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imminent, are clearly defined. However, an executive action cannot be sustained beyond 30 days from the date of the introduction of our armies unless Congress has authorized such a national, long-term commitment. Thus, while the power of the President as Commander in Chief is protected, the advice and consent of Congress is also upheld.

Indeed, during the last 5 years or so Congress has been faced with the dilemma of dealing with the Vietnam situation only through the difficult and, at any rate, ineffective method of having to resort to the power of the purse to cut off defense funds.

My colleagues, the prolonged tragedy of the Vietnam war has taught us that we cannot afford another tragic waste of our Nation's human and technological resources. For this reason, I advocate the basic institutional reform of the War Powers Act to redress the lopsided balance of powers which led to the tragedy of Vietnam and to assure that the will of the people, as expressed through their elected representative, be imposed on the grave decisions of whether or not to send American boys to war.



School, NEW HAVEN, Conn. (MARCH 14, 1973) DEAR MR. CHAIRMAN: I deeply regret that forces beyond my control have prevented me from keeping my engagement to testify before the subcommittee on March 15. I had looked forward to meeting again with you and your colleagues, which I always enjoy, particularly because my esteemed friend Raoul Berger was scheduled to participate in the discussion.

This letter will constitute a brief statement for the record of my views on the bills before your committee, supplementing that contained in the enclosed article, which was published in the May 1972 issue of the Texas Law Review. I shall confine my letter to issues which have emerged in the debate over war powers legislation since that article was written.

I am still of the view that the wisest course for Congress under the circumstances is to pass no legislation whatever on the subject. In my opinion, the attempt to codify the respective war powers of Congress and of the President is both unwise and impossible. As Hamilton pointed out long ago, the circumstances that may endanger the safety of the Nation, and call for the use of the national force, or the threat to use it, are "infinite," so that “no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” You will note that even the most vehement of those who support restrictive legislation in this area avoid the problem of nuclear weapons.

House Joint Resolution 2 is of course the least objectionable of the bills before you. But in my opinion it is unduly restrictive in its operational definition of the President's authority to use force without the prior authorization of Congress. Section 3 would exclude the em use of force by the President pursuant to the obligations of the North Atlantic Treaty and other treaties of the United States. It would forbid what President Truman did in the first precarious days of the Korean War, under the authority of the United Nations Charter, and equally prevent the United States in the Security Council from voting for sanctions under chapter VII of the United Nations Charter, or supporting efforts at collective self-defense, as was done in the Korean case. As I read it, it would also exclude the President's effective threat to use force in situations of diplomatic tension, like the Cuban missile crisis, the several Berlin crises, the Middle East crises of 1967 and 1970, or the crisis over Bangladesh. For reasons given in my Texas article, I conclude it would be an unconstitutional interference with the President's inherent power to conduct our foreign relations, and to interpret and apply our treaty obligations in the first instance.

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I stress that I reach this conclusion as a firm opponent of unlimited Presidential discretion with regard to the use of the armed forces, and a firm believer in the constitutional pattern of shared power between Congress and the President in this regard, as it has evolved in the forge of experience. But that pattern, which requires concurrence and cooperation between Congress and the Presidency, as the exigencies of circumstance permit, cannot be reduced to a simple formula, as the various bills before you demonstrate.

Since my article in the Texas Law Review appeared, there have been several serious and well-considered scholarly studies of the constitutional problem, mainly addressed to "the original intent” of the Founding Fathers. For the reasons offered in part II of that article, I regard the question as important but hardly decisive in the normal processes of our constitutional law.

I shall direct my comments here to the recent articles of Prof. Charles A. Lofgren, Prof. William Van Alstyne, Prof. Francis D. Wormuth, and Mr. Raoul Berger. After reviewing the historical evidence in detail, these writers offer related, but somewhat different hypotheses as restatements of the original intent of the Founding Fathers embodied in the text of the Constitution.

Mr. Berger says that the Constitution "conferred virtually all of the warmaking powers upon Congress, leaving the President only the power 'to repel sudden attacks on the United States."2 Professor Lofgren is more cautious. He says: "[t]aken together, then, the grants to Congress of power over the declaration of war and issuance of letters of marque and reprisal likely convinced contemporaries even further that the new Congress would have nearly complete authority over the commencement of war."'3 Lofgren carefully points out that in the cases arising from the undeclared war with France, “none of the Justices explicitly stated that only Congress might wage undeclared war, but that conclusion," he believes, was clearly implicit in their remarks." He sums up in these terms: "Evidence from the years immediately following ratification of the Constitution thus corroborates the conclusion that Americans originally understood Congress to have at least a coordinate, and probably the dominant, role in initiating all but the most obviously defensive wars, whether declared or not.” 5

Van Alstyne reaches much the same conclusions Berger does, but with important variations on subsidiary issues. To Van Alstyne, the grant to Congress in article I of the power “to declare war" includes by implication the power to authorize every possible use of the national force, save to repel attacks on the United States, its armed forces, or its citizens abroad.

"Specifically, then, the lodgment of the power to declare war exclusively in Congress forbids the sustained use of armed force abroad in the absence of a prior, affirmative, explicit authorization by Congress, subject to the one emergency exception: an interim emergency defense power in the President to employ armed force to resist invasion or to repel a sudden armed attack until Congress can be properly convened to deliberate on the question as to whether it will sustain or expand the effort by specific declaration or, by doing nothing, require the President to disengage our forces from the theater of action. '16

1C. A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L. J. 672 (1972); William Van Alstyne, Congress, the President, and the Power to Declare War: A Requiem for Vietnam, 121 U. of Pa. L. Rev. 1 (1972); Raoul Berger, War-Making by the President, 121 U. of Pa. L. Rev. 29 (1972); Raoul Berger, The Presidential Monopoly of Foreign Relations, 71 Mich. L. Rev. 1 (1972); Francis D. Wormuth, The Nixon Theory of the War Power: A Critique, 60 Calif. L. Rev. 623 (1972). 2 Berger, op. cit. supra, note 1, 121 U. of Pa. L. Rev. 29, 82 (1972). 3 Lofgren, op. cit. supra, note i, at p. 700.

4 Id., at p. 701. 5 Ibid.

Berger and Wormuth seem to be willing to accept the rule in the Prize Cases, that Congress can ratify what the President has done in a situation of emergency.? Van Alstyne does not. He sums up his conclusions in this way:

1. In the absence of a declaration of war by the Congress, the President may not sustain the systematic engagement of military force abroad for any purpose whatever.

2. The interim use of military force solely to repel invasion of the United States or to relieve American citizens from an existing attack is an authorized executive war power granted by the Constitution. That power expires ex proprio vigore when the Congress has had reasonable opportunity immediately to convene and to authorize the continuation or enlargement of hostilities by express declaration, i.e., even the constitutional authorization of emergency executive war power of immediate self-defense terminates upon opportunity and failure of Congress to sustain it by express declaration.

3. In the event that the Congress authorizes the initiation, continuation, or enlargement of military hostilities by express declaration, the constitutional initiative of logistical, tactical, and strategic decision in the conduct of those authorized hostilities belongs to the executive.

4. A residual power of review and control is vested in the Congress through its continuing authority over appropriations, levies upon manpower, and its prerogative to modify or to repeal its declaration of war.

On the other hand, Wormuth can accept no advance "delegation” of authority by Congress to the President to determine the occurrence of defined events which, Congress says, require or authorize the use of force. Berger's position is almost the same. But Van Alstyne is willing to allow some small and conservatively construed practical leeway to the necessities or circumstances by way of “delegation” by Congress of authority to the President to use force on certain contingencies. 10

These nuances aside, all three writers assert congruent positionsthat the President can act only as the agent of Congress in the use of force, save for a short time in narrowly defined emergencies directly affecting the territory or the Armed Forces of the United States.


According to the laws of logic, one fact inconsistent with a theory disproves that theory. The hypothesis must be discarded, and reformulated in terms which are consistent with all the demonstrable evidence.

There is much that can be said of the related theories of Messrs. Berger, Van Alstyne, and Wormuth as formulations of the original intent of the Founding Fathers—their relationship, for example, to the President's authority over the conduct of foreign relations, which in troubled times has often, and necessarily, involved the use of force or the threat to use it. But one fact looms up as the missing Hamlet of these four articles, a fact which conclusively disproves all their hypotheses at once: The treaty power, and the Founding Fathers' 6 Van Alstyne, op. cit. supra, note 1, at p. 9.

7 Berger, op. cit. supra, note 1, 121 U. of Pa. L. Rev. 29, at pp. 64-67; Wormuth, op. cit. supra, note 1, at pp. 628-629, 699.

8 Van Alstyne, op. cit. supra, note 1, at p. 13.
9 Wormuth, op. cit. supra, note 1, pp. 692-703.
10 Van Alstyne, op. cit. supra, note i, pp. 15–18.

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