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WAR POWERS

THURSDAY, MARCH 15, 1973

HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
SUBCOMMITTEE ON NATIONAL SECURITY
POLICY AND SCIENTIFIC DEVELOPMENTS,

Washington, D.C. The subcommittee met at 2 p.m., in room 2200, Rayburn House Office Building, Hon. Clement J. Zablocki (chairman of the subcommitteej presiding.

Mr. ZABLOCKI. The subcommittee will please come to order.

We continue this afternoon our hearings on war powers legislation. Our objective throughout this set of hearings has been to gain a better understanding on this complex issue.

To assist us today in that effort are two respected constitutional experts and legal scholars. They are Prof. Raoul Berger, of Harvard University, and Mr. W. Taylor Reveley, a joint fellow of the Council on Foreign Relations and the Woodrow Wilson Center of the Smithsonian Institution.

Gentlemen, we are honored that you accepted the subcommittee's invitation. Professor Berger, if you will proceed please.

STATEMENT OF RAOUL BERGER, PROFESSOR OF LAW, HARVARD

UNIVERSITY Mr. BERGER. It is a privilege to appear before you and to congratulate you for facing up to the unceasing takeover of congressional functions by the President.

“The history of the Presidency,” said Edward Corwin, "has been a history of aggrandizement”; it is a history of ever-expanding encroachment on congressional prerogatives.

Because I believe that the maintenance of our democratic system and indeed the protection of individual liberty is bound up with the preservation of the separation of powers, I am here to uphold your efforts to curb Presidential expansionism.

My chief concern is to defend the Javits war powers type of bill against charges by Secretary of State William P. Rogers and Prof. Eugene V. Rostow that it is unconstitutional.

OPINION ON CONSTITUTIONALITY OF BILLS

Yesterday Prof. Alexander Bickel and Arthur Schlesinger gave their opinions that the bills are constitutional. Before the Senate Foreign Relations Committee, four distinguished historians-Henry Steele Commager, Alpheus Mason, Richard Morris, and Alfred Kelly agreed the bills are constitutional.

But I don't think Mr. Chairman, that this issue ought to be settled on a count of noses. I think it is of the highest importance that every Member of Congress have a real grip on the basic facts which underlie the position of the Congress.

If you know the facts yourself, and are familiar with them, you will more confidently proceed with the resumption of your powers.

I may interpolate, I came here prepared to discuss various issues with Professor Rostow and learned only late yesterday that he will not be here and that my coworker in the vineyard would be Professor Reveley.

I am pleased that Mr. Reveley has come as a substitute because he and I will come to issue on a tremendously important fact.

I don't think that Professor Reveley disagrees on the original intention of the founders; but he has a theory, and has presented it in its most sophisticated_form, which has found favor with a group of academicians, not I may say with the Supreme Court, and which is really a silky rationalization for presidential power grabs.

BASIC CONSTITUTIONAL FACTS

So we will come to that issue; but in the meantime I want to come to grips with some of the basic constitutional facts.

I should say it is not my purpose here to defend the wisdom of your several bills, for as stated by John Marshall, "The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” 1

Opponents of the bills summon remote hypothetical contingencies which might demand instant, unfettered presidential response. Against such a parade of horribles I would pose the actual horror of our ever-deepening involvement in the Vietnam quagmire.

One who can't learn from past mistakes is destined to repeat them. Most presidential adventures, as Prof. Henry Steele Commager points out, lacked the element of urgency, and in almost every case there was time to consult Congress.” I cannot improve on his statement that "great principles of government are not to be decided on the basis of the argument ad horrendum-by conjuring up hypothetical dangers and insisting that the structure and operations of government must be based on the chance of these rather than on experience.” (Fulbright Hearings 16.)

WISEST POSSIBLE SOLUTION TO PROBLEM

Whether or not your bills represent the wisest possible solution of the problem—the legislature is yet to be born that can draft a perfect bill-is not nearly so important as the fact that you are taking a step toward resumption of your constitutional powers. Congress, the

1 Raoul Berger, "War-making by the President,” 121 University of Pennsylvania Law Review, pp. 29, 31 (1972) hereinafter cited as “R. B."

2 Hearings on War Powers legislation before the Senate Committee on Foreign Relations, p. 14 (1971), hereinafter cited as "Fulbright Hearings."

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Supreme Court has often held, cannot abdicate its powers. The corollary of that axiom is that Congress is under a duty to exercise those powers itself.

Another good reason for such a bill, to borrow some words from Mr. Reveley, is that it is less easy for a President to evade an explicit congressional denial of authority than for Congress to negate a presidential fait accompli. It will provide—again to borrow from Mr. Reveley the--initial thrust and spark a consensus.

You will not merely raise consciousness as Mr. Schlesinger said yesterday, of the executive, but you will educate the public. Until the public realizes that the presidential powers have been grossly abused, that they must be resumed by Congress, Congress itself will not go

Let me then focus on the issue of constitutionality. Roughly speaking, the several war powers bills before you seek to limit presidential warmaking in the absence of authorization by Congress, leaving the President free to defend the United States and its Armed Forces against sudden attack.

very far.

CONSTITUTION VESTS CONGRESS WITH POWER TO WAGE WAR

The power to wage war, it may be confidently asserted, was vested by the Constitution in Congress, not the President. If this be so, your bills merely seek to restore the original design. It cannot be unconstitutional to go back to the Constitution. Here I can only sketch the materials which demonstrate the purpose of the founders, referring for documentation to my article, “Warmaking by the President, supra, note 1, which was inserted in the Congressional Record of February 20, 1973, by Senator Javits.

The best index of constitutionality is the specific provisions of the Constitution respecting the war powers plus the explanation of the founders as to what they intended to accomplish thereby.

I find unacceptable in this context Professor Reveley's suggestion that the plain meaning is an illusive goal. There is nothing illusory, nothing obscure about the meaning of the framers of the Constitution, as I hope to demonstrate in very short order.

The war powers of the President are expressed in three little words--Commander in Chief, which Hamilton explained to a people in dread of creating another George the Third, merely meant the President was to be the first general. (RB 35.) As Professor Henkin recently observed, generals even when they are "first,” do not determine the political purposes for which troops are to be used; they command them in the execution of policy made by others (L. Henkin, Foreign Affairs, 50-51 (1972)).

ROLE OF THE COMMANDER IN CHIEF

The Commander in Chief was to lead the Armed Forces once war was commenced by Congress or by a sudden attack on the United States. No more can be squeezed out of those three little words. Indeed Hamilton, in explaining them, said it was the first general function only of the monarchs of England that was being given to the president; the rest of the war powers were being given to Congress.

In contrast to these three words the over-towering bulk of the warmaking power was lodged in Congress. James Wilson, with Madison, the leading architect of the Constitution, explained:

The power of declaring war, and the other powers naturally connected with it, are vested in Congress. To provide and maintain a Navy—to make rules for its government—to grant letters of marque and reprisal—to make rules concerning captures—to raise and support armies—to establish rules for their regulationto provide for organizing * * * the militia, and for calling them forth in the service of the Union [there was no standing army]-all these are powers naturally connected with the power of declaring war. All these powers, therefore, are vested in Congress. To this may be added that Congress is also empowered to provide for the common defense and to make appropriations for the foregoing purposes. Since all the powers naturally connected with warmaking are vested in Congress, it follows, as several founders expressly stated, that they are not to be exercised by the President. (RB 41 n. 93.)

EXECUTIVE IS SIMPLY NAMED COMMANDER IN CHIEF

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Let me pause to read something from Mr. Reveley on this score, because on this I believe we concur. In a recent article in the Virginia Law Review, Mr. Reveley stated as follows:

The executive is simply named commander in chief and given the power to commission officers. His appointment prerogative mentioned previously also comes into play in the military sphereAnd I may interpolate, subject to Senate consent. He continued : Congress on the other hand has a battery of responsibilities including inter alia, the power to raise and support the armed forces and the power to declare war.

Professor Reveley, therefore, agrees with me that all that the Constitution gave to the President were the three little words, "commander in chief"; the remaining battery of powers was given to Congress.

You may think, Mr. Chairman, that I, too, easily glide from a power to “declare” war to a power to "make" it. Originally it was proposed that Congress be empowered to “make” war; this was changed to “declare” (RB 39-41), for reasons well summarized by Secretary of State Rogers. In his testimony before the Senate Foreign Relations Committee in 1971, he confirmed that the "change in wording” from “make” to “declare” “was not intended to detract from Congress' role in decisions to engage the country in war. Rather it was a recognition of the need to preserve in the President an emergency power- -as Madison explained it-'to repel sudden attacks' and also to avoid the confusion of *making war with 'conducting? war, which is the prerogative of the President” as commander in chief. (Fulbright hearings 488.)

DECISIONS INVOLVED IN CONDUCTING WAR

But for the decisions involved in conducting war, all the rest of the warmaking power remained in Congress. In the words of Hamilton's proposal to the Convention, the Executive would "have the direction of war when authorized or begun” (RB 37), implying it was not for him to begin a war. Though Hamilton was the great proponent of expanded presidential powers, he later stated that "it belongs to Congress only, to go to war.” (RB 42 n. 99) Observe he does not say to

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