Whatever the reasons for presidential initiatives during this period, they seem to have been responsive to the times and to have reflected the mood of the nation." Some argue, and it is a legitimate argument worthy of serious consideration, that whatever ambiguity there may be in this field of the respective war powers of the executive and legislative branches, it is better left alone; that the task of legislative definition is an impossible one, requiring a rigidity not adapted to the varying and unforeseeable forms in which the problem may arise; and that while legislative and executive cooperation in the field are important this is best left to the good will and the good judgment of both branches, without any legislative attempt to define areas in this field of Constitutional powers. Thus Secretary Rogers, in his testimony already referred to, while recognizing that:

the framers of the Constitution intended decisions regarding the initiation of hostilities to be made jointly by the Congress and the President, except in emergency situations.

and while stating that:

The recognition of the necessity for cooperation between the President and Congress in this area and for the participation of both in decisionmaking could not be clearer than it is today.

nevertheless held that:

What is required is the judicious and constructive exercise by each branch of its constitutional powers rather than seeking to draw arbitrary lines between them.

I concede that this is a difficult field in which to legislate, and I am of the opinion-for example for reasons which I will state in a few moments, that the proposed bill of the distinguished Senator from New York, Mr. Javits, which passed the Senate in the 92nd Congress, falls fatally afoul of these very arguments and, for that reason, ought not to be adopted.

The difficulty with the No Congressional Action thesis, however, lies in the fact that the executive (which earlier in our history was rather careful of the Congressional prerogative) increasingly in recent years due in part to Congressional acquiescence and in part, no doubt, impelled by the necessities of modern conditions-has taken more and more power to itself in this field, and has engaged in military operations of increasing magnitude without prior Congressional authority with the result that we are in danger of losing that degree of Congressional participation and cooperation which all concede is necessary to the satisfactory conduct of military operations by the United States.

For this reason I have become convinced that a legislative effort to preserve and to further this Congressional participation is in order and is important, constructive and worthwhile, provided that this can be successfully accomplished while still preserving to the executive the flexibility to act promptly in the national interest which the realities of the modern world may require.

H.R. 3046 is presented as a serious effort to accomplish this important task. If you will permit me to briefly analyze H.R. 3046 you will note the following: First. The bill recognizes the principle that when there has been no Congressional declaration of war, nor any attack on the United States, the President shall not ordinarily commit our armed forces to combat abroad without prior Congressional authorization.

Second. It recognizes that situations of emergency or necessity may nevertheless occur which warrant such executive action without prior Congressional authorization.

Third.-It does not attempt to define, to list, or to categorize what these cases of emergency or necessity may be, and it leaves to the President the determination of whether such an emergency or necessity exists.

This is important; and it is an important point of difference from, and, in my respectful judgment, of superiority over, Senator Javits' bill, to which I have already referred.

The distinguished Senator from New York does attempt to list four cases, and four cases only, where the executive can act to commit troops to combat without a Congressional declaration of war.

In my judgment this is unrealistic and unduly restrictive for the simple reason that it is impossible to foresee all the different and varying situations which may arise, and which may perhaps imperatively require such executive action. Fourth. Whenever such executive action without prior Congressional authority is taken, prompt report must be made by the executive to the Congress. This will keep the Congress informed, and this legal necessity for reporting

and for justifying the action taken will, I think, have a salutary effect in discouraging ill-considered executive action.

Fifth.-Congress is thereafter required to take prompt action to approve or to disapprove the action of the executive. This assures Congressional consideration of what has been done and of participation in the decision.

Sixth. If Congress approves (or, alternatively, fails to disapprove) the action taken, the President is required to make subsequent and continuing reports to Congress, at not to exceed six-month intervals.

Seventh. Congress, on receipt of such subsequent reports, must again consider them and must again act thereon. These provisions-6th and 7th-are designed to assure continuing Congressional participation, and I believe and submit that for this reason they are highly important, and are probably the heart of the bill. Eighth. If Congress ever affirmatively disapproves the action taken, the President must terminate it as expeditiously as possible.

Finally. The bill is prospective in character and in operation and does not apply to any hostilities in progress when it is adopted; nor does it alter or abrogate pre-existing treaty obligations, whatever these may be.

I believe and submit that H.R. 3046 meets most of the objections which have been urged-and I believe urged with some force-against other war power bills. I have already noted what I believe to be the fallacy of the effort to confine independent executive action in this field to four specified categories on a "use" basis. Senator Javits' bill, moreover, seeks to limit action even in these categories to only 30 days' duration, which, I submit, is certainly unrealistic and, since the categories so limited include even the case of an armed attack on the United States, is also probably unconstitutional-because surely the executive has the Constitutional right and duty to defend the country against an armed attack, and this Constitutional right and duty can hardly be limited by Congressional enactment to an exercise of only 30 days. H.R. 3046, on the other hand, does not apply or become operative at all in the case of an attack upon the United States, its territories or possessions.

The bill H.R. 3046 is thus submitted to your consideration as a bill designed as a long-range measure, which will not rigidly or unrealistically circumscribe necessary action by the Chief Executive, but which will assure, in the future, that cooperation and co-participation between the executive and the legislative branch, in the vital matter of peace and war, which was contemplated and intended by our fathers the framers of the Constitution, and which, in my judgment, is absolutely necessary to our continued functioning as a representative Republic.

Mr. ZABLOCKI. Thank you, Congressman Dennis. I want to comment you for a well-prepared statement and your presentation this morning, and also commend you for your efforts in this particular field.

One concern I have that you have not touched in your remarks regards section 6 of your bill. That section provides that failure to act by the Congress is to be taken as approval of Presidential action.

Now, I pose this question: What if the majority of the Congress wishes to stop a deployment of American Armed Forces into hostilities. abroad, but is prevented from passing a bill by a filibuster in the Senate or by priorities that occur in the scheduling of legislation within the time limit of 90 days that your bill provides? Could such a development be taken as a positive endorsement for what the President had done?

"CONGRESS SHALL ACT" BILL

Mr. DENNIS. Well, my bill in the first place, Mr. Chairman, requires action. It is not a "may" bill; it says, "Congress shall act."

Perhaps you could stop right there, but it occurred to me that although we might pass a law saying we shall act, maybe for some reason we would not act anyway, and we will just violate the law to that extent. Then the question might arise, well, what is the effect of

that?

So I thought in drawing section 6 that I would make it clear that should something like that happen, we didn't have a situation where

the President had to bring his action to a halt; that that could happen only if we in fact acted to tell him to do it, because I thought we ought to meet the possiblity of inaction. That is the reason for section 6.

Now, I did not try to spell out in a parliamentary sense as Senator Javits did the steps of action, but what I said is, you have to act within a certain length of time: 90 days the first time, 30 days thereafter.

That means you have got to get busy on this and act promptly, and that I think will meet the situation. The reason, as I said, that I said anything about nonaction at all was just to give an answer to the question, "What would be the effect here if for some reason we didn't do what the law plainly says we must do?”

Mr. ZABLOCKI. Congressman, you are absolutely correct. House Joint Resolution 1 did not provide for congressional action. However, as a result of further hearings and of recommendations made to the subcommittee, section 6 was added in House Joint Resolution 2. At the same time, the 30-days or 90-days provision was avoided. Thus, section 6 of House Joint Resolution 2 provides for accurate reporting. It would require that consideration be given to the question of whether Congress shall authorize the use of the Armed Forces of the United States and the expenditures for imminent hostilities cited in the reports received from the President.

PROCEED IMMEDIATELY TO CONSIDERATION OF QUESTION

Mr. DENNIS. Yes. I am aware of that, Mr. Chairman, and I didn't mean to say, if I did say it, there was no such provision here. The point I am making is that it says we shall proceed immediately to the consideration of the question, and I agree that that means we have got to consider it, there is no question about that.

I think I have gone a little bit further because I have provided specifically that if we take an action to disapprove it, he has got to quit, and I don't think that is in your bill.

Mr. ZABLOCKI. Well, I think if the action of the President were of such nature that it would incur the displeasure of Congress, we would take action.

Mr. DENNIS. How would you do it? You could cut off the funds, sure, but under my bill you could pass a resolution which said you must withdraw the troops, and he would be bound to withdraw them.

Now, I don't think you can do that constitutionally, maybe, when he is defending the country. I don't think you can. But when he is carrying on undeclared war over in Asia, I believe you can; and I think he would be required to do it, or there would be a possible impeachment action or something of that kind, and I would not accept the idea that he would not do it if we passed such a resolution.

Mr. ZABLOCKI. One further question, Mr. Dennis. Do you believe there is any value in providing for consultation, requesting the President to consult with the Congress, before introducing Armed Forces?

Mr. DENNIS. Yes, I do, and I think something of that kind might well be added here, although my bill requires that ordinarily the President should have prior congressional authorization, and I believe that such authorization would necessarily require some consultation. Mr. ZABLOCKI. Mr. Biester.

ABLE AND ASTUTE CONSTITUTIONAL LAWYER

Mr. BIESTER. Thank you, Mr. Chairman.

I will not set us on the same running tour we got into yesterday, because of my questions at the time of the quorum call. I will be very, very brief.

I just would like to welcome our colleague to the hearings. He is an able and astute constitutional lawyer. I also commend him on the clarity of his statement.

I am wondering if it is assumed that in the congressional action which takes place along the way here, under your plan would the Congress from time to time be able to set and reset the objectives and goals of the military action in which we are involved?

Mr. DENNIS. Well, I think the Congress probably has the right to do that anyway. Of course, what I specifically provided for here is a reconsideration of what has been done, but I would think in the course of reconsidering what has been done that we could certainly have a wide-ranging discussion of the goals in arriving at our conclusion as to whether we arrive at an approval or a disapproval.

Mr. BIESTER. But you don't see it as just simply yes or no, lack of giving even what the President may have done. Would you have a role in that in your plan?

Mr. DENNIS. I would think so. I would think so. Possibly we could even to some degree-I am just thinking out loud-regulate the extent of what is being done; but I am not quite so sure about that because I think perhaps there you may get into the President's role as the Commander in Chief.

Mr. BIESTER. One last question, and that is that even under your plan, don't we finally hit the point at which there are troops committed under the command of the Commander in Chief, some prisoners have been taken and in which the forces deployed may be at some hazard with respect to their redeployment, and we run into the same kind of problem we ran into the last several years in the Vietnam war in which there was an assertion of implied authority to redeploy those troops in the safest and most rational way.

SOME PROBLEMS INESCAPABLE

Mr. DENNIS. Well, I think some difficulties here frankly are inescapable. What I have said is, supposing we pass a resolution now which says we disapprove this and the President has to stop, I have not tried to cut him off in the next 5 minutes. What I say is that under those circumstances, the President shall discontinue the action so taken by him and shall terminate any hostilities which may be in progress and shall withdraw, disengage, and redeploy the Armed Forces of the United States which may be involved just as expeditiously as may be possible, "having regard to, and consistent with, the safety of the Armed Forces of the United States, the necessary defense and protection of the United States, its territories and possessions, the safety of citizens and nationals of the United States who may be involved, and the reasonable safety and necessities, after due and reasonable notice, of allied or friendly nationals and troops."

Now, I admit that leaves him a wide latitude, but I don't believe you can leave him anything else. I don't think you can say. "You have to do it in 24 hours or 10 days or 30 days." But it still is inescapable in this language, I think, that under these circumstances he has to do it, and he has to do it just as fast as he can, having regard to these considerations.

Mr. ZABLOCKI. Mr. Fraser.

Mr. FRASER. Thank you, Mr. Chairman. I will try to make this very brief.

I have difficulty with your phrase "necessity." I can't believe that there has ever been a President who has ever committed troops to hostilities abroad who didn't feel there was a necessity, and I fear that you maybe opening up a constitutional loophole which may exist now.

NECESSITIES BORN OF DIFFERENT CIRCUMSTANCES

Let me pass from that though. You say in section 5

Mr. DENNIS. I would say just in passing, I might have in mind your missile crisis, for instance, which easily could be a necessity. Mr. FRASER. I think we could agree on that.

Mr. DENNIS. Also, an emergency.

Mr. FRASER. I think we could agree on necessities, but necessities are born of different circumstances. One necessity is to show our determination to the other side that we are not pansies or we are not weak.

It is widely believed that that is why Pre dent Kennedy decided to go into Vietnam as far as he did, after the meeting with Khrushchev in Vienna.

But you say, "At any time." Did you mean to extend the 90 days when you say, "At any time"?

Mr. DENNIS. No. What I mean is that

Mr. FRASER. If you act within the 90 days that you provide for in 3 and 4.

Mr. DENNIS. What I mean is that "at any time" there has been a report. You could say, "If the Congress shall ever."

Mr. FRASER. I don't see why, if you require periodic reports, you should not give the Congress the authority at any time to disapprove. Why limit it to 90 days?

Mr. DENNIS. I would say this, Mr. Fraser. I think Congress could act. I think we probably now have the right to do this; but all the bill says is, not that you could not do it quicker if you wanted to, but you are required to do something about it every 6 months; and you must act within 90 days of the first report and within 30 days after subsequent reports.

Mr. FRASER. Finally, you say, "By the enactment of the resolution." Now a bill clearly would require Presidential signature. Mr. DENNIS. That is probably right.

CONCURRENT VS. JOINT RESOLUTION

Mr. FRASER. Looking at the word "resolution" in conjunction with the bill, I would assume it has to be a joint resolution which also requires the Presidential signature-a concurrent resolution would not be sufficient. Do you intend that the President must sign this?