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tion 2 be a preferable legislative vehicle than S. 440 with some of the shortcomings that Professor Schlesinger has so well pointed out?
30-DAY PROVISION LEAST IMPORTANT
Mr. BICKEL. If you include section 3 of S. 440 and your own reporting section, in essence you would be leaving out the 30-day provision. I am not prepared to say whether it is an improvement, but the 30-day provision seems to be the least important thing.
Mr. ZABLOCKI. All testimony tends to indicate that the 30-day provision is nothing but a headache. Indeed, all we are looking for is an aspirin.
Mr. BICKEL. I can understand that position. I think it would certainly be a strong bill as you describe it, even without the 30-day provision as in the Javits bill. That doesn't seem to be the heart of the Javits bill to me.
Mr. FINDLEY. I appreciate your precise comments about the reporting provision. The reason I recommended the inclusion of treaty provision was solely because I was then under the illusion, and maybe it was just an illusion, that the NATO Treaty was something exceptional and that there was an element of "automaticity” in it. I think that most people argue that it is not in that category.
Mr. BICKEL. I am quite clear it is not. I think if you look at the legislative history in the Senate when it was ratified, Secretary Acheson was brought in. He said no, it was not an automatic provision. When they brought SEATO around, it was drafted to say that.
IN ACCORDANCE WITH CONSTITUTIONAL PROCESSES
Mr. SCHLESINGER. The phrase "in accordance with the constitutional processes” appears in the NATO Treaty.
Mr. FINDLEY. I thought it was exceptional in that the SEATO and CENTO Treaties had the phrase and NATO did not.
Mr. BICKEL. The history is that NATO was deemed imprecise. The Senate raised a furor about it. Mr. Acheson came in and clarified it as to the role of Congress. Then they ratified it, and when they came to SEATO they wrote against that background.
Mr. SCHLESINGER. I disagree. I think you will find that "in accordance with constitutional processes” is in the NATO Treaty.
Mr. FINDLEY. I think you are right, but in any event, the interpretation now currently given to the treaty, I believe, by the administration does not recognize any automatic situation. In light of that, I am inclined to agree that treaty provisions ought to be striken.
I like your suggestion that Congress should require such information as it deems useful. I think both strengthen the reporting part. I think there is a virtue in causing the Executive to put down the legal foundation for his action.
We are supposedly a nation of laws and the President ought to give a legal foundation for the use of military force.
Mr. ZABLOCKI. I believe section 9 of S. 440 was intended to deal with the problem of NATO in the other body.
SPECIFIC IMPLEMENTING LEGISLATION
Mr. BICKEL. Yes. And also very specially in sections 3 and 4, where it is quite clear that it takes specific implementing legislation to get any authorization. In section 9 they take care of any supposed existing
Mr. ZABLOCKI. Professor Bickel, the Department of State witness yesterday stated that the “necessary and proper" clause of the Constitution does not permit Congress to delineate Presidential war powers, since to do so would violate the separation of powers.
Since we have been bandying about this issue indirectly, what is your view of the use of the “necessary and proper" clause in the war powers area?
Mr. BICKEL. Well, Mr. Chairman, if the premise were well taken that a bill like the Javits bill is unconstitutional because it makes inroads on Presidential power, which Congress may not do because it makes inroads on the power of the Commander in Chief, then of course the "necessary and proper" clause would not help because the "necessary and proper" clause is not in there to enable Congress to do unconstitutional things.
That is, however, not true. The Constitution empowers him to be the Commander in Chief and it empowers the Congress to declare war. There are in that outline open spaces which the Constitution does not necessarily settle. In my judgment it does, but there are questions.
NECESSARY AND PROPER POWER OF CONGRESS
Now that being the case, the "necessary and proper" power enables Congress to act because it authorizes Congress in this, as in all other instances, to make all laws that shall be necessary and proper
for carrying into execution the foregoing powers; namely, its own, including the power to declare war, and all other powers vested by the Constitution in the Government of the United States as a whole or in any department or officer thereof, which includes the President.
So, on the premise which I take that the most that can be said is that there is an open texture in the Constitution here, I would say the Constitution is quite clear on who has power to do what, and the President has been doing—President Johnson did in 1965 an unconstitutional thing--that is a matter of opinion. I may be wrong, but at most what can be said is that it is an open texture, it is a matter of opinion, in the Constitution.
That being the case, Congress has the power to fill that open texture. That is the necessary and proper” power.
I think the legal adviser of the State Department begged his question. He took the premise that the bill is unconstitutional. Then, of course it follows that no power the Congress possesses can enable it to do an unconstitutional thing. That is a circular argument.
Mr. ZABLOCKI. If I may ask another question of Professor Schlesinger, Mr. Brower of the State Department yesterday stated that the idea of a one-House veto was defective. His argument was that the concept impairs the constitutional authority of Congress itself as well as that of the Executive.
THE TRUE POSITION OF CONGRESS
What is the true position of Congress if, for example, one House passes a resolution approving the President's action and the other passes a resolution calling for its termination?
It is the view of the administration that Congress must speak with one voice. Would you please respond ?
Mr. SCHLESINGER. A resolution declaring war would have to be passed by both Houses. If one House called for it, it would not pass.
It seems to me that on that argument, since the dissent of one House of Congress can prevent a war being declared or authorized, one House could prevent a war from being continued.
Mr. ZABLOCKI. Don't you think that both Houses of Congress should voice their opinion on such an important issue?
Mr. SCHLESINGER. I think that both Houses of Congress would voice their opinion. But take the case of a deciaration of war. Say one House favors a declaration of war or authorization of war and the second House does not. The House that declines to authorize war would prevent an authorization of war.
If one House of Congress can prevent the authorization of war or the declaration of war, it seems to me reasonable to argue that one House of Congress should be able to prevent the continuation of war.
ONE-HOUSE ACTION UNCONSTITUTIONAL
Mr. ZABLOCKI. I believe that Professor Bickel referred to the oneHouse action provided in the Reorganization Act as unconstitutional.
Mr. BICKEL. I have constitutional doubts about it.
Mr. ZABLOCKI. I realize, Professor Schlesinger, you are not a constitutional lawyer, but as a historian, would you comment?
Mr. SCHLESINGER. If it is constitutional for the Executive Reorganization Act, I don't see why it can't be constitutional for this.
Mr. ZABLOCKI. But Professor Bickel says it is not.
Mr. BICKEL. No. The Court has respected it as applied to its own rulemaking. The Court's broad rulemaking power has been dissented from by powerful voices, not excluding Hugo Black, Justice Frankfurter, and Justice Brandeis. I think they are the authoritative voice.
Mr. ZABLOCKI. Some Members of Congress would prefer that the Supreme Court would not enter into any further questions of constitutionality.
Mr. FOUNTAIN. Is it constitutional for the President to issue an Executive order or otherwise repealing a program of the Congress for which funds have already been appropriated?
Mr. BICKEL. That is a question that requires a long answer.
NO "YES" OR "NO" ANSWER
Mr. FOUNTAIN. I will take “yes” or “no."
Mr. BICKEL. I will say briefly there is no "yes" or "no" answer to it. If the question is “Does Congress have the constitutional power to force the President to spend money?” my answer to that is flatly “Yes." But in the present statutory, position, “Are all impoundments by the
, President unconstitutional ?" I cannot answer that "Yes" or "No."
Mr. FOUNTAIN. Many of these bills, regrettably, said, "The President is authorized” to do thus-and-so. Now we are saying, “The President shall."
Mr. BICKEL. When you say that, there is something of a different matter. But now you have on the books something called the AntiDeficiency Act, which makes a difference.
Mr. ZABLOCKI. Mr. Biester.
Mr. BIESTER. I have a brief question. It relates to the idea that since the power to declare war requires the vote of both Chambers, that one Chamber could veto a war that is underway. It seems to me you start with a situation when you declare war, but once a war has been underway for some period of time, that a great number of events may create a host of problems which would occur if there were a dislocation from the event of war, a recall.
TWO HOUSES NEEDED TO DECLARE WAR
Aren't we dealing with a different quality of act at that point than just simply to say in the abstract that if it took two Chambers to declare war it ought to take two to continue it?
Mr. SCHLESINGER. As my statement suggested, I was not altogether happy with this provision. In the end, it seems to me there were arguments to doing this by joint resolution rather than by the action of one House. But then a joint resolution could be vetoed.
This means that one-third plus one of either House could prevent a joint resolution from going into effect, which would in effect seem to me to confine the war-continuing power to one-third plus one of one House. I don't think that is very satisfactory either. So I just don't know.
I see the force of your point. As my testimony indicates, I am worried about it somewhat, myself.
Mr. BICKEL. The constitutional difficulty is that the Constitution pretty clearly says that anything you do that is to have the force of saw has to be approved by both Chambers and submitted to the President for signature.
ONE-IIOUSE VETO EXTRA-CONSTITUTIONAL
As I read the Constitution and as I suspect the Supreme Court would look at it, these things are extra-constitutional. They are not what was foreseen.
Mr. BIESTER. Thank you.
I do not remember verbatim Senator Javits' testimony in reference to section 3, but I do recall that not only did he say it was an improvement but he didn't find in the provision of section 3 of House Joint Resolution 2 the alarm that you find, Professor Bickel. Did he nod again?
Mr. BICKEL. I see there are people from his office here, and I am going to hesitate with my wisecracks. I don't know what he said. I am here to represent my own opinion.
Mr. ZABLOCKI. You don't blame me for trying to defend House Joint Resolution 2 to the fullest?
Mr. BICKEL, Not in the least.
ENLIGHTENING TESTIMONY HELPFUL
Mr. ZABLOCKI. On behalf of the entire subcommittee, I want to thank you for your very enlightening testimony. Your views were most helpful.
I believe the subcommittee will probably incorporate some of your suggestions. I say "probably" advisedly.
The subcommittee stands adjourned until 2 p.m., Thursday, March 15, when we will have as our witnesses Professor Raoul Berger of Harvard University and Professor W. Taylor Reveley, a Fellow of the Council on Foreign Relations and Woodrow Wilson International Center for Scholars.
[Whereupon, at 4:35 p.m. the subcommittee adjourned.]