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cutoff of funds on the ground that it was unconstitutional. Ultimately the Supreme Court must decide whether the President may act in defiance of a statute. Given a dispute about constitutional boundaries the Court is the inescapable arbiter.
In my judgment, the executive argument for a broader power than that of first general has no color of law; but as a lawyer I feel that every man is entitled to his day in court. I no more want to see you unilaterally decide the powers of the President than I want to see the President unilaterally arrogate your powers to himself. The only arbiter is the courts.
ACTING IN DEFIANCE OF LAW
I cannot believe that the Supreme Court would prefer to have Congress impeach the President for acting in defiance of law. When the Reconstruction Congress so proceeded against Andrew Johnson, Chief Justice Chase wrote that the issue ought to have been submitted to the courts. 4
Now I come to a final passage. Without this your war powers bills, particularly as they permit the President to forestall the imminent danger of attack on Armed Forces stationed abroad, are virtually useless. So whether you write a special statute, or incorporate a provision in your War Powers Act, you need control over deployments.
You will remember both Professors Bickel and Schlesinger—and those are fine authorities—had no doubts on the score of deployment but again I think this ought to be spelled out in your record. It has not been spelled out in any other hearing that I know of.
Unless Congress establishes control over deployment by statute requiring congressional authorization, the President will in the future as in the past, station the Armed Forces in trouble spots that invite attack, witness the "Maddox" at Tonkin Gulf. Once such an attack occurs, retaliation becomes almost impossible to resist. Although I agree with Professor Alexander Bickel that “Congress can govern absolutely, absolutely, the deployment of our forces outside our borders" (RB-78, n. 318), account must be taken of Secretary of State Acheson's categorical statement to the contrary:
CARRYING OUT BROAD FOREIGN POLICY
Not only has the President the authority to use the Armed Forces in carrying out the broad foreign policy of the United States and implementing treaties, but it is equally clear that this authority may not be interfered with by Congress in the exercise of powers which it has under the Constitution. Acheson furnished no citations or reasoning for this extraordinary claim. His exclusion of Congress is demonstrably without foundation.
It is for Congress to provide for the common defense which implies the right to decide what is requisite thereto.5
Congress also is to raise and support armies, and by necessary implication it can withhold or withdraw that support. În determining the size of the army it will support it is entitled to weigh priorities: Shall troops be stationed in Germany or deployed in Cambodia ? Indeed the constitutional mandate that no appropriation for support of the armies shall be for a longer term than 2 years implies that it is for Congress to decide at any point whether further appropriations should be made and in what amounts. The duty of Congress, in Hamilton's words, “to deliberate upon the propriety of keeping a military force on foot,” surely comprehends the right to insist that a portion of the military forces should not be kept on foot in Vietnam or Europe.
3 The incident is described and the documents set forth in Clark Mullenhof, “Washington Coverup," pp. 173-174, 233-235 (1962). 4 R. Berger, Impeachment: The Constitutional Problems, pp. 291, 295 (1972). 5 Citations for this section will be found in RB 78–80.
SPECIFYING HOW APPROPRIATED MONEY IS SPENT
With the power of appropriation goes the right to specify how appropriated moneys shall be spent. This is immediately relevant to impoundment. It is not a mere matter of logic but of established parliamentary principle. After 1665, stated the great English historian, Henry Hallam, it became an undisputed principle” that moneys "granted by Parliament, are only to be expended for particular objects specified by itself.” That practice was embodied in an early congressional enactment. If, therefore, Congress specifies that its appropriations are to be spent only for troops stationed in the United States, that specification is binding on the Executive. Finally there is the power to make rules for the government and regulation of the Armed Forces, withheld from the Commander in Chief and given to Congress. These words connote a power to govern and control the Armed Forces, and they manifestly embrace congressional restraint upon their deployment.
REQUIRING CONGRESSIONAL AUTHORIZATION
I would therefore urge that your warmaking legislation, whether by separate enactment or by incorporation in a war-limiting bill, make express provision requiring congressional authorization for the deployment of Armed Forces abroad, except in tightly limited circumstances which hold no prospect of involvement in hostilities.
In sum, I consider that the constitutionality of the proposed legislation limiting the President's power singlehanded to embroil the Nation in war is unassailable. Congress, the sleeping giant, is stirring. Wake up, I say, and resume your place in the sun. Thereby you will profit the Nation and preserve our democratic system.
[The prepared statement of Professor Berger follows:]
STATEMENT OF RAOUL BERGER
It is a privilege to appear before you and to congratulate you for facing up to the unceasing take-over 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 Professor Eugene V. Rostow that it is unconstitutional. It is not my purpose to defend the wisdom of such efforts, for as John Marshall stated, “The peculiar circumstances of the moment
may render a measure more or less wise, but cannot render it more or less constitutional.' 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. Most presidential adventures, as Professor 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). 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 billis not nearly so important as the fact that you are taking a step towards resumption of your constitutional powers. Congress, the 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.
Let me then focus on the issue of constitutionality. Roughly speaking, the several war powers bills before you seek to limit presidential war-making in the absence of authorization by Congress, leaving the President free to defend the United States and its armed forces against sudden attack. 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, “War-Making 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. 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.” (Louis Henkin, Foreign Relations 50–51 (1972).) 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.
In contrast, the over-towering bulk of the war-making 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 regulation-to 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” (RB 36).
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 war-making 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).
You may think 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"
1 Berger, War-Making by the President, 121 U. Pa. L. Rev. 29, 31 (1972), hereinafter cited as “RB."
2 Hearings on War Powers Legislation before the Senate Committee on Foreign Relations 14 (1971), hereinafter cited "Fulbright Hearings."
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). But for the decisions involved in conducting war, all the rest of the war-making 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).
The power to “declare,” i.e. to wage, war, was vered in Congress, James Wilson explained to the Pennsylvania Ratification Convention, as a guard against being "hurried" into war, so that no "single man [can] ... involve us in such distress." (RB 36). The severely limited role of the President was a studied response to what Madison called “an axiom, that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence." (RB 38). "Those who are to conduct the war, said Madison, “cannot in the nature of things be proper or safe judges, whether a war ought to be commenced, continued or concluded.” (RB 39). George Mason also "was against giving the power of war to the President, because not (safely) to be trusted with it.” (RB 10). So the President was left with the power “to repel and not to commence war," as Roger Sherman advised. (RB 39). But for the power to “repel sudden attack" on the United States or to direct a war once begun by Congress, the entire uarmaking power was vested in Congress. On this eminent scholars are agreed, as the Hearings before the Senate Foreign Relations Committee on the Javits War Powers Bill (1971) amply testify.
Professor John Norton Moore finds uncertainty as to "which branch would have authority to commit the nation to force short of war, or indeed what 'war' meant.” (Fulbright Hearings 462). Such semantic questionings overlook the Founders' anxiety to limit the power of a "single man” to “hurry" us into war. Those who feared a blazing forest fire were little disposed to authorize the President to start brush fires. “Brinkmanship” is an invention of our era. A Convention which carefully authorized the President to "repel sudden attack" on the United States hardly left him free to engage in foreign adventures "short of war.” Congress, said the Supreme Court in 1800, may “declare a general war" or "wage a limited war.” Bas v. Tingey, 4 Dallas 37, dissipating the “uncertainty."
Madison's summary of the matter deserves to be blazoned on your walls in letters of gold :
“Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, the fundamental doctrine of the constitution, that the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite and proper” (RB 48).
In 1966 the Legal Adviser of the State Department had little quarrel with the view of the "original intention” herein expressed, and said of the President's power to “repel sudden attack” that "In 1787 the world was a far la rger place, and the framers probably had in mind attacks upon the United States." (RB 47.) Assuredly the Framers did not conceive that the President might repel attacks on Kamchatka. But the Adviser added, “In the 20th century the world has grown much smaller, an attack on a country far from our shores can impinge directly on the nation's security. ... The Constitution leaves to the President the judgment to determine whether the circumstances of a particular armed attack are so urgent and the potential consequence so threatening to the security of the United States that he should act without formally consulting the Congress.” (RB 50.) No member of the Executive has ever pointed to a constitutional provision, or to a statement of the founders that supports this astonishing claim. Recall Madison's words: “the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war." Whether an attack on a foreign state represents a threat to the “national security” is a political matter not left to the decision of the "first General.” The “power of udging the causes of war,” said Madison, “is fully and exclusively vested in the legislature.”
In essence, the Executive branch appeals to emergency power, and on this we need to bear in mind what Justice Jackson stated when President Truman seized the steel mills in the midst of the Korean War so that production would not be interrupted by labor strife :
"Emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them” (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 652 (1952) (concurring opinion)).
When Secretary of State Acheson advised President Truman in 1950 that he had constitutional authority as Commander-in-Chief to commit troops to meet the invasion of South Korea, he relied on a State Department memorandum which "listed eighty-seven instances in the past century” in which prior Presidents had exercised “presidential power to send our forces into battle.” (RB 59). Later Under Secretary of State Nicholas Katzenbach stated that “most of these [incidents) were relatively minor uses of force." (RB 59-60). The “vast majority of such cases, said Edward Corwin, “involved fights with pirates, landings of small naval contingents on barbarous or semi-barba rous coasts [to protect American citizens], the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border.” (RB 60). No possibility of “war” was presented by these incidents; and one can only marvel at the fantasy that can conjure from such incidents “precedents” for sending our troops “into battle.” Were these incidents to be regarded as equivalent to executive waging of war, the last precedent would stand no better than the first. Illegality is not legitimated by repetition. So the Supreme Court has held. (RB 60 n. 200).
Some academicians consider that presidential practices constitute a “gloss of life” on the Constitution, that the Constitution is a living document which must expand to meet new needs. But the way to such expansion is by amendment, not by seif-appointed revisionists. Given a presidential take-over of war powers plainly conferred upon Congress alone, and accompanied by an unmistakable intention to withhold them from the President, his appeal to his own "precedents" would alter the constitutional distribution of powers in violation of the separation of powers. Professor Rostow inveighs against the Javits Bill because "it would permit Congress to amend the Constitution without the inconvenience of consulting the people," (RB 31) this about a return to the Constitution! If Congress cannot by legislation thus "amend' 'the Constitution, how can presidential proponents defend the President's amendment of the Constitution by his own practices? Hamilton, the daring pioneer advocate of broadly-read presidential powers, regarded it as a fundamental maxim that
“An agent cannot new-model his own commission. A treaty, for example, cannot transfer the legislative power to the executive department."
Now the President claims that what Senate and President combined cannot do, he can do single-handed—“transfer the legislative power to the executive department."
It is a mark of intellectual confusion that at the very same time that Secretary of State Rogers was saying of the Javits Bill, which merely seeks to insure congressional participation in decisions for hostilities: “I don't think you can change the Constitution, amend the Constitution, by legislation" (Fulbright Hearings 525), that he could also state,
"Mindful of the hardships which war can impose on the citizens of a country and fearful of vesting too much power in any individual, the framers intended that decisions regarding the institution of hostilities be made not by the President alone ... but by the entire Congress and President together" (Fulbright Hearings 4SS).
And he agreed that “the Constitution mandates a role for Congress in the making of decisions to use force.” (Fulbright Hearings 528.) How can a bill which seeks to secure that role be in violation of the Constitution?
If the Constitution already vests this war-making role in Congress, it may be asked, why is it necessary so to provide by statute? The reason is that proponents of presidential war-making, relying on Acheson's “87 incidents”, maintain that "a practice so deeply embedded in our constitutional structure should be treated as decisive of the constitutional issue.” (RB 81.) Congress too can construe its powers under the Constitution; and a statute would serve as such a construction. Since, on the view most favorable to the President, war-making is a shared power, the presidential power, the Supreme Court has held, would be subject to a countervailing statute. (RB 76.) Moreover, disobedience of a statute by the President would place him in the position of a law-breaker. No man is above the law; and a violation of law opens the courts to enforcement of the statute.