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The heart of article 4(1), in Dulles' words, "The agreement of each of the parties to meet the common danger .in accordance with its constitutional processes'* * (Rostow 403), is duplicated in the treaty with Korea, which was discussed in the Senate debates by Chairman Wiley. In response to questions by Senators John Stennis and Arthur Watkins, he stated:
There is no question in my mind that the phrase "constitutional processes” means action by the Congress. I have said so 3 or 4 times in different ways.
Senator Watkins asked, "Congress would have to make the decision whether the United States would go to war or would not go to war?” Wiley replied, "The Senator is correct." 3 The record is studded with such remarks by Wiley. The reason is transparently plain. In making the decision to go to war, the Constitution, as Senator Thomas Eagleton stated, "requires the participation of the House, and in my view the Senate cannot abrogate that responsibility by treaty." (Fulbright hearings 610). That is the view of Professor Rostow's distinguished colleague Prof. Alexander Bickel, and of Prof. Henry Steel Commager. Id. at 563, 61. As Prof. Louis Henkin stated:
The Founders considered the power to declare war too important to entrust it to the President alone, or even to him and the Senate, and gave it to the Congress (or left it there, as under the Articles of Confederation).
After so fastidiously granting the power to Congress, we cannot impute to the Founders an intention to unravel alĩ their labors by conferring upon the treatymakers—President and Senate—a power to involve the Nation in war without congressional authorization. Certainly the reservation that the Nation must act via "constitutional processes” points back to the necessity of action by the entire Congress, as Wiley, Smith, and Watkins agreed. And this leads to what Professor Rostow regards as the fatal flaw in my position.
(3) After lining me up with Prof. William van Alstyne and Charles A. Lofgren for the proposition that "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,” Professor Rostow states that “one fact inconsistent with a theory disproves that theory” (Rostow 397). That "one fact * * *
which conclusively disproves all sour] hypotheses at once" is "the treaty power, and the Founding Fathers' intimate experience with that power in connection with the Benjamin Franklin Treaties with France of 1778" (Id. at 397).
As I understand the argument, the Franklin Treaty of Alliance with France (1778) contained an "American guarantee of the present possessions' of France in America”; the treaty was ratified by the Constitution (Rostow 398); France became involved in war with Britain. So much is true. Next Professor Rostow asks us to support that the British had stationed troops and naval vessels in the French Islands of the Caribbean and then asks:
The debates are reprinted in Hearings on War Powers Legislation before the Senate Foreign Relations Committee (March-October 1971) 721 et seq. (hereafter cited as Fulbright hearings). The quotation is at 3 Id. at 736. * Id. at 727, 729, 731, 733, 736. Senator Smith, on whom Professor Rostow relies for the “Monroe Doctrine approach," (Rostow 12), stated that in case of a violation of the Monroe Doctrine in South America, “The President should be prepared to issue a stern warning and have Congress back of him and ask for the support of Congress." He "absolutely agreed" with Senator Watkins that before "he ordered out the Armed Forces * * the President by all means should come to Congress and get power to take that action." Id. at 747.
L. Henkin, Foreign Affairs and the Constitution 80 (1973).
Can the President take no steps to implement that guaranty * * * without the prior consent in each case of Congress? Is it constitutional for a Treaty to declare, as Article 5 of the North Atlantic Treaty does, that an armed attack against one or more of the allies shall be considered an attack against them all? * * Their (Berger et al.] version of the Constitution would confine the President's emergency powers to attacks on the territory of the United States. Either the Treaty is unconstitutional, or their version of the original intent is inadequate and erroneous. Id. at 9.
Professor Rostow does less than justice to the meticulous way in which Professor Lofgren and myself have set forth the evidence of the original intent—the unmistakable statements by the framers themselves. Our bald recital of the historical facts does not therefore represent our "version of the original intent" nor bare "hypotheses." Only one who resolutely turns his face from those facts will dispute the plainly manifested original intention" of the founders. Professor Rostow would have us repudiate that clearly articulated intention in order to sustain the constitutionality of a 20th century treaty -as he reads it, when the true test is whether the treaty is compatible with the intention of the framers. And I would remind Professor Rostow that in 1966 the Legal Adviser of the State Department conceded that “the framers probably had in mind attacks upon the United States” as the limit of Presidential power to repel sudden attacks, not attacks on the French possessions in the Caribbean, or on Kamchatka. There is not a shred of evidence that the framers intended to alter the distribution of war powers when President and Senate made a treaty. The very fact that the decision to wage war was confided to the entire Congress, not the President and Senate alone speaks against it.
Let us now consider the Rostow argument in the frame of the 1778 treaty of Franklin. Having so carefully put it beyond the power of a "single man,” in the words of James Wilson, to "hurry” us into war (RB 36) when the framers were focusing directly on the distribution of the war powers, they scarcely intended by their ratification of the 1778 treaty to throw these labors into the discard. Rather, the reasonable presumption is that they meant execution of the treaty to be subject to the constitutional provisions respecting the power to wage war. To the extent that effectuation of the "guarantee” to France entailed warmaking, the Constitution left the decision to Congress.
Professor Rostow's mistake, which vitiates both his analysis of the Franklin treaty and the earlier-quoted Hamilton State-Federal passage, is to assume that because there is a necessity for the Nation to act, it necessarily follows that the President must implicitly be empowered to do so. But as Justice Frankfurter stated, the fact "that power exists in the Government does not vest it in the President." (RB 42). The founders left no doubt as to their intention severely to limit Presidential responses to "sudden attacks" on the United States. Thus it is that Professor Rostow's elaborate attempt to turn that intention topsy-turvy is pierced by “one fact."
(4) A few brief comments on several other points in the Rostow statement must suffice. It is true that former Justice Arthur J. Goldberg remarked in another context that the Constitution is not "a suicide pact.” (Rostow, 403). But he himself testified with respect to the Javits war powers bill that
This (remark) is a far cry from recognizing the President's unfettered powers to plunge us into war without congressional sanction. * * * (Fulbright Hearings 770).
Professor Rostow quotes at length from Hamilton's enunciation in 1793 of the novel theory that the Executive was given plenary power, not confined to the subsequent enumeration of powers, and that the congressional war power and Senate participation in the treaty power were "exceptions" which have to be strictly construed. (Rostow 400-401). This view was triumphantly refuted by Madison; it simply does not stand up in the face of the historical record. See Berger, The Presidential Monopoly of Foreign Relations 1, 18025 (1972). Professor Rostow advised me that he read this article; and I suggest that it is not in keeping with the fastidious standard he lays down for scholars to take no account of Madison's refutation and the accompanying documentation. A court would demand of a lawyer that he meet the opposing argument. Legal analysis is not advanced by closing one's eyes to unpalatable facts.
Finally, I reject the imputation that I noted “with apparent approval the actions of Presidents Wilson and Roosevelt before the First and Second World Wars ..." (Rostow 402). Of Wilson I concluded that "he withstood the temptation 'to resist force with force,' single handedly to commit the Nation to war.” (RB 66). My references to Roosevelt were to set forth the facts, concluding with a statement that "While these measures might have involved the Nation in war, they did not commit our troops to battle." (RB 66). It required Pearl Harbor to accomplish that. And, as I testified before your committee, I am not among those who subscribe to the notion that a President must save a benighted nation against its will. Tomorrow a malign President could plunge us into the abyss.
REPLY OF PROF. EUGENE V. ROSTOW TO PROFESSOR BERGER'S
RESPONSE (APRIL 10, 1973)
DEAR MR. CHAIRMAN: May I add, for the record, a brief reply to Mr. Raoul Berger's letter of March 31, addressed to my submission of March 14, 1973. 1. When I quoted Hamilton's comment in No. 23 of the Federalist,
I to the effect that no constitutional shackles can wisely be imposed upon the war power, I did not mean to suggest that the President has an unlimited power to wage war. On the contrary, as I tried to make clear, both in that letter and in my Texas article, the Constitution, in my view, entrusts and commits the care of the national safety both to the President and to Congress. My reference to McCulloch v. Maryland, in a section of my Texas article addressed to the problem of the "undue delegation" of congressional authority to the President, was intended to support the practice of advance declarations of policy, or ratifications after the event, through which Congress and the President have handled these problems together, as a problem of shared and concurrent authority.
In exercising the war power, effective national policy invariably requires the cooperation of both branches—a pooling of their respective powers in patterns which necessarily vary from case to case, depending upon circumstance. In my opinion, Congress may constitutionally join the President in advance declarations of policy, as it did in the
United Nations Participation Act of 1945, the North Atlantic Treaty or the Middle East Resolution of 1957 and 1961; or it may ratify what the President has done after the President has initiated a line of policy, as was the case in the Civil War, in Korea, and on many other occasions when the national force was used. I am not prepared to say that American policy in Korea, or in the handling of the Cuban missile crisis, or in Commodore Perry's mission to Japan, was unconstitutional. But this is necessarily the premise of all the bills before you.
No one has yet succeeded in drawing a neat and simple map of the division of authority between Congress and the Presidency with regard to the use of the national force, beyond the obvious propositions that only Congress can declare war, and only the President can direct the troops in the field, or conduct the diplomacy of the Nation. In the nature of the problem of national safety, I believe that drawing lines as sharp as those which Mr. Berger attempts is unwise, and indeed impossible.
2. The error of Mr. Berger's views, and those of Professor Van Alstyne, on the relationship between the treaty power and the war power is well brought out in Diggs v. Schultz, 470 F(2d) 461 (App. D.C., 1972). In that case one of our finest judges, Judge McGowan, had to deal with a conflict between a statute and the President's earlier interpretation and application of a treaty. The statute, being later in time, of course, prevailed, since statutes and treaties have exactly the same constitutional dignity. When valid, they are equally “the supreme law of the land.”
In 1966, and again in 1968, the Security Council passed resolutions, supported by the United States, calling on all member states to impose an embargo on trade with Southern Rhodesia. That step was taken under chapter VII of the charter, which deals with the most extreme powers of the Security Council—those of taking binding decisions, requiring members to take appropriate action to restore peace and security. It is the same chapter which authorizes the Security Council to employ military as well as economic coercion.
Economic sanctions are, of course, a use of force. They may, and often do, provoke a response. There are many who believe that American economic measures against Japan in the late thirties led to Pearl Harbor.
In 1945, the United Nations Participation Act created the office of U.S. representative to the United Nations, which functions under the President's direction. Section 5 of the act makes it an offense to violate or evade rules or regulations promulgated by the President to give effect to decisions of the Security Council calling upon the United States to apply economic sanctions. In 1966, the President issued executive orders applying the Security Council decision with regard to American trade with Southern Rhodesia. In 1971, however, Congress adopted a law intended to abrogate the Security Council decision, so far as the United States was concerned.
Judge McGowan's opinion did not conclude that the United Nations Participation Act was an invalid delegation to the President of a power which could not be delegated at all, or that the President's vote was invalid because no joint resolution of the Congress instructing our Ambassador at the United Nations how to vote was obtained within a few days or hours before the vote was cast.
On the contrary, the Court treated the President's power to interpret and apply the United Nations Charter in the Rhodesian case as complete and obvious, and entirely valid until Congress, several years later, overruled the President on the matter. The decision of Congress, the Court said, made the United States “a certain treatyviolator,"? and perhaps involved it in international obligations for breach of the treaty, as was the case when Congress abrogated the alliance with France in 1798.? But whether the United States decides to carry out a treaty of this character, or to breach it; or how it decides to interpret and apply such a treaty, are political decisions entrusted by the Constitution to the discretion of the President and the Congress—the President in the first instance, and Congress ultimately. Congress can support the President's initial application of the Treaty by its silence, as was the case in the Rhodesian affair for 5 years, or by affirmative action, through joint resolutions, appropriation bills, or otherwise. And Congress can overrule the President.
3. Mr. Berger reproaches me for not commenting on Madison's reply to Hamilton's defense of the
constitutionality of the President's Neutrality Proclamation of 1793. The episode was not one of the most attractive in the careers either of Jefferson or of Madison. Jefferson, having supported the President in the decision to issue a Presidential Proclamation of Neturality, “was quite ready to make whatever political capital he could out of the opposition to it," as Professor Corwin points out. Becoming alarmed at the political effect of Hamilton's defense of the constitutionality of a Presidential Proclamation of Neutrality, Jefferson induced Madison to enter the lists, although Madison was reluctant, and took positions at variance with many of his earlier constructions of the Executive power, for example, on the problem of removals. I fully agree with Professor Corwin that in this instance, and on the particular issue of the President's authority to interpret and apply treaties in the first instance, Hamilton's view has prevailed.
4. Mr. Berger refers to Senator Wiley's statements on the floor of the Senate with regard to the Korean Treaty. To me, the differences between Senator Fulbright and Senator Wiley on this point simply confirm the correctness of Senator Cooper's judgment that the issue has never in fact been resolved.
The true problem facing the Nation is not whether Congress has the exclusive power to authorize a state of war-no one contests that faetbut how to distinguish those acts or threats of force which the President may appropriately initiate, in the course of diplomacy, in exexuting the treaty obligations of the United States, in defense of the 'nited States, or in asserting the rights of the Nation under intertational law; and (2) when, and how, the concurrence of Congress should be obtained.
lu my view, Mr. Berger's answer to these questions is simplistic, and Woonvincing Yours sincerely,
EUGENE V. Rostow. !!Powie i wpawis. 470 F. 2 461, 466 (App. D.C., 1972).
riu utek, 21 Court of Claims 340 (1886). Nu 638, "The President's Control of Foreign Relations” (1917), p. 16. * H. Sve lov Corwin, "The President, Office and Powers" (1940), pp. 208–216.