October 10, 1973
Page 33551
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. JAVITS. I yield.
Mr. MUSKIE. Principally to emphasize the importance of the point the Senator is making, I should like to put it in another context.
The war powers bill is not viewed by those who have studied it as an attempt to define completely the constitutional division of powers between the President and Congress. It is clear that it cannot admit the President's power to be able continually to assert war-making powers in excess of those to which Members of Congress will agree. Members of Congress will continue to challenge the President's assertion of war powers. What we undertake to do here is to cover cases in which there is disagreement as to whether the President has powers, and cases in which there is no disagreement as to those powers. In either case, the operative authority is the law which Presidents must consult.
Mr. JAVITS. Mr. President, the distinguished Senator from Maine was one of our most esteemed conferees. He made an enormous contribution to the result. I respect that contribution of the Senator and his delineation of what we were doing. I wish to add only this further point, which I was trying to make.
At that stage where the President does report, Congress may very well decide that the report is one covered by section 4(a) (1) of this particular measure, and therefore does trigger the 60-day period, even though he may not think so. That is critical and it connects the provisions of 2(c) with the provisions of section 8(d).
It is true that such a conflict would have a political resolution. But it would differ from the present, in that the President might find it to be a risk in which he would have no legal authority.
Mr. MUSKIE. Mr. President, will the Senator from New York yield?
Mr. JAVITS. I yield.
Mr. MUSKIE. I add this point. I think the bill should be known as the Javits-Zablocki bill, and I want to pay that tribute to the outstanding leadership of the distinguished Senator from New York and the distinguished Representative from Wisconsin for working out the conference report.
At the outset of the conference, I was mystified as to whether it would be possible to blend or meld two such seemingly opposite approaches to the war powers issue. Because of the leadership of Senator Javits and Representative Zablocki, that issue was resolved, and I think we have before us a better bill than when we went into conference. So I do pay my most respectful tribute to the Senator for that accomplishment.
Mr. JAVITS. Mr. President, I thank the distinguished Senator very much. Would the Senator desire some further time at this present moment?
Mr. MUSKIE. Yes, I would appreciate that.
Mr. JAVITS. Mr. President, I am ready to yield to the Senator from Maine. How much time does the Senator desire?
Mr. MUSKIE. Mr. President, I will yield to myself 10 minutes.
The war powers resolution represents a powerful reaffirmation of congressional responsibility in the warmaking sphere. It will surely be one of the historic accomplishments of this Congress – and a great accomplishment for the country if this bill prevails over a threatened presidential veto.
Let me say, in addition, that if the bill is vetoed, and even if the veto is sustained, I think the effect on the relationship between Presidential and congressional warmaking powers upon future Presidents and future Congresses will be positive and helpful. I doubt whether this President or future Presidents will actually ignore this expression of congressional sentiment on this issue.
The purpose of the war powers resolution is not to alter the Constitution, as executive branch officials profess to believe, but to restore and fulfill the intent of the Constitution in matters of war and peace. The essential purpose of the resolution is to define – more exactly to reaffirm – the constitutional authority of Congress to decide whether and when our country will go to war. In no sense is this legislation intended to encroach upon or to detract from the authority of the President as Commander in Chief, including his authority to repel attacks upon the United States or its Armed Forces.
It is sometimes contended that declarations of war are obsolete in international practice, and that because they are, the power of Congress to declare war is also obsolete. This argument is spurious. The framers of our Constitution did not confer upon Congress a power to use those magical words "declare war" and no others; the power they conferred upon Congress was to decide whether or not, and under what circumstances, the United States would make war upon another sovereign nation.
Nor is the war power in the slightest degree ambiguous, as advocates of executive latitude profess to believe. The framers of the American Constitution were neither hesitant nor vague in their conferral of the war power upon Congress. The reasoning of the Founding Fathers is a matter of historical record: Dismayed by the arbitrary power of the British Crown to drag the American colonies into unwanted wars, they vested the authority to initiate war in the legislature, transferring that power, as Jefferson put it, "from those who are to spend to those who are to pay." In testimony before the Foreign Relations Committee in support of the Senate bill, Prof. Raoul Berger of the Harvard Law School stated:
The power to wage war, it may be categorically asserted, was vested by the Constitution in Congress, not the President. If this be so, your bill merely seeks to restore the original design. It cannot be unconstitutional to go back to the Constitution.
The resolution which the Senate and House conferees agreed to has the following basic provisions: First, whenever the President sends troops into combat without a declaration of war, or other specific authorization of Congress, he must notify Congress within 48 hours and must cease the combat activity or deployment within 60 days unless Congress grants approval for continuation by a majority of both Chambers. Second, it also provides that the initial 60-day period can be extended 30 more days if the President certifies to Congress in writing that "unavoidable military necessity respecting the safety of the U.S. Armed Forces" requires the additional time. After that, all activity must cease unless both Houses approve continuation. Third, if Congress wants the combat activities or deployment stopped before the 60 or 90 days are up, it can order the President to cease by concurrent resolution. Such a resolution does not require a Presidential signature and therefore cannot be vetoed.
Mr. President, the war powers resolution is properly regarded as legislation which should not have been necessary, and would not have been necessary, if Congress and the President had remained within their respective constitutional spheres.
Three decades of total war, limited war, and cold war have propelled the American political system far along the road to Executive domination in the conduct of foreign relations. This has been, to some degree, the result of Presidential usurpation. To some degree it has been the result of congressional lassitude and unquestioning support of Presidential leadership. But most of all, it has been the result of war itself, and of these past three decades of constant crisis and disruption.
Mr. President, as matters now stand, the Congress exercises no more than a marginal influence on decisions as to whether the Nation will be committed to war. The purpose of the war powers resolution is to draw the Congress back from the periphery to the center of this most crucial area of decision making. To this end it is neither sufficient nor necessary for Congress to come to the Executive as a suppliant, pleading for and relying upon promises of consultation. Experience has shown that such vague reassurances are readily given but rarely implemented. If Congress is to recover its war power, it will have to do the job for itself – that is a certainty.
The view of the Executive – executives, I might add, of both parties – has been amply demonstrated in the course of the war in Indochina, which was preeminently a Presidential war.
For a time, the controversial and unlamented Gulf of Tonkin resolution provided at least a facade of constitutionality for the war. President Johnson himself, however, while maintaining that the Tonkin resolution was a valid authorization, also maintained that he needed no authorization. He expressed this view in a press conference an August 18, 1967, stating that the purpose of the Tonkin resolution had been to allow Congress to "be there on the takeoff" as well as on the "landing," although Mr. Johnson stressed "we did not think the resolution was necessary to do what we did and what we're doing."
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. EAGLETON. Mr. President, I yield the Senator 5 additional minutes.
The PRESIDING OFFICER. The Senator from Maine is recognized for 5 additional minutes.
Mr. MUSKIE. Mr. President, when the Tonkin resolution was finally repealed on January 12, 1971, the repealer went virtually unnoticed – clearly indicating its insignificance. The Nixon administration did not even bother to oppose the repeal of the Tonkin resolution, quite obviously because the President thought himself at liberty to pursue the war without it. The Nixon administration explained that it "has not relied on or referred to the Tonkin Gulf resolution of August 10, 1964, as support for its Vietnam policy."
Throughout the course of the Vietnam war, and especially after the repeal of the Tonkin resolution, the Nixon administration maintained that its authority to wage war in Indochina was based upon its obligation to protect the American troops that had been placed there by the Johnson administration. The general thesis of the Nixon administration was reiterated by Secretary of Defense Laird when he was asked on April 18, 1972, to explain on what authority the President had renewed the heavy bombing of North Vietnam. The Secretary answered:
It is the protection of the American personnel. You don't need any more authority than that ... that is sufficient, complete and total.
When our troops were finally withdrawn from Vietnam, and the Tonkin resolution repealed as well, the administration then retreated to new and even swampier ground for the defense of its continuing air war in Cambodia. Its explanations of American participation in that war, now happily ended, could scarcely be dignified as legal arguments – they were more in the nature of evasions and rationalizations.
In the end, advocates of unrestricted Presidential war power are forced back upon the contention that the framers of the Constitution were uncertain and ambiguous about where they wished to vest the authority to initiate war. So Secretary Rogers contended in his presentation to the Senate Foreign Relations Committee on May 14, 1971. So, too, the State Department memorandum of April 30 commends the framers of the Constitution for "leaving considerable flexibility for the future play of political forces."
The view of the Senate and House conferees, as embodied in the conference report before us, is that the Constitution is not at all imprecise in allocating the war powers. We believe the Constitution is quite specific – as the framers intended it to be – in giving Congress the authority to decide on going to war and in giving the President the authority, as Commander in Chief, to respond to an emergency and to command the Armed Forces once a conflict is underway. In short, we believe the Constitution gives Congress the authority to take the Nation into war, whether by formal declaration of war or by other legislative means, and the President the authority to conduct it.
In order to restore this classical constitutional definition of authority, I commend to my colleagues the adoption of this conference report.