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I appreciate the honor paid to me by calling on me to be the first witness in these hearings.
I ask unanimous consent that my entire statement may be made part of the record as though it were read. I shall do my utmost with the permission of the Chair, and in fairness to other witnesses, to be brief in my presentation.
Mr. ZaBLOCK. Without objection, it is so ordered.
Senator Javits. There is no longer any serious argument as to the existence of a constitutional crisis over the exercise of the Nation's war powers. The pertinent question is: What will the Congress-and the President—do about this crisis? The de facto concentration of plenipotentiary war powers in the hands of the President has subverted the letter and the spirit of the Constitution and has placed an almost intolerable strain on our national life as the deep wounds of the Vietnam experience so inescapably remind us.
STRENGTH AND VIGOR OF PRESIDENCY
In the decisive field of national security the awesome strength and vigor of the Presidency, in contrast to the comparative weakness and lack of cohesiveness of the Congress, is a cause for deep concern and even chagrin. For, the now almost unlimited power of the Presidency with respect to matters of war is a unilateral power not only to defend our Nation wisely but also a unilateral power to involve us as in the quagmire of a Vietnam or in a thermonuclear holocaust.
The severe imbalance which has developed between the power of the President and that of Congress has evoked many charges of usurpation. While usurpation is a heady word which may help to assuage our feelings, a review of the record of the past 30 years leading up to our present predicament does not, in my judgment, allow us the solace of attributing the result to Presidential usurpation. The Congress has given away its authority-not only by default and acts of omission-but even more importantly in an endless series of loosely worded and broadly drawn delegations of authority to the President. To cite only one example, but they are numerous, how many of usincluding myself—who voted for the Tonkin Gulf Resolution in 1965 do not feel uncomfortable today in rereading its extraordinary language: "the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force * * **
The powers of Congress are enumerated in some detail in article I of the Constitution. Under the Constitution the Senate is given a special position in foreign affairs, while the House is given precedence in appropriations. The war powers, spelled out so purposefully in section 8 of article I, are given jointly to the House and the Senate. those three powers—foreign affairs, appropriations and war powers tend to converge and mingle inextricably in the exercise of our Nation's contemporary role as a world superpower. Unfortunately, during the Vietnam period this convergence of foreign affairs, appropriations, and war powers saw the House and the Senate divided on policy, leaving the President an opportunity to neutralize Congress as an institution and to consolidate effective authority within his own office. The House and the Senate never did get together on Vietnam, with the result that Congress failed to play a commensurate role in the painful and protracted disengagement from that ill-starred misadventure.
VIETNAM SETTLEMENT ENDS POLICY DIFFERENCE
The conclusion of the Vietnam peace agreement removes the principal issue of policy difference between the Senate and the House, and thereby ought to facilitate the process of joint congressional action on the underlying constitutional challenge which confronts the House and the Senate together.
This committee, to a large extent under the leadership of Congressman Zablocki, has been wrestling with the war powers question for almost 3 years and conducted the first congressional hearings on the issue in June, July, and August of 1970. I had the honor of testifying myself in those hearings on August 5, 1970. In the Senate, together with Senators Stennis and Eagleton in particular, I have taken the lead in forging war powers legislation. After much hard work, in S. 2956 we were able to draft legislation which commanded an extraordinarily broad spectrum of support and was passed 68 to 16. On the Democratic side of the aisle, Senator Stennis, chairman of the Armed Services Committee, was a principal architect of the bill, which also commanded the support of Senator McGovern. On the Republican side, I was a principal architect of a bill which commanded the support of all four members of the Senate Republican leadership. To achieve such results there must be a lot that is right about the Senate bill.
At this time I would like to pay tribute to Chairman Zablocki for his far-sighted and statesmanly persistence with respect to war powers legislation. It was his initiative which broke a procedural logjam and made possible last year a House-Senate conference on war powers. Unfortunately, the conferees, who were all sorely pressed by other end-of-session and electoral responsibilities, were only able to meet once. At that meeting, it was understandably not possible to bridge the legislative differences between the House and Senate measures. But, personally, I was very heartened by the optimism and determination expressed by both House and Senate conferees that an agreement could and should be reached on this pressing constitutional challenge to the Congress as an institution. In my judgment, Congressman Zablocki's new bill introduced in this congress already shows evidence of this determination to get together with the Senate on a war powers bill.
OBJECTIVES OF LEGISLATION
I have read carefully the report issued by this committee on August 3, 1972, to accompany S. 2956 (H. Rept. 92–1302). My attention was drawn particularly to pages 4-6 of the report which contains the subsection entitled "Objectives of the Legislation” and “Provisions of the Legislation.”
I find that the provisions of the Senate bill are entirely consistent with the principles stated by this committee in that report. For instance, (a) Reaffirmation of Congress' power to declare war (which stated as a declarative sentence in the House bill) in section 5 of the Senate bill is given concrete and explicitly legislative expression; (b) emergency authority of the President (also expressed as a declarative sentence in the House bill) is delineated legislatively in section 3 of the Senate bill; and (c) prior consultation with the Congress before involv
ing the Armed Forces in hostilities (which in the House bill of last year expressed the "sense of Congress”) is given specific legislative expression in section 3(4) of the Senate bill.
The Senate War Powers Act (S. 440) is a bill to end the practice of Presidential war. It is an effort to learn from the lessons of the last tragic decade of war which has cost our Nation so heavily in blood, treasure, and morale. The War Powers Act would assure that any future decision to commit the United States to any warmaking must be shared in by the Congress to be lawful.
No legislation can guarantee national wisdom, but the fundamental premise of the Constitution, with its deliberate system of checks and balances and separation of powers, is that important decisions must be national decisions, shared in by the people's representatives in Congress as well as the President. By enumerating the war powers of Congress so explicitly and extensively in article I, section 8, the framers of the Constitution took special care to assure the Congress of a concurring role in any measures that would commit the Nation to war. Modern practice, culminating in the Vietnam war and the result of a long history of Executive action employing the warmaking power which weaves in and out of our national history, has upset the balance of the Constitution in this respect.
CORE OF WAR POWERS ACT
The central core of the War Powers Act is contained in sections 3 and 5 of the bill. Section 3 consists of four clauses which define the conditions of circumstances under which, in the absence of a congressional declaration of war, the Armed Forces of the United States "may be introduced in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances."
The first three categories are codifications of the emergency powers of the President, as intended by the Founding Fathers and as confirmed by subsequent historical practice and judicial precedent. Thus, subsections (1), (2), and (3) of section 3 delineate by statute the implied power of the President in his concurrent role as Commander in Chief.
Subsection (4) of section 3 is perhaps the most significant; while subsections (1), (2), and (3) codify emergency powers which are inherent in the independent constitutional authority of the President as Commander in Chief, subsection (4) deals with the delegation by the Congress of additional authorities which would accrue to the President as a result of statutory action by the Congress, and which he does not, or would not, possess in the absence of such statutory action. Thus, subsection (4) regulates and defines the undertaking of a national commitment.
Section 5 provides that actions taken under the provisions of section 3 "shall not be sustained beyond 30 days from the date of the introduction of” such Armed Forces in hostilities or in any such situation unless—"the continued use of such Armed Forces in hostilities or in such situation has been authorized in specific legislation enacted for that purpose by the Congress and pursuant to the provisions thereof."
PROVISIONS OF SECTION 5
Section 5 resolves the modern dilemma of reconciling the need of speedy and emergency action by the President in this age of instantaneous communications and of intercontinental ballistic missiles with the urgent necessity for Congress to exercise its constitutional mandate and duty with respect to the great questions of war and peace.
A detailed, section-by-section explanation of the entire bill is contained in my speech of March 29, 1972, which initiated the Senate debate on the War Powers Act. I ask unanimous consent that the text of that speech be printed in the record at the conclusion of my remarks.
Our experience of the last 5 years or more has demonstrated how much harder it is to get out of an undeclared war than it is to get into one. In dealing with this situation, Congress has been forced back onto relying solely on its power of the purse over appropriations. We have seen how difficult and unsatisfactory it is for Congress to try to get a meaningful hold on the Vietnam war through the funds-cutoff route.
Yet there is a group of pundits, historians, and commentators who would have us fly directly in the face of this tortuous experience and confine ourselves to the funds-cutoff route. Those who would so advise us are either too timid or too conservative to try institutional reform. They would have us face the Presidential war power so often used as a fine tuned, subtle, and decisive instrument with a clumsy, blunt, and obsolescent tool. The fund-cutoff remedy is there now and will be there when the war powers bill becomes law. It can then be an excellent sanction, but it is not a substitute.
CONGRESS MUST IMPOSE POLICYMAKING POWERS
The obvious course for Congress is to devise ways to bring to bear its extensive, policymaking powers respecting war at the outset, so that it is not left to fumble later in an after-the-fact attempt to use its appropriations power. This is what the War Powers Act seeks to do.
İf James Madison had pressed his point on September 7, 1787, during the debate in the Constitutional Convention, we might not be faced with our current agonizing dilemma. Madison proposed then that two-thirds of the Senate be authorized to make treaties of peace without the concurrence of the President. “The President,” he said, "would necessarily derive so much power and importance from a state of war that he might be tempted, if authorized, to impede a treaty of peace.”
However, Madison withdrew his proposal without putting it to a vote.
It is not clear whether Madison was speaking seriously or facetiously. It is clear, however, that Presidents have tended to see their role, as Commander in Chief conducting a war, as the decisive power of the Presidency. President Nixon articulated this view very precisely, when he said last April:
Each of us in his way tries to leave (the Presid with as much respect and with as much strength in the world as he possibly can—that is his responsibilityand to do it the best way that he possibly can. .. But if the United States at this time leaves Vietnam and allows a Communist takeover, the office of President of the United States will lose respect and I am not going to let that happen.
The effort embodied in the War Powers Act is the fulcrum, in my judgment, of the broader attempt of the Congress to redress the dangerous constitutional imbalance which has developed in the relationship between the President and the Congress. Unless Congress succeeds in reasserting its war powers I do not think it can succeed
in reasserting its powers of the purse which have grown so weak in comparison with the executive branch.
The publicists and the lawyers of Presidents have been busy for years now in advancing a new constitutional doctrine. According to this novel doctrine the President has inherent powers, in his role as Commander in Chief, to override any other powers conferred anywhere else in the Constitution.
PRESIDENT DEFINES COMMANDER IN CHIEF ROLE
We have reached a point where proponents of the Presidency seem to be claiming that the power of the Commander in Chief is what he himself defines it to be in any given circumstance. This is the challenge that must be met by the Congress. If this challenge is not met successfully by the Congress, I do not see how it can prevent the further erosion of its powers and jeopardize freedom itself.
Mr. Chairman, I have studied carefully House Joint Resolution 2 which you introduced on January 3, 1973, with a number of your colleagues as cosponsors. This new version of House Joint Resolution 2 shows that your thinking is not frozen on the war powers question. I want to assure you that my thinking, and I believe the thinking in the Senate is also not frozen. We have worked very hard and we are convinced that we have a good piece of legislation. We are strongly convinced of the principles underlying our bill but we are not doctrinaire about the wording. I mentioned earlier that I thought the principles which your committee had set forth in last year's report were entirely consistent with the bill which the Senate has passed. In the new version of House Joint Resolution 2 I detect some further evolution in your thinking about legislative expression of those principles. I think we are on a converging path here: history is pushing us closer together. We are both seeking to serve the Nation and to fulfill our oath of office and our constitutional responsibilities as Members of Congress. When we meet in conference, we ought to meet as allies and as coequals as well.
OBSERVATIONS ON HOUSE JOINT RESOLUTION 2
If you will bear with me, Mr. Chairman, I would like to offer a few observations about House Joint Resolution 2 which is before you. First, I am gratified to note that section 3 and section 6 which have been added to your bill, bring it much closer in structure to the Senate bill than was the case last year. Section 3 of your bill closely resembles the language of a substitute for section 3 of the Senate bill which was offered as an amendment on the floor by Senator Fulbright during the Senate debate last year. The Senate rejected the Fulbright amendment 28 to 56 because we thought that it gave away practically the whole ball game to the President-sort of a generalized, Tonkin Gulf blank check. I would hope that your committee would give further consideration to this language from that perspective.
The new section 6 of House Joint Resolution 2 parallels in some respects sections 5, 6, and 7 of the Senate bill. I am attracted to the second paragraph of your section 6—which found on lines 11 to 15 of page 4 of House Joint Resolution 2. This paragraph provides for the special convening of Congress when it is not in session, to receive reports from the President in the event of his emergency use of the Armed