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interest in this idea in Congress we would be willing to discuss the possibility and see if we can determine how best we might cooperate.

Mr. ZABLOCKI. Is it advisable to delegate an important issue like war powers to a joint committee rather than the entire Congress?


Mr. BROWER. It depends on what you mean by delegation, Mr. Chairman. I am not sure what circumstances you are contemplating. It may be we have conflicting constitutional interests here. Congress wishes to play the maximum role foreseen for it under the Constitution in decisions involving hostilities which may require authorization and appropriation of funds and raise other considerations in Congress.

On the other hand, the executive branch has the responsibility to respond effectively, quickly in execution of its constitutional duties in some emergency situations. You have described them in some respects as extraordinary and emergency situations.

Now we all know that an animal with 535 pairs of legs just does not move as fast as one with 1 pair of legs and if the exigencies of such quick response is required clearly in the national interest there are situations where it would not be possible. Historically it has not been possible to engage from the start in a broad-range discussion of this with the entire membership of Congress. It has been suggested in the past

by some Members of Congress that one way to facilitate useful consultation and information sharing and opinion sharing and deliberation on important national security issues in emergency situations might be to provide for a small group of representatives in Congress that would have the responsibility to engage in these consultations. I simply express and reiterate our broad willingness and our specific willingness in this area to consider with you and with your committee proposals that have been made and might be made in this regard.



Mr. ZABLOCKI. Mr. Brower, not any of the resolution or proposals in this area now pending before Congress intend to deny the President the power to respond to any act or situation that endangers the United States, so that is not the question, not at all. As you eloquently stated, certainly the executive branch wants to protect its warmaking powers under the Constitution, and likewise does the Congress. However, there is a gray area, and on page 7 of your statement you suggest that “necessary and proper" clause of the Constitution has little or no meaning in the area of war powers because it cannot limit the principle of separation of powers. Is it not true, however, that the war powers are shared powers and the line of division between the legislative and executive branches is in a kind of zone of twilight, a gray area under the Constitution? In such a situation as that, would not a plain reading of the “necessary and proper" clause give Congress the right to define the authority of the President, so long as it did not impinge on those powers, which clearly are recognized as being his?

Mr. BROWER. Mr. Chairman, I think you have hit the nail on the head in saying that there is a gray area here. That in a nutshell is the problem with which we deal. The committee recognizes there is a gray area, and historically a twilight zone as you have termed it. There is not absolute precision in the Constitution and that has frankly been part of its genius, and the reason we have had one Constitution for nearly 200 years rather than a series of patchwork arrangements, as we might otherwise have had.


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Now the question, as I understand it, is this: "Is it not true that the “necessary and proper clause gives Congress the authority to go in to this gray area and say where black stops and white begins?" I think clearly it does not. Îhe “necessary and proper" clause is important in the war powers area. It is the application of the “necessary and proper” clause that Congress has enacted much of the legislation it has over the past, nearly, 200 years in carrying out its specific constitutional obligations or responsibilities with respect to the raising of armies and the maintaining of navies.

The “necessary and proper" clause was designed to insure that the States, which we always have to recall were like foreign countries which got together and formed the union—was to insure that the States would not be able to take the position that Congress was not entitled to enact any statute except those precisely spelled out in the Constitution itself. In effect it says Congress can go beyond the precise language of the Constitution vis-a-vis the States. That was the purpose of it. It was not intended to be a license as it were for Congress to try and discern black from white in what we all agree is a gray area.

Mr. ZABLOCKI. It is not the intention in House Joint Resolution 2 to codify the powers or define them. But in this twilight zone, or the gray area, all I would like to accomplish is for the executive branch and the Congress to get together and let us reason together, and that is why the consultation and the reporting provisions were provided.



My final question is do you truly believe that if Congress will remain silent on this particular warmaking powers problem that indeed the executive branch will be more apt to give Congress more information, which you so well stated is extremely important if Congress is to act responsibly in the warmaking powers? Or don't you think we have to nudge the executive branch which has quite clearly been necessary over the last few decades in order to get the executive branch to reasonably consult and to report to Congress without usurping some of the prerogatives of Congress?

Mr. BROWER. Mr. Chairman, the Congress definitely has not been silent on the subject of war powers.

Mr. ZABLOCKI. We probably were vocal, but we did not act.

Mr. BROWER. Well, Congress, or at least the respective Houses of Congress have acted. I think what we need to keep in the forefront of our minds in addressing this issue is that like all fundamental questions of national importance under our Constitution in the last analysis this is basically a political question and not one really to be resolved as a legal question. Our Constitution was so constructed that we would have three branches of Government, and the one in which you participate is in many ways the most active. It was foreseen that à neutral interaction, interplay of forces, some nudging this way, some nudging that way, the whole panoply of political events and interplay would collectively lead this Government and our Nation to the best achievable results as a political entity. I believe very strongly in that, and I know you, Mr. Chairman, as is evident from your long and careful devotion to this particular subject, believe in that also.


BASICALLY A POLITICAL PROCESS I think we have to remember that it is basically a political process; it depends upon the interplay of political forces of which congressional views on the question of war powers are an element. It will not in the last analysis be successfully resolved by legalistic intrusions. There is a very good reason why the judicial branch of the U.S. Government has traditionally treated many questions as so-called political questions. There are questions into which it simply does not go, intrude itself because they are questions of fundamental importance to be resolved by the interplay of a variety of political forces, particularly between these two branches of Government.

I believe in the fundamental soundness of that form of government and I think that we should be very careful in approaching any proposals to alter its basic structure. Mr. ZABLOCKI. Basically I would agree with you, but when any

I branch encroaches upon the other then we have to put up barriers.

Any further questions?
Mr. Biester.

Mr. BIESTER. I don't think so, Mr. Chairman. I believe that last colloquy is helpful to have on the record. I don't happen to believe that what we are doing here is overly legalistic. It seems to me that we are doing exactly what the process implies we should do, recognizing that we have been deficient and recognizing that we have not been sufficiently responsible and sufficiently active in fundamental decisions in this field and out of that recognition pursuing within the gray area a defined, a more effective and reasonable role for the people's House, at least in this warmaking decision.


Mr. ZABLOCKI. Mr. Fountain, any further questions?
Mr. FOUNTAIN. No questions, Mr. Chairman.

I would like to say this. I personally don't think that this resolution would be unconstitutional.

Mr. ZABLOCKI. You personally think it would not?

Mr. FOUNTAIN. I don't think it would be unconstitutional, but the question that confronts me is whether or not it would be unwise. That is one reason I had you put into the record the provisions of the Constitution which support the power of the President. I don't think the precise language of the Constitution itself is broad enough to give the President all of the powers he has exercised. But, I think by tradition, by precedent, by acquiescence, by some of the things we have done down through the years we have helped to interpret the Constitution and given the President more power than he actually has in the Constitution. In the type of world in which we live today with nuclear weapons, I think in calling upon the President to consult with us, and not to use excessive power

under unreasonable circumstances, we have to be extremely careful that we don't become so precise, as you say, that we tie the hands of the President. I think we also must be extremely careful that we don't become so precise that we say to a potential enemy there are certain circumstances on which the President cannot act and thus prompt an attack.

Thank you, Mr. Chairman.

Mr. ZABLOCKI. Thank you, Mr. Brower. You have been an excellent witness.

The subcommittee stands adjourned until 2 p.m., Wednesday, March 14, when our witnesses will be two respected constitutional law experts, Prof. Arthur Schlesinger, Jr., of the City University of New York, and Prof. Alexander M. Bickel of Yale University.

The subcommittee stands adjourned.
Thank you very much.
Mr. BROWER. Thank you very much.

[Whereupon, at 4:46 p.m., the subcommittee adjourned, to reconvene at 2 p.m., Wednesday, March 14, 1973.]

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