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1972)
THE WAR POWERS ACT

897 exercises its functions. But the necessary and proper clause, impressive as it is, cannot be the source of a bootstrap doctrine, empowering Congress to abolish the principle of the separation of powers. Every piece of legislation has as its tacit predicate a Congressional finding that the statute or resolution is, in the view of Congress, “necessary and proper for carrying into Execution” one or another of the powers allocated to it in Article 1, Section 8. Congress has been talking the prose (or poetry) of the necessary and proper clause since 1789.

IV. CONCLUSION The Javits Bill and similar proposals represent the passionate conviction that the campaigns in Korea and Vietnam were a mistake. Many proponents of the Bill also contend that Korea and Vietnam were "Presidential" wars, and could have been avoided if only Congress had not been stripped of its rightful powers by the usurpations of overweening modern Presidents. We are therefore in the midst of a constitutional crisis, they tell us, a crisis which can be cured, and equilibrium in the constitutional order restored, only by the passage of a statute like the Javits Bill. Men like Senator Cooper and Senator Stennis, of course, do not accept this step in the argument. They know that Korea and Vietnam did not come about because the Presidency had arrogated Congress' powers over foreign policy; Congress fully supported those efforts when they were undertaken. But Senators Cooper and Stennis support the Javits Bill for another reason: they are trying to take advantage of the present state of opinion about Korea and Vietnam to establish certain Congressional prerogatives they have long urged in the perpetual conflict between Congress and the Presidency over their respective roles in making foreign policy. Their effort is addressed to the constitutional practice of Korea, not Vietnam. It represents Bricker's thesis that treaties are not self-executing, but require Congressional action before they become law.

The nation is in the midst of an important foreign policy crisis. It is not a constitutional crisis requiring a redefinition of the relationship between the President and the Congress, but an intellectual and moral crisis caused by a growing tension between what we do and what we think. The ideas that for twenty-five years have shaped American foreign policy, and the foreign policy of our Allies—the visions which dominated the minds of the delegates who met at San Francisco in 1945 to write the Charter of the United Nations have suddenly lost their power to command. When the delegates met at San Francisco in 1945,

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TEXAS LAW REVIEW

[Vol. 50:833 they saw Haile Selassie standing sadly before them, as he had stood in the Palace of the League of Nations ten years before, asking in vain for help against Mussolini's aggression. With equal shame they remembered China, which had also met silence when it besought the League to stop Japan. If the world had acted promptly, and in concert, would Japan have conquered Manchuria, and gone on to wage general war against China, and then against others? Would Italy have attacked harmless Ethiopia? Would Germany and Italy have made war against Spain, by sending arms and men to support Franco's revolution? Would the Rhineland have been occupied, Austria and Czechoslovakia invaded? In short, could the drive towards war have been stopped earlier, before its momentum became irresistible?

To the men of 1945, the answer to these questions was self-evident. World War II could have been prevented, they believed, if Britain, France, and the United States had acted against aggression, firmly, boldly, and above all in good time.

Today there is an outcry against these ideas. Something is wrong with the notion of small wars to prevent big ones, men say, if it produces consequences as ghastly as the campaigns in Korea and Vietnam. There must be a "new" foreign policy that could liberate us from the burdens we have had to bear since 1945.

This demand is the most conspicuous theme of a bellicose literature about how to achieve peace. It is conventional to describe that literature as a “Great Debate." Like many features of the conventional wisdom, the phrase is misleading. There is disagreement to spare in these books and articles, but little or no debate. Few of the protagonists read what their opponents write, or listen to what they say. Generally speaking, arguments are answered by epithets. The devotees of geopolitics, brooding about nuclear deterrence, dismiss their critics as amateurs, demagogues, journalists, dupes, or worse. Their critics return the compliment. Why should they waste time considering the ideas of fascists, war criminals, revisionists (or other lackeys of monopoly capitalism), or burnt-out cases whose minds were paralyzed in cold war postures twenty years ago?

In contemplating our national priorities, I can think of nothing we need more urgently than a genuine debate about what foreign policy is for. Until we come much closer to agreement on this central question, we shall have little opportunity to deal with the others.

Since 1945, there has been acute dissonance in the nation between what we thought and what we did in the name of foreign policy. While

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THE WAR POWERS ACT

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neither the United States nor any other nation has ever dared contemplate the full-throated enforcement of the United Nations Charter -in Eastern Europe, for example-American policy has nonetheless been strongly influenced by the experience of the thirties, and by the ideas of the Charter. President Truman regarded the Korean War as atonement for the League's failure in Ethiopia. His point was underscored by the presence of Ethiopian troops in Korea. And the memory of Munich, and of President Wilson, is a living part of American consciousness.

Truman's view has not, of course, been universally accepted. The United States has offered many explanations for its foreign policy since the Truman Doctrine was announced in 1947: as the "containment" of "Communism,” or of the Soviet Union, China, and Cuba; as the protection of "free nations" or of the free world”; as the manifest destiny of a Great Power; or as the application of the oldest and most nearly instinctive policy in all politics—that of the balance of power.

Public opinion has not yet crystallized around any one of these competing principles as the proper compass for our foreign policy. Since 1945, the American government under five Presidents has felt compelled to act in a certain pattern, from Iran, Greece, and Turkey, to Berlin, Korea, the Middle East and Vietnam. But there is no harmony between this pattern of action, and widespread, and now perhaps prevailing views as to what American and Allied foreign policy ought to be.

The tension between public opinion and the behavior of government is much too great for safety. That tension has already destroyed the careers of two Presidents, Truman and Johnson; divided the nation; split the Democratic Party; and perhaps weakened the Presidency as well. It could have even more serious consequences, for it has given rise to uncertainty all over the world as to what the United States will do to protect its own security, and the security of nations it has undertaken to defend. Uncertainty of this order invites miscalculation, the kind of miscalculation which had led to so many catastrophes already during this brutal and tragic century. It is hardly hyperbole to conclude that the nation must reexamine its foreign policy before its foreign policy destroys the nation.

The real crisis of our foreign policy can be resolved only through a disciplined and scrupulous examination of what the nation must do, given the condition of world politics, to preserve the possibility of surviving as a democracy at home. That process will be difficult at best.

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The relevant Congressional Committees, and Congress as a whole, should be leading the nation in a courteous and sustained debate, through which we could hope to achieve a new consensus about foreign policy, as vital, and creative, as that which sustained the line of policy which started with the Truman Doctrine, the Marshall Plan, NATO and its progeny, and the Point Four Program.

Instead, the Senate Foreign Relations Committee has chosen to escape from the demanding but manageable task of reality by retreating into the insoluble and dangerous realm of constitutional myth. No one could possibly write the statute the Javits Bill purports to be—a codification of what the Founding Fathers prudently left uncodified, the respective powers of Congress and the President in relation to the use of the national force. As George Ball pointed out in his persuasive testimony opposing the Javits Bill, the Bill

represents an attempt to do what the Founding Fathers felt
they were not wise enough to do: to give precision and auto
matic operation to the kind of legislative-executive collabora-
tion which they deemed essential to prevent the unrestricted
use of American forces by the Executive acting in the pattern
of monarch, while at the same time assuring him sufficient
flexibility to defend the country against any threats that might
suddenly appear.128

In this time of trouble, almost as threatening to the nation as the Great European Wars of 1789-1815, we should not be diverted from the compelling task of rethinking foreign policy into a ritual purge of evil spirits, and an emasculation of the Presidency we have never needed more. The Javits Bill would turn the clock back to the Articles of Confederation, and destroy the Presidency which it was one of the chief aims of the men of Annapolis and Philadelphia to create.

126 1971 Hearings, supra note 1, at 621.

a

STATEMENT OF PROF. RAOUL BERGER, HARVARD UNIVERSITY LAW

School, CAMBRIDGE, Mass., IN RESPONSE TO STATEMENT OF PROFESSOR Rostow (MARCH 31, 1973)

Mr. Chairman, Prof. Eugene V. Rostow, who was scheduled to appear with me before your committee on March 15 but was prevented from doing so, has favored me with a copy of a statement he submitted for the record of your hearings on the war powers bills. There he takes issue with my published criticism of his article in the Texas Law Review.

Like Professor Rostow, I believe that "scholars and Members of Congress alike (must) adhere to the most scrupulous standards of responsibility in their discussion of the evidence *** *" (Rostow 408). It is in this light that I shall examine his statement, mindful of the remark by the distinguished physicist-mathematician, J. W. N. Sullivan, that the progress of science in large measure is due to the searching criticism to which competing theories are subjected. How much more important is such criticism when, as Professor Rostow justly states, the matter goes "to the essence of national safety.” (Rostow 408.)

(1) Speaking in the context of the proposed war powers legislation which, by reaffirming Congress constitutional powers, would restrict the warmaking propensities of a President, Professor Rostow remarks:

As Hamilton pointed out long ago, the circumstances that may endanger the safety of the nation, and call for the use of 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. (Rostow 395).

In the context of Professor Rostow's discussion the clear implication is that the powers of the President should not be shackled by the proposed legislation. My published critique pointed out that,

Hamilton was concerned there with the needed surrender by the states to the "federal government” of powers “essential to the common defense,” not with a plea that Presidential war powers must not be shackled. Hamilton's argument for lodging power in the nation rather than the states is not convertible into an argument that power is to be vested in the President rather than in Congress. (RB 49).

To persist in manifest error after such criticism is to lose sight of Professor Rostow's own statement that in this area the "price of error is indeed death.” (Rostow 408).

(2) Professor Rostow attaches great weight to the discussion before the Senate Foreign Relations Committee of the provision in article IV(1) of the Southeast Asia Collective Defense Treaty in 1954. After quoting a great slab of the 1954 hearings, he concludes:

Thus both the Senator and Secretary (Dulles) carefully avoided the view that we could act under paragraph 1 of Article IV only after a Congressional declaration of limited or unlimited war. (Rostow 402-405).

What Dulles so "carefully avoided” was squarely faced by the chairman of the committee, Senator Alexander Wiley.

1 References are to Berger, "Warmaking by the President,” 121 U. Pa. L. Rev. 29, 49 (1972, inserted by Senator Jacob Javits in the Congressional Record, Feb. 20, 1973, S2784).

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