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Let me emphasize, this issue will not be settled by pious exhortations, even in statutory form. President Eisenhower unhesitatingly ordered the Secretary of the Treasury to disobey a statutory cut-off of funds on the ground that it was unconstitutional.? Ultimately the Supreme Court must decide whether the President may act in defiance of a statute. Given a dispute about constitutional boundaries the Court is the inescapable arbiter. I cannot believe that the Supreme Court would prefer to have Congress impeach the President for acting in defiance of law. When the Reconstruction Congress so proceeded against Andrew Johnson, Chief Justice Chase wrote that the issue ought to have been submitted to the courts."
One provision of the Javits-type bill requires additional comment, the $ 3(2) authorization to "repel an armed attack against the Armed Forces ... located outside the United States ..." Unless Congress establishes control over deployment by statute requiring Congressional authorization, the President will in the future as in the past station the Armed Forces in trouble spots that invite attack, witness the “Maddox" at Tonkin Gulf. Once such an attack ours, retaliation becomes almost impossible to resist. Although I agree with Professor Alexander Bickel that “Congress can govern absolutely, absolutely, the deployment of our forces outside our borders (RB 78 n. 318), account must be taken of Secretary of State Acheson's categorical statement to the contrary :
“Not only has the President the authority to 11-e the Armed Forces in carrying out the broad foreign policy of the United States and implementing treaties, but it is equally clear that this authority may not be interefered with by Congress in the exercise of powers which it has under the Constitution" (RB 77).
Acheson furnished no citations or reasoning for this extraordinary claim. The exclusion of Congress is demonstrably without foundation.
It is Congress that is to "provide for the common Defense,” 5 which implies the right to decide what is requisite thereto. Congress also is "to raise and support armies," and by necessary implication it can withhold or withdraw that support. In determining the size of the army it will “support" it is entitled to weigh priorities: shall troops be stationed in Germany or deployed in Cambodia ? Indeed the constitutional mandate that “no appropriation" for support of the armies “shall be for a longer term than two years” implies that it is for Congress to decide at any point whether further appropriations should be made and in what amounts. The duty of Congress, in Hamilton's words, “to deliberate upon the propriety of keeping a military force on foot,“ surely comprehends the right to insist that a portion of the military forces should not be kept “on foot” in Vietnam or Europe.
With the power of appropriation goes the right to specify how appropriated moneys shall be spent. This is not a mere matter of logic but of established parliamentary principle. After 1665, stated the great English historian, Henry Hallam, it became “an undisputed principle” that moneys “granted by Parliament, are only to be expended for particular objects specified by itself." That practice was embodied in an early Congressional enactment. If, therefore, Congress specifies that its appropriations are to be spent only for troops stationed in the United States, that specification is binding on the Executive. Finally there is the power to make rules “for the government and regulation of the armed forces," withheld from the Commander-in-Chief and given to Congress. These words connote a power to govern and control the armed forces, and they manifestly embrace congressional restraint upon their deployment. I would therefore urge that your war-making legislation, whether by separate enactment or by incorporation in a war-limiting bill, make express provision requiring Congressional authorization for the deployment of Armed Forces abroad, except in tightly limited circumstances which hold no prospect of involvement in hostilities.
In sum, I consider that the constitutionality of the proposed legislation limiting the President's power single-handed to embroil the nation in war is unassailable. Congress, the sleeping giant, is stirring. Wake up, I say, and resume your place in the sun. Thereby you will profit the Nation and preserve our democratic system.
3 The incident is described and documents set forth in Clark Mollenhof, Washington Cover Up. 173-174, 233-235 (1962).
4 R. Berger, Impeachment: The Constitutional Problems, 291, 295 (1972). 5 Citations for this section will be found in RB 78-80.
Mr. ZABLOCKI. Thank you, Professor Berger, for your eloquent statement.
Professor Reveley, will you please give your statement. STATEMENT OF W. TAYLOR REVELEY III, JOINT FELLOW OF THE
COUNCIL ON FOREIGN RELATIONS AND THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS
Mr. REVELEY. Mr. Chairman, I'm pleased to have an opportunity to talk with your committee about the difficult but intriguing problem at hand.
One personal note at the outset. Lest the academic community accuse me of usurping its prerogatives and titles, I should note that I'm a practicing lawyer, not a professor, in the midst of a year's leave from my law firm to attempt a book on the constitutional law of the war powers.
My written statement deals with two matters: first, constitutional considerations relevant to any analysis of war-powers legislation and second, in light of those considerations, what war-powers legislation, if any, is desirable.
SUMMARIZING PERTINENT CONSTITUTIONAL ISSUES
As my written statement is somewhat lengthy, I will focus my oral remarks on pages 23 through 30 of the statement. Those pages summarizes the pertinent constitutional considerations and then suggest the sort of war-powers legislation that I think is most appropriate.
Tuning to page 23, in skeletal form, these are the constitutional considerations that in my view must be taken into account.
First, constitutional law governing the allocation of control between the President and Congress over the use of force is presently uncertain and in flux. Belief that the President has a constitutional prerogative to use force as he thinks necessary in the national interest now hotly contends with belief that he may do so only after obtaining prior congressional approval, except in a few emergency circumstances and then often for only a limited time, unless ex post facto congressional approval is forthcoming.
The former belief springs from 20th-century executive practice, especially that of the cold war; the latter belief is rooted in the framers' intent and in 19th-century practice.
Second, present constitutional confusion cannot be ended by invocation of the framers' expectations as holy writ, nor by automatic canonization of recent Executive hegemoney as amendment of the Constitution by usage.
CONSISTENT WITH CONSTITUTIONAL TRADITION
An end to confusion more consistent with our constitutional tradition involves, (1) identification of the ends or objectives that the country seeks to achieve by the nature of its allocation of control between the President and Congress, and, (2) a constitutional division of authority between them that is most likely to realize those ends in today's world.
It follows that I radically disagree with Professor Berger about the mechanics of constitutional interpretation; if the committee is interested, he and I could debate them.
The bulk of my written statement, with which I am not dealing in my oral remarks, concerns (1) identification of those ends that the country has traditionally sought to obtain by the nature of its allocation of control between the President and Congress, (2) the respective institutional capabilities of the President and Congress to realize those ends, and (3) the allocational problem that arises whenas I think is the case—it becomes clear that the President acting alone is more able to realize certain of the objectives, while Congress and the President acting together are more capable of realizing others.
My conclusion, based on inquiry into the purposes behind the allocation of the war powers, is stated on page 24. It is that the division of authority most likely to realize those ends is one that involves less control for Congress than the Framers intended, but also less control for the President than most Chief Executives in this century have claimed.
As regards Presidential prerogative, we should constitutionally concede to the President the right to initiate force on his own authority, whenever he thinks it necessary in the national interest.
“WAR" IN THE CONSTITUTIONAL SENSE
We should further concede him the right to continue any use of force as he thinks necessary, so long as a majority of both Houses of Congress do not vote to limit or terminate that use.
Finally, we should recognize, as was the case in the 19th century, that some uses of force do not amount to “war” in the constitutional sense, and leave them wholly within Presidential control; these uses involve applications of force that have little human or economic cost for this country and do not impair the sovereignty of another country. under current concepts of international law.
As regards congressional prerogative, we should resurrect for Congress two of its dormant constitutional prerogatives: first, the right to be informed promptly by the President that he has begun a use of force involving "war" in the constitutional sense, whatever his reason for doing so; and, second, the right to limit or terminate that use of force, at any time following the President's report, by majority vote of both Houses.
Under such an allocation of control, we would expect as a matter of practical politics, though not of constitutional obligation, that the President would obtain prior congressional approval before initiating force, except when he felt that the need for speed or secrecy compelled his unilateral action.
IMPLEMENTING ALLOCATIONAL ROLES
Is there a role for war-powers legislation in implementing tủ se allocational rules? Yes, but with this fundamental qualification: it is unlikely that a larger congressional voice, such as that described above, can ultimately rest on war-powers legislation. Rather it will depend upon (1) the extent of congressional determination to become involved in use-of-force decisions, as shown by internal reform to strengthen congressional capacity to deal with these questions rationally and, when necessary, swiftly or secretly; (2) congressional willingness to vote yea or nay on use-of-force policies during their formative periods; and (3) congressional use of existing means, for example, the appropriations and legislative processes, to cajole or coerce the executive branch into meaningful collaboration with Congress, primarily through its pertinent committees, on use-of-force policies from their birth to death.
If these steps are not taken, war-powers legislation by itself will mean little. In fact, it may be counterproductive, representing one last ineffective but very public lunge at congressional use-of-force relevance. Better no law than one that proves meaningless.
Against this background, however, war-powers legislation does have merit on two scores. First, it may provide the initial thrust necessarv to break both the President and Congress out of the gravitational pull of present executive hegemony. Without action-forcing, or encouraging, legislation and with the dimming of Vietnam passions, it is easy to envisage continued presidential control over American use of force, rocked only slightly by occasional bursts of congressional rhetoric.
SPARKING THE DEVELOPMENT OF CONSENSUS
Second, war-powers legislation may effectively spark the development of consensus about the allocation of control. If there are basic elements of the allocation on which the President and Congress can agree, and if these elements can be captured in a war-powers act, signed by the Executive, that concrete, visible agreement could provide a constitutional starting point for the evolution of general accord. In other words, war-powers legislation need not, indeed cannot, deal with all of the allocational dilemmas posed by control over American use-of-force policy. But it can provide a simple, effective point of departure for resolution of those dilemmas.
War-powers legislation with clearly positive effect, in my view, would have terms such as these:
Section 1: Whenever the President without prior congressional approval initiates the use of armed force by the United States, he shall submit promptly to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth
(a) The objectives of the use of force;
(c) The geographical areas affected and the length of time that given resources have been committed to given areas;
(d) Projection of future developments as to each of the above;
(e) Domestic and international legal bases for his use of force, including why no prior congressional approval of it was obtained;
(f) Such other information as the President may deem useful to Congress in the fulfillment of its constitutional responsibilities with respect to the initiation of the use of armed force by the United States.
CONVENING CONGRESS TO CONSIDER REPORT
Section 2: Whenever the Speaker of the House of Representatives and the President pro tempore of the Senate receive such a report and Congress is not in session, the President shall convene Congress in
order that it may consider the report, unless the use of force has already been terminated.
Section 3: Whenever a report is submitted by the President pursuant to this act, both Houses of Congress shall proceed immediately to the consideration of the use of force cited in the report, unless the use of force has already been terminated.
A few comments on the language just proposed may be helpful. Section 1 of the act above avoids the problem of what constitutes "war" in the constitutional sense by requiring the President to report all uses of force to Congress. He would have an opportunity under section 1(e) to indicate those uses that he believes do not constitute “war," and thus fall within his absolute control. Congress in turn would have an opportunity to disagree with him when it considers his report. Reasonable men may differ in close cases over whether a use of force has significant human or economic cost for this country and whether it impairs the sovereignty of another country, but they are not likely to disagree in the important instances—those in which the use of force is either patently significant or insignificant. Presidents and Congresses through a process of claim and concession over time should be able to reach basic agreement on what is and is not a use of force wholly within executive prerogative.
LEGISLATIVELY DEFINING THE DIVIDING LINE
To minimize confusion over what is and is not "war” for constitutional purposes, however, Congress could legislatively define the dividing line. Any such definition would be arbitrary to a degree, but so long as it embodied the constitutional distinction between significant and insignificant uses of force, the definition should fall within congressional authority to implement the Constitution.
Section 1 of the proposed act also indicates by its use of the phrase "prior congressional approval" rather than "prior congressional declaration of war" that the form of authorization by Congress has nothing whatsoever to do with the constitutional allocation of control.
Definition in section 1 of the minimum content of the executive report is necessary to prevent meaningless presidential compliance. With information of the sort specified in hand, Congress should be equipped to weigh the costs and benefits of the use of force.
Two other problems with the reporting process exist : One that the President may not act quickly enough, if guided only by the adverb "promptly,” and two, that the President may believe that portions of the required report should be transmitted and kept in secret. Both problems could be specifically dealt with in the legislation, or left, as in the act above, to resolution through presidential-congressional claim and concession. "Promptly," in particular, would be difficult to define rigidly, since there may be occasions when the President needs to delay his report to guard the impact of American action yet unsuspected by the enemy.
CONGRESSIONAL REVIEW OF PRESIDENT'S ACTION
Section 2 insures that Congress will have a timely opportunity to review the executive initiation of force. The "unless the use of force has already been terminated” proviso exists to prevent needless special