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It is of profound distress to many that the role of the Congress in foreign relations in the last 10 years has greatly declined as Congress has not assumed the leadership role in many crisis situations. The courts, though never ruling directly on the power of the President to involve the Nation in situations abroad likely to result in war, limited

, or otherwise, seemingly have "served more to enlarge the Presidential prerogative over foreign affairs than to restrain it. For example, in Martin v. Mott the Supreme Court concluded that the President was empowered to act not only in cases of actual invasion, but also “When there was imminent danger of invasion” and “imminent danger” was held to be a fact to be determined by the President.

The President enjoys certain discretionary authority: but it is the discretionary authority of an executive. He conducts the foreign policy of the country, while the Congress passes resolutions and ratifies treaties relative to that policy. The President, however, does not possess the authority to declare war. This is a power which the Constitution granted to the Congress under our system of checks and balances.

In article I, section 8 of the Constitution the Congress is given authority to:

Raise and support armies, but no appropriation of money to that use shall be for a longer term than 2 years.

Provide for the common defense.

To declare war, grant letters of marque and reprisal, and to make rules concerning captures on land and water.

I believe that this authority implies that Congress also has the authority to prohibit Presidential commitment of regular combat units to sustain hostilities abroad if war has not been declared.

But when congressional authorization is necessary, what form should it take? Though the Constitution speaks of congressional power "to declare war," constitutional scholars are in agreement that congressional authorization does not require a formal declaration of war. The purpose of the provision is to insure congressional consideration and authorization of decisions to commit the United States to major hostilities abroad. It would both elevate form over substance and unduly restrict congressional flexibility to require a formal declaration of war as the only method of congressional authorization.

Though reasons supporting executive authority are still relevant to such decisions, the profound effects for international relations and the grave risk of escalation and unnecessary suffering suggest a strong congressional competence in such decisions.

Abraham Lincoln, while in Congress once said:

Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems

necessary for such a purpose, and you allow him to make war at his pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much power as you propose.

He went on to say that:

Kings have always been involving and impoverishing their people in wars, pretending, generally, if not always that the good of the people was the object. This our (constitutional) convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution so that no one man should hold the power of bringing oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.

The Congress has done very little to adapt its declaration of war power, or its other constitutionally specified war powers to deal with the situations which have evolved from historical experiences. It has reached the point where any effort simply to check the expansion of Presidential power is regarded by some defenders of the Presidency as an encroachment on the office of the President. Many advocates of Presidential prerogative in the field of war and foreign policy seem at times to be arguing that the President's powers as Commander in Chief are what the President alone defines them to be.

What is needed is new legislation which will define the rules and procedures to be followed in circumstances where military hostilities may be initiated by the Commander in Chief in the absence of a declaration of war. This bill will not affect the war in Vietnam, but instead will permit the Congress to decide how it should be involved in policy formation before any similar military hostility again arises.

I believe that H.R. 926 will help to meet this need. In essence, the President's control over decisions to use force abroad is a perfectly natural and explicit development, but it is not one which has been required by national self-interest. This is not to say that the President should surrender his power over the day-to-day conduct of foreign relations or relinquish his role as a forceful external leader. It is to say that Congress should have a voice in shaping foreign policies and a decisive voice on whether the United States will initiate the use of force abroad.

I believe H.R. 926 will accomplish this. The constitutional right of the Congress to pass this bill is stated in its specific war powers in article 1, section 8, including the power to declare war. Congress has the authority and the precedents for asserting its powers to declare war which must include the power to end war. Because the Congress has not asserted itself in the past in Armed Forces involvement in military hostilities in the absence of a declaration of war, it has fallen upon the Commander in Chief to exercise his executive discretion on an ad hoc, case-by-case basis.

My bill gives full allowances to the President in his executive capacity as Commander in Chief. But most important, this bill asserts congressional responsibility related to declaring war as stated by the Constitution and as expected and demanded by the Nation. Under my bill Congress would specify the four classic cases in which the President, for a limited amount of time may use the Armed Forces in military hostilities in the absence of a declaration of war.

First, to repulse a sudden attack against the United States, its territories, and possessions;

Second, to repulse an attack against the Armed Forces of the United States on the high seas or lawfully stationed on foreign territory;

Third, to protect the lives and property, as may be required of U.S. nationals abroad.

Fourth, to comply with a national commitment affirmatively undertaken by Congress and the President.

Under H.R. 926 even the 30-day period may be shortened by joint resolution of Congress. Also, the bill contains provisions enabling action to take place in Congress within 30 days.

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The danger of extended debate or filibuster is precluded under the terms of the bill because the bill or joint resolution either terminating or extending the military hostilities, after being cosponsored by onethird of the membership in either House, would be considered reported to the floor no later than 1 day following its introduction.

It would be possible, however, for the members to determine by a yea-or-nay vote that the committee would take longer than 1 day in its consideration of the bill or joint resolution.

Any bill or joint resolution reported would become the pending business and would be voted on within 3 days after such reporting: Similar provisions would cover consideration by the other House of Congress so as to assure expeditious consideration.

The bill or resolution for the extension of hostilities could conceivably contain a limitation on the time period for continued actions.

The bill provides that such military hostilities, in the absence of a declaration of war, may not be sustained beyond 30 days from the day they were initiated, unless affirmative legislative action is taken by the Congress to sustain such action beyond 30 days."

Under my bill, the Congress would not have to be committed initially to any action which the President might take. After 30 days there would be no authority for the Commander in Chief to persist unless the Congress decided that it wanted him to do so.

The present high state of Presidential prerogative has evolved naturally out of a set of historical and institutional factors which enabled the President to respond to contemporary pressures more easily than Congress. If Congress has the will, however, it too can meet the demands of modern foreign policymaking. While certain changes in institutional structure will be necessary, the critical factor will be the development of a congressional willingness to act quickly and wisely on vital issues and to use its existing power to make its influence felt.

STATEMENT OF HON. TOM RAILSBACK OF ILLINOIS

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Mr. Chairman, members of the subcommittee, although the peace treaty for the Vietnam War has been signed, debate still continues in the Congress over the respective war-making powers of the executive and legislative branches of Government. Numerous bills have been introduced which seek to clarify the role of the Congress and the President in the event of military hostilities in the absence of a declared war. I commend the subcommittee for holding these hearings, and I thank you for providing me with this opportunity to submit my views on the authority of the President to intervene abroad or to make war without the express consent of the Congress.

Since the beginning of this century—and most dramatically since World War II—the decision to involve American forces in hostilities abroad has been concentrated increasingly in the executive branch of Government. Under the past six Presidents, it has become more common for the executive branch to commit Armed Forces of the United States to foreign lands without congressional approval. Korea and Vietnam, of course, stand out as the primary examples, but other examples, from the Congo to the Dominican Republic, may also be cited as cases in which the President has initiated action without the approval of Congress. Often the situations have been such that the President deemed that immediate action was necessary. However, such crises severely limit the constitutional requirement that the President come before the Congress and ask for a declaration of war.

The Constitution assigns to the President the role of Commander in Chief. To the Congress, on the other hand, the Constitution gives the power to declare war, to raise and support armies, and navies, and "to make rules for the Government and regulation of the land and naval forces.” The constitutional role of the Congress to declare war has given way to the maintenance of a military posture at all times ready for war. This, in no way, diminishes the Congress' obligation under the Constitution to play an important part in determining when this Nation should involve its Armed Forces in hostilities. It is clear to me that we must reassert our responsibilities.

Vietnam has certainly taught us that we cannot involve ourselves in future hostilities without the full support and backing of the American people. I know all of us will agree that one of the greatest sources of alienation in our country—especially among young people has been the war in Vietnam. No one in this country will ever want to be involved in another war like Vietnam. We have paid a terribly high price-nearly 56,000 killed; and untold billions of American dollars spent. Henceforth, war must be the result of a collective decision by the President and Congress, and not an undefined involvement which grows and grows until the entire fiber of our Nation is torn.

It is for precisely this reason that I have sponsored legislation to define rules for action by the President in the absence of a declaration of war by the Congress. Briefly stated, the legislation authorizes the President to act to repel attacks against the United States, or its Armed Forces lawfully stationed on foreign territory, and to protect the lives and property of U.S. nationals living abroad, as well as to fulfill treaty obligations. However, the rules would provide that military hostilities initiated under such authority could not be sustained beyond 30 days unless specifically authorized by the Congress. As such, this legislation will enable the Congress to reassert its constitutional prerogatives and establish firm guidelines to be followed if future hostilities should occur.

In 1971, Secretary of State Rogers stated that war powers legislation should be considered "after the passions of Vietnam have faded into the past.” Though it will be years before that occurs, it seems clear to me that now is the time for the Congress to act on such legislation.

I commend the subcommittee for its consideration of the various war power bills which have already been introduced in the 93d Congress. I am convinced it is imperative that a firm agreement on constitutional roles of the executive and legislative branches of our Government be reached in this Congress. Without it, the cooperation which is essential for our national security will not be realized.

Thank you.

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