candor & integrity to which the nation has in like manner trusted in the disposal of it's [sic] judiciary authorities.²¹⁰

One of the great Senate debates over separation of powers in foreign affairs occurred in 1906, when Senator Augustus Bacon proposed a resolution calling upon President Roosevelt to provide the Senate with negotiating instructions and other background materials regarding Morocco. Bacon's motion was opposed as an invasion of the President's constitutional powers by Senator John Coit Spooner, a three-term veteran of the Senate and one of the best constitutional lawyers of his time.²¹¹ In a major statement on the power of the Senate and the President in foreign affairs, Senator Spooner told his colleagues:

> Mr. President, the three great coordinate branches of this Government are made by the Constitution independent of each other except where the Constitution provides otherwise. We have no right to assume the exercise of any executive power save under the Constitution . . . . We as the Senate, a part of the treaty-making power, have no more right under the Constitution to invade the prerogative of the President to deal with our foreign relations, to conduct them, to negotiate treaties, and that is not all—the conduct of our foreign relations is not limited to the negotiation of treaties—we have no more right under the Constitution to invade that prerogative than he has to invade the prerogative of legislation.²¹²

At the end of Spooner's lengthy presentation, which cited a wealth of historic precedent and legal authority, Senator Henry Cabot Lodge—a Harvard Law School graduate who ultimately served six terms in the Senate, became its Majority Leader, chaired the Committee on Foreign Relations, and was a leader of the Senate's successful effort to reject the Versailles Treaty (thus keeping the United States out of the League of Nations)²¹³—observed: "Mr. President, I do not think that it is possible for anybody to make any addition to the masterly statement in regard to the powers of the President in treaty making. . . which we have heard from the Senator from Wisconsin [Mr. Spooner] this afternoon."²¹⁴

210 9 THE WRITINGS OF THOMAS JEFFERSON, *supra* note 200 at 57 n.1.

211 Senator Spooner declined invitations to serve as U.S. Attorney General in the McKinley Administration, and to serve as Secretary of State under President Taft.

212 40 CONG. REC. 1420 (1906).

213 Although in retrospect politically controversial, the Senate's decision to refuse to consent to the ratification of the Versailles Treaty was clearly within its constitutional powers.

214 40 CONG. REC. at 1431.

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The late Professor Edwin S. Corwin noted that, during this debate, even Senator Bacon "conceded that 'the question of the President's sending or refusing to send any communication to the Senate is not to be judged by legal rights, but [is] . . . one of courtesy between the President and that body . . . .'" Corwin concluded:

> The record of practice amply bears out this statement . . . . So far as practice and weight of opinion can settle the meaning of the Constitution it is today established that the President . . . is final judge of what information he shall entrust to the Senate as to our relations with other governments.²¹⁵

Consider also this excerpt from volume three of Professor Westel Willoughby's classic treatise, *The Constitutional Law of the United States*:

### § 968. Information to Congress.

The constitutional obligation that the President "shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient," has, upon occasion, given rise to controversy between Congress and the President as to the right of the former to compel the furnishing to it of information as to specific matters. As a result of these contests it is practically established that the President may exercise a full discretion as to what information he will furnish, and what he will withhold.

The discretionary right of the President to refuse information to Congress has been exercised from the earliest times.²¹⁶

The Supreme Court, too, has recognized the existence of a constitutional power of the President to deny national security information to Congress. In the landmark 1936 case of *United States v. Curtiss-Wright Export Corp.*, the Court noted:

> [The President], not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives

215 CORWIN, *supra* note 107 at 211-12.

216 3 W. WILLOUGHBY, *THE CONSTITUTIONAL LAW OF THE UNITED STATES 1488* (2d ed. 1929).

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the instructions, correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the wisdom of which was recognized by the House itself and has never since been doubted. ...

The marked difference between foreign affairs and domestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for information from the executive departments. In the case of every department except the Department of State, the resolution directs the official to furnish the information. In the case of the State Department, dealing with foreign affairs, the President is *requested* to furnish the information "if not incompatible with the public interest." A statement that to furnish the information is not compatible with the public interest rarely, if ever, is questioned.²¹⁷

## The Powers to "Declare War" and Serve as "Commander in Chief"

Before moving on to part III of my testimony, let me briefly address the relationship between the power of Congress "to declare war" and that of the President to be "commander in chief." It is critically important that the Congress understand that its role in the process of "war" was intended to be a limited one. As Hamilton explained in the *Federalist Papers*, "Energy in the executive is . . . essential to the protection of the community against foreign attacks."²¹⁸ Congressional powers permitting interference with the conduct of foreign affairs by the Executive were set forth in *specific* terms and were intended to be *construed strictly*.²¹⁹ Madison moved during the Constitutional Convention to change the initial draft language—drawn from the Articles of Confederation—giving Congress the power "to make war" to the more limited power "to declare war" in order to leave the President free to defend the new nation against foreign aggression ("sudden attacks") and to make it clear that the "conduct" of war was "an Executive function."²²⁰

Only Congress could *create* an Army, but once established it was the President's constitutional discretion to determine how it was deployed—with the sole exception that he could not "declare war," and that would clearly include not only the diplomatic act but also the substantive act of initiating offensive²²¹ hostilities against another State in such a manner as to commence a *de facto* "war"—without first seeking the affirmative approval of

217 *United States v. Curtiss-Wright Export Corp.*, 299 U.S. 304, 321 (1936) (emphasis in original).

218 *FEDERALIST* No. 70 at 471 (J. Cooke, ed. 1961).

219 See *supra*, notes 132, 158, & 180 and accompanying text.

220 See *supra*, note 173, and accompanying text.

221 Declarations of war have not historically been associated with "defensive" uses of force. See *supra* note 83 and accompanying text.

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both houses of Congress. Thus, for example, when President Jackson decided it would be
wise to use military force to compel France to pay its debts a century and a half ago,
Senator Henry Clay was fulfilling his proper constitutional role in objecting to and
ultimately blocking the President's plan.

The reality is that the type of hostilities which the Founding Fathers were trying to
insure would be subject to a veto by Congress have essentially been outlawed by the
United Nations Charter.²²² The widespread practice of the eighteenth century of launching
wars to conquer new territory or resolve political or economic differences is now
forbidden. And that is primarily what the Founding Fathers were seeking to control—not
"defensive" uses of force resulting from aggression by foreign states or terrorist bands.

The power of Congress to "declare war" was understood by the Founding Fathers
to be in its essence a "veto" or "negative"²²³ over a presidential decision to initiate a war;
and not an indirect way of vesting in Congress such "commander in chief" functions as
deciding where to deploy troops during peace or war. In the 1833 edition of his
*Commentaries on the Constitution of the United States*, Justice Joseph Story said of the
commander-in-chief clause:

> The command and application of the public force, to execute the laws, to maintain peace, and to resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so peculiarly adapted to this department, that a well-organized government can scarcely exist, when they are taken away from it. Of all of the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand. Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power. Even the coupling of the authority of an executive council with him, in the exercise of such powers, enfeebles the system, divides the responsibility, and not unfrequently defeats every energetic measure.²²⁴

Here Justice Story makes it clear that the President's "command" is not limited to times of
declared war, but is necessary, *inter alia*, to "maintain peace." And the power is vested
"exclusively" in the President—the arguments against an "executive council" would be

222 See U.N. Charter, article 2(4).

223 See *supra*, notes 102, 126, 132 and accompanying text.

224 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 768 at 546-47 (reprinted 1988) (emphasis added).

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multiplied were the Senate permitted to "second guess" the President's decisions on troop deployments.

Paraphrasing Chief Justice John Marshall's decision in *Marbury v. Madison*,²²⁵ Justice Story adds: "In the exercise of his political powers he [the President] is to use his own discretion, and is accountable only to his country, and to his own conscience. His decision, in relation to these powers, is subject to no control; and his discretion, when exercised, is conclusive."²²⁶ And in discussing the President's exclusive power to conduct foreign negotiations, he emphasizes time and again "the utter impossibility of secrecy"²²⁷ in "a large assembly" such as the Congress. Story notes that the Founding Fathers *could* have vested these powers in Congress and given it the option of "employ[ing] the president" as an "agent," but this was unsatisfactory because (1) the Congress "would also have the option of refraining" from relying on the president, and (2) "Nor could it be expected, that the president, as a mere ministerial agent of such branch, would enjoy the confidence and respect of foreign powers to the same extent, as he would, as the constitutional representative of the nation itself; and his interposition would of course have less efficacy and weight."²²⁸ Thus, this approach was rejected.

In 1868, Professor John Norton Pomeroy wrote an excellent *Introduction to the Constitutional Law of the United States* in which he stated:

> [T]he disposition of the navy is left entirely to him [the President] as Commander in Chief. . . . Congress raises and supplies armies and navies, and makes rules for their government, and there its power and duty end; the additional power of the President as supreme commander is independent and absolute. . . .

> Even the general clause of Article I, Section VIII, § 18, which authorizes Congress to make all laws necessary and proper to carry into execution the powers conferred upon any department of the government, cannot permit the Congress to assume the capacities and duties of Commander-in-Chief. . . . [I]n time of peace he [the President] has an independent function. He commands the army and navy; Congress does not. He may make all dispositions of troops and officers, stationing them now at this post, now at that; he may send out

²²⁵ Consider these excerpts from Marshall's opinion: "By the constitution . . . the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. . . ." "They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive." "[W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion." *Marbury v. Madison*, 5 U.S. (1 Cranch.) 137, 165-66 (1803).

²²⁶ STORY, COMMENTARIES ON THE CONSTITUTION § 814 at 579.

²²⁷ *Id.* § 779 at 555.

²²⁸ *Id.* § 781 at 556.

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naval vessels to such parts of the world as he pleases; he may
distribute the army, ammunition, and supplies in such
quantities and at such arsenals and depositories as he deemed
best.²²⁹

Yale Law School Professor William Howard Taft (who also, of course, served as President and a member of the Supreme Court), wrote in *Our Chief Magistrate and His Powers* in 1916:

> The President is the Commander-in-Chief of the Army and Navy, and the Militia when called into the service of the United States. Under this, he can order the army and navy anywhere he will, if the appropriations furnish the means of transportation. . . .²³⁰

In 1920, Professor Quincy Wright added in an article in the *Columbia Law Review*:

> Authority supported by practice shows that the President has independent power under the Constitution to employ the military or naval forces of the United States at home or abroad except as restricted by international law, in time of peace to enforce the laws and treaties, to protect officers of the United States. . . to protect the privileges and immunities of American citizens, to prevent foreign aggression and to protect inchoate interests of the United States abroad. . . . It is true that Congress can authorize the use of Armed Forces either by declaration of war or by joint resolution in time of peace . . . but Congress cannot impair the concurrent power of the President to authorize the use of forces as given by the constitution.²³¹

Professor Westel Willoughby, in his classic treatise *Principles of the Constitutional Law of the United States*, noted that "[t]he President's military powers exist in times of peace as well as during war," and explained:

> [U]pon his own discretion, the President is able to send American vessels of war to whatever ports he sees fit, whether for the purpose of friendly visits, or furnishing protection to American citizens or their property, or of making a

229 J. POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES 569, 588-91 (1868) (emphasis added).

230 W. TAFT, OUR CHIEF MAGISTRATE AND HIS POWERS 94 (1916).

231 Wright, Validity of the Proposed Reservation to the Peace Treaty, 20 COL. L. REV. 135-36 (1920).

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"demonstration" in order to obtain desired action on the part of
the State thus overawed.²³²

Historically, Congress has recognized time and again that it has no constitutional authority to dictate where the President deploys whatever military force is placed at his command. Consider, for example, this 1922 exchange from the *Congressional Record* between Senator William Borah and Senator James Reed, who had proposed that Congress direct the President to withdraw U.S. soldiers from Germany following World War I:

MR. REED of Missouri. Does the Senator think and has he not thought for a long time that the American troops in Germany ought to be brought home?

MR. BORAH. I do.

MR. REED of Missouri. So do I. . . . Would it not be easier to bring the troops home than it would be to have the proposed [disarmament] conference?

MR. BORAH. You can not bring them home, nor can I.

MR. REED of Missouri. We could make the President do it.

MR. BORAH. We could not make the President do it. He is Commander in Chief of the Army and Navy of the United States, and if in the discharge of his duty he wants to assign them there, I do not know if any power that we can exert to compel him to bring them home. We may refuse to create an Army, but when it is created he is the commander.

MR. REED of Missouri. I wish to change my statement. We can not make him bring them home.²³³

Those of you who have studied history know that William Borah, an isolationist, was one of the most powerful foes of the League of Nations and a strong advocate of the prerogatives of the Senate in foreign affairs. He went on to serve for many years as the Chairman of this Committee—and, in the view of many historians, contributed to the outbreak of World War II by his efforts to curtail the powers of the President to keep America out of war during the 1930's.²³⁴ And yet he realized full well that under the Constitution the Congress had no power to direct the movement of troops—during wartime or when the nation was at peace. A similar dialogue occurred on the Senate floor on the eve of World War II, when other isolationists acknowledged that the Senate lacked the power to prevent the President from sending draftees to Europe.²³⁵

232 W. WILLOUGHBY, PRINCIPLES OF THE CONSTITUTIONAL LAW OF THE UNITED STATES 234 (2d ed. 1934).

233 64 CONG. REC. 993 (1922) (emphasis added).

234 *See supra*, notes 5 & 16 and accompanying text.

235 *See* R. TURNER, *THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN THEORY AND PRACTICE* 28-29 (1983).

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Another pre-World War II isolationist, Senator Arthur Vandenberg, had undergone a major transformation by the time he became the distinguished Chairman of this Committee. In April of 1948, while serving as Foreign Relations Committee Chairman, Senator Vandenberg said on the Senate floor:

> There is a general constitutional power resident in the President of the United States as commander in chief which has been exercised a hundred or a hundred and twenty-five times in the last 150 years, to use the armed forces of the United States externally for the protection of American life and property and the national interest without the direct license and direction of the Congress of the United States.²³⁶

Nor, for that matter, is there a lack of judicial commentary on this point. In 1866 Chief Justice Chase wrote in *Ex parte Milligan*:

> Congress has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander-in-Chief. . . . [N]either can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law.²³⁷

The United States Court of Claims took a similar position in the case of *Swaim v. United States*:

> Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress cannot take away from the President the supreme command. . . . Congress cannot in the disguise of "rules for the government" of the Army impair the authority of the President as commander in chief.²³⁸

And yet, despite this powerful collection of authority, this subcommittee has heard witness after witness reassure you with statements like:

²³⁶ 94 CONG. REC. 4747 (1948).

²³⁷ *Ex parte Milligan*, 71 U.S. (4 Wall.) 2 (1866) (emphasis added).

²³⁸ *Swaim v. United States*, 28 Ct. Cl. 173, *aff'd* 165 U.S. 553 (1897)(emphasis added).

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I do not think . . . that it is reasonable to argue that it is
beyond the constitutional authority of the Congress to enact
legislation of the nature of the War Powers Act.²³⁹

and

[N]o one can doubt that the original intent of the Framers was
to assure Congress the major role in the formulation of foreign
policy . . . Yet the present administration somehow manages to
champion a theory of inherent presidential prerogative in
foreign affairs that would have appalled the Founding Fathers.

This theory of presidential supremacy has only
crystallized in recent times.²⁴⁰

Believing as I do in the validity of Mr. Jefferson's admonition that "he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors," perhaps you will understand my concern that on the basis of such testimony you may emerge from these hearings worse off than you were when you entered them.²⁴¹

### III
# The War Powers Resolution and the Constitution

Mr. Chairman, with the Committee's permission I would like at this point to take a
quick look at some of the specific provisions of the current War Powers Resolution.

As you know, it consists of ten sections. In the interest of time, I shall focus upon
the provisions which I find to be constitutionally suspect, and then make a general
comment about the underlying standard of "imminent involvement in hostilities."

Section 2(c)

Section 2(c) appears to limit "[t]he constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," to three circumstances: (1) a declaration of war, (2) specific statutory

239 Statement of Senator Charles McC. Mathias, Jr., July 13, 1988, p. 1.

240 Statement of Arthur Schlesinger, Jr., July 14, 1988, p. 4.

241 Let me emphasize that I am basing my comment entirely upon the prepared written testimony that I have been able to obtain—which I realize may not reflect the quality of the oral testimony or subsequent discussions. In addition, some of the prepared statements I have read, such as those by Judge Sofaer—who as a Columbia Law Professor was commissioned by the American Bar Association to prepare what turned out to be a superb book on this subject, and thus is one of the nation's foremost scholarly authorities in this area—and Senator John Tower, have been quite excellent.

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authorization, or (3) a national emergency created by attack upon the United States, its
territories or possessions, or its armed forces."

If this provision is intended to have the effect of law—and the language would
certainly suggest that—it is unquestionably *unconstitutional* as an infringement upon the
independent constitutional power of the President. In December 1984 I shared a panel with
Senator Javits (and my colleague here this morning, Mr. Reveley) in New York City under
the auspices of the American Branch of the International Law Association, during which
Senator Javits *acknowledged* that this language did not recognize such independent
constitutional authority as the President's power to rescue endangered American citizens
abroad or on the high seas.²⁴² Under the Constitution, so long as Congress provides the
Commander in Chief with an Army or a Navy, it is his to deploy and utilize as he deems
necessary—with the single exception that if he concludes it is necessary to initiate offensive
"war" against another State he must first obtain the statutory approval of both houses of
Congress.

Section 3

I am a strong believer in the importance of "consultation," and during my service in
the Department of State fought hard to replace the all too frequent practice of "informing" or
"notifying" Congress of decisions already made with a policy of seeking the wisdom of
congressional leaders prior to decisions being made. The way it is worded, I am not
opposed to the principle reflected in this provision. For political if not legal reasons, it is
essential that the President keep Congress informed about major foreign policy initiatives—
consistent, of course, with the need to preserve the operational security of the mission and
the safety of our military forces and other personnel.

However, consultation ought to be a process engaged in between co-equal branches
of our government out of mutual self-interest and a spirit of comity. It is not a process that
either branch should *impose* upon the other. As a matter of constitutional law, it is well
established that Congress may not *compel* the President to provide national security
information which in his judgement should be kept secret.²⁴³

The President of the United States is not your "agent," but a co-equal representative
of the American people. It is both *unseemly* and *unconstitutional* for Congress to "direct"
the President to consult about sensitive matters confided by the Constitution to his
discretion—and the language of the current bill ("The President . . . *shall* consult")

²⁴² See, e.g., *Slaughterhouse Cases*, 83 U.S. (16 Wall.) 36, 79 (1873); and *In Re Neagle* 135 U.S. 1, 63-64 (1889).

²⁴³ See *supra*, notes 190-200 and accompanying text.

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certainly implies a legal duty. As a matter of law, of course, such language does not alter
the constitutional distribution of powers and is thus without effect.

There are great benefits for the President in a cooperative, bipartisan (or nonpartisan) relationship with Congress; and the President should realize that without the understanding and approval of Congress and the American people his foreign policy initiatives are unlikely to be viable over the long run. This reality may be a political rather than a legal check, but it is just as important.

In a sense, there is a form of "checks and balances" inherent in this relationship. The President needs your understanding and support, so he has an incentive to cooperate and keep you informed. (He also, of course, needs appropriations for many activities.) The Senate and the Congress want information, and if they behave responsibly—and don't continually "leak" our nation's secrets to the world—it is in the President's self-interest to keep you informed. But when you word your request as a *directive*, pretending by statute to *compel* the President to comply, you provide the President with a strong *disincentive* to cooperate—lest he appear to acquiesce to the unconstitutional demand—without in the process altering in any manner the underlying constitutional realities. The simple fact is that you can't alter the constitutional separation of powers by a simple *statute*.

## Section 4

Again, as a matter of political wisdom I strongly favor a responsible Congress and Senate being kept up to date about major foreign policy initiatives—to the extent consistent with operational success. The Founding Fathers clearly did not intend for Congress to be given the more sensitive secrets of military or foreign policy—and the behavior of both Houses during the past two decades has served to confirm the wisdom of the original scheme.

I haven't studied the issue, but my expectation is that few (if any) members of Congress were informed in advance about the details of the D-Day invasion during World War II. Congress has no responsibility for the operations of war, and the dangers to the lives of our troops and the success of such operations which would result from even inadvertent disclosure justify a decision to limit advanced operational information to those in the chain-of-command with a genuine "need to know."

On the basis of fifteen years of practice I think the detailed "reporting" requirement is on balance a bad provision—at least in the current political atmosphere on the Hill. If you will recall, both Jay and Locke observed that the details of war and foreign policy could not be managed effectively by antecedent "law." And yet, when you demand that the President provide you with such details as the "scope and duration" of military operations,

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and then treat them essentially as legally binding commitments, you require the Executive to establish precisely the sort of artificial constraints in advance of developing situations that Locke and his contemporaries recognized were incompatible with the effective conduct of military operations.

Part of the problem with section 4 may result as much from current attitudes in Congress than from the language of the provision itself. If it were understood that the details in a "war powers" report were simply good faith "estimates" which could be departed from by the President when necessary to respond to changes by other participants in the conflict or newly perceived strategic or tactical opportunities, the only serious risks would be public disclosure of the information and thus perhaps a military edge for our adversaries and an increased risk to the lives or safety of some of our forces. Those, of course, would be serious risks indeed. But in today's political environment, the President can be confident that whatever "rules of engagement" (or "scope" of the hostilities or involvement") he provides to Congress will be viewed by many in Congress as legally binding commitment—precisely the sort of antecedent restrictions which Locke and others were trying to avoid—and we can be reasonably certain that if a shift in strategy by our adversaries leads the President to depart from the "game plan" provided to Congress, the President will promptly be accused of "lying to Congress" or "breaking the law" by his political opposition.

But these are *policy* considerations, and there is a more fundamental *legal* problem with this section. Put simply, I don't believe you have the constitutional *power* to compel the President to provide meaningful "reports" about ongoing hostilities. If you conduct yourselves honorably, as a co-equal branch of the national government, and treat the President with the respect and dignity appropriate to such a relationship, I don't believe you will *need* a statute to receive cooperation. History demonstrates that the cooperation which characterized the early years of the Vietnam conflict broke down not because of the Executive but because members of Congress—who had played a full partnership roll in the "takeoff"—sought to find "parachutes" before there was a crash landing.

## Section 5(b)

Section 5 contains in my view the most *flagrantly* unconstitutional parts of the War Powers Resolution. Section 5(b) provides that if Congress does not act to authorize the continued presence of U.S. forces within 62 (or 92^244^) days of the initial commitment, the President must withdraw forces from any situation in which "imminent involvement in

244 If necessary to protect the safety of the troops.

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hostilities is clearly indicated by the circumstances”—even if not a single shot has been fired and the American forces are in a purely *defensive* setting and “in harm’s way” simply by virtue of possible foreign aggression or terrorist attack. (Deploying armed forces on your own territory, on the high seas, or on the territory of a friendly foreign country in such a manner that they may be attacked by a determined aggressor has never been viewed as an “act of war,” and does not infringe the power of Congress to veto a presidential decision to initiate a “war” against another State.)

This is a direct effort by Congress to exercise the "Commander in Chief" power vested exclusively by the Constitution in the President. The situation is not in my view a close call. The way the Constitution was designed to work is clear. If the President decides that the national interests require commencing a "war" against another State, he must obtain the approval of both the House and the Senate in advance of initiating such a conflict. Like other exceptions to the President's "Executive" powers, the power "to declare war" was intended to be construed narrowly. It gives Congress a "veto" over a presidential decision to launch an offensive "war," but it does *not* empower you to seize control of the President's independent constitutional powers on the theory that the President's management of military deployments might lead another State to commit aggression against the United States.

Virtually any military deployment is accompanied by some risk—many experts believe President Truman's decision to pull U.S. combat forces out of South Korea in 1949 was a significant factor in the North Korean decision to invade the South the following year. That is precisely the kind of judgment call that the Founding Fathers left to the *uncontrolled discretion* of the President.

While it is true that the President might use his Commander in Chief powers in such a way as to increase the likelihood of involvement in war, the experience of the Neutrality Acts of the 1930's demonstrates that when his hands are tied the prospects of war from foreign aggression increase substantially. Recent history—for example the so-called "Clark Amendment" of 1975, which prohibited the President from assisting the non-communist majority in Angola to resist Soviet and Cuban intervention; and in the end led to the introduction of more than 50,000 Cuban combat troops in Angola and other parts of Africa before being repealed by a wiser Congress—confirms that lesson. Should the people elect an *evil* President who seeks to initiate offensive "war" without first consulting Congress, Congress has a "check" in the power of impeachment.

Apart from its *legal* infirmities, consider for a moment what section 5 of the War Powers Resolution actually does in practice. Consider the signal it sends to our friends and adversaries alike. Countries which might wish to associate themselves with the United

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States in deterring international aggression are told that the American Commander in Chief only has permission to function for sixty days. After that, he is at the mercy of a disorganized legislative establishment which has demonstrated the most incredible irresponsibility time and again in the recent past. (Consider, for example, the Clark Amendment and the "on again, off again" votes to resupply the so-called "Contras" in Central America.) To make it even more outrageous, the statute tells our friends (and our enemies) that Congress has determined in advance that, in the event it can't make up its mind whether the President is right or wrong, it will assume *as a matter of law* that the President is *wrong*. Inaction by Congress means the President loses his independent constitutional power—a "silent veto" works to accomplish something otherwise achievable only through a constitutional amendment.

And what signal do you send the most radical anti-American terrorists around the world? Whenever an American soldier is injured around the world, at least *someone* in Congress goes after a headline by charging that "hostilities" have begun and the War Powers Resolution must be implemented. (And if you believe this is far-fetched, recall the call for the Resolution's implementation by Representative Findley in 1978 because unarmed U.S. airman were at the Lubumbashi airport in Zaire when Belgian and Zairian troops got into a shoving match (no shots were fired) over ownership of a Peugeot automobile the Belgians claimed had been a "gift" from a local businessman. Findley charged in an alarmed speech on the House floor: "It is difficult to conceive of a situation where hostilities could have been more imminent without actually breaking out."²⁴⁵ Actually, I could probably think of a few. What I probably could not do is come up with a more ridiculous factual situation which might prompt someone in Congress to suggest that the President was infringing upon the power of Congress to "declare war"—ostensibly the underlying foundation for this statute.)

In the process, of course, you send a signal around the world that Congress has essentially delegated broad legal authority to any anti-American foreign crackpot who can aim a rifle or toss a grenade at an American GI to set the "war powers" clock in motion. You have told them that all they have to do is "kill a few Marines" and the opposition party in Congress will reflexively go after the President's throat. At minimum, the American government enters a crisis and the American people—told by their legislators that their President is a "lawbreaker"—become further confused and demoralized. What a wonderful reward for an anti-American terrorist, and all he has to do to "win" is to attack an American GI.

²⁴⁵ TURNER, THE WAR POWERS RESOLUTION 69.

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But there is also the "grand prize" to be won. With real luck, killing a few American might start the war powers clock and result in the withdrawal of all American military forces from the region. That would be worth some serious effort. (Recent precedent suggests that if a terrorist can kill 241 American servicemen he will not only get the American troops out, but may bring down one of America's most capable four-star generals as well.) And Governor Dukakis has reportedly already declared that he will if elected abide by this "law."²⁴⁶ The big question in my mind is what the American voters are going to do when they realize that their elected representatives have placed a bounty upon the lives of their sons and daughters serving in uniform abroad. (Senator Nye might have some advice on that.)

Don't misunderstand me. I recognize that there are reasonable individuals who honestly believe that world peace can be best preserved by tying the hands of the President of the United States. I don't question the sincerity of Senator Nye, or Neville Chamberlain, or many of those who today believe the War Powers Resolution will promote "peace." I think all three are incredibly wrong—but quite possibly sincere. And more importantly, with respect to those who gave us the War Powers Resolution and continue to keep it on the books, I think they are breaking the law. This provision is a flagrant violation of the Constitution, and members who support it are in my view violating their oath of office.

### Section 5(c)

This is the "legislative veto" provision, and it is obviously a direct violation of article I, section 7, of the Constitution, which provides in part:

> Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

²⁴⁶ One hopes that, once the election is over, if he is elected, experience will persuade Mr. Dukakis to alter his views on this subject—as President Carter did. Few things would be more dangerous to our constitutional separation of powers than seeking to balance a renegade "Imperial Congress" with a weak and inexperienced President seeking above all to avoid offending the other branch.

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This is not particularly complex language, and Members of good faith must
recognize that it prohibits the procedures of section 5(c) of the War Powers Resolution,
which provides:

(c) Notwithstanding subsection (b), at any time that
United States Armed Forces are engaged in hostilities outside
the territory of the United States, its possessions and
territories without a declaration of war or specific statutory
authorization, such forces shall be removed by the President if
the Congress so directs by concurrent resolution.

Unlike a Joint Resolution, which must be submitted to the President for his signature
before becoming "law," a concurrent resolution requires only the approval of simple
majorities of each House of Congress. Concurrent resolutions are perfectly acceptable for
expressing "opinions" of Congress or dealing with "housekeeping" matters within the
independent authority of the legislative branch, but they are not a constitutional means of
giving binding direction to the executive branch. (Furthermore, for this particular
"legislative veto" provision to be valid one would have to conclude that Congress may
amend the Constitution by concurrent resolution, since all decisions on deploying armed
forces are vested by the Constitution in the exclusive discretion of the Commander in
Chief.)

In the aftermath of the Supreme Court's holding in *INS v. Chadha*,²⁴⁷ there appeared to be a consensus that section 5(c) of the War Powers Resolution was unconstitutional. I shall not dwell on this at length, because it is my understanding that the bipartisan leadership of this committee, on the advice of your chief counsel, "conceded that the court decision removes" this section of the law, but did not strike down the entire statute because of the separability clause.²⁴⁸

I must say that I was deeply troubled by the attempt by House Foreign Affairs
Committee Chairman Dante Fascell, in his July 13 testimony before this subcommittee, to
defend section 5(c) as within the powers of Congress. He argued:

> Finally, a word of caution about section 5(c). Following the Supreme Court decision in *Chadha v. INS*, a common point of view had evolved that section 5(c) must be unconstitutional because it provides for a "legislative veto."

> First, the Supreme Court, indeed no court, has ruled
> that section 5(c) of the War Powers Resolution is

247 Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

248 Goshko, "War Powers Act Seen Surviving High Court Ruling, Washington Post, June 28, 1983, p. A4.

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unconstitutional. Second, the concurrent resolution described in section 5(c) is not, strictly speaking, a "legislative veto". A legislative veto occurs when the Congress has granted the president explicit statutory authority and then seeks to revoke that authority through the instrument of a concurrent resolution. The War Powers Resolution does not grant the president, explicitly or implicitly, any authority he does not already have under the Constitution. In fact, section 5(c) is operative only if there has been no prior legislative grant of authority (i.e., in the absence of a declaration of war or specific statutory authorization).

Since the Congress has never tested its power under section 5(c), I would be very cautious about abdicating that power simply because of a presumption held by some that it may be in error.

I have great personal respect and affection for Chairman Fascell, and in this case I can only assume he relied excessively upon creative staffwork. He is by academic training an attorney, and he must certainly understand the doctrine of *stare decisis*. When the Supreme Court tells Congress that it may not "legislate" in violation of article I, section 7, of the Constitution, it is unnecessary for it to list every conceivable piece of legislation which will be affected by its ruling. However, of the many hundreds of statutes containing unconstitutional "legislative vetoes," it is perhaps noteworthy that Justice White, in his dissent, expressly did mention the War Powers Resolution as his first example of laws which were struck down in part by the *Chadha* decision. He complained that the Court had not only invalidated the provision in the Immigration and Nationality Act challenged in the *Chadha* case, "but also sounds the death knell for nearly 200 other statutory provisions . . . operating on such varied matters as war powers and agency rulemaking . . . ."²⁴⁹ For Chairman Fascell to say that "no court . . . has ruled that section 5(c) of the War Powers Resolution is unconstitutional" is akin to saying that "no statute or court decision has stated that *Dante Fascell* may not commit murder." Under our legal system, it is not necessary that criminal law statutes identify by name every individual to whom its provisions apply; and by the same principle the Court need not identify every statute by name which is affected by a clearly defined principle of law.

Chairman Fascell is correct in his second observation that the War Powers Resolution does not seek to use a legislative (or concurrent resolution) veto to revoke authority it has vested in the President; but this "victory" hardly strengthens his case. The reason his statement is correct is because control over military troops deployments is already vested in the President by article II, section 2, of the Constitution—which

²⁴⁹ 462 U.S. at 967.

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designates him "Commander in Chief." Congress doesn't possess that power in the first
place, and thus can not possible "delegate" it to the President. But to reason from that
reality that it is permissible for Congress to deprive the President of his independent
constitutional power by concurrent resolution—a mechanism clearly invalidated by the
Chadha decision when used to "legislate" on matters otherwise confided to the discretion of
Congress—is to conclude that Congress may effectively amend the Constitution by a
simple majority vote in both houses. It follows a fortiori that if Congress may not use a
legislative veto to withdraw portions of its own constitutional powers which have been
delegated by statute to the President, it may not use such a procedure to deprive the
President of authority vested directly in his office by the American people through the
Constitution—and thus denied to Congress under the doctrine of separation of powers.

If there is any doubt about this issue I would be happy to address it in more detail
for the record.

The Legal Standard is "War," Not "Hostilities"

In an effort to make the War Powers Resolution as comprehensive as possible, the drafters came up with the basic standard that it would apply "to the introduction of United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances . . . ."²⁵⁰ This is an interesting formulation, and has led to hours of legalistic debate at both ends of Pennsylvania Avenue about whether the President was "violating the law" in the latest foreign policy crisis. Without wishing to deprive either branch of the intellectual exercise this standard promotes, I strongly believe a new standard is necessary. Put simply, this one is illegal.

Some may wonder how it can be "illegal" for Congress to set such a standard.
After all, everyone knows that under our Constitution Congress "makes the law." And
while that may be generally true, it is important from time to time to keep in mind that
Congress is not the ultimate sovereign in the United States. That authority remains in the
American people.

When the Founding Fathers met in Philadelphia two hundred years ago, the
established a government of limited powers. To Congress they gave "[a]ll legislative
powers herein granted,"²⁵¹ to the President they gave "[t]he executive power"²⁵²—subject

250 This and similar language appear throughout the statute, beginning with section 2(a).

251 U.S. CONST., art. I, sect. 1.

252 *Id.* art. II, sect. 1.

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to clearly spelled out "checks" vested in Congress and the Senate<sup>253</sup>—and to the courts they gave "[t]he judicial power."<sup>254</sup> To establish the ultimate authority of the Constitution, they required "[t]he senators and representatives... and all executive and judicial officers" to be "bound by oath or affirmation, to support this constitution"; and they declared that "[t]his constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made... under the authority of the United States, shall be the supreme law of the land."<sup>255</sup> It follows that statutory enactments which are contrary to the Constitution are not the "supreme law" of the land.<sup>256</sup>

So if you wish to be faithful to your legal duty under the Constitution and your oath of office, I would urge you to *abandon* the standard "hostilities" and return instead to the proper constitutional standard of "war." The fact that the importance of the congressional power "to declare war" has been reduced by the prohibition in the U.N. Charter of the types of war with which such declarations have historically been associated should not be viewed by you with dismay but with joy. You have "lost" nothing to the President—you have both gained by developments of law which seek to provide a more peaceful world. Your diminished authority to approve "war" is hardly justification for an effort to seize other constitutional powers which were clearly denied to you by the Founding Fathers.

Finally, I would again urge you to keep in mind that the congressional role in initiating "war" was viewed by the Founding Fathers to be an "exception" to the general vesting in the President of control over relations with other states—and thus (as Hamilton put it) was "to be construed strictly, and ought to be extended no further than is essential to [its] execution."

253 Such as the power of the Senate to consent to the ratification of treaties (id., article II, section 2) and the appointment of "ambassadors" and "officers of the United States" (id.), and the power of Congress "to declare war" (id. article I, section 8).

254 *Id.* article III, section 1.

255 *Id.* article VI (emphasis added). (The distinction in language between "laws" and "treaties" was not to suggest that "treaties" could be made contrary to the Constitution, but to preserve in force several very important treaties which had been ratified under the Articles of Confederation and thus, technically, were not made "in pursuance" of the Constitution.

256 See, e.g., *Marbury v. Madison*, 5 U.S. (1 Cranch) 137, 180 (1803): "It is also not entirely unworthy of observation, that declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void . . . ."

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IV
S.J. Res. 323
War Powers Resolution Amendments of 1988
S.J. 323

Senators Warner, Nunn, Byrd and Mitchell have introduced a series of amendments to the War Powers Resolution in the Senate—and I understand Representative Hamilton has introduced essentially the same language in the House—which in my view constitutes an *excellent* step in the right direction. If enacted, they would eliminate some of the most clearly unconstitutional and otherwise objectionable features of the initial statute. I commend all of those responsible for this positive series of proposals.

But in my view this *still* does not solve all of the constitutional or political problems of the existing statute. As I have already discussed, the term "hostilities" is far too broad to withstand constitutional muster. There are many uses of armed force which lead to involvement in "hostilities" which are clearly within the independent authority of the Commander in Chief and are not subject to congressional regulation. (The *Mayaguez* rescue is but one example.) Unless Congress is willing to again violate the "law" and the oath of office each of its members took to uphold the Constitution, some solution is going to be necessary to resolve this problem.

Section 3(2)

Another difficulty I have with the amendments is they continue to take a "legalistic" and confrontational approach. For many years I have favored the establishment of a "Joint Committee on National Security," to be composed of essentially the same congressional leaders who would make up the "permanent consultative group" provided for in section 3(2) of the Nunn-Warner bill. It is an *excellent* idea in my view, and would facilitate the genuine consultation that is so essential to a real bipartisan foreign policy.

But it is both *illegal* and in my view *unseemly* for Congress to attempt by law to *compel* the President of the United States to "consult" on a timetable established by Congress. The President is the head of a great co-equal branch of the American Government, and he (or she) deserves to be treated with the dignity and respect appropriate to that high office.²⁵⁷ Congress and the President should seek to cooperate in a spirit of comity out of the mutual realization that the safety and security of the nation require a joint effort. But for either side to *demand* that the other "appear on call"—either by Congress

257 Given the number of legislators who seem to want some day to become President, I can't help but wonder why they work so hard on the way up to weaken the authority of the office. As a voter, I would be very wary of a presidential candidate who had a substantial record of disrespect for the powers of the office.

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passing a "law" or by the President sending over the Marines to compel such a meeting—is
to belittle the constitutional authority of a co-equal branch and is incompatible with our
doctrine of separation of powers.

As Judge Sofaer has observed,²⁵⁸ even if Congress had the power to compel the
President to consult, the provision permitting this power to be exercised by majority vote of
the proposed permanent consultative group would conflict with article I, section 7, of the
Constitution as interpreted by the 1983 Chadha decision.

Section 5

Section five of Senate Joint Resolution 323 seeks to give Congress control over the
President's Commander-in-Chief powers by use of the "power of the purse." This
power—and the article I, section 8, power to "raise and support armies"—gives Congress
the power to deny the President any "army" to command, and thus effectively to destroy
the Commander in Chief power. And should you choose to deny the President an Army
(or Navy) to command, that would be within your constitutional power.

But it does not follow that you may place "conditions" on the use of appropriated
funds which have the purpose or effect of seizing control of the exercise of the Commander
in Chief power. Such an effort would be a violation of the principles of separation of
powers set forth in article I, section 1, and article II, section 2, of the Constitution.

It seems clear from the language of the proposed addition to the War Powers
Resolution that its authors thought the "power of the purse" would give them some "higher
authority" than a simple statute in their effort to constrain the President's Commander in
Chief power. The provision reads in part:

SEC. 6 (a) No funds appropriated or otherwise made available under any law may be obligated or expended for any activity which would have the purpose or effect of violating—
(1) any provision of law enacted pursuant to ... [this law].

258 Testimony of Abraham D. Sofaer, State Department Legal Adviser, September 15, 1988, p. 11.

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A recent study²⁵⁹ by Raymond J. Celada of the Congressional Research Service of the Library of Congress quotes a variety of inferior court opinions—in situations not at all on point with the current situation—as concluding that the "power of the purse" is essentially unlimited. An 1880 U.S. Court of Claims case asserted that "The absolute control of the moneys of the United States is in Congress, and Congress is responsible for its exercise of this great power only to the people."²⁶⁰ More recently, a federal district court asserted in 1945 that "The purpose of the appropriations, the terms and conditions under which said appropriations were made, is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch of the government to comply with the same."²⁶¹ However, none of these cases involved an effort by Congress to use its "power of the purse" to take control of a power vested elsewhere in the government by the Constitution.

The "great principle" that "what cannot be done directly because of constitutional restrictions cannot be accomplished indirectly by legislation which accomplishes the same result"²⁶² has been affirmed time and again by the Supreme Court.²⁶³ For example, when Congress sought to use its legitimate control over the jurisdiction of the Court of Claims—which is admittedly exclusive and complete—to deprive the President of his pardon power by saying that the court could not accept cases brought by pardoned former southern sympathizers seeking to reclaim their property, the Court held that Congress had "inadvertently" violated the separation of powers doctrine. The Court explained:

> It is the intention of the Constitution that each of the great coordinate departments of the government—the legislative, the executive, and the judicial—shall be, in its sphere, independent of the others. To the Executive alone is intrusted the power of pardon; and it is granted without limit. . . . Now it is clear that the legislature cannot change the effect of such a pardon any more than the Executive can change a law. Yet this is attempted by the provision under consideration.²⁶⁴

²⁵⁹ Raymond J. Celada, "The War Powers Resolution (WPR): Some Implications of S.J. Res. 323, 'War Powers Resolution Amendments of 1988,'" Congressional Research Service, Library of Congress, Report 88-464 A, p. CRS-11.

²⁶⁰ *Hart's Case*, 16 Ct. Cl. 459, 484 (1880), which Celada notes was "quoted approvingly in *Harrington v. Bush*, 553 F.2d 190, 194 note 7" by the D.C. Circuit Court of Appeals.

²⁶¹ *Spaulding v. Douglas Aircraft Co.*, 60 F.Supp. 985, 988 (S.D. Calif. 1945), aff'd, 154 F.2d 419 (9th Cir. 1946).

²⁶² *Fairfax v. United States*, 181 U.S. 283, 294 (1901).

²⁶³ See *Turner*, "The Power of the Purse: Controlling National Security Policy by Conditional Appropriations," *The Atlantic Community Quarterly*, Spring 1988, p. 79, and sources cited therein.

²⁶⁴ *United States v. Klein*, 80 U.S. (13 Wall.) 128, 147-48 (1872).

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When in past years Congress has sought to abuse its "power of the purse" to accomplish unconstitutional ends, the Court has not hesitated to strike the measure down. During World War II, when Congress enacted a statute seeking to use what it claimed to be its "plenary" power over appropriations to deny funds to pay the salary of three named alleged "communists" in the Executive branch, the Supreme Court in *United States v. Lovett* struck down the measure as an unconstitutional Bill of Attainder.265

The "power of the purse" is important, but it is not a tool through which Congress may properly seize control of all powers of government. Like all other powers of the Government, it may not be used in violation of any specific constitutional prohibitions. Implicit in the language designating the President "commander in chief" is the prohibition against Congress acting in that capacity.

Much confusion results from trying to compare the constitutional separation of powers in domestic affairs with that in foreign affairs. They are different. In domestic affairs, where Congress "delegates" authority to the President, it has a wide range of flexibility to direct—by conditional appropriations or otherwise—the manner in which those powers are to be exercised. The cases relied upon by Mr. Celada were of this character. But in foreign affairs, with respect to powers vested directly and exclusively in the President by the American people through the Constitution—Congress may not seize control of those powers by placing "conditions" on appropriations.

If the use of conditional appropriations measures allowed Congress to direct the manner in which the President exercised his discretionary responsibilities under the Constitution, the same vehicle could be used to deprive the third branch of its independent powers as well. The same logic which would permit Congress to deny funds (either directly or for payment of staff salaries) to the President to control the deployment of American military forces other than as dictated by the legislative branch could be turned on the Supreme Court with equal ease to shut down its operations if any measure (any statute on a lengthy list of new legislation) were held to be unconstitutional. Article III, section 1, of the Constitution protects judges from having their "Compensation . . . diminished during their Continuance in Office," but it does not expressly guarantee them sufficient funds to hire clerks, pay their rent, publish their opinions, or provide for numerous other essentials without which their effectiveness would cease. To argue that the "power of the purse" permits Congress to seize either Executive powers or Judicial Review is to argue

265 *United States v. Lovett*, 328 U.S. 303 (1946).

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that the Founding Fathers did not establish three co-equal, independent branches of government, but ultimately vested all powers of government in the legislature. Such a view is both wrong and dangerous.²⁶⁶

The issue is not all that different from the situation addressed by Jefferson in 1790, with respect to the power of the Senate to control the destination or grade of diplomatic nominations. Jefferson wrote:

> It may be objected that the Senate may by continual negatives on the person, do what amounts to a negative on the grade, and so, indirectly, defeat this right of the President. But this would be a breach of trust; an abuse of power confided to the Senate, of which that body cannot be supposed capable. So the President has a power to convoke the Legislature, and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking. Yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the Constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not let it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another.²⁶⁷

V
Conclusion and Policy Recommendations

Mr. Chairman, I began my testimony by noting that we meet here this morning on the fiftieth anniversary of the infamous Munich Conference of 1938, and by quoting from some of the statements by some of your Senate and House predecessors half-a-century ago about the importance of tying the President's hands in the field of foreign policy as a means of preserving peace and keeping America out of World War II. In so doing, I realize that some of you may find the analogy a bit strained.

Lest I be accused of appropriating someone else's work, full disclosure is in order.
The analogy is not mine. Among the other sources from which I borrowed it was a highly
respected gentleman who spent more than thirty years on the staff of this distinguished
Committee-ending his service as your Chief of Staff. I am speaking, of course, of Pat
Holt-an expert on the War Powers Resolution and the author of several books and

266 I am currently engaged in researching a book on this subject. For some preliminary views, see *supra*, note 263 and sources cited therein.

²⁶⁷ 3 THE WRITINGS OF THOMAS JEFFERSON 17-18 (Mem. ed. 1903) (emphasis added).

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monographs dealing with the subject—who in his book *Invitation to Struggle* (coauthored by Professor Cecil Crabb) wrote:

> The problem that the War Powers Resolution addressed was in many respects analogous to the situation confronting the United States during the 1930s, when Congress sought to keep the nation out of World War II by passing the neutrality legislation. In the end, that effort failed, primarily because legal efforts to keep America out of hostilities were inadequate to protect the security of the United States in an increasingly dangerous external environment. Supported by public opinion, Franklin D. Roosevelt frequently circumvented and, in some instances, ignored legal constraints upon his diplomatic freedom of action — and in the process placed the blame on Congress for the nation's lack of preparedness after the Japanese attack upon Pearl Harbor in 1941! As in the pre-World War II period, perhaps the only effective constraints upon the president's reliance upon the armed forces for national security and diplomatic ends is the creation of external conditions that make such reliance unnecessary.²⁶⁸

I have stressed on more than one occasion that I do not doubt the sincerity of most of the isolationist legislators who sought to "legislate peace" in the 1930's. Many of them learned an important lesson during that period, and in the years immediately following the War people like Arthur Vandenberg—a distinguished chairman of this Committee—helped forge a successful bipartisan foreign policy which served the nation and the cause of international peace very well.

In the mid-1950's, internationalists like Senator John F. Kennedy, Senator Mike Mansfield, Senator Hubert Humphrey, and Senator J. William Fulbright took up the cause of South Vietnam and pressured the Eisenhower Administration to help the people of that small country resist communist aggression. The Senate overwhelmingly consented to the ratification of the SEATO Treaty, which embodied that commitment. As the level of North Vietnamese aggression increased, the entire Congress voted by a margin of more than 500 to 2 to authorize the President to use American military force in Indochina. In so doing, Congress fulfilled its proper constitutional role in authorizing "war."

Sadly, as the war became less popular members of Congress sought to avoid accountability for their decisions—and the War Powers Resolution was enacted to deceive the American people into believing that Congress was not responsible for Vietnam. Over the years, Congress has demonstrated time and again that it is far more concerned with

268 C. Crabb & P. Holt, *Invitation to Struggle — Congress, the President, and Foreign Policy* 54-55 (1984). I am also indebted to Professor Whittle Johnston of the Woodrow Wilson Department of Government and Foreign Affairs at the University of Virginia for the metaphor.

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political expediency and avoiding accountability of policy fails than with constitutional principles. The differing congressional response to the *Mayaguez* and Iran rescue efforts illustrates this well, as does the shift in congressional attitude toward the Grenada operation following the release of public opinion polls. And I would note that a similar conclusion was reached by your former colleague, Senator Thomas F. Eagleton, when he told this subcommittee on July 13 of this year that he would "seriously consider repealing the whole damned thing." After watching example after example of congressional unwillingness to be held accountable in use of force situations, Senator Eagleton explained:

> Finally . . . I came to the conclusion that Congress really didn't want to be in on the decision-making process as to when, how, and where we go to war. I came to the conclusion that Congress really didn't want to have its fingerprints on sensitive matters pertaining to putting our armed forces into hostilities. I came to the conclusion that Congress preferred the right of retrospective criticism to the right of anticipatory, participatory judgment. . . . If the Persian Gulf exercise blows up, Senators and Representatives will be free to point out how things went wrong---how erroneous policies were executed of which they were not a part. If there had been a Congressional vote authorizing a Persian Gulf undertaking with some Congressional limitations, then Congressional fingerprints would be on the job and failure would be a shared result.

> I harbor the notion that most Senators and House members don't have the political stomach for decision-making involving war.

As I said, the implementation of the War Powers Resolution demonstrates time and again that Congress is far more concerned with avoiding political accountability than with constitutional principles. But Constitutional principles *are* important. The reason that Locke and other thinkers on the subject of separation of powers argued for Executive control over foreign affairs was not that these matters were not of vital *importance* to the society, but that they were not *capable* of being regulated in advance by law. Locke wrote:

> [A]lthough this . . . Power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than the Executive; and so must necessarily be left to the Prudence and Wisdom of those whose hands it is in, to be managed for the publick good.²⁶⁹

269 LOCKE, *supra* note 117 § 147.

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This same theme was picked up by John Jay in the *Federalist Papers*—explaining the need for Executive discretion in the negotiation of treaties.²⁷⁰ With an obvious criticism of the conduct of foreign affairs by the Continental Congress under the Articles of Confederation, Jay went on to observe:

> They who have turned their attention to the affairs of men, must have perceived that there are tides in them. Tides, very irregular in their duration, strength and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs, is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay even when hours are precious. The loss of a battle, the death of a Prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either, should be left in capacity to improve them. So often and so essentially have we heretofore [under the Articles of Confederation] suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective if no attention had been paid to those objects.²⁷¹

What I am saying—or, if you will, what Locke, Jay, Hamilton, and others have told us—is that legislative bodies simply lack the competence to manage the details of war and foreign affairs. The Founding Fathers realized that trying to regulate such matters with statutory constraints would leave the nation weak and incapable of preserving its freedom. And yet, with the War Powers Resolution the Congress seems intent on doing exactly that. You are demanding that the President submit detailed reports, telling you (and, in the process, our nation's adversaries) such details as how many troops he is deploying, what their "mission" is, what weapons they will carry, how many days they will remain in the danger zone, and so forth.²⁷² An enemy intelligence officer or military commander could not normally dream of such a gold mine of information.

270 FEDERALIST No. 64 at 434-35, quotes *supra* note 195 and accompanying text.

271 *Id.* at 435. Many in Congress clearly do not understand that a major impetus for the new Constitution was the almost universally held belief that the conduct of foreign affairs under the Articles of Confederation had been a disaster. Consider, for example, Senator Dale Bumper's confident reliance upon the instructions of the Continental Congress to General Washington that he "observe and follow such orders and directions from time to time as you shall receive from this or any future Congress of these United Colonies or a committee of Congress for that purpose appointed," after which Senator Bumpers confidently remarked: "That sheds a little light on the role of the Commander in Chief from the perspective of our Founding Fathers." 113 CONG. REC. S 12358 (daily ed., September 18, 1987).

272 See e.g., *supra*, note 78 and accompanying text.

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And, sadly, the situation has been made even worse by the *politically expedient* (and not infrequently *partisan*) manner in which Congress has reacted to the implementation of the Resolution. Once the President is on record as saying he intends to deploy X number of troops with the mission of Y, he may well have lost all flexibility to respond to unforeseen changes in the enemy's conduct. If the enemy escalates its own activities, and the President tries to counter by moving in an additional warship or modifying a unit's original mission, he can expect that at least one of his congressional critics will be on the evening news denouncing him for having "lied" to Congress and for "violating the law of the land." It is hard enough for the President to defend the nation against foreign aggressors, without having to fight a cowardly and irresponsible Congress at the same time.

Most of the most bitter fights over the War Powers Resolution have had nothing to do with "war" in a constitutional sense. When the President deployed Marines as part of an international peace force in Lebanon—at the specific request of the Government of that country—it was not even *arguable* that he was committing an act of "war." Sending the Navy to protect innocent victims of possible armed attack in the Persian Gulf is similarly not an act of "war." It may be *risky*, and it may even arguably be *bad policy*—but under the Constitution the American people have vested such decisions in the exclusive discretion of the individual they have elected to be their President.

One of the saddest side-effects of the War Powers Resolution has been the signal Congress has given to the world's aggressors and terrorists. By tying the trigger of the statute to "hostilities," you have gone a good way toward surrendering the initiative to the most radical anti-American forces around the world. Whereas once they knew that killing an American Marine would likely bring down the wrath of God (supported by a few thousand Marines and whatever other force might be necessary to accomplish the mission), today they know that by killing American soldiers they can possible start the clock ticking to force a withdrawal of all American soldiers in the area. At minimum, they can start a divisive controversy between Congress and the President—which by itself weakens the United States in the eyes of much of the world. It may well have been unintentional, but it seems to me that Congress has put a "bounty" on the lives of American servicemen around the world. As I have already mentioned, I think you deserve substantial responsibility for the tragic terrorist attack which killed 261 fine young Marines in Beirut in October 1983.

As you continue with your examination of the War Powers Resolution, I would make one final point. The original statute was essentially shoved down the throat of an unpopular President by an angry Congress which at least *pretended* to believe that he had usurped its constitutional authority in Indochina. In reality, I would argue, that was not an

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accurate summary of the facts. Congress was a full constitutional partner in the decision to commit U.S. forces to combat in Indochina—and at that point its constitutional role under its power to "declare war" was complete.

The spirit of the War Powers Resolution, and literally hundreds of additional constraints placed on the President in the national security realm in the wake of Vietnam, is one of *confrontation*. Congress is treating the President as if he were simply its misbehaving minion—subject always to the whim of its dictates. But under the Constitution, that is not the President's status. He is a co-equal representative of the American people, and in the field of foreign affairs he is vested with vast authority which is beyond the control of Congress.

Mr. Chairman, having seen legislative-executive relations from diverse perspectives over nearly fifteen years, I am convinced that the absence of a genuine bipartisan foreign policy is one of the major impediments to peace in the modern era. I believe it is important for both political branches of government to work closely together in an effort to reestablish such a relationship, and to that end—as a matter of comity—I believe it is desirable for the President to provide adequate national security information to Congress to assist it in its important work.

During my service in the Department of State I was a frequent critic of the all too common practice of "notifying" Congress of Executive decisions in the guise of "consultation." Genuine consultation ought to involve a sincere solicitation of views about broad policy options and specific problem areas, with a summary of congressional views and recommendations being shared with the President, the Secretary of State, or other decision makers *prior* to the formulation of policy. This is not to say that the President should yield ultimate decisionmaking authority in the Congress (beyond that already contained in the Constitution), but that he should have the benefit of congressional thinking and should carefully evaluate it with the realization that major policies which do not have the support of Congress and the American people are unlikely to succeed. Thus, regardless of the constitutional prerogatives of the two branches, there are strong prudential considerations which mitigate in favor of keeping a responsible Congress informed about national security policy issues.

Obviously, these considerations must be weighed against the risks of congressional irresponsibility. Ideally, an informal sort of "checks and balances" should exist based on these principles:

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(1) Both Congress and the President should recognize the dangers to the nation which are present in the modern world, and should in the name of peace insist that "politics" stop at the water's edge.

(2) Although he has a great deal of independent constitutional discretion in national security affairs which is beyond the direct control of Congress, the President should recognize a self-interest in cooperating with Congress and keeping a responsible Congress adequately informed to facilitate rational cooperation and support.

(3) The Congress should recognize the importance and special nature of national security problems, should insist that these be handled on a higher level than simply "politics as usual," should display a due respect for the independent constitutional powers of the President—even in circumstances where individual members believe they might well exercise that discretion differently and more effectively were they President—and should recognize that responsible congressional behavior is a precondition for substantial Executive cooperation with respect to sensitive national security information.

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The benefits to both branches—and, more importantly, to the Nation—of a genuine bipartisan cooperation in the national security field should be so obvious as to require no elaborate discussion. However, a president who is virtually *under siege* from a Congress which seems determined to grab all powers of government for itself is hardly in a position to make further concessions to improve the overall relationship. The primary fault for the overall deterioration of legislative-executive relations in the national security field lies with Congress, and it is Congress which must, of necessity, make the first steps if the situation is going to be corrected. Repealing the War Powers Resolution would be an excellent first step.

To provide a rough idea of how active Congress has become in trying to micro-manage foreign affairs in the post-Vietnam era, in the less than twenty-five years since the Gulf of Tonkin Resolution was enacted into law in August 1964, this committee's compilation of *Legislation on Foreign Relations* has increased from a single volume of 659 pages to three volumes averaging about 1,500 pages each. The Founding Fathers would be *shocked* at this development. They placed great value on unity of decision in foreign affairs, and this simply is not possible when we have 536 individuals who want to play Secretary of State.²⁷³

273 The modern effort by Congress to enact the most detailed laws to "protect" the nation against every conceivable form of executive misconduct is reminiscent of a short-lived proposal by Elbridge Gerry, in the Constitutional Convention, to fix the maximum size of the peacetime army in the nation's fundamental law. As described by Harvard Professor Charles Warren: "[Gerry] thought an army in time of peace to be dangerous, and he moved that 'in time of peace the army shall not consist of more than ___ men', suggesting that 2,000 or 3,000 should be sufficient. Luther Martin supported him. At this point in the Convention, as later narrated by General Mercer, General Washington, who was in the Chair and therefore could offer no motion, turned to a delegate who stood near and in a whisper made the satirical suggestion that he move to amend the motion so as to provide that 'no foreign enemy should invade the United States at any time, with more than three thousand troops.' ... Gerry's motion was unanimously rejected." C. WARREN, THE MAKING OF THE CONSTITUTION 482-83 (1937).

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Even if the attempt by Congress to limit the President's constitutional power as commander in chief were not in conflict with the Constitution, it has had detrimental consequences for the security of the nation. To mention just one example, early in the Reagan Administration, Ambassador-at-Large Vernon Walters was sent on a secret mission to Havana to put Cuban President Fidel Castro on notice that his efforts to engineer the forcible overthrow of El Salvador and other Latin American States would not be tolerated. After listening quietly, Castro responded: "I understand how your government works, and I know that none of your congresses will allow any of your presidents to do to me what they would like to do to me."²⁷⁴ As a result, Castro was not deterred and Cuban efforts to overthrow non-communist governments in Latin America continued. A similar effort in Nicaragua—which as a matter of law²⁷⁵ Congress has found to be guilty of unlawful international aggression against its neighbors—to provide incentives for peace has also been undermined by legislative micromanagement. If not ultimately deterred, the United States may soon find itself forced to choose between watching one country after another to our south fall to external aggression or sending in another generation of young men to repurchase our national credibility with their lives.

Mr. Chairman, I don't wish to be misunderstood. I am not suggesting that members of Congress who seek to restrict the constitutional authority of the President are evil or that they intend to do other than promote "peace." They are no less honorable than was Prime Minister Chamberlain fifty years ago today, or the isolationists in the Congress of the 1930's who thought that if they could just get handcuffs on the adventurist President Roosevelt America need not fear the expansionist regimes in Germany and Japan. What I am suggesting is that—like similar critics of the past—you are mistaken; and your misguided actions are endangering world peace and freedom.

Obviously, I may be wrong. But you invited me to give you the benefit of my thinking, and given the seriousness of the stakes involved—and because of my great respect for this institution and this Committee—I concluded that I would serve you best by being fully candid.

274 I first learned of this conversation in a personal conversation with Ambassador Walters during my service in the Department of State. I include it here because it has now appeared in print. See "Now you understand," *Washington Times*, July 31, 1985, p. 3A col. 1.

275 Congress has found that Nicaragua "[h]as committed and refuses to cease aggression in the form of armed subversion against its neighbors in violation of the Charter of the United Nations, the Charter of the Organization of American States, the Inter-American Treaty of Reciprocal Assistance, and the 1965 United Nations General Assembly Declaration on Intervention." International Security and Development Cooperation Act of 1985, sec. 722(c)(2)(vi), Pub. L. 99-83, 99 Stat. 149. For a detailed account of Nicaraguan aggression, see R. TURNER, NICARAGUA V. UNITED STATES: A LOOK AT THE FACTS (1987).

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Let me conclude by returning to the underlying constitutional issues. I have argued that recent legislative initiatives to constrain the President's independent constitutional powers are unlawful and in violation of the oath of office each of you took upon assuming your present station. I have urged that Congress restore the "rule of law" by repealing provisions of law which are in conflict with the Constitution.

I am well aware that there are those in both political branches of the Government who say that "what is done, is done," and—regardless of the intent of the Founding Fathers and the text of the Constitution—the President must simply accept the new congressional role and try to reach an accommodation with the Congress under new ground rules. But I would leave you with the thought that for the President to continue to acquiesce to congressional efforts to seize his independent constitutional powers would be a violation of his oath of office to "defend the Constitution," and his constitutional obligation to "take care that the Laws be faithfully executed."²⁷⁶ But here I've used the wrong pronoun. The powers of the presidency are not really "his," at all, if by "his" we mean Ronald Reagan. These are powers of the American people. And if the President— any President, whether he be Democrat or Republican, Liberal or Conservative—is to uphold the "rule of law" he must defend his constitutional powers.

Let me close with a short quotation from the distinguished Harvard Law School Professor Charles Warren:

> Under our Constitution, each branch of the Government is designed to be a coordinate representative of the will of the people. . . . Defense by the Executive of his constitutional powers becomes in very truth, therefore, defense of popular rights—defense of power which the people granted him. . . . In maintaining his rights against a trespassing Congress, the President defends not himself, but popular government; he represents not himself, but the people.²⁷⁷

Mr. Chairman, this concludes my prepared remarks.

276 After all, the first "law" mentioned in the supremacy clause is the Constitution itself.

277 Warren, Presidential Declarations of Independence, 10 BOSTON U. L. REV. 1, 35 (1930).

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