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sessions. If the force has already been terminated, it very likely did not constitute "war” in the constitutional sense. Should the Speaker and the President pro tempore nonetheless wish a special session, they may urge one on the President. Should Congress upon later considering the matter wish to take a position, it would be free to do so.
Section 3 again assumes that in most cases there will be no need for immediate congressional action once a use of force has ended. It further assumes that Congress will not act on all uses reported to it; those so insignificant as to fall within the President's absolute control are immune from congressional limitation or termination, and Congress may choose to remain silent for a time, or forever, even on uses that constitute "war."
Arguably, section 3 should prescribe procedures to force rapid congressional consideration of use-of-force reports. Assuming that statement of such procedures is technically feasible, it could well do more harm than good. There is no merit in having Congress rush to ill-considered decision, whether for or against Presidential action. So long as Congress proceeds “immediately” to consider the question, and refuses to allow its processes to be thwarted by minority will, it should take the time for meaningful consideration by its appropriate committees and on the floor of both Houses.
LEGISLATION DELIBERATELY SIMPLE
The legislation described above is deliberately simple. It does not deal with any aspect of the war powers except the actual initiation of force. And it presents only a few crucial elements of the allocation of authority over the initiation of force, leaving the rest of articulation by the President and Congress through a process of claim and concession in specific cases.
The proposed act does provide Congress with what it presently lacks: Îhe guarantee that it will have the facts and an opportunity to act at the outset of any significant American use of force, except for those few, if any, that end before the President has time to report and Congress to be called into session.
As suggested earlier, a Congress determined to be involved in American use-of-force policy can move from that opportunity to more general collaboration with the Executive via existing mechanisms. The balance of
my written statement lays out a more detailed warpowers act, which embodies more comprehensively the allocational rules described at the beginning of my oral remarks.
I prefer, however, the shorter and more simple act just discussed. It seems to me that the less complex war-powers legislation is, the more likely it is to be understood and respected. It also seems to me that both understanding and respect are vital if a war-powers act is to provide the thrust necessary to escape the pull of existing practice. And, again, the passage of use-of-force legislation that is then ignored by the President and by Congress would have a far more debilitating effect on congressional use-of-force prerogatives than the failure to enact any war-powers legislation at all.
COMMENT ON HIOUSE JOINT RESOLUTION NO. 2
In conclusion, let me comment briefly on House Joint Resolution No. 2, which is the principal proposal now pending before Congress that comes closest to the sort of legislation that I believe desirable.
I will go down the resolution section by section.
I do not agree with the assumption in sections 2 and 3 that the President may initiate force on his own authority only in emergency situations. In my view, Executive practice in this century should be recognized as amendment of the Constitution by usage to the extent that it gives the President the right to initiate the use of force whenever he concludes that the national interest requires it.
In section 3, I don't see the need for the "declaration of war” terminology. It seems redundant in light of the "authorization" language in the second clause of the section. We should be aware that any form in which Congress authorizes the use of force is constitutionally acceptable. There is no magic in declarations of war. Congress has often approved uses of force through means other than formal declarations. Thus, rather than focusing on declarations, it would be more accurate to refer simply to congressional authorization, whatever form it may take.
The requirement in section 4 that the President consult Congress before he commits troops pursuant to section 3 is desirable as a matter of practice, but not desirable as formal legislation. I would prefer to see that sort of consultation evolve out of existing mechanisms for interchange between the President and Congress. I don't think legislatively mandating it will do much good, unless other conditions exist : That is, congressional willingness to retaliate against the President if he fails to consult and congressional willingness to put its own house in order so that it can and will meaningfully participate in use-offorce decisionmaking.
REQUIREMENT OF PERIODIC CONSULTATION
The section 4 requirement of periodic consultation during armed conflict, similarly, should evolve naturally if the conditions just noted exist.
Section 5, again, has declaration of war" language which I think is better replaced by simple authorization language.
Section 5 also deals with deployment and other war-powers action short of the actual use of force. In so doing, the resolution courts unenforceability. Is it likely that the President will report-or that Congress will insist that he report—every time action of the sort described in section 5 is taken? Any requirement not likely to be obeyed, in my view, is best excluded from war powers legislation, lest its inclusion undermine the credibility of the whole.
The matters to be covered in the Presidential report, as noted in section 5, are essentially the same as those that I propose on page
27 of my statement. The requirements stated on page 27 seem to be somewhat more precise than the ones set out in section 5.
Section 6, in my judgment, should simply require Congress to move immediately to consideration of the use of force cited in the report.
Section 7, I would delete after the first sentence.
STATEMENT OF W. TAYLOR REVELEY III 1
My comments, first, sketch constitutional considerations relevant to war-powers legislation, and, second, against the background of these considerations, explore what, if any, war-powers legislation is desirable. In the interest of expedition, much of the statement is conclusory. Its organization is as follows: I. Constitutional Considerations
A. Many Issues
1. Language, Intent and Pre-Twentieth Century Practice
2. Twentieth Century Practice
1. Framers' Intent Versus Amendment by Usage
3. Respective Congressional and Executive Capacities to Realize Each of the Desired Ends
4. Preference Among Ends: The Allocation of Control
5. Reasons for the Allocation of Control Just Described II. War-Powers Legislation in Light of Relevant Constituional Considerations A. Recapitulation of Constitutional Considerations
1. Presidential Prerogative
2. Congressional Prerogative
1. CONSTITUTIONAL CONSIDERATIONS A. Many Issues
Most proposed war-powers legislation focuses on the allocation between the President and Congress of control over decisions to initiate the use of armed force abroad. It is well to remember, however, that control over the initiation of force is only one among a number of constitutional issues regarding the war powers. Crucial questions also exist concerning control over the conduct and termination of force, and concerning the initiation, conduct and termination of other sorts of action : commitments by this country to use force in the future, the raising and deploying of the military, and other provocative diplomacy, legislation or international agreement. Thus, the initiation of force poses only the middle issue of a series of questions concerning the constitutional allocation of control between the President and Congress over American war-powers policy. The initiation of force is a useful starting point for congressional efforts to deal with problems of control, but no more than that. B. Description of the Present State of the Law
Description involves inquiry into pertinent data of three sorts: (1) constitutional language, (2) intent of the Framers and Ratifiers and (3) war-powers practice by the President, Congress and courts from 1789 to date. My study of these data suggests that the constitutional allocation of control between the President and Congress over the initiation of force is in flux; it wavers uncertain
1 A. B., Princeton, 1965; J. D., University of Virginia, 1968 ; law clerk to Mr. Justice Brennan, 1969-70; attorney on leave from Hunton, Williams, Gay & Gibson. Richmond, Virginia ; presently a joint fellow of the Council on Foreign Relations and the Woodrow Wilson International Center for Scholars, studying the war powers, and rapporteur of the American Society of International Law Panel on the Constitution and the Conduct of American Foreign Policy.
between executive dominance, most apparent since 1945, and a return to the strong congressional voice that existed before this century. A new constitutional consensus on the initiation of force is likely to emerge within the next decade or two. Its nature cannot yet be accurately predicted; and those who claim that constitutional certainty already exists, some taking refuge in the Framers' dictates of 1789 and others garnering equal if contradictory assurance from presidential practice since World War II, are unrealistic. The facts belie their certainty, as does this country's method of making constitutional law.
1. Language, Intent and Pre-Twentieth Century Practice Though the pertinent constitutional language is somewhat ambiguous, the Framers' intent and pre-twentieth century practice generally support the necessity for prior congressional authorization of any initiation of armed force by the President, except (a) when the United States is physically attacked with such suddenness that a defensive reaction is essential before Congress has an opportunity to act, or (b) when the force has little human or economic cost for this country and does not impair the sovereignty of another country, under prevailing concepts of international law. Under nineteenth century concepts, the navy in particular landed frequently to protect American lives and property endangered by disorder in weak nations or stateless areas; took punitive action or reprisals against primitive, stateless peoples who had attacked Americans or their property; pursued fleeing miscreants into weak nations or stateless areas; and enforced laws against piracy and slave trading. Congressional authorization of American use of force also occurred often during the late eighteenth and nineteenth centuries and took a number of forms in addition to formal declarations of war.
2. Twentieth Century Practice The weight of practice in this century, on the other hand, supports a presidential prerogative to use force as he thinks necessary in the national interest, so long as war is not formally declared. Executive initiative and congressional acquiescence in China at the turn of the century, in Latin America during its first thirty years, before the two World Wars and during the Cold War all argue for such a prerogative. Since 1945 Chief Executives (with Eisenhower ambiguities) have been willing openly to claim the prerogative as their constitutional due. Dominant support for that constitutional reading existed in Congress and among influential commentators from the Second World War to the souring of American involvement in Vietnam. This interpretation of the constitutional warpowers provisions rested on the common assumption that only the President, not Congress, could cope with the pace, complexity and hazards of contemporary international life. Though essential, the congressional role was principally one of support-the giving of advice and martial resolutions when asked, and the voting of necessary appropriations and legislation.
In the wake of Vietnam, however, has come reconsideration of the institutional advantages previously assumed for the President in the conduct of foreign affairs, and reawakening of latent constitutional expectations, drawn from language, intent and pre-twentieth century practice. The reawakening has not been universally experienced, however; many continue to believe that the Constitution vests in the President a broad war-powers prerogative.
In short, a presidential claim to amendment of the Constitution by usage has been suddenly and strongly challenged, just as it was about to set its second foot in the constitutional promised land. C. Resolution of Uncertainty in Present Law
1. Framers' Intent Versus Amendment by Usage Almost certainly, there will be no rollback of the presidential claim to initiationof-force hegemony simply because the claim departs from the Framers' intent. To do so would be to deny the possibility of constitutional change in this country through any but the process of formal amendment. Such a Canute-like stance ignores historic reality that, for good and familiar reasons, our Constitution has far more frequently evolved through usage than through formal amendment, when the pertinent constitutional language is ambiguous. The allocation of war powers between the President and Congress has had its fair share of voluntary development, through a process of claim and concession between the political branches and, less frequently, through judicial decision.
But neither, on the other hand, does our constitutional tradition require that a claim be accepted as amendment by usage just because it has existed for a while and been given some substance in practice. The exercise of control by itself is not conclusive of its constitutionality. To so hold would be to permit power-seeking Presidents or Congresses to broaden their constitutional control through bootstrapping.
It is true, though, that persistent bootstrapping over an extended period may ultimately produce amendment by usage, if those with contrary constitutional views choose to clothe them only in rhetoric. This is simply to say that what happens in fact generally proves to be a more potent influence on constitutional development than statements about what ought to happen. Another generation of executive control, in fact, over the initiation of force will conclude the issue, in my judgment, no matter what Congress and commentators may say to the contrary about how control ought constitutionally to have been allocated.
If constitutional certainty cannot be found simply by harking back to the dictates of 1789 or by canonizing recent practice, where do we look for answers?
2. Purposes, or Ends, Underlying the Constitutional Allocation of Control Control over the use of force is allocated in one manner rather than another in order to achieve certain ends vital to the national good. These purposes provide the standards by which to judge the merit of alternative allocations between the President and Congress. Definition of the underlying ends began with the Framers and Ratifiers and has continued as new national needs emerge that require accommodation in the allocation, and as attempts are made to better adjust it to achieve old ends. Reasonable men may disagree about the nature of these ends, and, more often, about their allocational implications. But, in my view, we will be neither reasonable nor true to our constitutional tradition, if we try to resolve existing uncertainty about the allocation of control over the initiation of force except by (a) identification of the ends, vital to the national good, to be sought in that allocation and (b) choice of the allocation most likely to realize them.
In other words, what is the United States trying to accomplish by its constitutional law governing the allocation of control over the initiation of force? To what extent can the desired ends be achieved by adherence to the intent of the Framers? To what extent are they realized by recent divergent presidential practice? If the Framers' design remains functional, then the executive claim to hegemony over the initiation of force is properly rejected as unnecessary usurpation of authority from Congress. To whatever degree, however, that the claim responds to national needs not met by the Framers' design, to that extent it is properly recognized as amendment by usage.
The following objectives are among those that have been sought in the allocation of war powers :
First, to hinder the use of force by either branch to tyrannize the American public or to establish dictatorial government in this country. The Framers feared overt instances of these evils, for example, use of the military to overthrow the Constitution and establish an American monarchy. The threat today is more subtle. It lies in coercion that stems from keeping a huge military establishment, with civilian adjuncts, for use in foreign wars.
Second, to hinder aggressive use of force by the United States abroad. The Framers did not anticipate any but defensive use of American military power, though aggressive war had greater claim both to international legality and to predictable, tolerable consequences in the late eighteenth and nineteenth centuries than it does today.
Third, to encourage democratic control over use-of-force policy. Democratic control implies the reporting of executive policies with their supporting facts and rationales to Congress and to the interested public; it implies executive responsiveness to congressional and public judgments, when clearly and persistently voiced, and congressional responsiveness, in turn, to executive and public opinion. Admittedly, public judgment has often been viewed as uninformed, irrational, inconstant and either too militant or not militant enough. The same is frequently said of congressional judgment, as opposed to executive. Consent of the governed, however, is the organizing principle of our polity, and today's increasingly educated and demanding citizens are unlikely to lessen the traditional demand for a government responsive to the governed. That principle has special relevance in use-of-force policy, where the consequences of national decision-making can be so profound. Democratic control remains a basic objective, accordingly,