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Presidents who were in office during that time, the proponents of the more restrictive forms of war powers legislation seek to avoid similar policies in the future by diminishing the fundamental authority of the Presidency, now and forever after. Many such advocates do concede, albeit reluctantly, that Congress itself played a role in past policies, but they would argue that Congress was led to act unwisely because it was supplied inadequate information and therefore was unable to exercise its responsibilities competently.
I do not myself accept this view of history, but I think it is worth noting because the conclusions drawn from it by advocates of restrictive war powers legislation are not in fact logically consistent with this view. These advocates have sought to place arbitrarily defined legal obstacles in the way of expeditious executive branch action. I think at the same time they ignore what from their point of view should be the real source of concern, namely, a need for Congress to have more complete and timely information, to be capable of better analysis, and to maintain a more thorough exchange of ideas in the development of particular foreign policies.
It is, I would suggest, only through availability and knowledgeable use of adequate information, on a timely basis, and with the best possible analysis of what that information means, that the executive branch or the Congress can exercise its respective constitutional responsibilities in the foreign policy field to the very best of its ability. Imperfect performance by one branch of Government cannot be remedied by attempts to undercut or diminish the fundamental constitutional authority of another branch. Because the war powers are distributed between the Congress and the executive by the Constitution, those two branches must cooperate closely in order for either to exercise its powers effectively. Each must make the particular contribution assigned it by the Constitution. Performance is more likely to be enhanced by the increased and improved flow of information to and between those bodies in an effective and timely manner.
ARBITRARY LEGAL OBSTACLES
The negative approach to war powers legislation--namely, the interposition of arbitrary legal obstacles hindering the exercise of executive responsibilities—has an additional serious fault which I think is particularly worth calling to the attention of this body. Proponents of such restrictive legislation overlook the fact-and I believe it is a fact of political life—that it is impossible for Congress to tie the hands of the executive branch without itself suffering a similar limitation of its freedom to act. Every proposed reduction of Presidential authority in this area effects a comparable diminution of congressional freedom. I might give two brief examples from the legislation we are considering. If the President's exercise of certain powers were restricted to a period of 30 days, as a practical matter the President would also become the beneficiary of a 30-day blank check, endorsed by the Congress. If congressional debate were required in all cases immediately upon the submission of a report from the President or at predetermined intervals which might have no relevance to the course of events, Congress would also lose its flexibility to adjust its own schedule of activities to the uneven pace of unforeseen events.
These are but two examples, yet I think they are illustrative of the fact that in declaring the executive branch incompetent to act except in prescribed circumstances, Congress would also be inhibiting its own ability to act except in precisely delineated fashion.
The correct balance, I submit, between the Congress and the Executive in the exercise of war powers is struck by each branch exercising the powers assigned to it in the most informed, and hence the most responsible, way; that balance cannot be established or maintained, indeed it could well be destroyed, by legislative attempts to alter the basic scheme which the drafters of the Constitution so carefully established. What is needed, I suggest, are processes designed to increase the likelihood that our Government as a whole, including both the executive branch and the Congress, will be able to exercise its responsibilities on the basis of maximum information, rather than as a result of sterile confrontation. The answer to dissatisfaction with a particular foreign policy is not to be found in alteration of constitutional authority; it is rather to be found through enhancement of our respective abilities, exercised within that authority, to formulate wise foreign policies for the future. From this point of departure, Mr. Chairman, I would like to address the three bills on which our comments have been particularly requested.
PROVISIONS OF THE JAVITS BILL
I would address myself first to the Javits bill, S. 440, which would allow the President to employ the Armed Forces in hostilities or situations where imminent involvement in hostilities is indicated by the circumstances in only four categories of situations absent a declaration of war. In each of those four situations, the President would be barred from continuing to use those troops beyond 30 days without the affirmative consent of Congress unless, of course, Congress is physically unable to meet as a result of an armed attack on the United States, or unless it were necessary to use troops to protect their own prompt disengagement.
Mr. Chairman, the Department of State continues to believe as in the past very strongly that it would be unwise and unconstitutional for the Congress to adopt this bill. S. 440 seeks by statute to redefine specifically and restrictively the constitutional allocation of the war powers. The drafters of the Constitution, however, recognized the ex
. treme difficulty of anticipating all circumstances which might in the future call for the use of the Armed Forces.
As Alexander Hamilton said, writing in the Federalist, and I quote: "It is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.” This difficulty was underscored by the repeated amendments to the same bill as it was being debated last year in the Senate.
The Founding Fathers wisely avoided a precise definition of the interface between congressional and executive authority. They established instead a general structure of shared powers requiring the cooperation of both branches, predicated on the assumption that the form of that cooperation would remain, within certain limits, sufficiently flexible to accommodate many different kinds of circumstances.
CHANGING THE HISTORICAL SCHEME OF FLEXIBILITY
S. 440 would change that historical scheme of flexibility by imposing technical legal prerequisites to action, and in so doing would insure that every important national security debate following emergency action by the President, instead of being argued entirely on the merits, would be obscured by procedural arguments as to whether or not the President had acted in accordance with this new legislation. When the question might be whether the President has acted rightly, might become whether the President has acted correctly in accordance with certain procedural rules. The scheme envisaged in S. 440 is a significant departure from that established in the Constitution, and hence could legitimately be effected only by a constitutional amendment, not by legislation, even if it were desirable.
I should say something about the “necessary and proper" clause in light of the growing role it appears to play in the presentation of S. 440. Contrary to the apparent assertion of section 2 of this bill, nothing in the "necessary and proper" clause of article 1, section 8, of the Constitution gives Congress this power to alter the war powers. As Alexander Hamilton also made clear in the Federalist, the "necessary and proper" clause was intended principally to guard against an excessively narrow construction of the authority of the Union vis-a-vis individual State authority. There has never been a judicial decision which has held that the necessary and proper" clause was intended to limit the principle of separation of powers. In fact, the case of Myers v. United States, 272 U.S. 52 (1926), in which the Supreme Court held that Congress did not have the power to condition the President's removal power on the concurrence of the Senate, indicates clearly that the separation of powers is not limited by Congress' power under the "necessary and proper" clause. While this provision gives Congress the authority to implement both congressional and executive powers, it does not empower Congress to change the balance between those powers by defining and limiting the President's authority.
S. 440 is notably deficient in that it omits Presidential authority to deploy Armed Forces abroad as an instrument of foreign policy in the absence of an actual attack or imminent threat of attack on American territory or forces. Yet this historic Presidential prerogative for nearly 200 years has been essential to the resistance of aggression and the protection of American security interests. As Secretary of State Rogers has said, "Such a restriction could seriously limit the ability of the President to make a demonstration of force to back
the cise of our rights and responsibilities in Berlin or to deploy elements of the 6th Fleet in the Mediterranean in connection with the Middle East situation.” Elimination of this weapon from the Presidential arsenal could very seriously undermine our security posture, and likewise cannot properly be achieved except by constitutional amendment, not be legislation.
DEFENDING THE UNITED STATES AGAINST ARMED ATTACK
S. 440 also purports to restrict the authority of the President to defend the United States itself against an actual armed attack, by limiting to 30 days his right to use the Armed Forces in such hostilities, unless Congress specifically authorizes a continuation or is physically unable to meet as a result of the attack. The defense of the United States of America against armed attack, however, it seems to me, is a core area of Presidential authority; Congress cannot affect the President's constitutional authority in this area.
Even the States—the 50 individual States—have constitutional authority to provide for their own defense when invaded or in imminent danger of invasions, article I, section 10. Surely the President of the United States can have no less authority or responsibility for defense than the States. This is particularly so when you realize the Federal Government has an unlimited constitutional obligation to defend the States, article IV, section 4, and the President as Chief Executive, article II, section 1, and Commander in Chief, article II, section 2 has the responsibility and the authority to provide that defense. Surely the Congress cannot by legislation reduce these constitutionally prescribed rights and obligations.
Since Congress already has the authority to conduct at any time the same kinds of review that S. 440 proposes to mandate within 30 days, it is difficult to see what advantages Congress gains by legislating an arbitrary deadline. Congress in any particular case can undertake its consideration in a manner and within a period of time appropriate to the circumstances.
ARBITRARILY FIXED TIME LIMITATION
An arbitrarily fixed time limitation on Presidential authority contributes nothing to the right of Congress to exercise its constitutional authority, and at the same time it could seriously impede action or undermine negotiations in the future in a manner not desired by either the President or the Congress at that future time. To seek to terminate Presidential authority if, for whatever reason, the Congress does not expressly affirm an action within an arbitrary time limit is neither helpful to the interests of either branch nor a constructive contribution to the development of a wise foreign policy.
I now turn to the second bill which I have been asked to consider, and this is H.R. 317, which is known, I believe, as the Bingham bill.
This second bill avoids some of the serious problems of S. 440. It does not propose to specify the constitutional powers of the President. Neither does it propose a fixed and arbitrary time limitation for congressional action in response to Presidential initiatives. It would call for prompt reports from the President to the Congress whenever the armed forces are used in hostilities absent specific congressional authorization or a declaration of war.
We do question the necessity, and I would say we question the advisability of requiring, as H.R. 317 would, that the Congress be convened if not in session at the time the President submits such a report. It is certainly conceivable that the formality and attention given to a special session of the Congress could negate the advantages of quiet diplomacy in the case of an understated show of strength. A decision to convene Congress in extraordinary session constitutionally lies within the discretion of the President, and should depend on the circumstances prevailing at the aime.
ONE-HOUSE ACTION PROVISION OF H.R. 317
Section 4 of H.R. 317, entitled “Termination of Authority," presents difficulty in two respects. This section proposes that the authority of the President to deploy the armed forces or to direct or authorize them to engage in hostile action, absent specific congressional authorization or a declaration of war, is terminated if either House of the Congress-either the House of Representatives or the Senate-adopts a resolution disapproving continuation of an action the President has taken.
First, the proscription of Presidential action would seem far too broadly drawn for both constitutional and policy reasons. Although within its constitutional authority Congress clearly can decide, for example, whether or not to appropriate funds to support policies or programs of which it disapproves, it is extremely doubtful, as I have mentioned earlier, that Congress could terminate Presidential authority to deploy forces as the President saw fit, for example to protect the United States itself against an armed attack.
A second, and I think grave difficulty with section 4 of H.R. 317 is that it purports to terminate the authority of the President upon the passage of a resolution by either House of Congress. This must be considered an unworkable standard for a number of reasons. We are dealing here with a division of power between the Congress and the Executive, not a division between the Senate or the House on the one hand and the Executive on the other. When one branch purports to impose legally binding restrictions on the exercise of the authority of the other, it clearly must be acting with its own full authority. The Congress clearly has authority to approve or not to approve funds for use by the executive branch. Such a decision, of course, governs to some extent the activities of the Executive, and clearly depends on the consent of both Houses of the Congress.
IMPAIRING CONSTITUTIONAL AUTHORITY OF CONGRESS
A law which states that the same effect can be accomplished by the passage of a simple resolution by only one House of Congress is constitutionally defective. It impairs the constitutional authority of Congress itself as well as that of the Executive. Furthermore, I might pose the following interesting question. What would be the true position of Congress if, for example one House passes a resolution supporting the President's action and the other a resolution calling for its termination? It is clear that in matters of such significance the Congress must speak with one voice in order to have legal force.
Let me now turn to the third measure I have been asked to discuss, Mr. Chairman, and this is House Joint Resolution 2, introduced by you for yourself and others. It is primarily oriented toward increasing the flow of information on which Congress can base its decisions in exercising its constitutional responsibilities. As I have discussed at some length, it is this general approach, rather than that of attempting to change the underlying authority of either branch of Government that we strongly feel is the more constructive and positive way to proceed. I would like to mention, Mr. Chairman, that we have the greatest respect and the sincerest appreciation for your efforts over