I hope, Mr. Chairman, that this time the House will pass a bill and that we will find an identity of interest in the conference and be able to present the President and the Nation with a finished product. Thank you, Mr. Chairman.

Mr. ZABLOCKI. Thank you, Senator.

Of course, as you stated, we are deeply interested in accomplishing something in this area. The House acted in the last two Congresses. Indeed, we had three votes, Senator. In 1970 in the 90th Congress, the war powers resolution passed by a vote of 288 to 39.

In the 91st, on August 2, 1971, it passed by a voice vote. Later, in order to unsnarl the parliamentary situation in which the Congress found ourselves, in the House we substituted the language of House Joint Resolution 1 for the Senate number and that procedure passed in the House by a vote of 344 to 13.

I would submit, therefore, the House did, in that last vote, indicate its support for the provisions of House Joint Resolution 1.

I find there are two sections in the Senate bill, in your bill, S. 440, that are subject to constitutional question. They are sections 3 and 5. In your opinion, Senator, would the President veto S. 440?

PRESIDENT CAN VETO ANY LEGISLATION

After all, the President can veto any legislation. In your opinion, would the President more likely approve the House version or S. 440? Further, if he does veto it, do you believe the Senate could muster the two-thirds support needed to override? What would be your assessment as to that?

Personally, I do not believe S. 440 would get two-thirds vote in the House, Senator. To go through an exercise with legislation and not have it become a statute, to me is an exercise in futility. Therefore, we tried in the past to meet the constitutional question and approve legislation that the President would at least tacitly approve.

Would you care to address yourself to that?

Senator JAVITS. Mr. Chairman, I believe that this is really a matter of dignity. We must do what we believe will give us an adequate voice in this awful decision of war.

And, in doing that, we act in the highest tradition of our country because those who wrote the Constitution had in mind, above everything, the fact that the king could commit a nation to war, and they would not have it here. And, in my judgment, S. 440 seeks to restore the constitutional balance that has been upset by post World War II practice. In addition, if one looked at the numerical votes, one could override the President in either House.

You have an enormous vote here and we had an enormous vote in the Senate, and as a matter of dignity, considering the prerogatives of each House, I believe that a veto could be overriden, certainly in the Senate. You must judge as to your own House. But, frankly, Mr. Chairman, I do not believe that this legislation is of a character in which we can try to cut our cloth to suit a President.

STRUGGLE BETWEEN CONGRESS AND PRESIDENT

He is not going to be suited. This is a struggle, between the Congress and the President. This President-whom I helped to elect, and I am

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not a bit bashful about it nor do I feel sorry about it at all because he was the best man for the job under all the circumstances which we faced in the last election in my judgment-but nevertheless, his concept of the Presidency is different from mine, and, I think, from a majority of the Congress.

Therefore, we have to have the character to do what needs to be done in the best interest of our country. So, with all respect, Mr. Chairman, I would pass the bill, which is in the best national interest of the country, and fight for the bill, and endeavor to pass it over a veto, not knowing what he will and won't veto.

I believe that on this issue we will prevail, if we have character. On the other hand, if we try to cut and trim to what the President might like or might not like, we will fail, because this is an issue of character. The question really is, Mr. Chairman, are the 535 Members of Congress in a delicate, subtle, difficult situation willing to make the decision for or against war, which could mean national survival.

It certainly could mean deaths, injuries, mountains of treasure and a deep division of the country as we saw in Vietnam. Do we want to shift that over to the President, or are we willing to take the responsibility too as the Constitution says we must.

WE HAVE TO HAVE THE CHARACTER

That is what this is all about, and we have to have the character, if we feel that way; that is our idea of freedom, and we must uphold it. So I am not, Mr. Chairman, for adopting a bill which is going to make the President resentful, insult him, nor am I for adopting a bill which is going to be shaped so that "We think he is going to sign this one." If we believe we must share this responsibility, we must fashion a bill which will assure us that we are going to share the responsibility, and we might as well fight and die on this battleground as any other if we are going to get licked.

Mr. ZABLOCKI. I agree with you, Senator, except I think we are in a stronger position if legislation cannot be challenged on its constitutionality-where the President can veto the bill by stating it is unconstitutional-and I think we are in a weak position if, indeed, the constitutional question is not adequately resolved.

Our hearings in the past have indicated provisions in your proposal were clearly unconstitutional.

Senator JAVITS. Mr. Chairman, again our testimony-and there is an extensive record of it, and we are going to have another hearinghas, in my judgment, very fully sustained the constitutionality of every provision of the Senate bill and we have had experts of the first

rank.

The testimony saying that any part of it is unconstitutional was very few and far between. One law professor, as I remember it, who is John Norton Moore of Virginia, was the only one of the whole panoply of witnesses who testified that he thought it was unconstitutional. He is now with the State Department, which opposes this

measure.

But beyond that, there is a more conclusive argument against that attitude by the President. If the President says that it is unconstitutional, what is he really saying? He is saying this statute cannot take the power away from him."

PRESIDENTIAL INTERPRETATION OF WHAT IS UNCONSTITUTIONAL

If it cannot take the power away from him, what is he losing? He is losing nothing. You cannot take away from him constitutional authority by this statute, and I am speaking now as a lawyer.

He may have a grievance, but he is not damaged because he does not lose any power. We cannot take it away from him by this statute if in fact he has the authority he claims and I would hope an American President, after the experience of Vietnam and what it has done to this country, is going to go along with some law which will codify this proposition.

I deeply believe that Presidents, like the Supreme Court, read election reports and read the papers and have an ear close to what Congress does. This is a constitutional crisis, in my judgment, which we will not lose if we have character and resoluteness, and that is all I urge.

Mr. ZABLOCKI. I wish I could be as optimistic as you are, Senator. One final comment. In rereading the Senate debate on the resolution in the last Congress whenever the constitutional question came up, the defense was, "But, we really do not mean it to be a constitutional test."

Therefore, the constitutional question was not fully questioned when debated in the other body.

Senator JAVITS. Mr. Chairman, I would not wish to say that the constitutional point is not raised and debated but the

Mr. ZABLOCKI. I do not think it was adequately defended.

Senator JAVITS. Perhaps that is my fault. But it certainly was adequately sustained in the testimony, and, Mr. Chairman, the constitutional question goes both ways.

ASSERTING CONGRESSIONAL CONSTITUTIONAL AUTHORITY

We are asserting a congressional constitutional authority which is at least equal to the President's. That is the point I am making. He cannot take away our constitutional authority, but we have to assert it. Nor can we take away his, and we will be watchful of that when the matter is debated again on the Senate floor.

This is, at the very least, a question which is open in the Constitution. The Constitution says nothing whatever about committing our forces to hostilities or putting them in such a condition that hostilities are bound to occur. Modern conditions make that tantamount to war, and the declaration of war is obsolescent. Things move too fast, too subtly. You have to do something which will codify the practice.

Mr. Lakeland, my assistant, reminds me that in the debate, Senator Goldwater kept claiming what we ought to do is offer a constitutional amendment, and we challenged that for the reasons I stated. Of course we denied that we were trying to amend the Constitution, as Senator Goldwater claimed. We are restoring the Constitution.

So, I do believe the debate did deal with the constitutional question. But, I will be wary of it, and I am sure Senator Eagleton will be too, when it is again debated in the Senate.

Mr. ZABLOCKI. Mr. Findley.

ESTABLISHING RELATIONSHIPS BETWEEN CONGRESS AND PRESIDENT

Mr. FINDLEY. My thanks to you, Senator Javits, for this very important contribution. This is a field that has long needed attention. It is my belief that the Congress, to this date, has never by statute even attempted to establish a relationship between the President and the legislative branch, and it is time we do it.

You spoke about the importance of the Congress responding with dignity and character. There have been many occasions in the last 4 or 5 years in which the Congress could have responded with dignity and character on the war issue, but it saw fit not to do so.

We could have passed concurrent resolutions to terminate all hostilities in Vietnam within a certain period of time. We could have passed a resolution to send no more troops. We could have passed a bill to actually cut off funds.

Recognizing these might not have had the effect desired, they at least would have been an expression of dignity and character on the part of the Congress in this war powers field.

What is your estimate of the response of the Congress in the future, assuming this legislation is passed? Do you have any reason to believe that in a real test of will between the Congress and the President, we would deport ourselves any better than we have in the past?

Let's say this is on the books and the President gets us into hostilities and we approach the 30-day time limit. Do you really believe that the existence of this legislation would cause the Congress to act more responsibly and with greater dignity and greater character on that occasion than we have in the past 4 or 5 years?

Senator JAVITS. I do, and I will tell you why. This gives you a veto power of war. It codifies the practice. Tom Eagleton called it a methodology. It establishes a responsibility and procedure by statute. You have to vote if you want war. You cannot get out of it. So, the responsibility is fixed by the measure itself. You cannot say, "Well, the President put us in a position where there is nothing we can do about it now. We might as well show unity by passing a Gulf of Tonkin resolution."

ARGUMENT FOR GULF OF TONKIN

That was the argument for Gulf of Tonkin. You have a constitutional responsibility as does the President. If there is war the blood is on both of our hands. If you want to be really blunt about it, and we should be because war is such an awesome thing.

That is how serious war is. We should not be able to sleep at night any more than the President, in terms of this decision. I deeply believe that charged with that responsibility we will exercise it more responsibly.

As to the various resolutions respecting the Vietnam war, you heard all the debates. "How can we let him down now? What will America's commitment be worth?" et cetera, because there was doubt about whose commitment it was, ours in Congress or his as President.

With the War Powers Act enacted, there will be no question about it. The responsibility is ours and his, and without us he cannot involve us in war beyond 30 days. One argument, Congressman, that this reminds me of is this: It has been argued by the opponents of this bill

that this will lessen the credibility of the American commitment wherever it is undertaken.

I believe it will raise the credibility of the American commitment because, when the Nation then speaks, it will speak with one voice, and no foreign country is going to have to worry about the fact that the Congress may pass a Cooper-Church or a Hatfield-McGovern or whatever.

They will know that it is because the responsibility is total and it has been totally exercised; so that the bill will work precisely the other way, and I again point out that under our bill the Congress can join in making a commitment in advance under section 3(d).

AUTOMATICITY IN THE NATO TREATY

For example, there is no automaticity in the NATO treaty. If the President comes to us tomorrow with this bill-if this bill becomes law-and says, "Look, I want automaticity in the NATO treaty, you need it to back up Europe," then we can give it to him if we judge that provident and no one will have any doubt about our commit

ment.

Mr. FINDLEY. I am impressed with your argument on that point. Another question raised about the 30-day provision is that it might be an invitation to adventurism on the part of some future President. He might read this language as an invitation to act a little bit more adventurously than he would otherwise. What is your comment on that point?

Senator JAVITS. I think that is a question of degree. If we have no authority in the field, the likelihood is of his acting even more adventurously. At least here we can shorten the time under this bill, and we can terminate his authority before the 30-day period expires pursuant to section 6 of S. 440.

The fact is that he will have to look over a shoulder and to his flanks and ribs, and I think that will have a sobering influence so far as adventurism is concerned.

As Presidents Nixon and Johnson have construed their power, and other Presidents before them in a lesser degree, there is no restraint. So, I think adventurism is encouraged more by no restraint than by a limited and defined restraint.

Mr. FINDLEY. Senator, one final item is this: You do not make much mention of the reporting requirement in the House bill which I believe is also incorporated in your bill. That I view as a very important item which conceivably could have kept us from the difficulty that we experienced in Vietnam.

REPORTING REQUIREMENT IMPACT ON VIETNAM

Had the reporting requirement been on the statute books in 1962 when President Kennedy sent 18,000 troops equipped for combat to Vietnam but identified them as military advisers-under this reporting requirement set forth in the House version, he would have had to give not only the justification for sending the forces but he would also have had to spell out the legal foundation for that action, and he would have been hard put to find anything in treaty provisions, in the Constitution or in the statutes to justify sending 18,000 troops equipped for combat to Vietnam.