ALL YOU REALLY NEED ARE THESE
TOP 4 PAGES and POSSIBLY PETER's
ESSAY

4/27/89

MEMO FOR HAK

FROM: Rosemary

RE: War Powers

Attached, at top, is a summary of the main provisions of the 1973 War Powers Act which remain on the books.

Debate over its provisions has resulted in some proposed amendments being sponsored in the Senate and the House, which, it is argued (on the Hill) would soften some of the more offensive features of the original statute.

The principle focus is on the "War Powers Resolution Amendments of 1988." Identical versions were put forward in the Senate and the House. The Senate resolution was sponsored by Byrd, Nunn, Warner and Mitchell. The House resolution was sponsored by Lee Hamilton. Both were reintroduced this year to the new Congress (with additional Senate sponsors including Boren, Cohen and Danforth).

- The principle changes which the Senate/House moves would entail are summarized in the attached page, along with a two page summary of the amendments which was prepared by Lee Hamilton's staff.

- Maury Leibman's friend, Bob Turner (who has followed the War Powers debate in exhausting detail for years) has testified on the Hill that while these amendments "would eliminate some of the most clearly unconstitutional and otherwise objectionable features of the initial statute....this still does not solve all of the constitutional or political problems of the existing statute." (much less do away with it).

In addition, six lesser bills have been sponsored this year, each (depending on the political party) offering various other alternatives. (One by Republican Doman of California would repeal the Act entirely).

I am told that all of these initiatives remain on the table on the Hill but nothing has happened as regards passage.

As of possible interest for additional background reading, the attached book includes

- An essay done by Peter in 1985 which deals with the War Powers Resolution.

- Excerpts of testimony by Bob Turner (Leibman's colleague) critiquing the original Act and proposed Congressional amendments.

- The full (and laborious) text of the proposed Senate/House amendments of 1988.

TURNER—EXECUTIVE SUMMARY

The power of Congress to "declare war" was thus seen as a very important but also very narrow "check" on one aspect of the President's control of foreign affairs. The President could not launch an offensive war without the approval of both houses of Congress. Clearly, in Indochina, Congress played its full constitutional role. It perpetrated a political fraud on the American people in pretending that the terrible conflict had been imposed on the nation against the wishes of the legislative branch.

The Founding Fathers vested the exclusive "command" of whatever military forces Congress saw fit to create in the discretion of the President. From the earliest debates it is clear that Congress understood that it had no control over troop deployments. Even Senator William Borah, a prominent isolationist and powerful chairman of this Committee between the two world wars, recognized that Congress had no power to compel the President to withdraw troops from Europe in 1922. This is not to suggest that Congress is powerless in the even the President abuses his authority by using his discretionary command to launch a war on another country without congressional approval—the impeachment power is perfectly adequate for such a situation. But the belief that recent American presidents have been out launching "wars" against the will of Congress is a myth. And for Congress to attempt to seize control of the Commander in Chief power as a means of "preempting" a possible abuse by the President is simply unconstitutional.

### III

The third part of my prepared statement looks in some detail at the 1973 War Powers Resolution, and concludes that several important provisions are clearly unconstitutional. At least one of these, section 5(c), has already been struck down by implication by the Supreme Court in its 1983 *INS v. Chadha* decision. Section 5(b), which pretends to deprive the President of his constitutional Commander in Chief power in a dangerous crisis if Congress can not agree whether he is right or wrong—in essence trying to establish a legal presumption in the event of imminent armed conflict that the elected American President is wrong, and our enemies right—is equally unconstitutional. It is also *extremely* dangerous—coming from the same intellectual tradition as the 1938 Munich Agreement and the Neutrality or so-called "peace" laws of the same era—and both undermines the confidence of our friends and encourages the forces of international aggression.

If the American voters ever realize what Congress actually did in enacting this law, some of its most outspoken advocates are likely to go the way of Senator Gerald Nye and other prominent isolationists when the public watched their "neutrality" laws lead us into

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TURNER—EXECUTIVE SUMMARY

World War II. You have tied the President's hands, surrendered the initiative to the most radical anti-American elements around the world, and essentially informed the Kadaffi's of the world that if they can kill just one American soldier abroad they can at minimum provoke a major constitutional crisis between Congress and the American President—and with any luck they can start the "war powers" clock running and ultimately cause the withdrawal of all American servicemen from their area of the world. You have intentionally or otherwise-placed a bounty on the lives of our servicemen and women.

IV

Section IV examines some of the provisions of S.J. Res. 323, the War Powers Resolution Amendments of 1988. I commend Senators Warner, Nunn, and the other co-sponsors of this legislation for attempting to correct at least some of the more flagrantly unconstitutional provisions of the act. It is a good start, but it doesn't go far enough.

I have long favored the establishment of a Joint Committee on National Security to engage in regular consultations with the Executive branch—particularly during periods of imminent crisis, but also on a variety of long-term policy issues. But under the Constitution, Congress has no more legal right to compel the President to "consult" than he has a right to send a detachment of Marines to the Majority Leaders office and drag him back to the White House for a "meeting." Both Congress and the Executive are independent, co-equal branches of our Government; and it is both unseemly and unconstitutional for Congress to attempt by law to force the President to consult.

Furthermore, such a statutory provision is entirely unnecessary. If Congress will learn to safeguard national security information, and will deal with the President in a spirit of comity displaying the dignity and respect appropriate to his high elected office, it will likely find that the President realizes the critical importance of a bipartisan cooperative relationship. For political rather than legal reasons, congressional understanding and support of foreign policy initiatives are essential if the American people are going to stand behind their government.

Section five of the proposed amendments would invoke the "power of the purse" to strengthen the effort by Congress to deprive the President of his independent constitutional powers. It adds nothing of value to the resolution. The power of the purse, like all other constitutional powers, must be exercised in such a manner as not to conflict with other provisions of that great document. I had thought the Congress understood this message in 1946 when the Supreme Court, in *United States v. Lovett*, rejected your assertion of a

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TURNER—EXECUTIVE SUMMARY

"plenary" and unreviewable right to place unconstitutional conditions on Executive branch appropriations.

Consider also the 1872 case of *United States v. Klein*, in which the Court recognized your complete control over the jurisdiction of the Court of Claims, but nevertheless struck down as unconstitutional your effort to limit its jurisdiction for the purpose of denying effect to a presidential pardon. The power of pardon is vested in the President by the same sentence which makes him Commander in Chief, and the legal reality is you can not deprive him of such powers without going through the detailed procedures set forth in article V to amend the Constitution.

Much of the confusion in this area results from the fact that Congress regularly, and properly, places "conditions" on how appropriated funds for domestic purposes are to be spent. But in these cases the President is exercising domestic powers *delegated* to him by the Congress. When the President is acting in the area of foreign or national security affairs, relying upon powers vested in his office directly by the American people through the Constitution, Congress has no right to seize control of those powers by conditional appropriations.

Were this not the case, it would follow that you could also destroy the independence of the Judicial branch. While the Constitution prohibits the lowering of judicial salaries, it provides no guarantee of adequate appropriations to pay rent, utilities, printing costs, clerk and staff salaries, and the other costs essential to the effective functioning of the third branch of Government. If you can seize the Commander in Chief power by simply providing that "no funds" shall be available to deploy ships to the Persian Gulf—or for that matter no funds shall be available unless the President orders the third squad of Company C of a specified unit to attack Hill 401 at dawn—it would seem to follow that you could also condition funds for the workings of the Judicial branch (other than salaries for judges) upon no court holding any of a long list of newly enacted laws to be unconstitutional. You can be confident that the Court would not use the political question doctrine to avoid that particular inter-branch confrontation.

V

Mr. Chairman, my final section expresses some broad conclusions and policy recommendations which I thought might be of interest to the subcommittee. In the interest of time, I shall not dwell upon them at any length now. Let me only make two points.

I have entitled my presentation "Restoring the 'Rule of Law': Reflections on the War Powers Resolution at Fifteen." My most important conclusion is that Congress is in fact breaking the law. Some may wonder how that could be, since Congress "makes the

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TURNER—EXECUTIVE SUMMARY

law”—but I am talking about a higher law, the Constitution of the United States. Several provisions of the 1973 War Powers Resolution are in flagrant violation of the Constitution, and you betray your oath of office when you continue to permit such provisions to remain on the books. In an era of heightened public concern about the "rule of law," it would seem to me that Members of Congress ought to be more sensitive to their legal duties under the supreme law. Put simply—you are breaking the law.

Finally, I would suggest that so long as such laws remain on the books—and while the War Powers Resolution may be the worst offender, it is but one of scores if not hundreds of statutory provisions which would have shocked the Founding Fathers—the President will have no option but to resist the attack on his powers. Despite his desire to improve relations with Congress, he can not legally do so by simply surrendering his powers to an irresponsible and Imperial Congress. Because in a larger sense, they are not his powers at all—they are but powers of the American people which have been entrusted to his care during his tenure in that high office.

As the great Harvard legal scholar Charles Warren wrote more than half-a-century ago:

> 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.

Thank you Mr. Chairman—that completes my statement.

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RESTORING THE "RULE OF LAW":

at Fifteen

Robert F. Turner

Introduction

Mr. Chairman, it is a great pleasure to appear before the subcommittee this morning to address the critically important subject of the 1973 War Powers Resolution.

This is an issue that I have followed with keen interest for a decade and a half. Having seen the horror of war first-hand during two Army assignments in Vietnam, and fifteen years later had the honor of serving for twenty months as the first President of the congressionally-established U.S. Institute of Peace, I have a deep concern about issues of war and peace—and a strong personal attachment to the latter.

During the first five years following the enactment of the War Powers Resolution I served as principal national security legislative assistant to a member of this Committee; and during one of the initial tests of the Resolution, the April 1975 evacuation of Saigon, I was the last congressional staff member to leave South Vietnam. In the years which followed, I spent several years in a variety of positions in the Pentagon, the White House, and the State Department—each involving at least some responsibilities relating to the War Powers Resolution.

I have also devoted a good deal of time to this issue as a scholar and active member of the legal profession. For three terms I chaired the Committee on Congressional-Executive Relations of the American Bar Association's Section of International Law and Practice. I am currently one of eleven members of the ABA Standing Committee on Law and National Security, on which I serve with one of your former members, Senator Charles Mathias.

My 1983 study, *The War Powers Resolution: Its Implementation in Theory and Practice*, has been used as a text at Harvard, Georgetown, by two of my colleagues at

Virginia, and at several other colleges and universities. I also prepared the separation of powers section of a soon to be published law school casebook on *National Security Law*.

After leaving the Institute of Peace last November, I accepted a joint faculty appointment at the University of Virginia. My primary work is as Associate Director of the Center for Law and National Security at the School of Law; but I also teach courses on "U.S. Foreign Policy," "International Law," and "Foreign Policy and the Law" in the Woodrow Wilson Department of Government and Foreign Affairs. The War Powers Resolution is addressed in each of these courses. I would *emphasize*, however, that all of the views which I express today are mine *alone*, and should not be attributed to the Center, the University, the ABA, or any other group or organization with which I am or have been associated.

With the subcommittee's permission, I would like to divide my testimony this morning into five sections. First, I will endeavor to place the War Powers Resolution in historic perspective—to discuss its origins and briefly its implementation during the past fifteen years. I would then like to spend a few minutes discussing the relevant underlying constitutional theory of separation of national security powers—with special emphasis on those powers of each branch relating to the use of military force.

In part three, I would like to examine some of the specific provisions of the 1973 statute both in the light of the constitutional separation of powers and on broader policy grounds. Part four will briefly consider some aspects of Senate Joint Resolution 323, the proposed War Powers Resolution Amendments of 1988, which have been introduced by Senators Warner, Nunn, Byrd, and Mitchell. Part five will set forth some of my own conclusions and policy recommendations.

# I

## Congress, Peace, and the War Powers Resolution in Historical Perspective

### Commemorating the Munich Conference of 1938

Mr. Chairman, today marks the fiftieth anniversary of the start of the infamous Munich Conference of 1938 at which fearful British and French prime ministers pressured the government of Czechoslovakia to yield the Sudetenland to Hitler as a means of securing "peace for our time."¹ As you know, six months later Hitler seized the rest of

¹ See generally, T. BAILEY, A DIPLOMATIC HISTORY OF THE AMERICAN PEOPLE 708 (10th ed. 1980).

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Czechoslovakia—and within a year World War II was engulfing Europe. Historians now look back with disdain at what they call "the Munich sellout,"² but there is little evidence to question the sincerity of Prime Minister Neville Chamberlain's belief that he could secure "peace" by what he acknowledged was his policy of "appeasement" of Hitler and Mussolini.³ In 1938 he returned to London to a heroes welcome.

## Congressional "Peace" Efforts and World War II

In a similar way, I don't doubt the sincerity of Senator Gerald Nye and his isolationist colleagues who believed that the United States could avoid the coming war by simply tying the President's hands with a series of what historians would later characterize as "head-in-the-sands Neutrality laws"⁴ and other constraints on the President's conduct of foreign affairs. Historian Cecil Crabb explains some of the impact of congressional policies on the efforts by Presidents Hoover and Roosevelt (and Secretary of State Stimson) to deter Japanese aggression in its early stages:

> Stimson knew very well—as did the Japanese government—that the isolationist sentiment in Congress would preclude strengthening American bases or naval strength in the Pacific. . . . As one student of Sino-American relations has observed, during the early 1930s "Congress indicated no willingness to consider Japan's actions [in invading Manchuria] a threat to any interests of the United States and in the Senate, especially, there was strong opposition to an American stand against Japan." . . . Subsequently, Congress reduced military appropriations, and Senator Borah announced that he would never "support any scheme of peace based upon the use of force." . . .

> By 1937, leading congressional isolationists called upon the Roosevelt Administration to evacuate China, to relinquish the Philippines, and to avoid any step which might lead to a conflict with Japan.⁵

For one who has read the lengthy "neutrality" debates of the late 1930's, a review of the post-Vietnam congressional "war powers" debates brings a sad sense of *déjà vu*. Senator Nye spoke of the need "to write a permanent neutrality law that will do away with

² Id. at 707.

³ J. DOUGHERTY & R. PFALTZGRAFF, JR., AMERICAN FOREIGN POLICY: FDR TO REAGAN 22 (1986).

⁴ BAILEY, *supra* note 1 at 701.

⁵ C. CRABB, THE DOCTRINES OF AMERICAN FOREIGN POLICY 82-84, 87-88 (1982).

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many of the dangers of our country being drawn into other peoples' wars ..."⁶ He explained:

> [T]he purpose of the stay-out-of-war law is to prevent any President from being forced by the necessity of choosing sides, and, as far as it is in the power of this Government, to starve wars. ... The neutrality law prevents any commitment by the Executive to either side until Congress has expressed the will of the people. ... [T]he power to commit the Nation to war is the greatest power in the world. The neutrality law keeps it where the Constitution put it—in the hands of Congress. ... [T]hose who wish us to act as policemen for the world, oppose the neutrality law. The passage of that law had the overwhelming support of the people for the very reason that it protected the country against war for the sake of profits for a few individuals, and prevented the Government from forcing the country into the role of world policeman."⁷

A few days later, when Senator Nye was asked in a radio interview whether it was true his law would in fact favor Japan, he responded that "I should like to state very definitely that the purpose of the neutrality legislation was to keep this country out of war. The question of whether its application in any given instance would work to the greater disadvantage of one belligerent or another has nothing to do with this main purpose."⁸

Senator Nye was hardly alone in his view that trying the President's hands would guarantee peace for America. Representative Hamilton Fish, a sixteen year veteran of the House Foreign Affairs Committee, explained:

> We are prepared to spend millions for defense but not one dollar to send American soldiers to foreign lands to fight other people's battles.

> We are opposed to all entangling alliances, entrance into the League of Nations, war sanctions, and commitments. We propose to avoid taking part in all ancient blood feuds and boundary disputes, or "picking the chestnuts out of the fire" for foreign nations. Our policy is and must be to mind our own business, stay at home, and try to solve our own problems for the best interest of all the American people. ...

> The preservation of peace should be the continuous policy of our country. There are many thinking people who sincerely believe that another world war is inevitable and that we cannot escape being drawn into it. I do not agree with either the logic or the reasoning of such arguments. In the World War ... [w]e became involved because we insisted on

⁶ Reprinted in 81 CONG. REC. APP. 121 (1937).

⁷ Id. at 2187.

⁸ Id. at 2257.

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adhering to the ancient principles of international law governing the freedom of the seas, neutral ships, and neutral cargoes. ...

Both the President and Secretary of State Hull are internationalists and former supporters of the League of Nations. I am unalterably opposed to giving either one unnecessary discretionary powers to entangle us in the League or involve us in European disputes.

I am also opposed to the Congress delegating its constitutional power to declare war to the President, whether he is a Democrat or a Republican. ... We should give the President a minimum amount of discretionary power, as it is generally passed on to subordinates in the State Department who love to have their finger in the foreign pie and are more apt to involve us in war than to drag out a plum.

The Congress should prescribe the rules and regulations by law, and not leave them to the State Department, which enjoys nothing better than meddling in the affairs of foreign nations and making commitments for us that might involve us. . . . eventually in war. . . . The American people want peace, and we propose, through mandatory neutrality legislation, to help maintain and preserve peace with all nations even if we must relinquish some war profits in order to keep out of war.⁹

On July 8, 1937, Representative Jerry Voorhis gave a speech at the University of Virginia in which he explained: "The American people want peace. In overwhelming majority they are determined that this Nation shall keep out of other people's wars. Unless, therefore, this will to peace is stifled, broken down, and destroyed, America will keep the peace."¹⁰ He explained that whether "American boys once more fight and die on foreign battlefields" would "depend":

[I]f we conceive it our duty to rush to the aid of France, Russia, and England in any future war in which they may become engaged; if we insist upon the complete freedom of the seas for all our commerce all the time; and if we cling to our essentially imperialistic policy in the Pacific and hang on to the Philippines after promising to let them go—then the chance of America remaining at peace is indeed slight.

On the other hand, America can remain neutral and keep the peace. . . .

First, then, we must write into our Constitution the Ludlow amendment, which, excepting the case of armed invasion gives to the American people the right to decide by national referendum whether they choose to go to war or not. . . . American ships, moreover, should be prohibited from entering zones of active war.¹¹

⁹ Id. at 231-32.

¹⁰ Id. at 1734.

¹¹ Id. at 1735.

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Now during the late 1930's these "voices for peace" did not go unchallenged. Like the Towers and Warners of the post-Vietnam era, there were men of courage and vision who recognized the dangers inherent in "tying the President's hands" during a period of growing international crisis. Senator Henry Cabot Lodge noted the problem with respect to the 1937 Neutrality Act—which was labeled the "Peace Act of 1937"—recounting that "A colleague who also voted against it received a telegram on the following day saying, 'Extremely disappointed to see that you voted against peace.'"¹² This same problem exists in the 1980's, when those who question whether permitting international aggression to continue unchecked is likely to promote long-term peace are accused of being "warmongers" (and, thanks to the War Powers Resolution, "lawbreakers" as well). Discussing the 1937 bill, Lodge observed:

> The cash-and-carry theory would have you believe that if you lead with your chin your opponent will not hit you. All human experience seems to be against it. Give up some of your rights and it becomes harder to hold on to the others. I hope I am wrong, but I fear that this bill will give fresh stimulus to every swashbuckler and jingo the world around.¹³

The separation of powers problems with some of the neutrality provisions did not go unnoticed. Consider this exchange from the Senate floor debate of April 29, 1937:

MR. CONNALLY. . . . Under the Constitution, the President is given very wide powers to deal with international matters; and whatever we do is to a certain extent an infringement on this discretion and on his constitutional function.

MR. ROBINSON. The Senator from Texas has with almost complete accuracy anticipated the next statement I intended to make.

Under our Constitution and under our practice from the beginning of the Government, the Executive, and not the legislative, conducts our foreign relations; and the carrying on of foreign relations is intimately associated with the problems involved in this legislation. We all know that as Commander

¹² Id. at 973.

¹³ Id. An American strategy of "Peace Through Strength" dates back to the earliest days of our country. A few years before taking office as our first Secretary of State, Thomas Jefferson wrote in a letter to John Jay: "Justice . . . on our part, will save us from those wars which would have been produced by a contrary disposition. But how can we prevent those produced by the wrongs of other nations? By putting ourselves in a condition to punish them. Weakness provokes insult and injury, while a condition to punish, often prevents them. . . . I think it to our interest to punish the first insult; because an insult unpunished is the parent of many others." 5 THE WRITINGS OF THOMAS JEFFERSON 95 (Mem. ed. 1904), quoted in Turner, "International Law, the Reagan Doctrine, and World Peace," *The Washington Quarterly*, Autumn 1988, p. 120.

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in Chief of the Army and Navy and as Chief Executive, a President, if he is disposed to do so, may at times contribute to the endangerment of the peace of the country. In the performance of his duties in carrying on the foreign relations of the country, he may so conduct them as to cause anger and resentment on the part of other governments and thus in a measure jeopardize the peace of the country.

We also know, on the other hand, that in the discharge of his normal functions under the Constitution he may, and usually does, pursue a policy which is calculated to preserve the peace of the nation. . . .

MR. CONNALLY. The Senator said that ever since the Government began we had Presidential control of our foreign relations. Is it not true, however, that under the Confederation and during the Revolution the Continental Congress undertook to exercise the function of carrying on our foreign relations, and made a lamentable failure of it, and that is one reason why we vested such large powers in the Executive?

MR. ROBINSON. Without doubt. It would be very difficult for my associates in the Senate and myself to carry on the foreign affairs of this Government effectively, however much confidence we may have in ourselves, and however much admiration we may feel for one another; and the difficulty would be augmented when we take into consideration the 435 other individuals at the other end of the Capitol who themselves have a measure of responsibility. . . . Many of our citizens believe, and some of our great writers express themselves as believing, that it is possible by passing a law through Congress to accomplish almost anything, and that it is possible by merely declaring neutrality to guarantee the peace of the country for all time to come. . . . In my judgment, there is no way in which by law we can make it impossible for our people to be drawn into war. . . .

MR. CONNALLY. . . . I wish . . . to dissent from the expression of the views of the Senator from Michigan [Senator Vandenberg] that we can and should anticipate by legislation every conceivable situation, and have a mandatory act to enforce our edicts, and to compel the President to sit up in the White House merely as an automaton to register the will of Congress with regard to international situations which we cannot foresee, which nobody ever has foreseen, and which never will be foreseen.

It is sound to invest the President, as the Constitution does invest him, with a very large discretion with regard to international affairs.¹⁴

But these voices were not heeded, and Congress enacted one neutrality law after another.

In May of 1939, a desperate President Roosevelt and Secretary of State Cordell Hull urged Congress to repeal the neutrality laws, but public opinion was strongly in favor

14 81 CONG. REC. 3945-46 (1947).

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of peace and isolationism and Congress agreed to only minor revisions. In a fit of anger, Secretary Hull told Congress that the coming war in Europe would not be just "another goddam piddling dispute over a boundary line," but of "vital" concern to the United States. The neutrality laws, he said: "substituted a wretched little bobtailed, sawed-off domestic statute for the established rules of international law" and in the process were encouraging the aggressors.¹⁵

When Secretary Hull predicted war in Europe by the end of summer, 1939, Senator William Borah, the Chairman of this Committee, contradicted him—implying that he had more reliable sources of information about events in Europe than was possessed by the State Department.¹⁶ Even after the War began in Europe, Congress refused to give the President the authority he requested to strengthen the United States and assist the victims of Nazi aggression.

## Presidential "Lawbreaking"

Finally, in frustration, when Churchill appealed to Roosevelt in July 1940 for the loan or lease of forty or fifty old World War I-vintage U.S. Destroyers—which were tied up in US shipyards and not in active service—Roosevelt decided to ignore Congress and provide the ships. He entered into an executive agreement with Churchill, and in return for fifty Destroyers the U.S. received certain military basing rights in Bermuda and Newfoundland. Isolationists in Congress charged that the President had "broken the law," and the *St. Louis Post-Dispatch* asserted in a headline: "Dictator Roosevelt Commits an Act of War." Does this sound familiar to anyone?

Mr. Chairman, I don't doubt the sincerity of the Senate isolationists who helped bring us World War II. They were simply mistaken about how best to preserve peace. But their "mistakes" had tragic consequences for the cause of world peace. As Stanford Historian Thomas Bailey has observed, "[t]he storm-cellar legislation of the 1930's presumably encouraged the dictators by serving notice that their victims could expect no aid from the rich Uncle Sam. . . . Such legislation . . . tended to accelerate World War II, into which the United States was ultimately sucked."¹⁷ Put simply, your predecessors forgot that war can result from the actions of foreign countries as easily as from those of an unconstrained American president; and in tying President Roosevelt's hands they removed

15 A. DECONDE, A HISTORY OF AMERICAN FOREIGN POLICY 576 (2d ed. 1971).

16 *Id*.

17 BAILEY, *supra* note 1 at 703.

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one of the few incentives which might have led Japan and Germany to have second thoughts about continuing their aggression.

## WW II and the Shift to Bipartisan Internationalism

When the attack on Pearl Harbor established that placing a straight-jacket on the American president was scant protection against war imposed by foreign aggressors, Senator Nye and several other prominent isolationists fell victim to public outrage at the polls. Many of those who survived, like Arthur Vandenberg of Michigan, emerged from the experience with a far more realistic approach to world peace.

Indeed, Senator Vandenberg played a critical role in the negotiation and Senate approval of the United Nations Charter in 1945; and in the years which followed—as Chairman of this Committee—he worked closely with President Truman and Secretary of State Acheson in forging a successful bipartisan foreign policy. Abandoning the pre-war spirit of isolationism, the Congress gave strong approval in 1947 to the Truman Doctrine and helped serve notice to potential aggressors that the combined strength of the free world would confront further violations of the non-use-of-force provisions of the U.N. Charter.

## War in Korea

In January 1950 Secretary Acheson made the mistake of announcing that South Korea was outside the American "defensive perimeter" in Asia, and this contributed to the North Korean invasion which followed five months later. Pursuant to a decision of the U.N. Security Council, President Truman—without seeking congressional approval—responded by sending combat troops to help defend South Korea. The initial public opinion polls showed that more than 80 per cent of the American people supported the commitment, and few in Congress questioned the President's constitutional authority to act immediately to meet the danger.¹⁸ Indeed, a 1973 report from this Committee acknowledged that "[w]hen President Truman committed the armed forces to Korea in 1950 without Congressional authorization, scarcely a voice of dissent was raised in Congress . . . ."¹⁹

One of the few isolationists who did question the President's constitutional authority was Republican Senator Robert Taft, of Ohio—and even he acknowledged that

¹⁸ I discussed this period in greater detail in my prepared testimony before the House Subcommittee on Arms Control, International Security and Science, on August 4, 1988.

¹⁹ 119 CONG. REC. 1406 (1973).

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"if a joint resolution were introduced asking for approval of the use of our armed Forces already sent to Korea and full support of them in their present venture, I would vote in favor of it."²⁰ Nevertheless, Taft and Representative Frederick Coudert of New York proposed a "war powers resolution" of sorts to give Congress some control over future commitments of U.S. troops abroad; but they were quickly attacked by prominent liberal historians like Arthur Schlesinger, Jr., and Henry Steele Commager.²¹ In a letter to the *New York Times*, Professor Schlesinger denounced Senator Taft's position as "demonstrably irresponsible," and argued:

> From the day that President Jefferson ordered Commodore Dale and two-thirds of the American Navy into the Mediterranean to repel the Barbary pirates, American Presidents have repeatedly committed American armed forces abroad without prior Congressional consultation or approval. Until Senator Taft and his friends succeed in rewriting American history according to their own specifications these facts must stand as obstacles to their efforts to foist off their current political prejudices as eternal American verities.²²

The subcommittee may wish to consider Professor Schlesinger's recent testimony of June 14—in which he told you that the theory behind President Truman's commitment of forces to the Korean conflict "rests doctrinally on an extravagant interpretation of the commander in chief clause" which was "an interpretation rejected by the Framers," in the light of his prior scholarly assurances to the contrary.

As an aside, I would note that I have far more concerns about the propriety of President Truman's actions in 1950 than Professor Schlesinger and most others expressed at the time. I find it an arguable case on either side, but believe in such a situation the President *should* have promptly gone to Congress for approval by joint resolution. Because he did not, when the public ultimately turned against the "no win" conflict, it became easy for members of Congress (especially Republicans) to denounce it as "Truman's War." Professor Alexander DeConde provides an accurate summary in his *A History of American Foreign Policy*:

²⁰ *Quoted in* 4 THE DYNAMICS OF WORLD POWER 375 (A. Schlesinger, Jr. ed. 1973).

²¹ "Whatever may be said of the expediency of the Taft-Coudert program this at least can be said of the principles involved -- that they have no support in law or in history." Commager, "Presidential Power: The Issue Analyzed," *New York Times Magazine*, January 14, 1951, at 23-24. Like Schlesinger, Professor Commager later decided that Truman's use of troops was "if not wholly unprecedented, clearly a departure from a long and deep-rooted tradition." 119 CONG. REC. 1406 (1973).

²² *New York Times*, January 9, 1951.

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At first the American people, and even Republican critics of the administration's Far Eastern policy, overwhelmingly supported Truman's prompt action. They approved the intervention, seeing it as a necessary effort to save a small country from Communist aggression and to show allies, or potential ones, that the United States would help defend them. . . . Later, as the war budget mounted and the casualties multiplied, critics denounced the President for allegedly usurping Congress' power to declare war and for involving the country in a perilous fight outside the national interest.²³

## The Vietnam Commitment

The belief that Acheson's statement that South Korea was outside the American "defense perimeter" was a major factor in the start of the conflict led to a renewed emphasis on collective security agreements. In 1955, with only one dissenting vote, the Senate consented to the ratification of the SEATO Treaty—which provided in article IV:

> Each Party recognizes that aggression by means of armed attack in the treaty area against any of the Parties or against any State or territory which the Parties by unanimous agreement may hereafter designate, would endanger its own peace and safety, and agrees that it will in that even act to meet the common danger in accordance with its constitutional processes.²⁴

> An accompanying "protocol" to the treaty "unanimously designate[d] for the purposes of Article IV of the Treaty the States of Cambodia and Laos and the free territory under the jurisdiction of the State of Vietnam."

When the Senate was asked to consent to the ratification of this treaty, it clearly recognized that it was undertaking a major new commitment. Senator Mike Mansfield had been a part of the negotiating delegation, and this Committee's *Report* on the treaty stated:

> The committee is not impervious to the risks which this treaty entails. It fully appreciates that acceptance of these additional obligations commits the United States to a course of action over a vast expanse of the Pacific. Yet these risks are consistent with our own highest interests. There are greater hazards in not advising a potential enemy of what he can

²³ DECONDE, *supra* note 15 at 706-07.

²⁴ 6 U.S.T. 81, 83 (1955).

11

expect of us, and in failing to disabuse him of assumptions
which might lead to a miscalculation of our intentions.²⁵

When Secretary of State Dulles was asked during the SEATO hearings what the term "constitutional processes" in article IV of the treaty meant, he responded that "the normal process would be to act through Congress," but suggested that the President might act on his own if "the emergency were so great that prompt action was necessary to save a vital interest of the United States."²⁶ This led to a proposed reservation to the treaty during committee markup which would have prohibited the use of U.S. armed forces to carry out the treaty in the absence of a "congressional declaration of war." The proposal was rejected by the committee.²⁷

The attitude of Congress during this early period is accurately reflected by Leslie Gelb and Richard Betts, in their book *The Irony of Vietnam*, which was published by the Brookings Institution. I suspect most of you know these two gentlemen; and, whatever else may be said about them, neither could be accused of being an apologist for Richard Nixon or a fan of Ronald Reagan. They wrote:

> As for Congress, in early 1955 two senators, Mike Mansfield and Hubert Humphrey . . . initiated a save-South-Vietnam drive by supporting the Diem campaign. Mansfield said the United States had no choice but to support Diem. Humphrey accused U.S. policymakers of "wavering," saying that this was no time for "weakness," and that the fall of the South would threaten the rest of Asia.²⁸

Another strong supporter of aid to South Vietnam was Senator John F. Kennedy, who told a meeting of the American Friends of Vietnam in September 1956:

> Vietnam represents the cornerstone of the Free World in Southeast Asia, the keystone to the arch, the finger in the dike. Burma, Thailand, India, Japan, the Philippines and obviously Laos and Cambodia are among those whose security would be threatened if the red tide of Communism overflowed into Vietnam . . . . The fundamental tenets of this nation's foreign policy, in short, depend in considerable measure upon

25 U.S. Senate, Executive Report No. 1, Senate Committee on Foreign Relations, 84th Congress, 1st Session, January 25, 1955, at 15. The Committee no doubt had in mind the experience of Korea, where the Communist invasion had come shortly after Secretary of State Acheson had publicly suggested that the United States would not fight to save South Korea.
26 *Id.* at 12.

27 *Id.*

28 L. GELB & R. BETTS, THE IRONY OF VIETNAM: THE SYSTEM WORKED 207-08 (1978).

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a strong and free Vietnamese nation . . . . Vietnam represents
a test of American responsibility and determination in Asia . .
. . . As President Diem recently wrote a great friend of
Vietnam, Senator Mansfield, "It is only in winter than you can
tell which trees are evergreen." And I am confident that if this
nation demonstrates that it has not forgotten the people of
Vietnam, the people of Vietnam will demonstrate that they have
not forgotten us.²⁹

Still another early supporter of U.S. support for South Vietnam was J. William Fulbright, who chaired this Committee during most of the Vietnam conflict. Gelb and Betts note: "[In] 1959, as conservatives began to charge misuse and waste of American funds by the Diem government, Senator J. William Fulbright rose to the defense, saying that although the aid may have been misused, it was still vital to continue in the long-term interests of the Free World."³⁰

Typical of the early congressional attitude was that of Representative Paul Findley, who later played a major role as a Republican co-sponsor of the War Powers Resolution. On 23 May 1961 he arose on the floor of the House of Representatives to respond to a report that Vice President Johnson had told the press during a visit to Saigon that he did not intend to recommend that President Kennedy send combat troops to South Vietnam. Mr. Findley warned:

> Mr. Speaker, there is an ominous parallel between a recent statement made by Vice President Johnson and the speech of Dean Acheson as Secretary of State shortly before the Communist invasion of South Korea.

> In this speech Acheson placed Korea beyond America's defensive perimeter. It was an invitation to trouble, and trouble came.

> In Saigon the Vice President said he would not recommend that U.S. combat forces be stationed in South Vietnam. This, too, is an invitation to trouble.

> Today nobody knows how far the United States will go, and the Vice President has added to the uncertainty.

> U.S. combat forces are the most effective deterrent to aggression, and we should publicly offer such forces to South Vietnam without delay . . . . No patriotic American will ever criticize President Kennedy for committing combat forces to protect freedom-loving people from aggression. Every patriot has the right and duty to criticize ineptitude and the too-little, too-late policies which invite aggression.³¹

²⁹ Id. at 144, 147.

³⁰ GELB & BETTS, *supra* note 28 at 208.

³¹ 107 CONG. REC. 8587 (1961) (emphasis added).

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Let me stress that it is not my purpose to criticize Representative Findley—either for his initial enthusiasm for sending American combat troops to Vietnam or for his later conviction that having committed troops was a mistake. He is a decent individual, and he was probably in the majority on both occasions. But as we try to understand what really happened in Vietnam, I think it is important that we realize that the American Congress was not "dragged kicking and screaming" into the conflict.

## The Gulf of Tonkin Resolution

For all of his faults, President Johnson understood the need to involve Congress in major foreign policy initiatives. He had, after all, served as Senate Majority Leader. In his autobiography, President Johnson wrote:

> I believed that President Truman's one mistake in courageously going to the defense of South Korea in 1950 had been his failure to ask Congress for an expression of its backing. He could have had it easily, and it would have strengthened his hand. I had made up my mind not to repeat that error.³²

As the situation in Vietnam deteriorated and it looked more and more likely that U.S. troops would be necessary, LBJ decided to bring Congress formally on board. He asked for and promptly received statutory authority—a joint resolution, which is the same mechanism used by Congress to "declare war."³³ This "Southeast Asia Resolution" provided in part:

SEC. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.³⁴

³² L. JOHNSON, THE VANTAGE POINT: PERSPECTIVES ON THE PRESIDENCY 116 (1971).

³³ The utility of a formal "declaration of war" was discussed in my House testimony last month, and is addressed more briefly *infra*, at notes 83-91 and accompanying text.

³⁴ Pub. L. 88-508; 78 Stat. 384 (1964) (emphasis added); repealed by Pub. L. 91-672 § 12 (1971).

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This law was better known as the "Gulf of Tonkin Resolution" of August 1964.

There has been a great deal of controversy over the naval engagements which occurred of the coast of North Vietnam two dozen years ago, but both North Vietnamese admissions after the end of the war and recently declassified intelligence intercept traffic leave little doubt that an attack did take place.³⁵ Furthermore, the reality is that the "Gulf of Tonkin" incident was no more than a convenient occasion for congressional action—and the attitude at the time was such that any of a number of other incidents could have served the same purpose. I shall therefore not dwell on that issue at this point.

Now there are those who suggest that the Congress really "didn't know what it was doing" when it enacted this statutory authority for the President to use armed force in Southeast Asia. Those of us who have spent time on the Hill might be tempted to smile at this suggestion; because if it were necessary that all members of Congress knew the full contents of every bill they approve *many* of our laws would be quite suspect. But in fact the Gulf of Tonkin Resolution received more lengthy consideration than most prior congressional authorizations of armed conflict, and its sponsors were quite candid in explaining what the legislation would accomplish. Consider, for example, this exchange on the Senate floor between the resolution's principal sponsor—Foreign Relations Committee Chairman J. William Fulbright—and this Committee's ranking Republican, Senator John Sherman Cooper:

> MR. COOPER. Does the Senator consider that in enacting this resolution we are satisfying that requirement [the "constitutional processes" requirement] of Article IV of the

³⁵ Douglas Pike—who essentially traded jobs with me in Vietnam twice, now serves as director of the Indochina Studies Program at the University of California at Berkeley, and is in my view without question the most knowledgeable Western expert on Vietnamese communism—wrote in a 1987 book review of 2 THE UNITED STATES NAVY AND THE VIETNAM CONFLICT (Naval Historical Center: Government Printing Office, 1987): "The 'nada notion'—that nothing happened and the Gulf of Tonkin Incident was the product of inexperienced sonarmen and the overworked imagination of young deck-watch offices—can no longer be sustained. The electronic intercept traffic cited here is too voluminous to permit a conclusion that somehow everything was the figment of the collective imaginations of both sides. And there is the fact of Vietnam's position today. After the war, Hanoi officials not only acknowledged the event but deemed it important enough to designate its date, Aug. 2, as the Vietnamese Navy's Anniversary Day, 'the day our heroic naval forces went out and chased away Maddox and Turner Joy.'... The conspiracy theory has been dying for several years, and this work will probably be a stake through its heart. To have a Tonkin Gulf conspiracy means that the several hundred National Security Agency and naval communications cited have been doctored. In turn, that means a minimum of several hundred persons were party to a plot that has remained watertight in sieve-like Washington for two decades. And who is going to believe that?" Pike, "What Really Happened in the Gulf of Tonkin," *Washington Post Book World*, May 3, 1987, p. 10. Further, it might be added that even if it were established that the reports from the Gulf of Tonkin were mistaken—in Pike's words, "the product of inexperienced sonarmen"—it seems clear that officials in both the Executive and Legislative branches accepted them as accurate and made decisions accordingly. I am unaware of even any credible charges that President Johnson or his staff "staged" the incident to "trick" Congress into giving authorization for an expanded American role.

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Southeast Asia Collective Defense treaty? In other words, are we now giving the President advance authority to take whatever action he may deem necessary respecting South Vietnam and its defense, or with respect to the defense of any other country included in the treaty?

MR. FULBRIGHT. I think that is correct.

MR. COOPER. Then, looking ahead, if the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution?

MR. FULBRIGHT. That is the way I would interpret it. If a situation later developed in which we thought the approval should be withdrawn, it could be withdrawn by concurrent resolution.36

Support for this statute and the policy it authorized was overwhelming. The vote in Congress approving the new law was 416 to 0 in the House, and 88 to 2 in the Senate. In the month surrounding the vote (and the accompanying bombing of North Vietnam), President Johnson's "approval" rating in public opinion polls shot up from 42 to 72 percent—a thirty point jump in one month. And U.S. policy in Vietnam was clearly the reason.37

Even as the war intensified, congressional support remained overwhelming. In March 1966, one of the two members of Congress to vote against the 1964 Gulf of Tonkin Resolution, Senator Wayne Morse of Oregon, introduced an amendment in the Senate to repeal the statute. His effort was overwhelmingly rejected—by a vote of 92 to 5.38 During the debate, Senator Javits—who, as you know, went on to become a principal co-sponsor of the 1973 War Powers Resolution—said "I agree with [President Johnson's] policies [in Vietnam] to date," and argued that "a declaration of war would be most inadvisable at this time...." He concluded: "It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy."39

Senator Richard Russell, the Chairman of the Armed Services Committee, announced that he had intended to introduce language reaffirming the Tonkin Resolution, but the vote on the Morse Amendment would serve his purpose. Discussing the 1964 Resolution, he said:

36 110 CONG. REC. 18049 (1964) (emphasis added).

37 GELB & BETTS, *supra* note 28 at 212.

38 112 CONG. REC. 4404 (1966).

39 112 CONG. REC. 4374 (1966). Another strong critic of the war and advocate of war powers legislation was Senator Thomas F. Eagleton, who acknowledged before this subcommittee during his testimony on July 13, 1988: "That [Gulf of Tonkin] Resolution sounded a lot less alarming and drastic than a declaration of war, but it had the same legal effect. No doubt about it, Congress had legalized 'Johnson's War.'" Prepared testimony, p. 2.

16

I saw how broad it was in its terms. . . . I cannot plead ignorance. I knew that the joint resolution conferred a vast grant of power upon the President. It is written in terms that are not capable of misinterpretation, and about which it is difficult to become confused. . . . Personally, I would be ashamed to say that I did not realize what I was voting for when I voted for that joint resolution.⁴⁰

Majority Leader Mike Mansfield—also a member of this Committee—reaffirmed his support for the 1964 Resolution,⁴¹ and he was followed by Minority Leader Everet Dirksen, who said: "I wish to make clear that the position of the [Republican] minority—and I think I speak for most of them—is that we completely separate ourselves from the views expressed by the distinguished Senator from Oregon [Senator Morse]."⁴²

Later that year some House Republicans spoke critically of President Johnson's handling of the conflict, and Representative Edward Boland quickly came to the President's defense.⁴³ A year later, in 1967—when there were in excess of 400,000 American soldiers in Vietnam—Representative Boland called the attention of his House colleagues to a poll taken in a high school in his Massachusetts district. Congressman Boland said that the poll showed that the students "overwhelmingly supported—by over 80 percent—the commitment of the Johnson administration to Vietnam." He said the poll "not only shows strong support for the U.S. presence in Vietnam, it also shows strong support for a gradual escalation of the war effort." According to Mr. Boland, the poll reflected "a national trend" and "demonstrated that most voters support present policies in Vietnam."⁴⁴

Congressional support for America's commitment to Indochina was reaffirmed time and again by the appropriation of new funds for the conflict by strong bipartisan majorities.⁴⁵ For example, following the Gulf of Tonkin Resolution the Congress considered an Administration request for $125 million in additional funds for South Vietnam—and provided instead $400 million.⁴⁶ In April of 1965, Congress approved

⁴⁰ 112 CONG. REC. 4370-71 (1966).

⁴¹ 112 CONG. REC. 4376 (1966).

⁴² 112 CONG. REC. 4377 (1966).

⁴³ 112 CONG. REC. 23709 (1966).

⁴⁴ 113 CONG. REC. 36460 (1967).

⁴⁵ Although section 8(a)(1) of the War Powers Resolution seeks to discount the importance of appropriations in ratifying presidential actions, the Supreme Court has frequently recognized its significance—particularly in the area of "foreign policy and national security." See, e.g., *Dames & Moore v. Regan*, 435 U.S. 654, 678-79 (1981); *The Prize Cases*, 67 U.S. (2 Black) 635, 670-71 (1863); and *Haig v. Agee*, 453 U.S. 280, 291 (1981).

⁴⁶ J. Emerson, "Congress and the Commitment to Vietnam," in AMERICAN BAR ASSOCIATION, CONGRESS, THE PRESIDENT, AND FOREIGN POLICY 65 (1984).

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another $700 million request in its entirety by a vote of 408 to 7 in the House and 88 to 3 in the Senate.⁴⁷

In 1966 a $13 billion supplemental appropriations bill for Vietnam passed the House 389 to 3, and the Senate 87 to 2.⁴⁸ The following year, a $12 billion Vietnam supplemental appropriation was approved 385 to 11 in the House, and 77 to 3 in the Senate (a combined margin of greater than 30 to 1).⁴⁹ During House debate on this bill, an amendment to prohibit expenditure of funds for military operations in or over North Vietnam was rejected by a vote of 18 to 372.⁵⁰

In my House testimony last month I describe how a variety of factors contributed to a shift in American public opinion on the conflict, and how "Vietnam" soon became a political liability for members of Congress. When President Nixon was elected—and there was no longer any pressure on congressional Democrats to show loyalty to the policies of their party's President—many Democrats acted just as their Republican counterparts had in the early 1950's. Just as an unpopular Korean conflict became "Truman's War," by 1969 Vietnam was "Nixon's War." The fact that Congress had overwhelmingly supported the initial commitment, and had played a full constitutional role in authorizing the conflict, was simply ignored. After all, there had been no formal "declaration of war" in those terms—and, besides, who in Congress wanted to be held accountable to an angry electorate over an obviously collapsing policy?

Some of the more principled veterans could not tolerate this revisionism. Senator Sam Ervin—perhaps the most respected constitutional scholar in Congress at the time—told the Senate in 1970:

> Now, Mr. President, I maintain that the Gulf of Tonkin resolution, which is technically known as the Southeast Asia resolution, constitutes a declaration of war in a constitutional sense . . . I am certain that when Congress passed the Gulf of Tonkin joint resolution, it was aware of what authority it was granting to the President of the United States . . . . I contend that the Gulf of Tonkin joint resolution is clearly a declaration of war.⁵¹

47 Id.

48 Pub. L. 89-375 (1966).

49 Pub. L. 90-8 (1967).

50 2 CONGRESSIONAL QUARTERLY, CONGRESS AND THE NATION 1965-68 at 82 (1969).

51 116 CONG. REC. 15925-26 (1970). Senator Gale McGee, a highly principled veteran of this Committee, remarked that same year: "I have no doubt that in terms of this war, that, had it been successfully concluded in a year or 18 months, Members of this body would have been bragging about how the Senate of the United States approved the Gulf of Tonkin resolution and participated in that decision, and they would be seeking the credit for that resolution." Id. at 15730.

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But political courage was in short supply as opposition to the war intensified. Instead, Members of Congress assured their constituents that Congress certainly deserved no responsibility for "Nixon's War," and that they would act promptly to guarantee that no future "Imperial President" could drag the nation kicking and screaming into an unpopular foreign war against the wishes of Congress.

## The 1973 War Powers Resolution

After prohibiting further U.S. combat activity in Indochina with the Cooper-Church Amendment,⁵² Congress enacted the 1973 War Powers Resolution—over President Nixon's veto. As Senator Javits—who seven years earlier had concluded: "It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy"⁵³—explained in the Senate:

> The War Powers Act would assure that any future decision to commit the United States to any warmaking must be shared in by the Congress to be lawful. . . . By enumerating the war powers of Congress so explicitly and extensively in article I, section 8, the framers of the Constitution took special care to assure the Congress of a concurrent role in any measures that would commit the Nation to war. Modern practice, culminating in the Vietnam war . . . has upset the balance of the Constitution in this respect.⁵⁴

Put simply, the War Powers Resolution was essentially a fraud (although many who voted for it no doubt did so in innocence). Congress had played a full role in getting the United States into the Vietnam conflict—and, indeed, some of the strongest supporters of the War Powers Resolution had earlier been sharp critics of the Executive for not sending combat troops earlier and escalating the war quicker.⁵⁵ Its primary purpose was to keep Congress from being held politically accountable by an angry electorate—and in the process to pin all of the blame on an unpopular president of the minority party. And as I will explain later, it had the additional characteristic of being flagrantly unconstitutional.

⁵² Actually there were a series of such amendments.

⁵³ 112 CONG. REC. 4374 (1966).

⁵⁴ 119 CONG. REC. 1394 (1973).

⁵⁵ See, e.g., *supra* note 31 and accompanying text.

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Implementation of the War Powers Resolution

Mr. Chairman, five years ago I wrote a book about the War Powers Resolution which looked in some detail at about a dozen incidents which might arguably have come under its purview. This is not the time to review all of those cases. But I have detected an alarming theme in the way many members of Congress have reacted to these situations—and this might be an appropriate time to register my concern.

Mayaguez Rescue

I will begin⁵⁶ with the May 1975 rescue of the crew of the S.S. Mayaguez from their Cambodian captors. A few years have passed, but I'm sure most of you recall the incident. I was working in the Senate at the time, and it was clear to me that the Ford Administration did not really "consult" with Congress. A handful of leaders—my boss among them—were "informed" or "notified" of the rescue operation after it had already been set in motion and U.S. combat forces had entered Cambodian territory. Shots had already been fired before these "notifications" took place.⁵⁷ Trying to put the best light on it, Senate Republican Leader Hugh Scott asserted: "We were informed. We were alerted. We were advised. We were notified. We were telephoned. It was discussed with us. I don't know whether that's consultation or not. We were advised that certain actions would be taken using the minimum force necessary."⁵⁸ This hardly satisfies my sense of what real "consultation" ought to be—and even this "notification" did not occur until after the "introduction" of U.S. forces into the danger zone.

Furthermore, section 2(c) of the War Powers Resolution makes no provision for the President to rescue endangered American citizens in the absence of a declaration of war

⁵⁶ I am tempted to first address the evacuation of Indochina—in part because I was one of the evacuees who would have been abandoned when Congress adjourned its conference committee had President Ford not decided to authorize the evacuation on his own authority. This was not one of the Legislative Branches more impressive performances. President Ford had gone before a joint session of Congress on 10 April to ask Congress "to clarify immediately its restrictions on the use of U.S. military forces in Southeast Asia for the limited purposes of protecting American lives by insuring their evacuation, if this should be necessary." He said "I hope that this authority will never have to be used, but if it is needed, there will be no time for congressional debate. Because of the gravity of the situation, I ask the Congress to complete action on all of these measures not later than April 19." *Quoted in R. TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN THEORY AND PRACTICE* 52 (1983). Four days after the President's "deadline," the Senate finally approved a bill. The House approved a different bill shortly thereafter. After a lengthy conference, the Senate approved the report but the House decided to delay a vote until after the weekend—during which time the approach of North Vietnamese tanks forced the President to either abandon the Americans in Saigon or act on his own authority. Fortunately for those of us in Saigon at the time, he had the courage to act. The "clarification" the President has courteously requested from Congress was never approved. As Senator Eagleton later observed: "Congress fumbled the ball." *Id.* at 58.
⁵⁷ *Id.* at 62.

⁵⁸ *Quoted in id.*

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or other statutory authority. In this, and other, respects it is clearly unconstitutional.⁵⁹
But the fact remains, President Ford clearly violated the language of the "law."

Furthermore, the Cooper-Church Amendment was still theoretically in force—
although it, too, in my view was unconstitutional—prohibiting the use of appropriated
funds for combat operations "in or over or from off the shores of . . . Cambodia."⁶⁰

One might therefore have expected an angry Congress to take the occasion to confront the President for his "illegal" conduct. But that did not happen. Senator Mansfield rejected a reporter's characterization that the War Powers Resolution had been "to a slight extent, bent or violated," responding that "maybe he didn't have the time.⁶¹ Senator Church told the press: "From beginning to end, he had my full support." Senator Clifford Case added: "I don't want anyone saying that we liberals or doves would prevent the President from protecting American lives in a piracy attack."⁶² Ultimately, this Committee passed a resolution that said in part: "We support the President in the exercise of his constitutional powers *within the framework of the War Powers Resolution* to security the release of the ship and its men."⁶³

## Iran Rescue

Five years later, after Iranian militants had seized the American Embassy in Tehran and more than 50 hostages, a different President tried another "rescue" operation to save American lives. As in the case of the *Mayaguez*, President Carter did not "consult" with congressional leaders until the rescue forces were already on Iranian territory. The Administration stressed that it had planned on discussing the operation with Congress prior to the final stage—and apparently concluded that deploying U.S. combat forces to an isolated desert landing site in Iran did not meet the "imminent involvement in hostilities" standard of section 3—the consultation provision.

There were, of course, differences between the *Mayaguez* rescue and the attempt in Iran. Given the disorganized condition of Cambodia in May 1975, and the relative isolation of the island thought to be holding the Americans, one could argue that there was a somewhat greater need for "secrecy" in the Iran rescue. This would be a close call, and both Presidents decided not to inform Congress until the last minute. A significant

⁵⁹ See infra, note 231 & 242 and accompanying text.

⁶⁰ See infra, note 264 and accompanying text.

⁶¹ Quoted in TURNER, *supra* note 56 at 63.

⁶² *Id.*

⁶³ *Id.* (Emphasis added.)

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difference was that in Iran there was no "Cooper-Church" law prohibiting the deployment of U.S. combat troops.

Given the similarities between the two situations, however, one might have expected the Congress to react similarly in both instances. After all, Presidents were doing their best to rescue Americans who had been seized by rather unsavory foreign groups. But whereas Senate Majority Leader Mansfield had virtually apologized for President Ford's lack of prior "consultation" during the *Mayaguez* rescue; in 1980 Majority Leader Robert Byrd said he was "furious" over the lack of prior notice.⁶⁴ This Committee didn't follow its earlier precedent of passing a supportive resolution, either; instead, the Chairman and Ranking Republican issued a joint statement *denouncing* the President for violating the War Powers Resolution.⁶⁵

## Grenada

Another illustrative example is the October 1973 Grenada rescue mission. When news first broke of the operation, the initial reaction by many in Congress—particularly members of the opposition party—was strong and hostile. House Speaker Tip O'Neill, for example, called the operation "gunboat diplomacy." Numerous references were made to a violation of the War Powers Resolution, and my colleague Professor John Norton Moore—one of the nation's foremost experts on national security law—received an urgent call asking whether he would appear on a panel before the House Foreign Affairs Committee the following week to discuss the legality of the Grenada operation. He agreed.

A few hours later, airplanes began landing at an Air Force Base in South Carolina and the evening news showed pictures of American students from Grenada kissing the ground and praising President Reagan for saving their lives.⁶⁶ About the same time, news reports began arriving from Grenada that thousands of people had turned out in the streets to cheer and thank the American soldiers for the rescue operation.⁶⁷ A call-in poll of American public opinion sponsored by the ABC News "Nightline" program received more

⁶⁴ *Id.* at 73.

⁶⁵ *Id.*

⁶⁶ Ward Sinclair, "Student Evacuees Return, Praising U.S. Rescue Effort," *Washington Post*, October 27, 1983, p. A1.

⁶⁷ See, e.g., "Message From Grenada: 'Yankees Don't Go Home,'" *U.S. News & World Report*, Nov. 21, 1983, p. 33.

22

than 300,000 calls in one hour, indicating almost 90 percent approval of the operation.⁶⁸
A CBS poll of residents of Grenada reported even greater support.⁶⁹

Shortly thereafter, Speaker O'Neill "changed his mind." Along with many of his Democratic colleagues, he concluded after a more careful look at the facts that the operation was "justified."⁷⁰ Discussing the Speaker's change of position, the *New York Times* reported: "His switch marked what some Democrats acknowledged was 'a strategic retreat' politically. It came amid strong public support for the United States-led invasion . . . ."⁷¹

Another journalistic account asserted:

> What finally persuaded most Democrats in Congress to switch and back Reagan on the invasion of Grenada? It wasn't what lawmakers found on their visit to the island, insiders report, but an avalanche of mail from voters back home heartily endorsing the President's action. Veteran politicians had no trouble following that weather vane.⁷²

Professor Moore subsequently received a telephone call explaining that the Foreign Affairs Committee had decided to "postpone" its investigation of the legality of the Grenada operation. Nearly five years later, he had still not been called to testify on the matter.

Several things can be observed about this situation. First of all, a political environment in which senior congressional leaders denounce foreign policy initiatives first and *then* look at the facts is unhealthy. It would have been virtually unheard of during the years between U.S. entry into World War II and the early days of the Vietnam commitment.

More importantly, when the Grenada operation is considered along with rescue missions in Cambodia and Iran, the one common thread in the legislative response has not been high constitutional *principle* but clear political *expediency*. From a constitutional standpoint there were few obvious differences between President Ford's rescue of merchant seamen in Cambodia and President Carter's effort to rescue American diplomats in Iran. The difference is that one succeeded and was strongly supported by the American public, and the other failed and was not. When members of Congress realized that the public was behind President Reagan's Grenada mission, many seemed to abandon their

⁶⁸ "An ABC Call-In Poll Shows 90% Support Invasion of Grenada," *New York Times*, October 30, 1983, p. 22.

⁶⁹ *Washington Times*, Nov. 15, 1983, p. 2C.

⁷⁰ Hendrick Smith, "O'Neill Now Calls Grenada Invasion 'Justified' Action," *New York Times*, November 9, 1983, p. 1.

⁷¹ *Id*.

⁷² "Washington Whispers," *U.S. News & World Report*, November 14, 1983, p. 23.

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initial concerns about insuring that the President was "obeying the law."⁷³ That, too, is unhealthy. These examples suggest that Congress has been just as *unprincipled* in dealing with the implementation of the War Powers Resolution as it was in disclaiming its actual role in authorizing the commitment of United States armed forces to Indochina in 1964.

## Lebanon

These are but three of many examples in recent years in which members of Congress have approached important national security problems in a partisan and unhelpful way. Another example that could be cited was the deployment in 1982 of a contingent of U.S. Marines to Beirut, Lebanon, as a component of a multi-national peace-keeping force. The international force was *invited* into Lebanon by the government of that country and with the approval of neighboring States and major parties to the dispute that had nearly decimated the once beautiful country. The mission was to take up positions between feuding factions—without engaging in hostilities—as a means of promoting confidence, restoring order, and encouraging negotiations among the parties. By no stretch of the imagination could it be seriously charged that, in committing the force to Lebanon, the President had deprived Congress of its constitutional authority to "declare war" against another State.

It was understood that Beirut was a city in turmoil, and that there was a significant chance that Marines would be the target of terrorist acts or even the victims of accidental injuries—which proved to be the case as one Marine was killed and three others injured when a 155-mm Israeli artillery round exploded during a clean-up operation at the airport. According to the press, this accident led you, Mr. Chairman, to charge that the Marines were clearly involved in "hostilities" so as to bring into force the War Powers Resolution.⁷⁴ Since the accidental death of the Marine resulted indirectly from an *Israeli* artillery shell, and underlying your assertion was an apparent assumption that the President was impermissibly treading upon the power of Congress to "declare war," I could not help but wonder at the time whether you were of the view that the President had without legislative authority launched a "war" against Israel by his conduct in the matter.

On the merits, however, the deployment generally received little criticism from Congress. The situation was probably summarized accurately when Senate Assistant Majority Leader Ted Stevens remarked: "I'm sure the president will get the support of the

⁷³ I would contend that the Grenada operation was conducted in compliance with applicable law. See on this subject J. MOORE, LAW AND THE GRENADA MISSION (1984).

⁷⁴ *Washington Post*, October 1, 1982.

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Senate, but a lot of us are going to hold our breath."⁷⁵ Although often a sharp critic of President Reagan, even Senator Thomas Eagleton publicly took the position on the merits that the risk must be taken, and said "Congress undoubtedly would approve the commitment of troops as part of the multinational force."⁷⁶

However, recognizing the risks involved in the deployment and still smarting from the Vietnam experience, many members of Congress began looking for "insurance policies" in case the worst came to pass. Few wanted to criticize an effort to promote Middle East peace on the merits, but many were happy to insulate themselves from ultimate accountability by raising procedural objections to the deployment. Once again, the vehicle was the 1973 War Powers Resolution. House Foreign Affairs Committee Chairman Clement Zablocki charged in the *Washington Post* that the President's failure to invoke the War Powers Resolution was "eroding the integrity of the law" and threatened to precipitate a "constitutional crisis."⁷⁷ Neither Chairman Zablocki nor his many colleagues who joined the chorus addressed the question of what signal would be sent if, after announcing to the world that the Marines were being sent to Lebanon on a mission of peace to encourage negotiations, the President then turned around and submitted a public report to Congress announcing his expectation that the Marines would likely soon be involved in armed combat. This would hardly have been compatible with the operation's objective of reassuring the rival factions and promoting a non-violent resolution of the dispute. Indeed, having received no indications that the Marines were coming to fight on *their* side, it would not have been surprising to have nervous factions from various sides welcoming the Marines with automatic weapons fire--on the mutual assumption that *their* group must be the intended target of the "war" the American President had told Congress he was initiating.

Writing in *U.S.A. Today*, Senate Minority Whip Alan Cranston suggested that on the merits the Senate "might well authorize" the deployment of Marines if the President would tell them "exactly how and when we proposed to extricate them."⁷⁸ Indeed, it became increasingly apparent that a request by the President for formal legislative endorsement of the mission would be met with demands for detailed micromanagement of the operation by legislative constraints. Members not only wanted to know on what day the Marines would be removed, but whether additional Marines could be deployed, what rules of engagement would authorize them to defend themselves, whether they were permitted to carry loaded weapons on patrol, and the like.

75 *Washington Post*, October 1, 1982.

⁷⁶ *New York Times*, November 17, 1982.

⁷⁷ *Washington Post*, October 3, 1982.

⁷⁸ *U.S. A. Today*, October 22, 1982, p. 8.

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The acrimonious and partisan public debate which followed—ostensibly motivated not by opposition to the peace mission on the merits, but by allegations that Congress was protecting its constitutional power to "declare war" against another State (and during the entire debate no member of Congress actually *advocated* declaring war, or even indicated against what State they were being deprived of their right to approve such a declaration)—was followed with interest abroad by America's friends and foes alike. Syria's President Hafez al-Assad was quoted as saying that the Americans were "short of breath."

Last Friday the Center for Law and National Security hosted a seminar on the War Powers Resolution at the University of Virginia. While not unanimous, there seemed to me to be a general consensus both that the Resolution is not "working" very well, and also that at least some of its provisions are unconstitutional. But a former Chief of Staff to this Committee suggested that, whatever its shortcomings, it really didn't do any serious harm to leave the statute on the books. He specifically referred to the deployment of Marines to Beirut to illustrate this point. I strongly disagree.

Marine Commandant General P.X. Kelley--a man of exceptionally uncommon integrity and courage--went so far as to warn Congress in mid-September 1983 that any use of the War Powers Resolution to set an artificial deadline for the withdrawal of the Marines from Lebanon "could encourage more hostile fire and endanger the Marines there."⁷⁹ A few weeks later, six days before a terrorist bomb killed 241 Marines asleep in their battalion landing team headquarters building, *U.S. News & World Report* carried a story about an increase in sniper attacks on the Marines and noting that "a radio message between two Moslem militia units" had read: "If we kill 15 Marines, the rest will leave."⁸⁰ When 241 Marines were killed at the end of that week, members of Congress immediately began a search for a scapegoat so they could assure the voters that *they* were not accountable. Given the outcry that had come from some members at the disclosure months earlier that some Marines were carrying loaded rifles on patrol, there was a certain irony in the indignant charges from congressional investigators following the bombing that the Marines were *inadequately* armed.⁸¹ But the ultimate objective was apparently achieved:

79 Walter Andrews, "Marine Corps head cautions Congress," *Washington Times*, September 16, 1983, p. 7.

80 "Marines Draw a Bead on Snipers," *U.S. News & World Report*, October 31, 1983, p. 13. This issue went on sale the day following the Sunday morning bombing of the Marine barracks.

81 It is clear from my personal observations from within the various departments of the government that the existence of the War Powers Resolution creates pressure on policy makers to keep U.S. armed forces in potentially dangerous areas as lightly armed as possible to avoid "triggering" the Resolution's clock. For example, in 1981 a decision was made to deny U.S. advisors and technical personnel the protection of M-16 rifles on the theory that Congress would be less likely to complain if the personnel were only armed with handguns.

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the voters did not hold Congress responsible for the failure. The fact that a few very good Marines had their careers destroyed in the process was, well, unfortunate.⁸²

## Joint Resolutions vs. Declarations of War

Mr. Chairman, perhaps I should digress at this point to deal with a legal issue which has been a major source of confusion and misunderstanding, but which ought to be a "non-issue" and ought to be put to rest. That is the question of whether Congress can authorize offensive hostilities by joint resolution without formally "declaring war."

Put simply, a declaration of war has two aspects. Under International Law it is essentially an anachronism. Such declarations have historically been associated with offensive uses of force, which are now outlawed by the U.N. Charter. No country in the world has formally "declared war" in more than forty years. (I dealt with this issue in greater length in my testimony last month before the House Foreign Affairs Committee.)

The second issue is one of U.S. constitutional law. The use of "joint resolutions" to authorize the President to initiate armed conflict against another nation dates back at least to the Administration of John Adams, and was upheld by the Supreme Court in 1800⁸³ and again in 1801.⁸⁴ While a major debate has existed over the years about the precise dividing line between those uses of force which could be authorized by the President in his capacity as "commander in chief"⁸⁵—widely recognized to include at minimum "defensive" responses to foreign attack and the protection of endangered U.S. citizens abroad and on the high seas—and those which require formal congressional authorization,⁸⁶ no genuine dispute exists over the constitutionality of uses of force pursuant to affirmative

⁸² Commandant Kelley, who had been the subject of speculation that he might become the first Marine officer selected as Chairman of the Joint Chiefs of Staff, caused considerable offense in Congress by defending the conduct of his men and refusing to provide a scapegoat. In so doing, he virtually surrendered any chance he might have had at being selected Chairman. Colonel Timothy Geraghty, who had been selected to command the Marine contingent in Beirut because of his outstanding record in Vietnam and other assignments, quietly accepted the uninformed congressional criticism—which was perhaps relatively painless compared to the anguish of losing so many fine Marines under his command, many of them good friends— and retired from active duty in late 1986. A book on the Lebanese conflict by *New York Times* writer Robin Wright reported that Geraghty "was considered by diplomats and other [Multi-National Force] commanders to be the coolest and most thoughtful of the three Marine commanders to serve in Beirut..." R. WRIGHT, A SACRED RAGE 78 (1985).

⁸³ Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800).

⁸⁴ Talbot v. Seeman, 5 U.S. (1 Cranch 1 (1801) (Marshall, C.J.).

⁸⁵ "The President shall be commander in chief of the army and navy of the United States . . . ." U.S. Const., art. II, sec. 2. For a discussion of the scope of this power, see J. Moore & R. Turner, *The Legal Structure of Defense Organization* 87-94 (1986).

⁸⁶ "The Congress shall have power . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water . . . ." U.S. CONST., art. I, sec. 8.

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congressional authorization by joint resolution. As this Committee observed in its 1967 Report on the "National Commitments Resolution":

> The committee does not believe that formal declarations of war are the only available means by which congress can authorize the President to initiate limited or general hostilities. Joint resolutions such as those pertaining to Formosa, the Middle East, and the Gulf of Tonkin are a proper method of granting authority.⁸⁷

Indeed, the War Powers Resolution itself concedes this point when it asserts in section 2(c) that:

> The 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, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

It is, furthermore, clear that the issue of a formal "declaration of war" was discussed by congressional leaders when the initial authorization to use armed forces in Indochina was given—and it was emphatically rejected as being unnecessary.⁸⁸ Instrumental in reaffirming this view was a massive legal brief—occupying more than 50 pages when reprinted in the *Congressional Record*⁸⁹—drafted by my colleague Professor John Norton Moore and two other distinguished legal scholars on behalf of the American Bar Association in June 1966. I would commend it still today—more than twenty years later—for anyone who harbors any doubts about the legality of the U.S. commitment of troops to Indochina.

While inserting excerpts from this study in the *Record*, Senator Jacob Javits—who, as you know, years later would become the principal Senate sponsor of the War Powers Resolution—told his Senate colleagues:

> Mr. President, now, for the first time, we have an authoritative analysis of the legal basis for U.S. assistance to the Republic of Vietnam. In my own thinking there can no longer be any doubt about the legality of our assistance to the

⁸⁷ Sen. Rept. No. 90-797, 90th Cong., 1st Sess. 25 (1967) (emphasis added).

⁸⁸ See, e.g., 112 CONG. REC. 4374 (1966) (statement by Senator Javits).

⁸⁹ 112 CONG. REC. 15519 (1966).

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people of South Vietnam in view of the report to be distributed
today by the American Bar Association . . . . I have never
doubted the lawfulness of the U.S. assistance to the Republic
of Vietnam. Today, it is my privilege to present to the Senate
and the American people a document which, I believe,
supports this proposition beyond any reasonable doubt.⁹⁰

Three weeks later, while inserting the entire text of the ABA legal brief in the *Record*, Senator Russell Long of Louisiana added: "I think it is time for the Hanoi regime to know that so far as we are concerned we have declared the war we are fighting. We declared a limited war. We did that at the time of the Gulf of Tonkin incident."⁹¹

## II
Constitutional Theory of Separation of
National Security Powers

Mr. Chairman, I have had a chance to read over much of the testimony you have received during these hearings, and with all due respect I believe the Subcommittee has in many instances been very poorly served. Indeed, as much as I commend you for your intentions in these hearings, I fear that some of your witnesses have so misstated the facts and the law that you may be like the readers of the irresponsible American press of 1807, of whom Mr. Jefferson lamented: "the man who never looks into a newspaper is better informed than he who reads them; inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors."⁹²

To give you just one example, as you consider my testimony, keep in mind the
assertion you received on 14 July from the very distinguished Professor Arthur
Schlesinger, Jr:

> One would think that this historical recital might impress
> an administration devoted to what the late [sic] attorney
> general has called "the Jurisprudence of Original Intention"
> and thereby settle some of the arguments that assail us today.
> For no 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

⁹⁰ *Id.* at 13870.

⁹¹ *Id.* at 15519.

⁹² 11 THE WRITINGS OF THOMAS JEFFERSON 225 (Mem. ed. 1903).

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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.⁹³

I do not wish to be discourteous to the good professor, but the stakes in these hearings are critical to the security of the nation and the subcommittee deserves better from a gentleman of such obvious learning. Certainly there is room for disagreement among scholars about the "original intent" of the Constitution, and for that reason I have sought to include sufficient authority and citations to assist the subcommittee or its staff to verify my assertions. Professor Schlesinger did not do so, for reasons which I believe will become obvious as you consider the testimony which follows. You may wish to consider inviting him to flesh out his assertions in future testimony.

## Analytical Approaches to the Separation of Foreign Affairs Powers

Mr. Chairman, there are a variety of analytical approaches to the separation of foreign affairs powers under the Constitution, and it might be helpful if I identified and commented upon a few of the most popular contemporary approaches.

### The Duty to "faithfully execute" the "Laws"

There is a great deal of talk these days about Executive abuse of the Constitution and laws in the field of foreign affairs. Some find these questions simple, and note that under the Constitution the President is required to "take Care that the Laws be faithfully executed . . . ."⁹⁴ Since Congress has the "legislative" power—that is, the power to "make" laws—it would seem to follow that the duty of the President in foreign affairs is to "execute" whatever "laws" Congress finds it "necessary and proper"⁹⁵ to enact. However, this approach ignores the fundamental difference between the role of Congress in domestic

⁹³ Testimony of Arthur Schlesinger, Jr., Special Subcommittee on War Powers, Senate Committee on Foreign Relations, 14 July 1988, p. 4 (typescript).

⁹⁴ U.S. CONST. art. II, sec. 3. Professor Louis Henkin writes: "In regard to foreign, as to domestic affairs (our characterizations, not the Constitution's) Congress was to legislate and the president was to take care that the laws be faithfully executed." Henkin, "Foreign Affairs and the Constitution," 66 *Foreign Affairs*, 284, 287 (No. 2, Winter 1987-88).

⁹⁵ U.S. CONST. art. I, sec. 8: "The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

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and foreign affairs; and, more importantly, it begs the question of "what is the Law." Certainly the Constitution itself is superior to enactments of Congress, and when the two are in conflict the President would seem to have little option but to ensure that the Constitution is "faithfully executed"—even if that requires that a statutory enactment be read narrowly so as not to conflict with constitutional principles. This line of analysis is therefore not particularly helpful.

## Foreign Policy as a "Shared Power"

Another approach is to view "Foreign Policy" as "a shared power."⁹⁶ Certainly it is true that both the President and Congress have constitutional powers that may be exercised in such a way as to affect foreign affairs. The President is given the "executive" power through article II, section 1,⁹⁷ and designated "commander in chief" and given other expressed powers. But Congress is given a veto⁹⁸ over a decision to launch a war against another State, and the Senate is given a veto over diplomatic appointments and the ratification of treaties.

Article I, section 8 of the Constitution also expressly vests other important powers with foreign affairs implications in the Congress, such as to "regulate Commerce with foreign Nations," to "raise and support Armies," to "provide and maintain a Navy," and the like. (But not, despite a contrary suggestion by one of your witnesses, a broad power to "provide for the common defence."⁹⁹) But the suggestion that these are "shared" powers—while in some respects not technically inaccurate¹⁰⁰—invites imprecise and misleading analysis. To conclude that, because both the President and the Senate have a role in the treaty-making process, it is constitutionally permissible for the Senate to assume the negotiation function, to "interpret" the international effect of a treaty,¹⁰¹ or to bring an

⁹⁶ U.S. CONGRESS, REPORT OF THE CONGRESSIONAL COMMITTEES INVESTIGATING THE IRAN-CONTRA AFFAIR 391 (H. Rept. No. 100-433, November 1987).

⁹⁷ For a discussion of the meaning of this provision, see infra, notes 108-32, 158 and accompanying text.

⁹⁸ See infra, notes 102, 126 & 132 and accompanying text.

⁹⁹ Article I, section 8, provides that "The Congress shall have Power To law and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform through the United States." The reference to "the common Defence" is clearly a "purpose" for which "Taxes" and other revenues may be raised, and not a general vesting in Congress of substantive powers.

¹⁰⁰ The President, for example, does have a role in all of Congress's article I, section 8 powers (such as the power to 'declare war') by virtue of his qualified veto over legislative proposals. U.S. CONST. art. I, sec. 7.

¹⁰¹ Of course, this is currently being attempted. See Turner, "Beware the Tyranny of the Senate," *Wall Street Journal*, Feb. 22, 1988, p. 20.

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approved treaty into international legal effect by transmitting it to the United Nations, is simply *wrong*. It would be akin to saying that, since both the President and the Senate have a "role" in the appointment process, the Senate may assume the function of *nominating* cabinet officials and then *appointing* them over the President's objection. A far more useful analysis, in both instances, is to recognize that the President, the Senate, and the Congress each have certain specific powers which influence United States relations with the external world.

It should be kept in mind that in foreign affairs the relationship between the branches is *reversed* from that which prevails in domestic affairs. One of the great American scholars of this century in this field was the late Quincy Wright—who served as President of the American Society of International Law, the American Political Science Association, and the International Political Science Association, and authored more than twenty books during his distinguished career. In his classic 1922 study, *The Control of American Foreign Relations*, Professor Wright explained:

> In foreign relations . . . the President exercises discretion, both as to the means and to the ends of policy. He exercises a discretion very little limited by directory laws, in the methods of carrying out foreign policy. . . . Though Congress may by resolutions suggest policies its resolutions are not mandatory and the President has on occasion ignored them. Ultimately, however, his power is limited by the possibility of a veto upon matured policies, by the Senate in the case of treaties, by Congress in the case of war . . . . In foreign affairs, therefore, the controlling force is the reverse of that in domestic legislation. The initiation and development of details is with the President, checked only by the veto of the Senate or Congress upon completed proposals."¹⁰²

Elsewhere in the same study, Professor Wright explains: "[W]hile acting as the representative organ of the government in foreign relations," the President "has an independent constitutional position, and is not subject to the direction of Congress."¹⁰³ He writes:

> Declarations of foreign policy may be made by Congress in the form of joint resolutions, but such resolutions are not binding on the President. They merely indicate a sentiment which he is free to follow or ignore. Yet they are often couched in

102 Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 149-50 (1922).

103 *Id.* at 350.

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mandatory terms and in defense of his independence the
President has frequently vetoed them.¹⁰⁴

This view that the President might ignore some congressional initiatives (including statutes) which clearly infringe upon his independent constitutional foreign affairs powers has been embraced by other writers as well.¹⁰⁵

Totaling "Enumerated" Powers

Still a third approach is to count up the enumerated powers of Congress dealing with foreign affairs—the power to "regulate Commerce with foreign Nations," to "declare war," to "raise and support armies," and the like—and to compare these with the enumerated powers of the President in this area, such as the power to be "Commander in Chief of the Army and Navy," and the power to "make Treaties" with the approval of two-thirds of the Senate. For example, my friend and colleague W. Taylor Reveley III, who honors us with his presence here this morning, has written: "On its face, the text [of the Constitution] tilts decisively toward Congress. Comparison of Articles I and IV with Article II shows that most of the specific grants of authority run to Congress."¹⁰⁶

This analysis tends to lead to two apparently reasonable conclusions: (1) the bulk of the "foreign affairs" powers are vested in Congress and the Senate; and (2) there is a great deal of unspecified territory—a finding which in turn leads to the conclusion that the Constitution was intended to be "an invitation to struggle for the privilege of directing American foreign policy."¹⁰⁷ I believe this approach results from a misperception of article II, section 1, of the Constitution.

¹⁰⁴ *Id.* at 278.

105 E.g., Professor John Norton Pomeroy wrote more than a century ago: "Congress may pass resol[utions] in relation to questions of an international character," but such actions "can only have a certain moral weight; they have no legal effect; they cannot bind the Executive." J. POMEROY, INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES § 672 (1868). See also, L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 113 (1972), who writes: "Even when Congress is free not to appropriate, it ought not be able to regulate Presidential action by conditions on the appropriation of funds to carry it out, if it could not regulate the action directly. So, should Congress provide that appropriated funds shall not be used to pay the salaries of State Department officials who promote a particular policy or treaty, the President would no doubt feel free to disregard the limitation, as he has 'riders' purporting to instruct delegations to international conferences."

106 W. REVELEY, WAR POWERS OF THE PRESIDENT AND CONGRESS 29 (1981).

107 E. CORWIN, THE PRESIDENT: OFFICE AND POWERS 171 (4th rev. ed. 1957).

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The Grant of "Executive Power"

Advocates of broad congressional "war powers" like to portray the Constitution as a source of great ambiguity and uncertainty—as if the Founding Fathers really didn't think much about the business of defending the new nation or weren't very concerned about trivial details like "separation of powers." Perhaps it was because they didn't consider defending the new nation to be important, or perhaps they simply couldn't agree upon how best to divide the powers; but by this version they gave most of the power to Congress, a small amount to the President, and invited the two political branches to "struggle" over the remainder of the power.

I believe there is a great deal more clarity and wisdom inherent in our constitutional separation of foreign relations powers than is commonly perceived in the post-Vietnam era. In my view, the key to understanding the division of powers in this area is contained in the first section of article two of our Constitution, which provides that "The executive Power shall be vested in a President of the United States of America."

It is important to remember that this constitutional grant of "executive power" to the President is in broad terms, conditioned only by specific constitutional grants to the Senate or Congress and the rights guaranteed to the people; while the grant to Congress in article I, section 1, is limited to "[a]ll legislative powers herein granted... [emphasis added]." As Jefferson,108 Hamilton,109 and Madison110 observed, the "exceptions" to the executive power that are vested in the Senate and Congress were intended to be construed strictly. Since the powers vested in the President by the Constitution may not be taken away by simply statute,111 a statute which pretends to compel the President to yield the independent powers of his office to the Congress would not be a part of the "supreme law of the land."112 Since the President is required by the Constitution to take an oath of office to "preserve, protect and defend the constitution of the United States,"113 and since the Constitution is the preeminent "law" that the President is required by the Constitution to

108 *See infra*, notes 130-56 and accompanying text.

109 *See infra*, notes 157-67 and accompanying text.

110 *See infra*, notes 168-84 and accompanying text.

111 U.S. CONST. art. V.

112 "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land . . . ." *Id.* art. VI (emphasis added.). Any statute which sought to deprive the President of his independent powers under the Constitution would exceed the proper authority of Congress, and thus not be a "law . . . made in pursuance" of the Constitution.

113 U.S. CONST. art. II, sec. 1.

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"take care" is "faithfully executed,"¹¹⁴ even a cooperative President would not have the legal option of acquiescing in such an unconstitutional procedure.¹¹⁵

## The Intent of the Founding Fathers

### The Theories of Locke, Montesquieu, and Blackstone

If "original intent" is not the only step in understanding the Constitution, at least it provides us with a useful starting point.¹¹⁶ Many legal scholars try to examine to the debates of the Federal Convention of Philadelphia in an effort to understand the Constitution; but I propose beginning a little earlier still. If we want to understand what "executive power" meant to the men who gathered in Philadelphia in the summer of 1787, we should begin with the scholars and theorists whose works most influenced our Founding Fathers on separation of powers questions—Locke, Montesquieu, and Blackstone.

All three of these writers viewed the control of foreign affairs to be the exclusive province of the executive. They argued, in essence, that legislative bodies were *incompetent* to manage foreign affairs because they lacked the essential qualities of unity of design, secrecy, and speed and dispatch. Locke, of course, distinguished between the "executive" power to "execute" the laws enacted by the legislature, and what he called the "Federative" power over "War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without the Commonwealth...." But he explained:

> 147. These two Powers, Executive and Federative, though they be really distinct in themselves, yet one comprehending the Execution of the Municipal Laws of the Society within its self, upon all that are parts of it; the other the management of the security and interest of the publick without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this

¹¹⁴ *Id.* art. II, sec. 3.

115 This is not to say that a cooperative President could not waive his privilege to deny sensitive national security information to Congress. Every President in recent decades has done so in the large majority of occasions. But it would be improper for one President to conspire with the Congress to deprive a subsequent President of his constitutional executive privilege. A statute to that effect, even if signed into law and endorsed by a sitting President, would still not be a valid legislative act under the Constitution.

116 The Supreme Court has often emphasized the value of "contemporaneous constructions" in interpreting constitutional language. See, e.g., Cooley v. Port of Philadelphia, 53 U.S. 299, 313 (1851).

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federative 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 [sic] good. For the laws that concern Subjects one
amongst another, being to direct their actions, may well
enough precede them. But what is to be done in reference to
Foreigners, depending much upon their actions, and the
variation of designs and interest, must be left in great part to
the Prudence of those who have this Power committed to them,
to be managed by the best of their Skill, for the advantage of
the Commonwealth.

148. Though, as I said, the Executive and Federative Power of every Community be really distinct in themselves, yet they are hardly to be separated, and placed, at the same time, in the hands of distinct Persons. For both of them requiring the force of the Society for their exercise, it is almost impracticable to place the Force of the Commonwealth in distinct, and not subordinate hands . . . .¹¹⁷

Montesquieu distinguished between the "legislative" power, "the executive in
respect to things dependent on the law of nations; and the executive in regard to matters that
depend on the civil law."¹¹⁸ Blackstone argued that the handling of all aspects of the
"national intercourse with foreign nations" was an "executive" prerogative.¹¹⁹ Professor
William Goldsmith observed in volume one of his study *The Growth of Presidential Power*
that the Founding Fathers "were obviously greatly influenced by Blackstone's definition of
executive powers, and gave their democratic monarch many of the same
responsibilities."¹²⁰

In vesting "the executive Power" in the President through article II, section 1, the Founding Fathers intended to grant the President *exclusive* control over foreign affairs, subject only to certain very important but limited *exceptions* spelled out in the text of the Constitution. Writing in 1922 in his classic study, *The Control of American Foreign Relations*, Professor Wright characterized "the works of John Locke, Montesquieu, and Blackstone" as "the political Bibles of the constitutional fathers," and asserted that "when

117 J. LOCKE, SECOND TREATISE OF GOVERNMENT §147-48 (emphasis in original). In 1790, Jefferson wrote that "Locke's little book on Government . . . is perfect . . ." 5 THE WRITINGS OF THOMAS JEFFERSON, *supra* note 7 at 173.

118 1 MONTESQUIEU, THE SPIRIT OF LAWS 151 (T. Nugent trans., rev. ed. 1900). See also FEDERALIST NO. 47, *quoted infra*, note 182 and accompanying text.

119 See, e.g., Bestor, *Separation of Powers in the Domain of Foreign Affairs*, 4 SEATON HALL L. REV. 527, 532 (1974).

120 1 W. GOLDSMITH, THE GROWTH OF PRESIDENTIAL POWER 56 (1974).

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the constitutional convention gave 'executive power' to the President, the foreign relations power was the essential element in the grant..."¹²¹ Similarly, Professor Louis Henkin has observed that "The executive power... was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone."¹²²

If, as its natural meaning would seem to suggest, the language in article II, section 1, vesting "the executive Power" in the President was intended to have that effect, it clarifies some of the confusion which results from "counting up" the constitutional powers of Congress and the President in the foreign affairs area. Note again the distinction between article I, section 1—which provides that "All legislative Powers herein granted shall be vested in a Congress of the United States..."¹²³—and the much more comprehensive grant in Article II to the President of not "All executive Powers herein granted;" but instead "The executive Power..."¹²⁴ Thus, in view of this difference in wording, it was necessary for the Founding Fathers to enumerate every foreign affairs power of Congress, while conveying the bulk of the Executive foreign affairs powers to the President in the first sentence of article II.

The President's broad "executive" power over foreign affairs was not identical to that of the King of England; because certain very specific and important "checks" were included in the American system to guard against abuse. Thus the Senate was given a veto over important diplomatic appointments (to insure that no "unfit" person was appointed by the President¹²⁵) and over Treaties,¹²⁶ and Congress was given the power to "declare war," "regulate commerce," "raise and support armies," and the like. But, as I will demonstrate in a moment, these were viewed by the Founding Fathers to be *exceptions* out of the large grant of "executive" power to the President, and as exceptions they were intended to be narrowly construed.

Advocates of legislative branch preeminence in this field like to dismiss article II, section 1, of the Constitution as not granting any power to the President.¹²⁷ Consider, for

¹²¹ WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS *supra* note 102 at 147.

¹²² L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 43 (1972).

¹²³ Emphasis added.

¹²⁴ Emphasis added.

¹²⁵ See, e.g., 3 THE WRITINGS OF THOMAS JEFFERSON 17 (Mem. ed. 1903); and THE FEDERALIST NO. 76 at 509, 513 (J. Cooke ed. 1961) (A. Hamilton).

¹²⁶ T. JEFFERSON, A MANUAL OF PARLIAMENTARY PRACTICE FOR THE USE OF THE SENATE OF THE UNITED STATES 169 § 52 (2d ed. 1812).

¹²⁷ See, e.g., Henkin, "Foreign Affairs and the Constitution," *Foreign Affairs* vol. 66, no. 2 (Winter 1987-88) at 292.

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example, this excerpt from the testimony before this subcommittee of Senator Charles Mathias:

> I am neither a strict constructionist nor doctrinaire about original intent, but I am still old-fashioned enough to think it is useful for lawyers to occasionally read the law. Looking first at Article I, Section 8, we find the first grant of war power was given to the Congress . . . .

> In Article II, the Constitution makes further provisions that affect the power to make foreign policy and the power to make war. Article II, Section 2, provides that "the President shall be Commander[-]in-Chief . . . ."¹²⁸

> I must confess that I am somewhat fonder of "original intent" than some others, but I strongly agree in the benefits that can result when lawyers "read the law." My primary suggestion for Senator Mathias would be to read the entire law—including in this instance the first sections of articles I and II. Along with some others, Senator Mathias apparently finds the first section of Article II to be of no value in understanding the separation of foreign affairs and war powers.

> Put simply, I think they are mistaken. Their view was expressly rejected by the Supreme Court in the 1926 case of *Myers v. United States*,¹²⁹ and finds little support from the Records of the Federal Convention, the contemporary writings and statements of such diverse preeminent thinkers of the era as Jefferson and Hamilton, or the actual practice of the First Congress—two-thirds of whose members had served either at the Philadelphia Convention or in State ratification conventions.

## Early Constitutional Interpretations

### Thomas Jefferson

Volumes could (and have¹³⁰) been written about early constitutional interpretations; and quotations can be found to support a variety of viewpoints. My own study of this field over a number of years has led me to conclude that, while there were differences of opinion, there was a substantial consensus with respect to the distribution of "foreign affairs" or "national security" powers.

128 Statement of Senator Charles McC. Mathias, Jr., July 13, 1988, at 3-4, 6.

129 272 U.S. 52, 128, 151 (1926).

130 See, e.g., A. SOFAER, WAR FOREIGN AFFAIRS, AND CONSTITUTIONAL POWER (1976).

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Coming from the University of Virginia, it is perhaps not surprising that I am fond of quoting our University's founder, Thomas Jefferson. Indeed, my fondness for our third president was more of a factor in my decision to seek employment at the University of Virginia than the other way around. However, I shall emphasize his views this morning not only because of my special admiration for his analysis; but also because he is the Founding Father most frequently quoted by advocates of broad congressional "war" powers.¹³¹

On April 24, 1790, Jefferson wrote in a carefully drafted legal opinion prepared for President Washington:

> The Constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of representatives; it has declared that 'the Executive powers shall be vested in the President,' submitting only special articles of it to a negative by the Senate; and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate.

> The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, *except* as to such portions of it as are specially submitted to the Senate. *Exceptions* are to be construed strictly.¹³²

Note Jefferson's use of the term "negative" to describe the Senate's foreign affairs role. Although it has fallen into disuse in the modern era, the term was frequently used by the Founding Fathers to describe what we today call a "veto." Indeed, in his rules manual for the Senate Jefferson described the Senate's power to consent to the ratification of treaties as a "negative."¹³³

Lest there be any confusion about how limited the role of the Senate was perceived to be in foreign affairs, it is useful to examine Jefferson's 1790 memorandum more carefully. At issue was whether the Senate, by virtue of its power to approve diplomatic

131 "Advocates of the War Powers Resolution turn to [Jefferson] perhaps more often than to any other founder as authority for their opinion that the president's war power was limited to meeting attack." Scigliano, "The War Powers Resolution and the War Powers," in J. BESSETTE & J. TULIS, THE PRESIDENCY IN THE CONSTITUTIONAL ORDER 138 (1981). For example, as will be discussed, Duke Law School Professor William Van Alstyne once quoted the same lengthy paragraph from Jefferson's first annual report to Congress *twice* in one law review article. The real irony of this is that in the statement in question, Jefferson actually misled Congress about his actions. See, *infra* note 149-53 and accompanying text.

132 16 THE PAPERS OF THOMAS JEFFERSON 378-79 (J. Boyd, ed. 1961) (emphasis in original).

133 T. JEFFERSON, A MANUAL FOR PARLIAMENTARY PRACTICE FOR THE USE OF THE SENATE OF THE UNITED STATES §52 at 110 (3d ed. 1854).

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nominations, was entitled to determine the appropriate *destination* or *grade* for an individual nominee. Jefferson concluded:

> The Senate is not supposed by the Constitution to be acquainted with the concerns of the Executive department. It was not intended that these should be communicated to them; nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.¹³⁴

Once again we see the view expressed that the Senate (much less the House of Representatives) was not expected to know the secret "concerns" of the Executive department.¹³⁵

Now Jefferson's view is entirely inconsistent with the idea expressed by some modern commentators that the President in the sphere of foreign affairs was intended to be a "junior partner"¹³⁶ in foreign affairs—something of an "errand boy" for the all-powerful Congress—to be allowed a certain leeway when he behaved himself, but to be slapped down quickly when he displeased his masters. Furthermore, it is clear that the opinion reflected more than just Mr. Jefferson's personal thinking. Jefferson wrote in the margin of his file copy: "endorsed by Washington."¹³⁷ And as I will discuss in a few moments, three days later President Washington wrote in his diary that Madison and Jay also agreed with Jefferson's views on this issue.¹³⁸

In a recent Senate floor debate respecting the War Powers Resolution, Senator Mark Hatfield quoted¹³⁹ with assurance Mr. Jefferson's September 1789 letter to James Madison, in which the then-Minister to Paris wrote:

> We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.¹⁴⁰

134 *Id.* at 397.

135 See infra, note 190 and accompanying text.

136 See, e.g., the testimony presented to this subcommittee on 14 July 1988 by Arthur Schlesinger, Jr., p. 3 ("The Framers, in short, envisaged a partnership between Congress and the president in the conduct of foreign affairs with Congress as the senior partner.")

137 *Id.* at 380 n.

138 See infra, note 184.

139 134 CONG. REC. S. 7176 (daily ed., June 6, 1988, Senator Hatfield).

140 15 THE PAPERS OF THOMAS JEFFERSON 397 (J. Boyd, ed.).

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The Senator apparently found this supportive of his own view of broad congressional "war" powers with respect to the current Persian Gulf situation.

I disagree. Two versions of this letter exist in the archives of the Library of Congress. The one found in Madison's files (quoted by Senator Hatfield) mentions the power "of letting [the Dog of war] loose", while the copy Jefferson kept for his own records refers instead to the power "to declare war."¹⁴¹ Both expressions seem to have the same meaning. But the most remarkable thing about Jefferson's choice of words is his assertion that the power to "declare war" had been *transferred* by the new¹⁴² Constitution from the Executive to the Legislative branch. Under the Articles of Confederation, since there was no "Executive," all "war powers" were expressly vested in the Continental Congress (with consequences widely recognized to be disastrous). And yet Jefferson clearly indicated that the new Constitution had *transferred* the power to "declare war" (or, if you prefer the Shakespearean metaphor, let loose the "dog of war")—that is, that this power was by its nature *Executive*.

I suggest that this was no accident. Like the other educated men of his era—raised as they were on the writings of Locke, Montesquieu, and Blackstone—Jefferson had been raised to consider (in Locke's language) "the Power of War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without the Commonwealth"¹⁴³ to be the exclusive province of the Executive.¹⁴⁴ And thus, when he referred to "exceptions" to the control of foreign affairs being construed "strictly," it is clear that he viewed the power of Congress to "declare war" as such an "exception." A virtually identical position was taken three years later by Jefferson's chief rival of the time, Alexander Hamilton.¹⁴⁵ The idea that Congress would attempt to aggrandize its power by interpreting the limited power "to declare war" to encompass the power to seize control over decisions regarding troop movements or other "core" commander-in-chief authority might not have greatly surprised Jefferson—who warned Madison in 1787 to guard against

141 *Id.* at 397.

142 Another interpretation is that Jefferson recognized that the decision to "transfer" this executive power occurred not in the new Constitution but under the Articles of Confederation. Since that document referred instead to the power "to make war," and in his own copy of the letter to Madison Jefferson used the expression "to declare war"—the precise language used in the new Constitution—I have concluded that was his reference. For our purposes, however, this point is irrelevant. What is *significant* is that he recognized the power to "declare war" as in its nature an "executive" power.

143 J. LOCKE, THE SECOND TREATISE ON CIVIL GOVERNMENT §146.

144 Locke actually coined the term "federative" to describe this power, but he noted that it required the same attributes of secrecy, speed, and unity of plan as were necessary for the execution of the municipal laws that they were "hardly to be separated, and placed, at the same time, in the hands of distinct Persons."
145 See *infra*, note 158 and accompanying text.

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