intervention in Vietnam, but told President Johnson that he would stand by him loyally if the President should act. The President for his part does not feel obliged to put his whole case before Congress, to bare his mind and reveal his intentions and thus defend his proposal and persuade Congress and the country to accept it.

PLAUSIBLE REASONS FOR MAXIMUM SECRECY

For, after all, he is not proposing, he is merely asking Congress to stand with him in united ranks behind something he has authority to do anyway. There is no need for Congress to know everything, since it is not Congress that is assuming the responsibility, and there are alwavs plausible reasons for maximum secrecy.

The sum of it is that a vast ambiguity now shrouds the allocation of the warmaking power, even though it ought not and need not. Consequently, Congress does not answer responsibly when asked to act, and certainly takes no responsibile initiatives.

A war powers bill is necessary because it is apparent that Congress must declare its own responsibilities to itself and assume them in principle before the country, if it is ever to exercise them in practice in particular situations.

Restoring a proper share of responsibility to Congress will by no means insure its wise exercise. This is the point Mr. Schlesinger emphasized. There is no assurance of wisdom in Congress any more than in the Presidency, on domestic problems any more than on foreign.

DEFINE NATIONAL INTEREST BY EVOKING IT

The only assurance there is lies in process, in the duty to explain, justify, and persuade, to define the national interest by evoking it, and to act by consent. Congress will sometimes fail to assent to wisdom and hold out for foolishness or rush into it.

At such times, the President, who is differently constituted, has enormous leverage as a persuader, and great power as a brake. Singly or together, President and Congress can fall into bad errors, of commission and omission. But together they are all we've got; except that in emergencies requiring instant action, or for purposes of command decision, we must rely on the President alone, as S. 440 fully recognizes. S. 440 would allow the President to act, as the Constitution intended him to do, in the event of an attack or of an imminent threat of attack against the United States or the Armed Forces of the United States. He may take the measures necessary to forestall an attack on the United States or its forces anywhere in the event of a "direct and imminent threat," to repel the attack if it occurs, and to retaliate, if it is an attack on the United States itself, its territories or possessions.

S. 440 would also allow the President, and this is somewhat extraconstitutional, to protect and evacuate Americans caught in fighting on the high seas or in a foreign country. That, in all reason, in the contemplation of the framers of the American Constitution, and in light of the experience of nearly two centuries, including a quarter century of the nuclear age, describes the sort of emergencies in which the automatic use of force is called for, and in which a purpose to use force

automatically and take the consequences can be imputed to our people without testing that purpose in the institution that reflects and represents the people in all their diversity; namely, the Congress.

SPECIFIC PROSPECTIVE AUTHORIZATION

Looking beyond the emergencies just described, S. 440, in its section 3(4)(A) and 3(4) (B), makes provision for specific prospective authorization of the use of force, and the emphasis is on the word "specific."

There are to be no more Tonkin Gulf resolutions authorizing everything and nothing, and no other ratifications, prospective or post facto, without the assumption of responsibility, as by appropriating money.

To appropriate money in support of a war the President is already waging is no more to ratify his action in responsible fashion than to appropriate for the payment of his salary. Under the sections I am discussing, the United States will be able to undertake credible international commitments through specific legislation implementing treaties or other agreements.

These commitments will be more credible than any we supposedly now have, which do not validly authorize automatic action, and exist at best in the miasma of ambiguity and misapprehension that has of late surrounded our domestic allocation of warmaking power.

Section 3 of House Joint Resolution 2, which is the operative section, by contrast with the closely drafted provisions of S. 440, seems to me to constitute a blank check, and for that reason to leave us worse off than we are now.

"ENDANGERS THE UNITED STATES"

The operative phrase of this operative section is "endangers the United States"-not directly or immediately, but in any sense. The phrase suggests, not a question of fact, but of judgment; and not a judgment tied to present circumstances, but a prophesy.

I do not think any President, including President Johnson in 1965, ever acted except in the good-faith belief that he was responding to a situation that, in a large sense, and looking to a distant future, endangered the United States, or ever thought, to continue quoting the Janguage of section 3, that he was in anything but such "extraordinary and emergency circumstances as do not permit advance congressional authorization,” if for no other reason than that he thought it wise to keep his decision private and his options open to the last minute.

House Joint Resolution 2, therefore, amounts, in my judgment, to no more than a reporting statute, and the reporting provisions of its section 5 are not terribly rigorous at that. Section 4, providing for consultation, is simply hortatory.

SINGLE HOUSE TERMINATION OF HOSTILITIES

H.R. 317, Mr. Bingham's bill, is again a reporting bill, except that it would authorize a single House of Congress to terminate hostilities that a President had engaged in. That is an extraconstitutional arrangement that has seemed to me undesirable in the few other condi

tions in which it now prevails, and more undesirable as applied to matters of war and peace.

H.R. 926 seems to me similar in intent to S. 440, but the latter is simply a better and more detailed draft. H.R. 3046 I think is, again, little more than a reporting bill.

I came to the conclusion that S. 440 is a wise proposal which will redress what has come to be a dangerous and uncharacteristic imbalance in our institutional arrangements. I urge the committee to give it its favorable consideration.

Mr. ZABLOCKI. Thank you, gentlemen, for your excellent statements in support of your positions.

I detect that both of our witnesses this afternoon agree that all of the bills in this area now pending before Congress, and primarily S. 440, House Joint Resolution 2, and House Joint Resolution 317, contain, in your opinion, constitutional provisions.

As I gather from your testimony, there is no question of constitutionality in legislating in this area.

Mr. BICKEL. There is none in my mind.

Mr. SCHLESINGER. I am only a historian, so I yield to Professor Bickel.

Mr. BICKEL. Constitutional law draws its sustenance from an enabling alliance with history. I see no argument at all.

CONGRESS SHOULD BE MORE FULLY INFORMED

Mr. ZABLOCKI. Another agreement I find is that you both think Congress should be more fully informed.

Mr. BICKEL. Yes, sir.

Mr. SCHLESINGER. Yes.

Mr. ZABLOCKI. I also find another area of agreement that the Congress indeed should enact some legislation in this area.

Mr. SCHLESINGER. Yes.

Mr. ZABLOCKI. Professor Bickel, specifically you believe that only by legislation the war powers of the President of the United States can be resolved?

Mr. BICKEL. Yes, sir; I am wholly convinced now and have been for some time that the only way to begin is to have a broad declarative act.

Mr. ZABLOCKI. Then the President would either have to tacitly accept or formally approve the legislation by signing it into law.

Mr. BICKEL. He would have to sign it unless you succeed in passing it over his veto, but it is not less law when you do.

Mr. ZABLOCKI. That is true. However, witnesses we have had before us, including the sponsors of S. 440, agreed that the President would likely veto that bill, and there would not be enough votes to override the veto.

Then it would be an exercise in futility; would it not?

Mr. BICKEL. I guess so; this is the area of your expertise more than mine.

REESTABLISHING CONGRESSIONAL AUTHORITY

Mr. ZABLOCKI. Then from a practical standpoint, we should attempt to bring out legislation which would deal with this problem respon

sibly and which may become a statute. Otherwise, why not just pass a strong concurrent resolution? This would not, in your opinion, accomplish what we want to accomplish; namely, reestablishing congressional authority in the war powers area by preventing the President from acting on his own.

Mr. BICKEL. It would not have the force of law, but it would not be a futile exercise. We are dealing in an area where the Constitution is the Constitution of practice.

We are also dealing in an area where one of the questions is the assumption of constitutional responsibility. I would regret if it came to a resolution, but if it did come to that, it would be a statement that enters the constitutional tradition, and it would be a statement by Congress to itself about what it thought its function was for the future. I would prefer the statute, of course.

Mr. ZABLOCKI. We in the House did not go through an exercise in the 92d Congress nor in the 91st session.

In the 91st Congress the House passed a resolution in this area. The Senate did not act. In the 92d Congress both Houses passed resolutions, but because the Senate action came late in the session the differences were not resolved.

Mr. BICKEL. I think the President, facing the decision President Johnson faced in 1965, would not have made it in the same atmosphere that it was made in then.

RAISING THE CONSCIOUSNESS OF THE EXECUTIVE BRANCH

Mr. SCHLESINGER. I think one of the problems, in the language of the women liberation movement, is to raise the consciousness of the executive branch and make it far more senstive to these issues than it was in the past.

I speak with some repentance about this because I was in the executive branch in the early 1960's, and I did not have the sensitivity to this range of issues that I have acquired since and that Vietnam has given to us all.

I feel that, had Congress declared itself by a sense of the House or sense of the Senate resolution, had it even made an effort to enact a bill which the President might have vetoed, it still would have raised the consciousness of the Executive.

I think that rather than to try to measure things which would be acceptable to the President one might argue that exercises which do not produce an immediate legislative result may produce a more enduring result in increasing awareness and Executive sensitivity to the constitutional issue and the need for involving Congress in these things.

Mr. ZABLOCKI. As one individual, I can assure you I don't feel our efforts in the past were complete failures or exercises in futility, nor are we frustrated, otherwise, we would not continue in our efforts.

DIFFERENCES ON SECTION 3 OF HOUSE JOINT RESOLUTION 2

I gather both of you disagree with section 3 in House Joint Resolution 2. Professor Bickel said this section practically gave the broader

power to the President. Yet, the State Department's witness yesterday said this particular section 3 would cause difficulties in meeting certain emergencies as far as the President is concerned.

Since there is a difference of opinion in this area. I am coming to the conclusion, since the Department is not satisfied and you think it is too broad, it must be a good section. Would you care to comment further?

Mr. BICKEL. The Department takes, and this is not the first instance of it, what seems to me to be an incredibly far out position. It seems to me the only way you can come to this section and view it as an inhibition on the President's power is if you start with the premise that his powers are wholly independent, that Congress has no business saying word one about them, and that they are not only unlimited but illimatable in the sense that nobody can foresee in what fashion he may seek to use them.

That is an imperial view of Presidential power that I certainly don't hold. I think the section is too broad because as I said in my testimony, the phrase, "Endangering the United States," with no reference to the immediate circumstances, with no reference to factual situations, but as a matter of prophetic judgment is a phrase that would cover every single Presidential action I can imagine.

EFFORTS AT CODIFICATION

Mr. ZABLOCKI. To pursue the question. in your testimony in the past, and again today and I quote from your testimony today, . . . “efforts at codification, which seemed to me to run the risk of being either too restrictive in their definitions of Presidential power, or else of becoming, like the lamentable Tonkin Gulf resolution. blank checks."

What you appear to be saying is that Congress should not attempt to codify. Doesn't S. 440 do just that?

Mr. BICKEL. I said that view I expressed nearly 3 years ago was my initial view. I have been taught, so to speak, by the drafting processes of S. 440 in which I took some small part, by Senators Javits, Eagleton, and others, and by their staffs, that the thing is do-able. S. 440 as I now read it as a lawyer seems to me to avoid pitfalls and to codify in language that is precise and, to me, satisfactory, those conditions in which the President has constitutional authority to act and those conditions in which he must have congressional authority.

Mr. ZABLOCKI. You mean in S. 440 all possible imaginable conditions are included?

Mr. BICKEL. Well, Mr. Chairman, within the limits of reason. One must guard against counsels of despair applicable to any legislation at all. Of course, nobody can sit here and say we are 100 percent certain we have taken care of everything. The Constitution of the United States has been amended 20 some times and this bill may be amended sometime in the future.

THE BEST JUDGMENT OF MEN

But it is my judgment that this bill, S. 440, now contains the best judgment of men now living so far as they can foresee the future. That is the process of legislation, Mr. Chairman.

Mr. ZABLOCKI. Thank you.