creature of Congress. And he is not required to report to Congress, except for his annual State of the Union address. 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 7 

The historical experience of the United States confirms the 

wisdom of Marshall's comment in Marbury v. Madison that 

"the secrets of the cabinet" are beyond outside scrutiny, 3 and 

that "the President is invested with certain important political 

powers in the exercise of which he is to use his own discretion, and is accountable to his country in his political 

character, and to his own conscience. ''4 In these areas, Congress can request information of the President; it can never 

command it. This is not to say that the President is above 

the law. Marbury v. Madison demonstrates the contrary. But 

the law is vindicated by many procedures without subordinating the President to Congress or the courts in all 

cases. 

This is not to suggest that the process has always produced wise results. That is another matter. But, until recently, 

it worked as a political procedure. The mistakes the nation 

made were not the consequence of inadequate deliberation, 

but of inadequate thought. It was also a strenuous procedure 

in which the rivalry between Congress and the President fully 

met the standard of Justice Brandeis' celebrated maxim. Justice 

Brandeis wrote: 

The doctrine of the separation of powers was adopted 

by the Convention of 1787, not to promote efficiency but to 

preclude the exercise of arbitrary power. The purpose was not 

to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among 

three departments, to save the people from autocracy) 

In recent years, however, the pattern has changed. The 

tension between Congress and the President is no longer the 

pushand pull of a natural tug of war between the legislative 

and the executive, operating as partners within the framework 

of well understood rules and habits. The balance between Congress and the Presidency has shifted so much and so radically that "the inevitable friction" Justice Brandeis welcomed 

has become something quite newma real war, marked by episodes of bitter hostility and by a slow Presidential retreat which 

is transforming the President into a ceremonial figurehead 

graciously presiding over the activities of an omnipotent 

Congress. 
8 EUGENE V. ROSTOW 

The powers of the Presidency have not been formally 

annulled. They are still latent in the bloodstream of the government. But they encounter more and more resistance each time 

a President tries to use them. As a result, the President is being 

gradually stripped of some of his most important prerogatives. 

If present trends are not reversed, the President will soon 

be wrapped like Gulliver in a web of regulatory statutes and 

hopelessly weakened. Congress has not given up trying to 

nullify the President's veto power, despite the decision of the 

Supreme Court in the Chadha case. 6 Congress has taken 

almost no steps to comply with that decision by repealing all 

the statutes within its orbit. Although the President has the 

sole constitutional authority to conduct foreign relations, congressional leaders sometimes negotiate independently with 

foreign governments, as they have done recently with 

Nicaragua, for example, and with other governments as well. 

Substantive riders on appropriations bills and other devices 

to evade the President's veto power are more popular than 

ever. Congress is now even proposing to put the President 

under the control of a congressional cabinet in the exercise of 

his responsibilities for intelligence, the use of force, and foreign 

policy more generally. And it is more and more common for 

statutes to prescribe what have always been considered matters of executive discretion; e.g., how and where to conduct 

military operations. 

Why should one characterize the development of the relationship between Congress and the President in recent years 

as a crisis rather than a stage in the healthy and normal evolution of constitutional law? The justification for that opinion, 

I submit, is not a pious antiquarian interest in preserving the 

original Constitution, nor even a concern for effective government, important as it is, but the policy of vigilance against 

the risk of tyranny. What is at stake in this experience was 

powerfully analyzed by Madison in Numbers 47 and 48 of the 

Federalist Papers. 

Madison warned that the greatest danger to the constitutional order and to the liberty of the citizen was not the 

possibility of a tyrant President, which he regarded as slight, 

but the risk that Congress would take over the powers of the 

other two branches of government. "The accumulation of all 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 9 

powers, legislative, executive, and judiciary, in the same 

hands," Madison wrote, "may justly be pronounced the very 

definition of tyranny. ''7 Power "is of an encroaching 

nature, ''8 Madison remarked, and something more than 

"parchment barriers" is required to restrict it "from passing 

the limit assigned to it. ''9 The risk of congressional abuse of 

power is great, far greater than the risk from the President 

or the Courts. Congress "alone has access to the pockets of 

the people. ''~° Its supposed influence over the people is an inducement to act, and it can expand its powers in many ways, 

masking its encroachments "under complicated and indirect 

measures. ''H Madison concluded that "it is against the enterprising ambition of this department that the people ought 

to indulge all their jealousy and exhaust all their precautions ~2. .. The legislative department is everywhere extending 

its sphere of activity, and drawing all power into its impetuous 

vortex. ' ' 13 

Confronting the growth of congressional power, many 

scholars accept the thesis of congressional supremacy in the 

plausible name of "democracy." The choice of congressional 

supremacy as the major premise for their analysis is most often 

made casually, almost instinctively, and almost always without 

extended consideration of what is involved. 

These writers normally preface their treatment of the issue 

with the familiar but erroneous comment to the effect that Congress is simply trying "to recapture legislative power" that had 

drifted to the President since Lincoln, McKinley, or Franklin 

D. Roosevelt took office. 

It is amply clear, as two recent full-dress reviews of the 

problem demonstrate, 14 that since the time of George 

Washington, Presidents and Congress have conducted 

America's foreign policy in roughly the same pattern of constitutional usage. Some proponents of congressional supremacy 

dismiss this evidence of constitutional practice on a most 

astonishing ground. Arthur M. Schlesinger, Jr., for example, 

writes that the early Presidents "usurped power and thereby 

created no constitutional precedent--an action to be 

distinguished from the claims of legal sanctions for extreme acts characteristic of presidents of the last generation, 

claims that would set dangerous precedents for the future. ''t5 
10 EUGENE V. ROSTOW 

Schlesinger believes the exclusive power to declare war conferred on Congress in article I, section (8), gives Congress the 

sole authority to use or threaten to use the national force, save 

perhaps in the case of sudden attacks. 16 

This common view rests on two simple errors. Under international law, to which the relevant paragraphs of article I 

refer, declarations of war are required only for the rare occasions when states engage in unlimited general war. As the Founding Fathers knew from intimate experience, such declarations 

are not required when states feel compelled to use limited force 

in defending themselves not only against "sudden attacks" but 

against many other breaches of international law of a forceful 

character. ~7 During the last two hundred years, the United 

States has declared war five times, but Presidents have used the 

armed forces abroad at least two hundred times, usually on their 

own authority, sometimes with the support of Joint Resolutions 

before or after the event. What President Kennedy did during 

the Cuban Missile Crisis of 1962, as Professor Schlesinger will 

recall, was a Presidential action of this kind. And Hamilton 

argued that Congress' power to declare war, being an exception to the general powers of the Executive according to the 

model the Founding Fathers knew best, that of the British 

crown, should be confined to the terms of the text. 18 

The second error in Schlesinger's article is equally conclusive. Presidential uses of force in dealing with the threat 

of force or the use of force against the nation were never 

presented by Presidents as unconstitutional and treated with 

guilty attempts at concealment. They began during President 

Washington's first term. Congress acknowledged such actions 

as obviously proper, then and later. I should contend that most 

of Lincoln's actions before and during the Civil War and 

Franklin D. Roosevelt's actions before Pearl Harbor were valid 

exercises of the President's emergency prerogative powers, not 

unconstitutional violations of law at all. The United States 

has all the powers of statehood recognized in international law 

and therefore has emergency powers like those of other nations. If Congress has not exercised these emergency powers, 

or cannot exercise them, the President has constitutional 

authority to do so. And circumstances may create situations, 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH.'? 1 1 

as Locke recognized, where it would be constitutionally 

proper for the executive to act even in contravention of the 

written laws) 9 To my mind, it seems contrary to the most 

elementary notions of legal theory to claim that Lincoln's conduct of the Civil War, the most important single use of 

Presidential power in American history, was unconstitutional. 

From that judgment, I should except his suspension of martial law where the civil courts were open, but little beyond it. 

And that early, tentative step, taken before Congress authorized the suspension of the writ in a statute later declared unconstitutional, was not carried to the point of execution. 

Nonetheless, the principle of congressional supremacy 

continues to be asserted. Thus, Frederick M. Kaiser finds that, 

while the Constitution is often thought to establish a system 

of checks and balances among seemingly separate branches 

of the government, in fact it provides for legislative supremacy. 

The rationale behind this conclusion, Mr. Kaiser writes, "is 

that a representative assembly is less of a threat to the rights 

of citizens and to the other branches than is the unitary office 

of President, where constitutional authority is centralized in 

one individual .... -20 The status of Congress as "the first 

branch of government" is further confirmed, he contends, by 

the fact that it is created by the first article of the Constitution, by Congress' power to override a Presidential veto, and 

by its impeachment power. 21 And Professor Louis Henkin, 

disagreeing with Hamilton, supports Hamilton's critics who 

insist that the President has only the few powers expressly 

granted him; that those powers are subtracted from the plenary 

powers of Congress, and are, therefore, to be narrowly construed; and that in foreign as in domestic affairs Congress is 

primary and supreme. 2z 

In the end, however, Henkin's conclusions derive from 

a quite different and a consciously extra-constitutional standard of judgment. The question for us to face, Henkin says, 

is not what our constitutional history requires or permits, but 

"what kind of country we are and wish to be. I am disposed 

to state the question as: How should foreign affairs be run 

in a republic which has become a democracy? ''23 This is 

unilateral lawmaking with a vengeance, going far beyond the 
12 EUGENE V. ROSTOW 

interstitial. Henkin boldly admits what is implicit in the writings 

of Revely, Lofgren, Kaiser, Fisher, and other advocates of congressional supremacy who claim their views are compatible with 

the constitutional experience of the United States. Henkin asks 

for a new Constitution, based on the mystical proposition that 

the American "republic has become a democracy." From this 

vantage point he has no difficulty in concluding that Congress 

can if it wishes regulate the President fully, save in the few areas 

where the President's claim to independent power is historically 

too well established to be challenged. Given his premise, it is 

surprising that Henkin concedes so much to orthodoxy. 

Such opinions take too simple a view. The constitutional 

arrangements required to safeguard democratic government 

in a large country are more complex than those of a Vermont 

town meeting. And even a Vermont town meeting is not 

government by universal voice vote on every issue. The 

members of Congress are indeed elected by state-wide and 

district-wide constituencies. But the President is elected too. 

And the judges and many other officials have unimpeachable 

democratic legitimacy even though their authority is derived 

from appointment rather than from election. 24 

The defenders of congressional supremacy make much of 

the fact that Congress necessarily has the last word. But Congress does not have the last word on all subjects. Even in exercising its appropriation power, Congress faces the constraining 

doctrine of' 'unconstitutional conditions." Congress cannot, 

for example, recognize foreign governments, retain or dismiss 

federal officials, 25 impose legislative punishments, 26 or decide 

on the strategy and tactics of wars. 27 Congress has the last 

word only in the superficial sense that it could, if it wished, 

refuse to appropriate money for the President and the Courts. 

To make that possibility the central issue in the constitutional debate begs the question. Congress would refuse such 

funds only under conditions of revolution, after the constitutional order had, in fact, already collapsed or been destroyed. 

Short of revolution, the claims of congressional "supremacy" 

in this sense repudiate both the origins and the subsequent 

history of the Constitution. The Founding Fathers came 

together first in Annapolis and then in Philadelphia because 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 13 

the nation was floundering under a government which was entirely congressional. The purpose and effect of the Constitution was to replace congressional government by a more complex system consisting of three autonomous, overlapping, and 

interdependent branches, each of which, however, is entirely 

independent in some of its functions. 

It is impossible to exaggerate the practical effects of the 

new doctrine that the three branches of the American government are not equal, but that Congress is primus inter pares. 

It would reverse one of the most important principles of policy 

and law which has hitherto governed the construction of the 

Constitution by the Supreme Court, by Presidents, and by 

Congress. 

That principle is sometimes compressed into a legal 

formula, fully stated by Hamilton, and supported by Jefferson, Marshall, and many others, as well as by the pattern of 

usage. If a power is executive in nature, Hamilton said--that 

is, if it is neither legislative nor judicial--whether it happens 

to be mentioned in the text of the Constitution or not, it is 

Presidential in character unless it is excluded by the constitutional text. If a power is executive in this sense, Presidential 

supremacy is the rule and congressional authority the exception, and exceptions are to be narrowly construed. 28 

Marshall expounded the policy behind the rule in 

McCulloch v. Maryland in terms which have never before been 

challenged. 29 The several powers of the national government, 

Marshall wrote, were conferred by the people in a brief, general 

constitution designed to be read and understood by the citizens 

at large. That document did not attempt to define the government's powers in detail nor to foresee every situation in 

which they would be applied in the future. The Constitution 

is not "a prolix code," but an outline, a legal instrument 

intended to be interpreted by "general reasoning." When 

construing the powers of the national institutions, the rule of 

construction should not be narrow or niggardly, but one 

dominated by the great purposes of the Constitution itself. "Let 

the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly 

adapted to that end, which are not prohibited, but consist 
14 EUGENE V. ROSTOW 

with the letter and spirit of the Constitution, are constitutional."30 

The modern idea of congressional supremacy would repudiate and reverse Marshall's rule of construction. Congressional 

supremacy is taken to be the rule for all questions, not only for 

those which are legislative in character. The President would 

be confined to those powers mentioned in the Constitution as 

Presidential, and even those powers would be narrowly construed as exceptions to a general rule of congressional supremacy. 

The normal congressional impulse to nibble at the President's authority has gained momentum in recent years from 

four major sources. 

The first and perhaps the most important has been the 

nearly incredible growth in congressional staff, which goes back 

to the Legislative Reorganization Act of 1946. Before that fateful reform was adopted, Congress and its committees relied 

largely on the administration of the day for assistance in research and drafting. Indeed, in those far-off times, members 

of Congress often did their own research and drafting. The Congressional Research Service of the Library of Congress provided some supplemental help, but until the recent past that service was extremely small. Today, congressional staffs include 

some 35,000 people, and the Congressional Research Service 

another 5,000. It is hardly remarkable that Capitol Hill has been 

sprouting splendid marble palaces to house the new bureaucracy. 

Like many other reasonable reforms, the growth of congressional staff has had unforeseen consequences. Members 

of Congress and their proliferating committees and subcommittees have discovered that able and independent staffs are 

a decided asset for electoral as well as for legislative purposes. 

Furthermore, appointing members of these staffs is a fruitful 

form of political patronage. And the staffs themselves have 

transformed the contest between the President and Congress. 

The young men and women who serve Congress are intelligent, 

hard-working, and ambitious. They achieve satisfaction and 

reputation not by rubber-stamping the plans of the administration but by revising or defeating them as conspicuously as 

possiblemby amending or rewriting administration drafts of 

bills, joint resolutions, or committee reports; by suggesting 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 15 

dramatic or hostile lines of questioning to their principals for 

committee hearings; and by producing committee reports and 

draft speeches intended to shape the legislative history of the 

bill as it is finally enacted. 

The influence of a growing congressional staff on the relations between Congress and the President has been reinforced 

by a second source of congressional ascension: the modern 

political habit of electing a Democratic Congress and a 

Republican President. The result has been rather popular with 

the voters, who regard it as another check and balance, restraining the malignant natural impulses of politicians. But the habit 

has decidedly negative features as well. It encourages partisan 

irresponsibility on the part of Congress even on major national 

issues, especially in the field of foreign affairs, and constitutes 

an additional obstacle to rational districting for the House of 

Representatives. 

These two tendencies together produce a third: the practice of writing long and elaborate statutes intended to control 

the President and the Courts in great detail as they apply 

statutes and treaties to new situations. The notion that 

legislatures can control the growth of law in such detail is a 

naive delusion, but it is widely shared. 

Fourth and finally, congressional attacks on the President's prerogatives in the field of foreign affairs draw strength 

from widespread protest against the foreign policy the United 

States has pursued since 1945. That protest is based on a nostalgic yearning for the neutrality and comparative isolation of 

the United States during the century between 1815 and 1914. 

It is an important factor both in American domestic politics 

and in American foreign policy, despite its irrationality. The 

Concert of Europe which gave us comparatively "free security" 

during the nineteenth century no longer has the power to do so. 

It was pointed out earlier that the constitutional balance 

between Congress and the Presidency cannot be restored 

without vigorous action by Presidents to defend the Presidency 

and by equally vigorous judicial intervention. Two principal 

reasons explain the weakness of the defending forces thus far. 

Recent Presidents have hesitated to challenge the congressional 

claims of supremacy directly, because they have felt vulnerable 
16 EUGENE V. ROSTOW 

to congressional reprisals in many forms, and Congress, with 

the smell of victory in its nostrils, has been in the mood to 

inflict reprisals. Moreover, during most of the Reagan administration, the Justice Department has tended to agree with 

the premise of congressional supremacy, or at any rate to agree 

with the view that constitutional conflicts between Congress 

and the President should be settled by political bargaining, and 

not by an "activist" Supreme Court. 

As a result, the Presidency has not been vigorously 

defended in the Courts although the Supreme Court has sustained the principle of the separation of powers whenever it 

was given the opportunity to do so. The principle of the separation of powers cannot be preserved, however, by default, 

defeatism, and bad legal doctrine in the executive branch. Many 

of the wounds the institution of the Presidency has suffered 

in recent years have been self-inflicted. 

Ill 

Four Recent Cases 

A. THE IRAN-CONTRA AFFAIR Only the memory of 

Watergate can explain the first perfervid reaction of the media 

and, to a lesser extent, of American public opinion to the IranContra affair. The charge that President Reagan was acting 

in defiance of the law in his Iran negotiations raised questions 

which had to be answered. Public inquiry by a Presidential 

Commission and by Congress was the natural response of the 

constitutional system. 3~ It soon became clear, however, that 

the affair raised only two secondary questions of substance-- 

attempts to conceal evidence which should have been available 

to Congress and the courts, and the handling of government 

fundsmand that the initial outcry was excessive, badly focussed, and misguided. 

Looking back at the documentation of the Iran-Contra 

episode, four issues emerge: 

(1) President Reagan decided that it was a propitious time 

for the United States to improve relations with Iran by secret 

diplomatic negotiations. 

(2) Iran was engaged in a prolonged and costly war with 

Iraq, and it held or could control the fate of American citizens 
PRESIDEI~r, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 17 

it had kidnapped or, in any event, could treat as hostages. In 

order to improve relations and to facilitate the release of the 

hostages, the President decided to sell some arms to Iran at 

high and profitable prices. 

(3) Some of those profits may have been diverted to the 

Contras in Nicaragua, the rebels in Afghanistan, or others. 

The evidence on these matters is still murky. In any event, the 

funds do not seem to have been turned over to the Treasury 

routinely, as they should have been. 

(4) In the enquiries which ensued after the affair became 

public, the Reagan administration did not take the position 

that its secret diplomacy with Iran should remain secret; instead, it said it would cooperate fully with the Tower Commission and with congressional investigations. It transpired that 

some members of the administration lied, dcstroyed papcrs, 

or otherwise concealed evidence. 

Thc first two issucs were thc original center of the outcry, but, as the handling of the affair by thc Tower Commission, Congress, and by Judge Gerhard A. Gesell in the trial 

of Oliver North confirms, those two issues do not raise either 

constitutional or significant statutory questions. 

From the beginning of the constitutional era in American 

history, the conduct of diplomacy has becn treated as an cxelusively executive power. If a President thinks that the time 

has come to cxplore the possibility of improved rclations with 

another country or a less formal group--the P.L.O., for 

cxamplc--thc decision is his to make. Congress can ask thc 

Prcsident or his subordinates for an explanation of the decision, but the President may refusc to make such a report, if 

he deems it impolitic for any reason to do so. The Logan Act 

stands as a dramatic monument to the proposition that the 

President has always been considered "the sole organ of the 

nation" in its diplomatic relations with other governments. 

And from the time of President Washington, Presidents have 

rejected or ignored congressional requests for information 

when they deemed the matter to be entirely within their own 

realm. 

One might note in passing that during the period of 

enquiry into the Iran-Contra affair there was considerable 
18 EUGENE V. ROSTOW 

discussion of the fact that the President overruled his Secretary 

of State and Secretary of Defense when he decided to proceed 

with the negotiations, as if there were something unusual or 

wrong in a President disagreeing with his Cabinet ministers 

or acting through members of his personal staff or even 

through private citizens. Such objections mistake the nature 

of the Presidency and betray ignorance of American diplomatic 

and constitutional history. On a famous occasion, Lincoln read 

a draft of the Emancipation Proclamation to his Cabinet. 

When his ministers unanimously advised against issuing the 

Proclamation, he commented laconically, "The ayes have it." 

Presidents have used unorthodox channels in diplomacy, 

usually for important reasons of policy, since Washington's 

day. Wilson conducted an important part of the diplomacy 

of the First World War through Col. House, a private citizen, 

and Franklin D. Roosevelt used Harry Hopkins for the same 

purposes before and during the Second World War, as Nixon 

used his Special Assistant for National Security Affairs, Henry 

Kissinger. Congress has no more power to prescribe the procedures the President should use in reaching decisions or 

carrying them out than it has to pick his staff. 

The claim, however, is persistent. On January 9, 1989, 

for example, a Washington Post editorial solemnly declared 

that the heart of the objection to the Iran-Contra affair was 

that it was a "rogue foreign policy.., conducted outside the 

normal governmental framework and, at least to some extent, 

against and in defiance of the stated will of Congress." A 

diplomatic exploration conducted under the direction of the 

President can never be "outside the normal governmental 

framework" and Congress has no power to regulate such 

Presidential activities. 

The constitutional issues are not significantly altered 

because the President decided to sell arms to Iran in the course 

of the negotiations. While there has been skirmishing about 

the legality of the arms sales under some particularly obscure 

and dubious statutes, there is no substantial question about 

the President's legal capacity to sell the arms transferred to 

Iran, both in order to improve our relations with Iran, and 

in order to obtain the release of American hostages held in Iran. 
PRESIDENT. PRIME MINISTER, OR CONSTITUTIONAL MONARCH.'? 19 

There has, of course, been a great protest about the President's willingness "to trade arms for hostages"; indeed, that 

slogan seems to have been the principal element in the public 

indignation about the Iran-Contra episode. On examination, 

however, the basis for the outraged state of opinion on the 

issue disappears. 

When American citizens travelling or living abroad are 

exposed to official or unofficial conduct which violates international law, the United States owes them the duty of protection by all reasonable means. The state's duty to protect its 

citizens cannot lightly be ignored. It has always been considered 

the counterpart of the citizen's duty of allegiance. Thus, in 

Jefferson's troubles with the Barbary pirates, it was deemed 

altogether legal for the United States to use force against the 

pirates. The law is unchanged in this respect. The Israeli raid 

on Entebbe in 1976 and President Carter's abortive attempt 

to rescue our hostages in Iran in 1980 are two among many 

modern instances of the exercise by states during peacetime 

of their inherent right to use whatever force is reasonably 

necessary to defend their interests against breaches of international law of a violent character, when peaceful remedies 

are unavailable or would be unavailing. 

When it would be imprudent or impossible to use limited 

force as a remedy for such a breach of international law against 

a state, that state faces a stark choice between full, general, 

and unlimited war and paying tribute in one coin or another. 

In the case of the Barbary pirates, Jefferson used limited force, 

and, when he found the use of force futile, he paid tribute. 

The problem of piracy in the western Mediterranean did not 

come to an end until France took over Algeria some years later. 

Thus, in the Iran-Contra affair, the public indignation 

was concerned not with solemn considerations of constitutional 

law but with the rhetoric the administration had used in 

explaining its policies for dealing with kidnapping and other 

forms of terrorism. When Reagan and Shultz said with 

emphasis that the United States would concede nothing to terrorists, most Americans straightened their shoulders and felt 

proud. The administration became the victim of its own 

eloquence, however, when it confronted the fact that using 
20 EUGENE V. ROSTOW 

force effectively against Iran would raise disturbingly difficult 

questions. In the end, the United States decided to do what 

it had criticized other countries for doing--namely, trying to 

settle for the best deal it could get. Everyone recalls St. Paul's 

confident words, "Civis Romanus sum," but the Romans 

sometimes found it necessary to deal with pirates and hostage 

takers, and even the Israelis have done so at least once. 

Strictly speaking, the wisdom of Reagan's decision to 

explore the possibility of improving relations with Iran was 

not an issue in the outcry about the affair. Reagan's critics 

were not talking about a mistaken policy or a failed policy but 

about a scandal, perhaps a crime. The Iran-Contra affair was 

investigated as a manifest outrage which clearly involved illegal 

or at least improper acts recalling Watergate. 

It is probably too soon to reach a conclusion about the 

substance of the President's judgment in the Iran-Contra 

episode. It is already apparent, however, that there were and 

are deep divisions within the Iranian Government about its 

future relations with the outside world, and that Reagan's 

probe was by no means an aberration. 

The third issue in the Iran-Contra affair, the possible 

diversion of profits from the arms sales to the rebel forces in 

Nicaragua, raises issues which are unintelligible except in the 

context of Congress' prolonged attempt to seize control of the 

President's share of the war power. 

The place to begin is the fact that Nicaragua has been 

the conduit for Cuban and Soviet supplies and other aid for 

a prolonged insurrection in E1 Salvador and an active 

participant in that effort to overthrow the government of El 

Salvador. Indeed, the war in E1 Salvador has been conducted 

from a command post in Managua. From the vantage point 

of international law, Nicaragua has thus been engaged in an 

"armed attack" on E1 Salvador. Under article 51 of the United 

Nations Charter, El Salvador, therefore, has the "inherent" 

right to defend itself against the attack, and other nations have 

the right to help E1 Salvador in its defense. The Charter of 

the United Nations calls such actions by third countries an exercise of their "inherent" right of "collective self-defense." 

This is the legal principle on which NATO and America's other 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 21 

security treaties are based. In this instance, Congress has fully 

and repeatedly supported the decision of Presidents Carter and 

Reagan to assist the government of El Salvador in its own 

defense. 

As a matter of international law, how far can El Salvador 

and the United States go in defending E1 Salvador against an 

attack mounted from Nicaragua? And as a matter of American 

constitutional law, how far can Congress go in controlling the 

discretion of the President in carrying out a policy of collective 

self-defense for El Salvador initiated by two Presidents and 

approved by Congress? 

Under international law, the use of force in self-defense 

should be limited to what is reasonably necessary under the 

circumstances to defeat and terminate Nicaragua's violation 

of the rights of its neighbors. The defense of El Salvador, 

however, need not be confined to its own borders. International law fully recognizes the right of the victims of the attack 

to respond against its source. They need not stand in the jungle 

waiting for guerrillas to sneak across the frontier at night. 

In one of the leading cases on this subject, the Caroline 

case which arose in 1837, the United States failed to arrest and 

disperse a group of men training on an island in the Niagara 

River in order to cross the border and join an insurrection 

against British authority in Canada. A company of British 

soldiers entered the United States, effectively dispersed the 

"freedom fighters," and returned to Canada. The United 

States conceded that if there were sufficient urgency the British 

action would be justified, and complained only that the British 

Government should have given the United States more time 

to discharge its duty to suppress the insurgent group. 32 

The same principle of anticipatory self-defense was 

applied by the United States during the Cuban Missile Crisis 

of 1962 and when President Wilson sent troops across the 

border into Mexico to suppress the raids of Pancho Villa 

against American border towns. There are many other instances 

in which it was accepted that force could be used directly against the aggressor country if necessary in order to 

end its violation of international law. From the point of view 

of international law, then, the use of force by the United 
22 EUGENE V. ROSTOW 

States against Nicaragua on El Salvador's behalf was 

permissible. 

The constitutional issue is more complicated. The pattern of usage has been that Congress cannot control the President's discretion as Commander-in-Chief except through a 

refusal to appropriate funds. After Pearl Harbor, President 

Franklin D. Roosevelt decided on a strategy of dealing with 

Germany first in the Second World War. Could Congress have 

directed him to attack Japan first or to open a second front 

in Europe during 1943 rather than 19447 To bomb rather than 

invade? To negotiate an armistice? While two decisions of the 

Supreme Court during the limited war with France in the late 

eighteenth century enforced statutes which limited the discretion of the President in fighting the war in various ways, the 

constitutionality of those statutes was not considered by the 

lawyers nor by the Courts. 33 And towards the end of the Vietnam war, Congress did venture a number of statutes forbidding 

the bombing of Cambodia and imposing other restrictions on 

the war. Here again, the President acquiesced in Congress' action. Nonetheless, the pattern of constitutional usage on these 

issues is overwelmingly clear: Questions of this order are entirely for the President to decide as Commander-in-Chief. 

During the Reagan administration's prolonged campaign 

against Nicaraguan aid to the insurrection in El Salvador, 

Congress passed a number of statutes dealing with American 

aid to the rebellion of the Contras against the government of 

Nicaragua. These statutes are generally known as the Boland 

amendments, because Congressman Boland proposed them. 

They were attached to appropriation bills, and had a short 

life. 

It has never been authoritatively decided whether they prohibited only official American military assistance, whether they 

applied to the White House staff, and whether in fact they 

were a gesture, or a serious attempt to cut off military aid to 

the Contras. Some claimed that the Boland amendments were 

convenient fig-leaves for Congressmen who wanted to be 

against "another Vietnam" in Central America and at the same 

time did not want to be accused of allowing another country 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 23 

to fall under Soviet control or of interfering with the President's efforts to persuade other countries to join the United 

States in helping E1 Salvador defend itself against the insurrection. 

Whether the Boland amendments are constitutional, and 

exactly what they mean, are, however, irrelevant to the ultimate 

question left by the Iran-Contra episode: whether every penny 

received from the sale of arms to Iran belonged to the United 

States, or whether the so-called "profits" from the sales fell 

into another category. That is an important question, and not 

a very difficult question, but it does not account for the political 

excitement engendered by the affair. There can be little doubt 

that the proceeds of the sales should have been paid to the 

Treasury. 

Similarly, there can be no dispute about the illegal 

character of perjury or other attempts to deceive Congress or 

the courts, whether or not the Boland amendments were 

constitutional. 

B. INTELLIGENCE OVERSIGHT LEGISLATION The 

main congressional response to the outcry about the IranContra affair has been an attempt to strengthen the reporting 

requirements of the intelligence oversight legislation adopted 

after the Watergate scandal more than a decade earlier. That 

legislation--the Hughes-Ryan amendment of 1974 and the 

Intelligence Oversight Act of 1980--requires the President to 

keep the House and Senate Intelligence Committees fully and 

currently informed about the so-called "special" or "covert" 

intelligence activities of the United States, including any significant anticipated intelligence activities. 

In deference to the President's constitutional powers, 

however, the statutes left the President considerable discretion. In the first place, the 1980 act noted that its requirements 

were imposed only "to the extent consistent with all applicable 

authority and duties, including those conferred by the Constitution upon the executive and legislative branches of the 

government." Secondly, it established two exceptions to the 

provision requiring current reporting of intelligence activities 

and advance notice of covert operations. If the President deems 
24 EUGENE V. ROSTOW 

that "extraordinary" circumstances affecting ' 'vital" interests 

of the United States are involved, he may restrict prior notice 

to the chairmen and ranking minority members of the two Intelligence Committees or not give prior notice to anyone, but 

then inform the Intelligence Committees "in timely fashion." 

The bills considered but not passed by the 100th Congress mainly concerned the second of these two exceptions. 

In the case of the Iran-Contra affair, the President authorized 

the operation in a finding dated January 1986, but did not 

notify the Intelligence Committees until November 1986, 

after an Iranian leak appeared in a Beirut newspaper. Not surprisingly, many Congressmen thought that eleven months 

stretched the meaning of the words "timely fashion." 

Two bills were considered, one requiring prior notification of covert activities in all cases, the other preserving the 

earlier exception, but limiting the President's freedom not to 

notify the committees to forty-eight hours. The forty-eight hour 

bill was the one most extensively considered. It was strongly 

supported, but died towards the end of the session. The issue 

will probably be raised again in the 101st Congress. 

No comment on this legislation should neglect to note 

its failure to define intelligence, intelligence gathering, and 

covert activities, and to distinguish them from the ordinary 

diplomatic activities of the government. At least for this reader, 

it is impossible to tell how far the bill could be interpreted to 

reach the work of the government outside the intelligence 

community. 

In my view, the proposed intelligence oversight legislation is unconstitutional for four reasons: 

1. It requires the President to disclose information which 

Congress can request but not command the President to provide. The historical experience of the United States confirms 

the wisdom of Marshall's comments on the subject in Marbury 

v. Madison. a4 Acccording to Marshall's opinion in Marbury, 

the President is not accountable to Congress in all cases, or 

to Congress alone, although he should cooperate with Congress and consult with leading members of Congress and other 

citizens, as may seem wise to him. But cooperation between 

President and Congress is not a simple rule of thumb, equally 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH'?. 25 

applicable in every case. And it is not a matter for legislative 

timetables. The timing and sequence of that cooperation must 

be flexible and responsive to circumstance. Its success depends 

ultimately on the political intuition of the chief participants 

in the process, and, above all, on the political intuition of the 

President. 

When Congress seeks information from the President 

about his conduct of foreign relations, it should follow nearly 

invariable precedent by "requesting" the information "only 

insofar as the transmission of it," in the President's judgment, 

"is compatible with the public interest," to recall language used 

by Senator Spooner of Wisconsin in 1906. This is not a matter 

of courtesy or comity between the two branches of government. Senator Spooner explained his judgment in the following terms: 

The State Department stands upon an entirely different basis as to the Congress from other Departments. The 

conduct of our foreign relations is vested by the constitution in the President. It would not be admissible at all that 

either House should have the power to force from the Secretary of State information connected with the negotiation of 

treaties, communications from foreign governments, and a 

variety of matters which, if made public, would result in very 

great harm in our foreign relations--matters so far within 

the control of the President that it has always been the practice, and it always will be the practice, to recognize the fact 

that there is of necessity information which it may not be 

compatible with the public interest should be transmitted to 

Congress--to the Senate or to the House. 

There are other cases, not especially confined, Mr. President, to the State Department, or to foreign relations, where 

the President would be at liberty obviously to decline to transmit information to Congress or to either House of Congress. 35 

Every study of the subject supports Senator Spooner. 

From the earliest days of the government, the overwhelming majority of attempts by Congress to obtain information from the President or the Secretary of State in the field of 

foreign affairs were requests, not demands, and were qualified 

by provisions authorizing the President to withhold information if he thought its disclosure would be inconsistent with 
26 EUGENE V. ROSTOW 

the public interest. Where congressional requests for information did not include the usual qualification, Presidents 

treated them as if the qualification had been included, and 

declined to answer nearly as often as they responded. President Washington's refusal to give the House of Representatives 

information about the negotiation of Jay's Treaty in 1794 is 

perhaps the most famous of these episodes. Others concerned 

military, quasi-military and even covert operations during the 

period of acute controversy with Spain prior to the acquisition of Florida, the Civil War, and later periods of strain. 

The reasons for the practice and the rule are rooted in 

the nature of things. The President is often called upon to 

prepare or to initiate lines of policy for which public and congressional opinion is not yet ready. In response to those initiatives, circumstances may change, and opinion with it. Could 

Lincoln have obtained congressional support for many of the 

steps he took before and immediately after Fort Sumter, while 

the Civil War was still a threat rather than a consuming reality? 

Most students of the Civil War agree that Congress would not 

have approved a proposal to wage war against the Confederacy 

before the episode at Fort Sumter. In handling those problems, 

Lincoln kept his own counsel, consulting with very few persons, each carefully chosen by him. Nearly every President has 

faced problems of the same character, though not of the same 

magnitude (save in the case of Franklin D. Roosevelt), and 

they all acted in the same way. 

2. Despite its form, however, the intelligence oversight 

legislation is not a requirement that the President report to 

Congress certain information Congress regards as important 

to its legislative duties. It is designed, as its supporters freely 

concede, to establish a procedure of compulsory consultation 

between the President and two committees of the Congress. 

This would put the members of the two committees squarely 

into the center of the President's decisionmaking process as 

active and indeed as "equal" participants. 

Some defend this extraordinary congressional intrusion into the President's domain as no more than a requirement that under certain circumstances the legislation would 

"merely" require the President to "consult" Congress, as if 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 27 

such a requirement were of obvious constitutionality. This is 

not the case. 

Consultation between the President and members of Congress is a political necessity both for members of Congress and 

for the President. It is an endless process which takes place 

continuously in a thousand forms--at meetings and poker 

games, over the telephone, at funerals and weddings, and at 

solemn meetings in the White House. The President can never 

consult "Congress"; he can only consult members of Congress. The word "consultation" is not a term of constitutional 

import. And Congress is a collective body which can act 

authoritatively only by passing a bill or joint resolution which 

is then presented to the President for signature. When, how, 

and whom to consult is a political art, often one of supreme 

importance to Presidents and members of Congress alike. But 

it cannot be structured and regulated. In a recent article I said, 

"Congress cannot command the President to consult with 

a particular Member of Congress any more than it can tell 

him who his Secretary of State or his most trusted advisers 

should be. Any such attempt would interfere with the President's most sensitive executive discretion, that of political 

leadership. ''a6 That comment was addressed to the War 

Powers Resolution of 1973. It applies equally to the intelligence 

oversight legislation. 

3. In fact, the intelligence legislation goes far beyond 

reporting and consultation. It would give the two intelligence 

committees of Congress, or one acting alone, an unconstitutional legislative veto over a wide and undefined class of 

Presidential decisions in the field of foreign policy. The 

testimony on H.R. 3822 before the Second Session of the 100th 

Congress makes it perfectly clear that its draftsmen designed 

the bill as a device which would allow the two congressional 

committees to prevent Presidents from acting as President 

Reagan did in seeking to improve our relations with Iran by 

methods which included secret arms sales. As Senator Cohen 

said in his speech on the floor of the Senate on March 3, 1988, 

the object of the bill is to allow small groups of Congressmen 

to keep the President from making what they regard as 
28 EUGENE V. ROSTOW 

mistakes--that is, to substitute their judgment for that of the 

President on how to conduct our foreign affairs. 

Senator Cohen insists that Congress is looking for a 

"voice" in the decisionmaking process, not a "veto." The 

Senator's contention is without constitutional substance. 

Neither the Constitution nor the pattern of constitutional practice before 1980 gives the slightest support to the claim that 

the law-making authority has the right to offer the President 

advice in advance of his decision about how to carry out his 

constitutional duty faithfully to execute the laws. The Senator's 

claim of such a right crosses the boundary line between the 

legislative and the executive power. There is no such right, even 

with respect to treaties. In many, perhaps most, cases, a wise 

and prudent President will consult members of Congress or 

citizens he regards as specially qualified to advise him on a 

given subject before he decides on his course of action. But 

the choice has always been his. Indeed, the cases where a President chooses not to consult in advance have been among the 

most important in our history. 

In any event, under the highly charged circumstances of 

the cases covered by H.R. 3822, the 1988 proposal to amend 

the Intelligence Oversight Act, a congressional voice cannot 

be distinguished from a congressional veto. It requires a robust 

imagination to suppose that a President would continue a 

covert operation if an influential group of important Congressmen advised him vehemently that the proposed action 

would be a political disaster--another Watergate or Irangate. 

Senator Cohen concedes that in consultations under the 1980 

statute, congressional advice has invariably been followed. The 

conclusion is hardly surprising. 

Thus, the constitutional problem presented by the proposed legislation is similar to that presented by the War Powers Resolution. To be sure, there is no formal provision in 

H.R. 3822 for a legislative veto which would override a President's decision to undertake the intelligence activity he has 

reported to the intelligence committees of Congress. It does 

not provide for veto by Concurrent Resolution or one-House 

Resolution or even a veto by silence, through failure to pass 

a resolution within a sixty-day period. The veto H.R. 3822 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 29 

establishes is far more drastic: veto by the secret advice of one 

or both of the Intelligence Committees, or of a smaller group. 

4. The focus of public controversy over H.R. 3822 in 1988 

was section 503(c), which provides that no special intelligence 

activities may be initiated before the Intelligence Committees 

are formally notified, except where the President determines 

in special circumstances that time is of the essence. Even where 

delay in notification is justified, the committees will be notified 

within forty-eight hours after the special activity has been 

authorized by the President. 

These provisions raise the same constitutional problems 

with respect to the compulsory provision of information, consultation, and the legislative veto which were discussed in the 

preceding sections of this paper. They have still another constitutional dimension, however. 

In section 502, the bill seeks to impose separate and comprehensive reporting requirements on the Director of Central 

Intelligence and the heads of all other departments, agencies, 

and other entities involved in intelligence activities. Such a requirement would be constitutionally appropriate for ministerial 

functions of the branches of the government involved in intelligence, but not for their policy programs. As written, the 

bill can only have the effect of weakening the ties between the 

President and the intelligence community and bringing it more 

and more under the control of the two congressional intelligence committees. A Deputy Director of Central Intelligence 

has remarked that the CIA is already "equidistant" between 

the President and the two Intelligence Committees of the Congress. Manifestly, this is an unconstitutional development, 

which all concerned with the integrity of the Constitution 

should oppose. 

C. AMENDING THE WAR POWERS RESOLUTION 

OF 1973 Except for Carter, all the Presidents since 1973 

have asserted that the War Powers Resolution is unconstitutional. Many, perhaps most, commentators have agreed, if only 

on the narrow ground that the principal operative feature of 

the act is a legislative veto condemned by the Chadha case. 
30 EUGENE V. ROSTOW 

The War Powers Resolution presents many of the constitutional issues canvassed in preceding sections of this paper. 

It purports to give Congress the power, through both active 

and passive legislative vetoes, to overrule Presidential decisions 

about the threat and use of force in times of peace, and it 

imposes reporting requirements and requirements of "consultation" comparable to those developed in the intelligence 

oversight legislation. Thus, like those statutes, it rests on the 

proposition that Congress is the fount of sovereignty in the 

American government, as the House of Commons is in Great 

Britain; that the President is accountable to Congress in all 

aspects of his duty; and that Congress can if it wishes participate "as an equal"--or, more accurately, as the senior 

partner--in the making of executive decisions. 

It is hard to imagine a more direct repudiation of 

American political theory. In our jurisprudence, sovereignty 

is deemed to be vested in the people, not the Congress. The 

people have delegated some of their powers to the government 

of the United States through a Constitution which establishes 

three interdependent branches, each of which, however, has 

the authority to make some final decisions in its own realm. 

Because of the importance of its subject matter, the War 

Powers Resolution is by far the most significant and revolutionary of all the recent attempts to transform the tripartite 

Constitution we have inherited into a parliamentary system 

governed by a series of baronial congressional committees 

operating in different fields. It does not require much acuity 

to foresee that such a system would quickly be dominated by 

a single congressional committee, a true Parliamentary Cabinet 

for all purposes. 

Since I have attempted to analyze and evaluate the War 

Powers Resolution elsewhere, 37 I shall concentrate here on 

the amendments to the act proposed by Senators Byrd, Nunn, 

Warner, and Mitchell in 1988, and revived in 1989 by the 

original sponsors plus Senators Boren, Cohen, and Danforth. 

The significance of S. 2 is emphasized by the outstanding quality of its sponsors, who by any standard rank among the most 

distinguished members of the Senate. 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH.'? 31 

While some of the amendments suggested by the sponsors of S. 2 are meritorious, the net effect of their bill would 

be far worse than that of the War Powers Resolution itself. 

The War Powers Resolution calls for "consultation" between 

the President and Congress but does not purport to specify 

the modalities of that consultation. S. 2 would establish a "permanent consultative group" of members of Congress and endow it with the power to compel the President to report, to 

propose, to listen, and in fact to obey. To call things by their 

simple names, it would abolish the Presidency created by the 

Constitution of 1787. 

Section 2 of S. 2 is an interesting concession to reality. It 

would repeal section 2(c) of the War Powers Resolution, which 

declares that under the Constitution the President can use the 

armed forces only pursuant to a declaration of war, "specific" 

statutory authorization, or a national emergency caused by an 

attack on the United States, its territories or possessions, or 

its armed forces. Thus, the bill would acknowledge that section 2(c) of the 1973 text is hopelessly inadequate as a restatement of constitutional doctrine; that under the Constitution 

the President does indeed have a wide range of discretion in 

using the armed forces without advance congressional "authorization," "specific" or otherwise; and that the course of 

wisdom is to drop the subject altogether. Statutes are not useful 

publications in which to attempt the codification of constitutional doctrine. 

The sponsors of S. 2 are clearly right in recommending the repeal of section 2(c) of the 1973 act. Repealing section 2(c), however, would destroy the major premise on which 

the 1973 act was enacted, namely, that except in repelling sudden attacks, the President can employ the armed forces 

only when directed to do so by Congress. Senator Javits had 

bravely said that the purpose of the War Powers Resolution 

was to reduce the President to the status of George Washington 

as Commander-in-Chief under the Continental Congress. 

S. 2 would acknowledge that one of the main purposes of the 

Constitution of 1787 was to create an altogether different President and Commander-in-Chief, an official vested with prerogative authority as well as the duty faithfully to execute the 
32 EUGENE V. ROSTOW 

treaties of the United States and the statutes passed by Congress. In short, it accepts the sensible view that when Madison 

mentioned "sudden attacks" in the course of the debates at 

the Convention, he was giving his colleagues an example of 

the kind of thing Presidents sometimes have to do, not creating 

a rigidly fixed category of grudging exceptions to a general rule. 

Section 3 of S. 2 attempts to put procedural flesh on the 

concept of consultation called for by section 3 of the 1973 

Statute. It would create a "permanent consultative group" of 

the Congress, consisting of the Speaker of the House and the 

President pro tempore of the Senate, the Majority and Minority 

Leaders of the House and Senate, and the Chairmen and ranking minority members of the House and Senate Committees 

on Foreign Affairs (and Foreign Relations), the Armed Services, and Intelligence. The President and the members of Congress who constitute the Permanent Consultative Group are 

directed by the bill "to establish a schedule of regular meetings 

of those members with the President." In addition, the President is required by the bill to consult with the group whenever 

a majority of its members so request, unless the President determines that "extraordinary circumstances affecting the most 

vital security interests of the United States" make it "essential" to limit consultation to the Speaker of the House, the 

President pro tempore of the Senate and the Majority and 

Minority Leaders of the House and Senate. During oddnumbered Congresses, the Speaker of the House would serve 

as Chairman of the permanent consultative group and the 

President pro tempore of the Senate as Vice-Chairman. During even-numbered Congresses, their roles would be reversed. 

Additional meetings of the group could be called by the Chairman or, in his absence, by the Vice-Chairman, or by a majority of the membership. While the bill does not quite make 

the point clear, it seems apparent that the draftsmen intend 

the consultative meetings to take place in the Capitol, not in 

the White House, giving a congressional committee for the first 

time in history the power to summon the President to appear 

before it. 

Section 4 of S. 2 would repeal sections 5(b) and (c) of 

the 1973 act, its passive and active legislative veto provisions, 
PRESIDENT. PRIME MINISTER. OR CONSTITUTIONAL MONARCH? 33 

and substitute a new section which would authorize the consultative group to introduce joint resolutions of approval or 

disapproval whenever the President reports, pursuant to the 

reporting requirements of the 1973 act, that the armed forces 

are engaged abroad in hostilities or in situations where imminent involvement in hostilities is clearly indicated by the circumstances, and war has not been declared. 

While section 4 of S. 2 would repeal the most blatantly 

unconstitutional feature of the 1973 act, its legislative veto provision, it introduces a new one, equally unconstitutional. Section 4 of the 1973 act requires the President to report to Congress within forty-eight hours (and not less often than every 

six months thereafter) whenever hostilities are taking place or 

the imminent risk of hostilities is manifest within the definitional framework of the 1973 act. There have been disagreements between Presidents and members of Congress as to 

whether the President was required to report under section 4 

every time the armed forces have been sent abroad since the 

act was passed--in the Persian Gulf, Lebanon, and Grenada, 

to mention a few conspicuous cases, and in the Mayaguez incident as well. S. 2 attempts to settle the controversy by giving a majority of the permanent counsultative group the power 

to decide whether circumstances require the President to file 

a report under section 4(a)(1) of the 1973 act, as it would be 

amended by S. 2. 

Unless there is guidance from the courts, the President 

or his agents must interpret a statute (or treaty) every time it 

is applied to a new situation. Such interpretation is the essence 

of the executive function. Thus it is necessarily for the President, not the Congress, to decide whether a given set of circumstances involves the risk of imminent involvement in 

hostilities within the meaning of the War Powers Resolution. 

If Congress does not agree with the Executive's construction 

of a law or treaty, it has only one constitutional remedy: to 

pass a new law, over the President's veto if necessary. By attempting to give the permanent consultative group the power 

to trigger the application of the reporting requirement of the 

1973 act, section 4(6) of S. 2 would take over an executive function and is therefore unconstitutional. S. 2 would permit 
34 EUGENE V. ROSTOW 

Congress to control the development and execution of the law 

free not only from the President's veto but even from the 

necessity of obtaining a majority vote from Congress itself. 

A congressional committee is not Congress and the legislative 

powers of Congress cannot be delegated to it. 

Section 5 of S. 2 would repeal section 6 of the 1973 act, 

which established an elaborate priority procedure for Congress, 

assuring its prompt action on resolutions to authorize the President to continue hostilities after the sixty- or ninety-day periods 

of the act had expired. Under the 1973 act, the President's 

authority expired after sixty or ninety days if congress did 

nothing. Section 6 of the 1973 act was never tested, but it was 

generally thought to be unworkable. The draftsmen of S. 2 

have devised a substitute enforcement device, based in part 

on Congress' power of the purse. It provides that no funds 

appropriated or otherwise made available under law may be 

obligated or spent for any activity which would violate any 

provision of law enacted according to section 5, whether 

enacted under the sponsorship of the permanent consultative 

commitee or of Members of Congress who do not belong to 

it. Would this strange proposal mean that the entire Department of Defense would grind to a halt (under the threat of 

criminal sanctions) if the President carried on a Grenada-type 

operation in the face of a congressional command believed to 

be unconstitutional? 

Section 6 of S. 2 would replace section 7 of the 1973 act 

by mandating a priority procedure for enacting the joint resolutions contemplated by section 5(6) (2), that is, the resolutions 

introduced by the permanent consultative group or by other 

Members of the Congress. 

This and like provisions both of the 1973 act and of 

S. 2 raise a curious constitutional question. They purport to 

enact binding rules of procedure for both Houses of Congress. 

Article I, section 5 of the Constitution specifies that "each 

house may determine the rule of its proceedings, punish its 

members for disorderly behavior, and, with the concurrence 

of two-thirds, expel a member." This provision preserves an 

important weapon in Parliament's long struggle for independence of the Crown in England. What business has the 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 35 

Senate in ordaining a procedural rule for the House, or the 

House in ordaining such a rule for the Senate? And what 

business has the President in approving or disapproving the 

procedural rules of either House? 

The Rules of Procedure for each House, starting with 

Jefferson's Rules, have been adopted over the years first as 

a matter of practice and finally (often with reservations) by 

its own Resolutions. True, the constitutional sentence is permissive rather than obligatory in form and there have been 

a few modem instances of rule changes accomplished by 

statute, especially where expedited procedures were deemed 

desirable. Their constitutionality has never been adjudicated. 

But is it any more conceivable that the President or the Senate 

have a voice in a House rule of procedure than in a vote 

punishing or expelling a member? Clearly, what the sponsors 

of S. 2 have in mind in proposing to fix procedural rules for 

each House by statute is to commit the President to a procedure of consultation with Congress which would transform 

the flexible interchange of political partners into a formal relationship of seigneur and vassal. 

The draftsmen of S. 2 recognized the problem they faced 

under article I, section 5, of the Constitution and attempted 

to evade it in section 6, where subsection (h) provides 

(h) This section is enacted by the Congress ......... 

(1) as an exercise of the rulemaking power of the 

Senate and House of Representatives, respectively, and as such 

it is deemed a part of the rules of each House, respectively, 

but applicable only with respect to the procedure to be followed 

in that House in the case of a joint resolution, and it supersedes 

other rules only to the extent that it is inconsistent with such 

rules; and 

(2) with full recognition of the constitutional right 

of either House to change the rules (so far as relating to the 

procedure of that House) at any time, in the same manner, and 

to the same extent as in the case of any other rule of that House. 

One obvious difficulty with subsection (h) is that it might 

explain or justify proceeding by Concurrent Resolution, but 

not by Joint Resolution. A Concurrent Resolution could establish identical rules for each House through their cooperative 

action. But neither a Concurrent nor a Joint Resolution could 
36 EUGENE V. ROSTOW 

have bootstraps long enough to bind a President to abandon 

the constitutional duties of his office. 

All in all, then, I conclude that the War Powers Resolution would be far more objectionable were S. 2 to be enacted 

than it is in its present form. 

D. THE CONTROVERSY ABOUT THE "REINTERPRETATION" OF THE ABM TREATY In 1983, President Reagan announced his SDI program to accelerate research 

and development about devices and systems for defense against 

ballistic missiles. A violent controversy immediately exploded 

about whether the SDI program was compatible with the ABM 

Treaty. 

This section of the paper will focus on an article on the 

subject by Professor David Koplow of the Georgetown University Law School) s Professor Koplow was Reporter for the 

Special Working Committee on the Legal Aspects of Arms 

Control and Disarmament Policy of the American Society of 

International Law. In 1988, the Committee produced an Interim Report on the controversy about the interpretation of 

the ABM Treaty. Professor Koplow has written an article based 

on the Working Committee's Interim Report. The comments 

which follow are drawn from my Dissent from the Committee's Report. 

Koplow asserts that "(a) new constitutional crisis has been 

thrust upon the American body politic." He defines that crisis 

in the following terms: 

In particular, the 1972 Treaty on Anti-Ballistic Missile Systems 

(ABM) and the Intermediate-range Nuclear Forces (INF) Treaty 

have been embroiled in an attempt by the Executive to reserve 

the right unilaterally to reinterpret treaties. 

What is immediately at stake in executive re-interpretation has 

been a threat to gut the central purposes of the ABM Treaty 

and to abort the nascent INF Treaty. Unless corrected, attempts 

by the Executive to usurp treaty re-interpretation power will, 

in the longer term, undermine United States arms control 

policies, jeopardize future Strategic Arms Reduction Talks 

("START") agreements, and weaken the security of the 

international community.a9 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH~ t 37 

This statement by Koplow supports and echoes the following two paragraphs of the Draft Interim Report: 

The Reagan Administration has recently asserted that the 

executive branch possesses a previously-unknown constitutional 

authority to reinterpret unilaterally the United States' international treaty obligations, departing from authoritative prior 

representations provided to the Senate at the time of advice 

and consent to ratification. This proposition--initiated, but 

not implemented, in the case of the 1972 US-USSR treaty on 

Anti-Ballistic Missile Systems--would jeopardize virtually all 

US treaty obligations, and it carries profound implications both 

for the orderly evolution of the system of international law and 

adherence to the constitutional scheme of separation of powers. 

The Special Working Commitee on Legal Aspects of Current Issues of Arms Control and Disarmament Policy of the 

American Society of International Law, having studied the 

historical precedents of arms control treaties, and having 

surveyed the applicable principles of international and domestic 

U.S. law, finds that this novel assertion of a reinterpretation 

power is unsubstantiated and improper. The executive branch 

cannot disregard the Senate's constitutional role in the treaty 

process, and must recognize and give domestic effect to the 

treaty as it was approved by the Senate--including the Senate's 

implicit understandings that may have been based upon executive branch testimony and representations. 4o 

Since the President necessarily interprets and reinterprets 

every statute and treaty each time he applies them to a new 

fact situation, the constitutional authority about which Koplow 

and the Report wax so indignant is an essential part of the 

executive power entrusted to the President under article II of 

the Constitution. Section 326(1) of the Restatement (3d) of the 

Foreign Relations Law of the United States fully recognizes 

that the authority to determine the interpretation of an international agreement is an executive function reserved to the 

President; Comment (a) of that section of the Restatement ventures the observation that if there are, in fact, "understandings 

expressed by the Senate in giving its advice and consent," they 

must be respected by the President. 4: The Senate expressed no 

such "understandings" in its Resolution of Consent to the 

Ratification of the 1972 ABM Treaty. 
38 EUGENE V. ROSTOW 

It is, therefore, difficult to define the grave threat that 

Koplow perceives to the orderly evolution of international and 

constitutional law. If Congress disagrees with the President's 

interpretation of a treaty (or a statute), its constitutional remedy 

is to pass a statute subject to the President's veto. This was 

done, for example, during the dispute over economic sanctions 

against the then government of Rhodesia some fifteen years 

ago. 42 Subsequent statutes inconsistent with a President's 

interpretation of a treaty or statute are commonplace in our 

legal history. And, of course, they prevail as law, as they do 

when Congress disagrees with the judicial interpretation of a 

statute and passes a new law to change it. 

This is the real point at issue in the controversy over the 

alleged "reinterpretation" of the ABM Treaty. What the Senate 

has been seeking is not to reaffirm the power of Congress to 

overrule a President's construction of a treaty, which needs 

no reaffirmation, but to acquire an entirely new and clearly 

unconstitutional Senatorial veto over the exercise of an 

important aspect of the President's executive powers. 

There is another element in the controversy: the 

claim that the Reagan administration's construction of the 

ABM Treaty with regard to "novel" anti-missile technologies 

differs from views expressed in 1972 by officials of the Nixon 

administration during the Senate committee hearings on 

ratification. Koplow strongly implies that such a change of 

position, if shown, would somehow be improper. The facts 

do not support Koplow. Neither does the law. 

The brief colloquy before the Senate Armed Services 

Committee on which the Koplow article relies raises more questions than it settles. As a matter of legal craftsmanship, it is 

perfectly reasonable to argue, as Koplow and others do, that 

article 5 of the ABM Treaty, confining ABM systems to fixed 

ground-based devices, applies also to systems based on new 

and unknown technologies. The difficulty with the argument, 

however, is that it is inconsistent with the facts, and does not 

do justice to the position the Soviet representatives took at the 

time, embodied ultimately as Agreed Statement D. Agreed 

Statement D is a joint Soviet-American interpretation of the 

treaty, formally annexed to it. It provides that the parties will 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 39 

reach agreement under article XIV of the treaty, dealing with 

amendments, before deploying ABM systems or components 

of existing ABM systems "based on other physical principles." 

That phrase is generally taken to mean physical principles other 

than those then in use for ABM purposes at the time the treaty 

was signed. 

According to senior participants in the negotiations-- 

Kissinger, Haig, and Nitze, among others--the Soviets said, 

in effect, "we do not know what future technologies will make 

possible and neither do you. Therefore we should not attempt 

to legislate on the subject, but leave it open." Nearly all who 

have seriously reviewed the negotiating record confirm this 

view. By prohibiting deployment without prior discussion and 

agreement, does Agreed Statement D necessarily imply that 

the treaty permits research, development, and testing of 

"other" technologies? That would be the normal legal reading 

of the document, and the normal common-sense reading as 

well, since the deployment of an ABM system could hardly 

be undertaken before it had been developed and tested. 

Some experts in the field have recently claimed, however, that despite Agreed Statment D and its negotiating 

history, the treaty allows the development and testing of ABM 

systems based on novel technologies only if it is known in advance that they would be ground-based. 

In the nature of science, it is impossible to know in advance what a new line of research is going to produce. And in 

the nature of arms control agreements, it is impossible to verify 

compliance with prohibitions on fines of research and development. For that reason, among others, no one has claimed that 

any other arms control agreement prohibits research and development. The ABM Treaty was submitted to the Senate by the 

President on the basis of a statement by the Secretary of State 

assuring the President and the Senate that the treaty was 

verifiable by national technical means. Executive branch 

colloquies with Senators in the course of the treaty ratification process should be construed so far as possible in a manner consistent with that formal and authoritative assurance. 

A single important case, that of the laser, demonstrates 

the weakness of the argument that the ABM Treaty should 
40 EUGENE V. ROSTOW 

be construed to prohibit the development and testing of 

some ABM systems based on novel technologies. The use 

of the laser as a possible future technology for ABM purposes was much discussed in 1972, when the ABM Treaty was 

ratified. 

Many thought there was great promise in using lasers to 

attack ballistic missiles in their boost phase. An anti-ballistic 

laser could not ordinarily reach beyond the horizon if it were 

ground-based. And if it were placed on a long-range missile 

it would have to go through outer space twice, thus risking 

extensive diffusion of its beam. Therefore there was extensive 

interest in the possibility of a space-based laser, which could 

directly attack missiles as they were launched. 

During the hearings on the ratification of the SALT 

agreements before the Senate Armed Services Committee, 

several Senators asked a number of witnesses whether the treaty 

would prevent the United States from developing and testing 

ABM systems utilizing lasers and other new technologies. They 

were uniformly assured that while the treaty prohibited deployment without agreement with the Soviets, nothing in the treaty 

would "slow us up or slow us down on continued research 

and development of the laser. ''43 As General Palmer said at 

another point in the hearing, "There is no limit or understanding of a limit on R&D in the futuristic systems, but it would 

require an amendment to the treaty or further agreement to 

deploy such a system. ''44 Senator Goldwater asked Gerard 

Smith, then Director of ACDA, "Under this agreement, are 

we and the Soviets precluded from the development of the laser 

as an ABM?" Mr. Smith's answer was a categorical, "No, 

Sir.,,45 

In a prepared answer to a question from Senator Goldwater, 

submitted for the record of the hearings, Secretary of Defense 

Laird answered at greater length, but to the same effect. 

Question. The ABM bit does not bother me too much, although 

I have not seen the fine print. For my money, we should have 

long since moved on the space based systems with boosting 

phase destruction with shot, nuc's, or laser. I have seen nothing 

in SALT that prevents development to proceed in that direction. Am I correct? 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 41 

Answer. With reference to development of a boost-phase intercept capability or lasers, there is no specific provision in the 

ABM Treaty which prohibits development of such systems. 

There is, however, a prohibition on the development, testing, 

or deployment of ABM systems which are space-based, as well 

as sea-based, air-based, or mobile land-based. The U.S. side 

understands this prohibition not to apply to basic and advanced 

research and exploratory development of technology which 

could be associated with such systems, or their components. 

There are no restrictions on the development of lasers for fixed, 

land-based ABM systems. The sides have agreed, however, that 

deployment of such systems which would be capable of substituting for current ABM components, that is ABM launchers, 

ABM interceptor missiles, and ABM radars, shall be subject 

to discussion in accordance with article XIII (Standing Consultative Commission) and agreement in accordance with article XIV (amendments to the treaty). 46 

It is thus a myth to claim that there was a "traditional, 

restrictive" interpretation of the application of the ABM Treaty 

to novel technologies between 1972 and the Reagan administration, and a departure from the true faith thereafter. The State 

Department Legal Adviser, Judge Sofaer, has fully demonstrated how hollow that claim is. The so-called "restrictive" 

or "traditional" interpretation made its first official appearance in 1979. John Rhinelander dealt with the problem at an 

A.S.I.L. meeting in 1973 in the following terms, which are 

almost exactly the conclusions subsequently reached by Judge 

Sofaer: "[T]he treaty prohibits the deployment (but not the 

development and testing) of 'future' ABM missiles, launchers, 

and radars. ''4v The General Counsel of ACDA during most 

of my term as Director, Col. A. Richard Richstein, has recalled 

that during the period 1981-1983, no research and development program involving novel physical principles was 

scrutinized, curtailed, modified, or cancelled on the ground 

that the ABM Treaty required such action. Furthermore, the 

ACDA publication, "Arms Control and Disarmament 

Agreements," published between 1972 and 1982, does not 

reflect or support the view that there was a traditional 

"narrow" interpretation of the application of the ABM Treaty 

to novel technologies, although it included a number of 
42 EUGENE V. ROSTOW 

statements touching on the issue. And the law remains clear 

in any event, as Koplow agrees, that a treaty is a contract 

between states and must be construed as such. Learned quarrels 

among American experts do not bind the Soviet Union. 

The phenomenon of Presidential interpretation and 

reinterpretation of treaties is not "previously unknown," as 

Koplow states. It occurs dally in every nook and cranny of 

the law. When the President sends instructions to representatives of the United States at the United Nations Security 

Council and at international conferences on dozens if not 

hundreds of subjects ranging from telecommunication and 

aviation to fisheries and the law of war, he is interpreting and 

reinterpreting treaties as he "faithfully executes" the law. So 

was President Carter when he decided he could abrogate the 

Security Treaty between the Republic of China on Talwan and 

the United States. Similar interpretations and reinterpretations 

are made by the executive branch in carrying out domestic 

statutes of all kinds: the Internal Revenue Code, for example. 

This process of change and development is inherent in 

the growth of law. Sometimes the changes are incremental, 

sometimes considerable. They are, in fact, inevitable as law 

confronts life every day of the week. Laws evolve around the 

broad policy purposes sought by their progenitors. But the progenitors can never freeze the law into a static pattern, nor 

anticipate exactly how it should be applied in all future circumstances. Nor can it be assumed that every lawmaker voted 

for the reasons advanced by one or a number of his or her 

colleagues in debate, or by representatives of the executive 

branch in testimony before committees. 

The assertion in the Draft Interim Report, supported by 

Koplow's article, that a President is bound to give "domestic" 

effect to a treaty as it was approved by the Senatem"including 

the Senate's implicit understandings that may have been based 

upon executive branch testimony and representations"mis 

worthy of a jurisprudential King Canute. It demands an outcome that can never be delivered, as the history of law attests. 

The growth of law cannot be confined by so simple a rule. 

Of course, witnesses for the executive branch should tell the 

truth to congressional committees, and they normally do, 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 43 

insofar as they can perceive it. And, of course, Congress is 

entitled to rely on their testimony. But even if Senators are 

misled or do not understand what they have heard or read, 

the Senate's Resolution of advice and consent is nonetheless 

an official act, and cannot be collaterally impeached. In some 

state legislatures, the Fourteenth Amendment may well have 

been approved by dubious procedures, especially because the 

South was still occupied when ratification occurred. When 

Congress certified that it had been adopted, however, it became 

and remains the law. Those who sought to have the amendment annulled because some state legislatures were, they said, 

"coerced" into ratification were given short shrift by the 

courts. 

In any case, "the truth" is not always easy to know, as 

Koplow's analysis convincingly demonstrates. The application 

of the ABM Treaty to novel technologies was not a major issue 

in the ratification process in 1972. A few exchanges before a 

committee, a few sentences in prepared statements or speeches 

on the floor may, of course, have been among the factors persuading a Senator to vote "yea" or "nay" on the Resolution 

giving the Senate's advice and consent to ratification. For example, Senator Goldwater said he would vote against ratification unless he were convinced that the treaty would permit the 

development of space-based laser ABMs. But the larger meaning of ABM and the Interim SALT agreement together was 

quite different. Those agreements were considered to have been 

a matter of great importance to the future of Soviet-American 

relations and to the Republican Party in the 1972 elections. 

As many judges have said, however, neither the courts nor the 

executive branch can or should assume that the legislature as 

a whole voted in reliance on any particular statement made 

in the course of debate. After all, many remain silent. Justice 

Jackson once acidly remarked that it is not yet the rule that 

a judge can examine the text of a statute or a treaty only if 

the legislative history is ambiguous. 

In this instance, the text of the ABM Treaty, read in the 

perspective of its policy goals and the setting of its negotiation and presentation, is hardly a mystery. The American 

negotiators tried to persuade their Soviet opposite numbers 
44 EUGENE V. ROSTOW 

that the treaty should apply to all anti-missile defenses, whether 

based on current or on future technologies. The Soviet 

negotiators refused, saying over and over again that it was 

impossible to legislate about weapons whose potentialities were 

unknown to both sides. Ambassador U. Alexis Johnson, an 

experienced and responsible witness, carefully informed the 

Senate that Soviet views on these subjects did not necessarily 

agree with our own. Agreed Statement D was the consequence. 

Later, some American officals persuaded themselves that 

the Soviet Union had really agreed with our position in 1972. 

Now, of course, the Soviet government has obligingly 

cooperated. Confronting these facts, on which all sides were 

once agreed, the Senate and the A.S.I.L. Working Committee 

Report cannot credibly claim that the few comments seeming 

to lend wavering support to the so-called "restrictive interpretation" were the "basis" for the Senate's consent to the treaty's 

ratification. The Senate made no reservation or statement of 

understanding on the subject. Under such circumstances, according to Comment (d) of section 314 of the Restatement, 

at least, the matter could become, at best, material for debate 

about "legislative history." 

I do not agree with the language on this subject put 

forward in the American Law Institute's new Restatement of 

Foreign Relations Law. But the formulation in the Koplow 

article goes far beyond the Restatement. Section 314(2) of the 

Restatement says that "[w]hen the Senate gives its advice and 

consent to a treaty on the basis of a particular understanding 

of its meaning, the President, if he makes the treaty, must 

do so on the basis of the Senate's understanding. ''4s Both 

Comment Co) on this section and Comment (a) on section 326 

refer to written statements of understanding by the Senate, 

transmitted verbatim to the other party or parties, and included 

in the President's proclamation of ratification. These are not 

empty formalities, but essential procedural steps in treating 

the agreement at all times as a contract between states. 

No citations of authority are offered in support of the 

A.L.I. Reporter's Comments. But whatever the status of these 

sections of the Restatement may turn out to be as predictions 

of the law, they do not approach the extreme statements in 
PRESIDENT, PRIME MINISTER, OR CONSTI'IIlTIONAL MONARCH? 45 

Koplow's article or the Draft Report of the A.S.I.L. Working Group. Either formula would severely constrain the 

dialogue between the executive branch and the Senate and 

multiply suspicions within a relationship which should be one 

of confidence, cooperation, and candor. 

IV 

Conclusion 

These four recent episodes are simply conspicuous and 

dramatic examples of a large class of statutes and practices 

no one has yet mapped systematically. Comparable constitutional questions arise throughout the realm of governmental 

activity. Some are trivial, others merely annoying, others still 

are intrinsically important. What is certain, however, is that 

the power of Congress is growing, and that of the President 

is being leached away. 

A few students think the war has been irrevocably 

lost. They advise that we give up the idea of the Presidency 

altogether, and adopt a constitutional amendment establishing 

a Parliamentary system. There is irony in their proposal, 

because most Parliamentary systems are seeking to make their 

Prime Ministers more like the American President. The demands on the governments of modern welfare-state capitalist 

democracies and the nature of modern mass politics both 

require the energy and leadership of a strong executive. 

I do not agree with those who would jettison our 

Hamiltonian Presidency. The constitutional moral of American history is that the Constitution of 1787, as it has 

evolved, is the most appropriate possible guide for the organization of the American government--appropriate in providing a workable structure for managing a huge, sprawling 

continental democracy, appropriate also in encouraging the 

fulfillment of the accepted moral goals of the American polity. 

There is another moral, too. There is no reason in experience to doubt the capacity of this staunch tradition to surmount the challenge of the present crisis as it has prevailed 

over much worse crises so many times before. The political 
46 EUGENE V. ROSTOW 

system that triumphed during and after the Civil War will not 

dissolve in the rain. 

Notes 

1. Alsop and Catledge, The 168Days (1938); Jackson, The Struggle 

for Judicial Supremacy (1941); Burns, Roosevelt, The Lion and the Fox 

(1956). 

2. The Works of Alexander Hamilton (H.C. Lodge, ed.), 432, 437. 

3. Save where justice to the accused in a criminal case requires otherwise. Nixon v. United States, 437 U.S. 683 (1974). 

4. Marbury v. Madison, 1 Cranch 137, 165-66 (1803). 

5. Myers v. United States, 272 U.S. 52, 293 (1926). 

6. INS v. Chadha, 462 U.S. 919 (1983). In this case the Court held 

unconstitutional the provision of a statute authorizing one House of Congress to overrule an order of the Immigration and Naturalization Service 

of the Department of Justice denying deportation. The alien was not 

deported. 

7. The Federalist (Modern Library ed., 1937), No. 47, pp. 312, 313. 

8. Id., No. 48, p. 321. 

9. Ibid. 

10. Id., No. 48, pp. 321, 323. 

11. Ibid. 

12. Ibid. 

13. Id. at p. 322. 

14. A. D. Sofaer, War, Foreign Affairs and Constitutional Power, 

Vol. 1, The Origins (1976) and H. B. Cox, War, Foreign Affairs and Constitutional Power, Vol. 2, 1829-1901 (1984). 

15. "The Legislative-Executive Balance in International Affairs: The 

Intent of the Framers," 12 Washington Quarterly No. 1,99, 104 (1989). 

16. Id. at pp. 100-3. 

17. E. V. Rostow, " 'Once More Unto the Breach': The War Powers 

Resolution Revisited," 21 Valparaiso Law Review 1, 5-18 (1986). 

18. The Works of Alexander Hamilton (H. C. Lodge, ed.), 432, 437. 

19. John Locke, Two Treatises of Government (P. Laslett, rev. ed., 

1960) Book II, Ch. 14, pp. 159-66. See also Federalist, No. 41 (Madison), 

Modern Library Edition (1937), pp. 259, 262. 

20. F. M. Kaiser, "Congress and National Security Policy." Paper 

prepared for discussion at National Defense University Symposium, Dec. I, 

1988, pp. 6-7. 

21. Id. at p. 7. See also Louis Fisher, "Why Congress Passed the War 

Powers Resolution," Paper presented at a conference entitled, "The War 

Powers Resolution at Fifteen: Where To From Here?," School of Law, 

University of Virginia, Sept. 23, 1988. Mr. Fisher's views are presented more 
PRESIDENT, PRIME MINISTER, OR CONSTITUTIONAL MONARCH? 47 

fully in his thoughtful and important books, Constitutional Conflicts 

Between Congress and the President (1985) and Constitutional Dialogues 

(1988). See also Edward Keynes, Undeclared War: Twilight Zone of Constitutional Power (1982), reviewed by W. Taylor Revely III, 83 Columbia 

Law Review 2117 (1983). 

22. Louis Henkin, "Foreign Affairs and the Constitution," 66Foreign 

Affairs (Winter, 1987-88) 284, 292-95, 307. 

23. Id. at 307. 

24. E.V. Rostow, "The Democratic Character of Judicial Review," 

66 Harvard Law Review 193 (1952). 

25. Myers v. United States, 272 U.S. 52, 276 (1926). 

26. U.S.v. Lovett, 328 U.S. 303 (1946). 

27. Henkin, op. cit. note 22, supra, at p. 296. 

28. See Hamilton, op. cit. note 2, supra. As Secretary of State, 

Jefferson had expressed the same view in an opinion on the Powers of the 

Senate Respecting Diplomatic Appointments, April 24, 1790, in 16 The 

Papers of Thomas Jefferson 378-79 (J. Boyd, ed., 1961). 

29. 4 Wheat. 316 (1819). 

30. Id. at p. 421. 

31. The Tower Commission Report (Report of the President's Special 

Review Board) (1987); Report of the Congressional Committee Investigating 

the Iran-Contra Affair, House of Representatives, Select Committee to Investigate Covert Arms Transactions with Iran, House Report 100-433; Senate 

Select Committee on Secret Military Assistance to Iran and the Nicaragua 

Opposition, Senate Report No. 100-216, 100th Cong., 1st sess. (1987). 

32. J. B. Moore, The Digest of International Law (1906), 409-14; 

Helen Whiternan, Digest oflnternationai Law (1969) 211-36; R. Y. Jennings, 

The Caroline and McLeod Cases, 32 American Journal of International Law 

82 (1938). 

33. Basv. Tigny, 4 Dall. 37 (U.S. 1800) and Little v. Barreme, 2 

Cranch 170 (U.S. 1804). 

34. See notes 3 and 4 and accompanying text. 

35. Quoted in Edward S. Corwin, The President: Office and Powers 

(1940), at p. 404. 

36. E. V. Rostow, o17. cit. supra note 17, at p. 41. 

37. Most of what I have published on the subject is listed in the opening note to the article referred to in note 17. 

38. David Koplow, "Constitutional Bait and Switch: Executive 

Reinterpretation of Arms Control Agreements," 137 University of Pennsylvania Law Review 1353-1435 (1989). The literature on the subject is 

voluminous but repetitive. See, e.g., Association of the Bar of the City of 

New York, The Anti-Ballistic Missile Treaty Interpretation Dispute (1988); 

A. D. Sofaer, "The ABM Treaty Studies," Office of the Legal Adviser 

(1987); Chayes and Chayes, "Testing and Development of 'Exotic' Systems 

Under the ABM Treaty: The Great Reinterpretation Caper," 99 Harvard 

Law Review 1956 (1986). 
48 EUGENE V. ROSTOW 

39. Koplow, op. cit. supra, note 38, at p. 1353. 

40. Special Working Committee on Legal Aspects of Arms Control 

and Disarmament Policy of the American Society of International Law, Interim Report, pp. 4-5 (1988). 

41. Restatement (Third) of the Foreign Relations Law of the United 

States, Sec. 326, Comment A (1987) (hereinafter Restatement). 

42. Diggs v. Shultz, 470 F. 2nd 461 (D.C. Cir. 1972). 

43. United States Senate, Military Implications of the Treaty on the 

Limitations of Anti-Ballistic Mi~ile Systems and the Interim Agreement on 

Limitation of Strategic Offensive Arms, Hearings Before the Commitee on 

Armed Services, 92nd Cong., 2nd sess. (1972), p. 222. 

44. Id. at p. 438. 

45. Id. at p. 306. 

46. Id. at pp. 40-41. 

47. "An Overview of SALT I," 69 American Journal oflnternational 

Law Proceedings 29, 32 (1973). 

48. Restatement(Third) of the Foreign Relations Law of the United 

States, at Section 314 (2). 

Eugene V. Rostow is a Senior Research Scholar of Yale 

Law School and Distinguished Visiting Research Professor of 

Law and Diplomacy of National Defense University.