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I would not say that my purpose is to avoid the constitutional problem. I don't have any really serious doubt in my mind that the Congress can act in this field. I think that the power in the Constitution to declare war is so clear that the burden is on the executive branch to justify action by the President in the nature of initiating hostilities without a declaration of war. I think that to the degree that your bill, House Joint Resolution 2, now contemplates action by the Congress under section 6 that is quite proper and I think that contemplates a perfectly constitutional exercise by the Congress of an authority which is not exclusive to the Congress but which it shares with the President.

I would like to say, too, that I am not satisfied with the version of my bill that has been introduced, I want to revise it. You have previously made comments which I think are well taken about the difficulties of the section that has to do with the expediting of congressional action. I don't think that is necessary in my bill and I propose to omit that from the revised version which I will be introducing shortly.

I also think that the section on reporting which is in House Joint Resolution 2 is a real improvement and I would like to incorporate that in my revised bill.

I think the essence of my approach is that explicit congressional approval should not be required of a Presidential decision to engage in hostilities but that a mechanism should be provided for congressional disapproval. I think in a sense that is implied in section 6 in Hcuse Joint Resolution 2 but I would like to see it spelled out more specifically.

If congressional disapproval is to be provided for, then the question arises whether it must be disapproval by both Houses or by a single House. My resolution, and I think this is quite fundamental to it, contemplates that if either House disapproves of a Presidential war, then that should be the end of the President's authority.



Mr. ZABLOCKI. As you know, Mr. Bingham, some comments were made in the last Congress and observers have noted that your bill would appear to give the President broad powers to deploy American forces subject only to a veto of one of the Houses, and such a delegation of powers to the President by the Congress appears to be unconstitutional since the Constitution requires positive action, not veto action. Under the Constitution Congress has the authority to declare war, not

to veto a war if declared by or initiated by the executive branch. Therefore, it is argued that Congress has no authority to make such a delegation of powers to the President as your bill would seem to do.

Mr. BINGHAM. Well, let me respond to that in two ways. That is a very interesting point.

First of all, this points to another revision that I want to make in my bill which would attempt to avoid the implication that any authority is being granted under this bill to the President that he does not already have, and I think language can be drafted that would achieve that purpose. It was certainly not my intention that my resolution should grant to the President any authority that he does not already have.

I see the difficulty more in something like section 3 of House Joint Resolution 2 which I think extends to the President very broad powers to engage in war without congressional approval. I have difficulty with this and therefore I feel that it would be wiser if we did not try to spell out the circumstances under which the President has the authority to engage in war without congressional approval in advance.

I have difficulty both with the Javits formulation and with the formulation in section 3 of House Joint Resolution 2. It is such a difficult thing. I do not know that we are wise enough or smart enough to draw language that can spell out when the President has this authority and when he does not. If it is drawn too tight, it is likely to limit the President in a way that would be undesirable. If it is drawn too broadly, then it amounts to a carte blanche for the President and almost an invitation to act.


So my preference--and I came to this after long wrestling with the problem of how to draft language that would give the President the authority-would be for a bill that does not attempt to deal with that problem, that does not attempt to spell out when the President can move on his own but simply says that, if he does move on his own, we provide a mechanism for the Congress to say no.

Mr. ZABLOCKI. As you will recall, House Joint Resolution i did not have section 3.

Mr. BINGHAM. That is right.

Mr. ZABLOCKI. We did not attempt to spell out in the last Congress the President's authority and there was some criticism because we did not attempt to do so. Therefore, in House Joint Resolution 2 an attempt is made to broadly deal with this issue. I realize there may be other deficiencies but I detect that you do not question the constitutionality of section 3 in House Joint Resolution 2. However, it appears you do find constitutional problems in S. 440?

Mr. BINGHAM. No; I do not, Mr. Chairman.
Mr. ZABLOCKI. You do not?

Mr. BINGHAM. No. I think the Congress can legislate in this field constitutionally, deriving its authority from the power that the Constitution gives to the Congress to declare war and the other powers related to it. So I don't have difficulty on constitutional grounds. I do have difficulty on the ground that I think the formulation in the Javits bill may be, as I said, both too narrow and too broad.

May I say, too, Mr. Chairman, that I think House Joint Resolution 1 of the 91st Congress, even though it did not spell out when the President has this authority, implied that the President did have the authority because of the very fact that it says, “When the President enters into such hostilities, he must report to us.” That implies that he has that authority, so I don't think we can get away from that problem by silence. That is why I feel it is so important to provide specifically for a mechanism whereby the Congress can say no.


Mr. ZABLOCKI. One final question, Mr. Bingham. As you recall, Senator Eagleton stated yesterday that it would be preferable to have strong legislation—even though questionable in constitutionality nevertheless it is better to approve such legislation or nothing at all.

Do you agree?

Mr. Bingham. No, I don't as a matter of fact. I hope very much that we can come to some agreement with the point of view of the Senate as expressed in the Javits bill. I think that yesterday's hearing indicates some motion toward a more common ground. I think that the additions to House Joint Resolution 2 go in that direction. I would hope that it would be possible to agree on legislation. I think legislation is very important.

I do feel, as Senator Javits and both Senators expressed the view yesterday, that we should do what we think is right. I think it is our obligation as legislators to do that, and we should not attempt to trim too much to what we think the President will approve. This is a very vital issue and if both Houses pass a bill and the President vetoes it, then at least there is a clear issue that the American people can react to. Even if we can't pass it over his veto. I think that that would be a useful thing and I would hate to see us be limited in what we do by a fear of a Presidential veto. It seems to me that as legislators we have the obligation and the responsibility to do what we think is needed to reassert the balance between the powers of the Congress and the powers of the Presidency.

Mr. ZABLOCKI. Thank you, Congressman Bingham. We certainly look forward to your revised version. I know you will make valuable suggestions when the subcommittee will markup the bill and report.

Mr. BINGHAM. Thank, you, Mr. Chairman.
Mr. ZABLOCKI. Mr. Thomson.
Mr. THOMSON. I have no questions.
Mr. ZABLOCKI. Mr. du Pont.
Mr. Du Pont. Thank you, Mr. Chairman. .


Mr. Bingham, I appreciate all the work you have done on this. I think yesterday our hearings were particularly useful in developing what I consider some real weaknesses in the Javits approach. I think your approach is somewhat improved in that it requires congressional action to stop hostilities rather than the Javits approach of action to let them continue. I think that that is a better formulation.

I am concerned about the fact that you would let one House take action. I don't see the precedent for that anywhere in our legislative activities and I wonder that you can delegate that to one House.

Mr. BINGHAM. May I respond to that, Mr. du Pont.

When the Congress adopts a declaration of war, both Houses have to act. Either House can say no. When the Congress appropriates funds, which it has the constitutional authority and responsibility to do, both Houses have to act, either House can say no. Under the Javits bill or any bill that contemplates affirmative action by the Congress, both Houses must agree, either House can say no.

What I am proposing is that we provide a mechanism whereby this no vote by either House can be expressly provided for by law.


To put the matter another way, as I see it what happens when the President moves to embark on hostilities is that he is proceeding with the tacit consent of the Congress and he can proceed as long as that tacit consent applies but that tacit consent of the Congress can be negated by action of either House saying no. That is the justification.

Now we do have the precedent of the reorganization bill of 1949 for the mechanism whereby the President is given authority to take certain unusual and extraordinary steps in reorganizing the administrative branch, the executive branch, and then we provide that either House can say no. So the mechanism is not unknown. But I think more important is the fact that when it comes to affirmative action certainly it is recognized that either House has a veto. All my bill would do would be to turn that around and say specifically that, when the President is engaging in hostilities without the express consent of Congress, either House can terminate that authority.


Mr. Du Pont. Well, can't you distinguish both of the arguments that you make? In regards to an appropriation bill or a declaration of war both Houses must act in order to take positive action. If the Congress had the clear constitutional mandate to engage in hostilities, that would be one thing, but under the Constitution it is shared; that is, the Congress has the power to declare war and the President has the power over the Armed Forces. It seems to me that when you are asking the Congress to take a positive act that you still should have concurrence of both Houses.

Mr. BINGHAM. Let me state, I feel philosophically that the power of the President to carry on hostilities on his own responsibility is such an extraordinary and such a dangerous power that he really should not have it if either House of the Congress is ready to go on record to say that he should not, that he should have it only if there is at least a tacit consent of both Houses.

So I feel that philosophically the one House veto is justified. I think, as I pointed out, that it corresponds to what amounts to a one House veto where the congressional authority to declare war is concerned.

Mr. Du Pont. Let me pursue the one other point, and you are far more familiar with this than I am. You referred to the Reorganization Act where the President can do nothing unless one House disapproves. Wasn't that legislation essentially a granting of power to the executive branch? The Congress said here, Mr. President, we are not going to get involved in this reorganization, we are going to give you specific power to do this and the only control we will keep is the right of one of our Houses to say no. Isn't that different from the war powers situation?


Mr. BINGHAM. I don't think it is, Mr. du Pont. I think that, as section 3 in House Joint Resolution 2 recognizes and as the corresponding section of the Javits bill recognizes, it is quite arguably within the responsibility of Congress to determine when the President has this authority. I think that really the burden of proof is on those who support the authority of the executive branch for the President to move on his own. So I think that, under the terms of House Joint Resolution 2 or the Javits bill, the effect is to grant a certain authority to the President and then to provide mechanism for approving or disapproving the President's action and the disapproval could be, as in my bill, effected by action by one House.


Mr. Du Pont. But the only distinction I see there is that nowhere in the Constitution does it say that the President shall have power to reorganize the Federal Government and in the Constitution it does say that the President at least has some input over warmaking powers in that he has command of the Armed Forces.

Mr. BINGHAM. But if you interpret the Presidential power as commander of the armed services to include ordering the armed services into conflict without restriction, without the authority of the Congress, then I think the responsibility of the Congress to declare war is almost totally negated.

Mr. Du PONT. Thank you.
Thank you, Mr. Chairman.
Mr. ZABLOCKI. Mr. Fraser.
Mr. FRASER. I am sorry that I was not here when you


your original presentation, but I have read it.

My questions may cover ground that you have already covered.


Have you addressed yourself to what you mean by the term "hostilities" in your bill? For example, would an operation in which the United States supplied air transport constitute hostilities and would that have invoked section 3 of your bill?

Mr. BINGHAM. I think I have to say the answer to that is no. I have not attempted to define what constitutes the involvement of American forces in hostilities. I am not sure that it would be possible in a statute to define that precisely. I think I would answer the particular question in the negative; that is, I don't think that providing transport in that type of situation to the U.N. forces would involve U.S. forces in hostilities.

I recognize there is a problem there and I think it is a problem which exists in any one of these bills; that is, when do they come into operation? We discussed at some length yesterday one of my problems with the Javits bill is when does the 30 days start and we had about six answers here before we got through as far as Vietnam was concerned. If the Javits bill had been in effect during the Vietnam war, when would it have been said that the hostilities started?

Mr. FRASER. I think that is very much on target. It seems to me this is a very arbitrary time requirement and I think it is an unworkable provision. I see no reason to restrict it. That is the point you made, isn't that right?

Mr. BINGHAM. Although House Joint Resolution 2 now takes a different approach, I argue that if you are going to require positive action by the Congress you have to set a deadline, you just can't leave it open because otherwise the Congress can stall around and stall around and do nothing and then the President continues to act. You don't need a deadline if you contemplate negative action because the negative action can take place at any point.

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