STATEMENT OF HON. GEORGE E. DANIELSON OF CALIFORNIA

Mr. Chairman, my purpose in presenting this testimony is to urge the adoption by the Congress of legislation which will clarify the relationship between the powers of the Congress and of the President as they relate to making war. The legislation which I propose, which is embodied in House Joint Resolution 21, would make unmistakably clear and carry out the intentions of the framers of the Constitution. It is elementary that the framers of the Constitution intended that power should be shared between the various branches of Government. They established an elaborate, and effective, system of checks and balances for the purpose of preventing the exercise of governmental powers being concentrated in any one department of Government. That philosophy was clearly stated by Thomas Jefferson, who said, "It is not by the consolidation, or the concentration of powers, but by their distribution, that good government is affected."

This has presented no problem during those times in our history when the Congress and the President have been of one mind and purpose in carrying out national policies. In times of conflict between the Congress and the President, however, each branch tends to interpret the Constitution in the manner which supports its own point of view. Who is "right" sometimes seems to depend upon the opinion of the public. But this must not be, for the proper exercise of constitutional powers is a matter of law, not popular referendum.

Since we are a government of laws, and not of men, it is imperative for us now to clarify for all time the relationship between the Congress and the President as to the warmaking powers.

Certainly there is no respect in which the need to clarify the sharing of Government powers is more important than in that of the warmaking powers. War being the most extreme of all national endeavors, should not be entered into except under unquestionable constitutional authority, based upon full compliance with the great decisionmaking process that the Constitution established.

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The legislation I propose, to clarify the powers of the Congress and the Executive, is entirely appropriate under the Constitution. Article 1, section 8, of the Constitution gives Congress the power to “* make all laws which shall be necessary and proper for carrying into execution" the enumerated powers of the legislative branch. This clause not only gives the Congress the power to implement its own powers through legislation; it gives Congress the power to make all laws which shall be necessary and proper for carrying into execution ** all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." The conflict in the matter of warmaking powers seems to arise out of the difference between the power of the President in his capacity as Commander in Chief, as opposed to the power of the Congress to declare war.

Since the Constitution expressly provides that it is the Congress that shall have power ** ** to provide for the common defense, *** to raise and support armies, * * *" and "* * * to provide and maintain a navy *** *” it is clear that the President would be Commander in Chief in name only if Congress did not provide him with armed forces to command. Thus, while the Constitution establishes that the President is Commander in Chief of our Armed Forces, the power is granted to the Congress to make all laws which shall be necessary and proper for carrying the Commander in Chief's powers into execution.

Most importantly, the one and only power to declare war is granted and imposed by the Constitution on the Congress.

It is certain that the framers of the Constitution intended that this be more than an idle exercise. It very clearly means that, if a state of war is to exist between the United States of America and another nation, it is Congress that must decide that issue. As in other Government decisions, Congress establishes the policy which the President is to carry out.

In an early draft, the proposed Constitution gave the Congress the power to make war, but that language was changed to the power to declare war, thus preserving and continuing the constitutional pattern of giving the Congress the power and duty of creating national policy, by legislation, and giving the executive the power and duty to take care that those national policies and laws be faithfully executed.

Thus, the Constitution makes a clear distinction between the legislative and executive functions-between policymaking and its execution and the national policy decision as to whether this Nation is to go to war is clearly a congressional power and duty.

Congress also has the power "to raise and support armies, but no appropriation of money to that use shall be for a longer term than 2 years." No department of Government other than Congress can raise or support an army. This entails the power of the purse, as well as the national policy decision as to whether we shall have armies and

the size and extent of our armies.

The problem here, which the framers foresaw, was that, while Congress might raise an army, an open ended appropriation to support an army would be self-perpetuating and would place too much power in one department of government. They did not want the purse and the sword under the control of one department of government. Accordingly, they prohibited such an open ended commitment of funds. They required that war appropriations be renewed every 2 years. This provides for debate, discussion, and the airing of all points of view, which is typically part of the legislative process. It assumes that one decision will reflect the will of the American people. If pursuit of a military goal was no longer deemed justified, or if the need for an army has disappeared, Congress would be in a position to consider these things in deciding whether to renew a war appropriation. This power, taken together with Congress' power to declare war, gives a clear picture of the framers' intention that Congress should determine whether the forces of the United States should be committed to war.

The legislation I am proposing would provide a statutory clarification of the scheme of checks and balances the framers foresaw in the area of making war and yet provide reasonable flexibility to enable the President to meet the contingencies inherent in the world of today. This legislation is pursuant to Congress' power to make all laws necessary and proper to carry into execution its enumerated powers. Very simply, it acknowledges the Commander in Chief's power to meet emergency situations with armed force, but requires him to report his reasons for his action to the Congress within 72 hours. This commitment of U.S. troops cannot exceed 30 days without the approval of Congress in the form of a concurrent resolution.

The legislation is necessary. We must never again go to war unless we have the undivided support of the Nation. We must never again ask our people to spill their blood in a cause which does not have their support. If we decide to call upon our citizens to make great sacrifices in a military cause, they must have a voice in that decision. And the voice of the people of the United States is heard through their representatives in the House of Representatives and the Senate. As a matter of constitutional law, and as a matter of democracy, the decision can be made in no other way.

STATEMENT OF HON. JOHN DELLENBACK OF OREGON

Mr. Chairman, I commend you and the other members of the subcommittee for acting so promptly in this session to hold hearings once again on the war powers issue. I'm pleased to have the opportunity to submit a statement in behalf of H.R. 454, which I introduced, and to urge your serious consideration of this measure and other proposed legislation dealing with this issue.

There is a good deal of discussion in this country today about the division of authority between the Congress and the executive. I don't wish to open for debate here the question of whether the executive branch has assumed a disproportionate share of power in the affairs of Government, on either side of which issue there is a good argument to be made. In the realm of warmaking, however, the fact of the matter is that during the terms of three consecutive Presidents American forces were involved in conflict in Vietnam for some 10 years largely on the basis of simple Presidential authority. By no means do I intend to equate the actions of those three Presidents-indeed their actions were quite different-but the fact remains of what occurred, and there are important lessons there to be learned.

Such a situation as that through which we have all so recently suffered results, in my opinion, from a subversion of the original intent of those who framed the Constitution. I am convinced that, with the exception of repelling sudden attacks on the United States or its citizens or acting in other emergency situations, our forefathers intended to vest full war powers in the Congress. Clearly the President's power is to serve as Commander in Chief of the Nation's armed forces once those forces are committed to war, but he does not bear the responsibility of committing them to war. This responsibility falls squarely on the Congress.

Congress has exercised its power to declare war on only five different occasions: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. U.S. forces have been involved in hostilities without an official declaration of war on more than 150 occasions in our country's history. Prior to this century, however, such incursions were of brief duration and relatively uncostly. What is most alarming is the fact that with no congressional declaration of war, we've spent some 80,000 lives and $180 billion dollars on two very real and prolonged wars in the 20th century. It is unthinkable to me that in our country and under our system of government the decision to sacrifice so much should fall upon any one man alone, however able and whoever he may be.

H.R. 454, which is virtually the same as the bill which overwhelmingly passed the Senate during the last session of Congress, represents a deliberate proposal that the Congress speak clearly on the critical issue of the powers vested respectively by the Constitution in the legislative branch and in the executive branch so far as the commitment of and the control over the Armed Forces of the Nation are concerned.

The bill begins by defining those circumstances under which the President, without prior congressional approval, may introduce forces into hostilities or situations where imminent involvement in hostilities is clearly indicated. The four specific conditions outlined are what may be termed emergency situations calling for defensive action and fall in line with the intention of the Constitution's authors to allow the President to deal with emergency situations. They are:

(1) To repel an armed attack upon the United States and its possessions;

(2) To repel an armed attack against U.S. forces located outside of the United States;

(3) To protect American citizens who are being evacuated from a situation of danger; and

(4) In compliance with specific statutory authorizations for the conduct of military operations.

Should the President determine that any of the above situations exists and decide to employ U.S. forces, he would then be required promptly to report to Congress the extent of such involvement and the circumstances under which it was initiated. Moreover, he would be required periodically to apprise Congress of the status of such military activities.

Section 5 prohibits the President from continuing military hostilities under the bill's permitted conditions beyond 30 days unless Congress passes specific enabling legislation. Provision is made, of course, to expedite the passage of such legislation.

What the 30-day limit does is place the burden of proof on the President who must convince Congress that military action by U.S. forces is both justified and essential to the country's welfare. Should a President be contemplating the introduction of forces into hostilities, he would have to stop and consider whether he would be able to accomplish his objectives within 30 days or whether he would be able to persuade Congress that a more sustained involvement is warranted. In other words, the bill will make it as difficult as possible for the Executive to place us in a position where we are too far into war to get out and will prevent the President from finding himself in the lonely position of conducting a war without the support of the people's representatives in the Congress.

Opponents of this legislation may argue that Congress is going too far by attempting to impose restrictions on the Executive in in this matter, They may argue that today's fast pace and instant communications may require immediate and unhindered action by the Commander in Chief to protect our interests. Let me point out that this bill in no way prohibits the President from acting quickly to protect the country or its citizens, but rather provides him a good deal of flexibility in emergency situations and the means to obtain congressional support when necessary.

A prime concern of the Congress should be to make certain that it is not easy to go to war, and if that takes imposing restrictions, then I am all for it. Vietnam has made it all too painfully clear that once we have substantially committed American men, money, and equipment to the defense of another nation, extrication from the conflict becomes extremely difficult. Congress cannot effectively act after the fact, nor should it be expected to. The time for Congress to act is when the original decision is made and in joint participation with the President.

I thank the subcommittee for your attention to this matter.