EXERCISING THE POWER OF THE PURSE

I used to be a lawyer but I have not practiced law for a long while. My view is that this argument about constitutional issues and who has the right to do what is largely sterile; that, since the foundation of the Republic with its separation of powers, the Executive and the Legislative have been in a clash time after time after time, in efforts to settle the right and the wrong, or the power or the authority. They have almost always ended up without any definite determination as to who was right and who was wrong. It goes on a pragmatic basis in which politics plays a considerable part.

But the one thing that Congress has which we have been completely unwilling to exercise in connection with the Vietnamese situation in both Houses is the power of the purse. If we really get far enough into a clash with the Executive, I think that is the power we ought to utilize.

Yesterday, I tried to indicate it in a very mild way, and to my glee, the Chairman joined me, but there were only six of us. It does not look very good when you get licked 83 to 6 on a question of whether you are going to continue to give the Pentagon and the President all the money they want to wage any kind of warfare anywhere in the world under the Tonkin Bay resolution or under the powers of the com

mander in chief.

I would like to get your reaction as to whether you think it is perfectly futile to rely on the power of the purse because everybody is too scared of the American Legion and the Veterans of Foreign Wars-or whether you think that is not really the ultimate weapon which we have. Until we are ready to use it maybe we ought to shut up. Mr. FINDLEY. I do not think it arises entirely from fear of the Legion and the VFW because I do not have such a fear. But I do feel

Senator CLARK. You are a brave man. [Laughter.]

I voted for the appropriations yesterday when the chips were down. Mr. FINDLEY. In my view the Congress is really the sounding board and a true reflection of the United States and of the people's sentiments, and so I think that the American people would be very resentful if the Congress should vote away funds or deny funds, or equipment-an action that might be interpreted as causing extra hazards to men who are in the field.

Now, perhaps the limitation on funds could become constructed so as to prevent that eventuality, but whether it could be presented in such a way as to convince the American people that it was so constructed is a very important part of the question.

I do think the power of the purse is an important power that the Congress, and especially the House, should have been using to more effect through the years. I wish that we could devise a more effective way to use it to get more cooperation from the Executive branch not only in the field of foreign policy but in the field of domestic policy,

too.

For example, I am very concerned-I think we do not agree on thisbut I am very concerned about the long-term effect of the nuclear proliferation treaty, and at one point I attempted to use the power of the purse in the House to shut off the salaries of any State Depart

ment personnel who might use their official time to advance that treaty.

I felt it was that dangerous to our interests and the interests of our allies. I must add my amendment did not get very far. The House is reluctant to use the power of the purse in specific matters like this. But I think you have pointed to a great field of possibility that I hope we will all explore and utilize.

Senator CLARK. Thank you, Mr. Chairman.

The CHAIRMAN. Senator Pell.

Senator PELL. No questions. Thank you very much.

The CHAIRMAN. Congressman, I appreciate very much your coming here, and we will certainly give serious consideration to your proposal. Thank you very much.

Mr. FINDLEY. Thank you.

The CHAIRMAN. At this point, I would like to insert in the record a statement by Senator Dominick which he has submitted to the committee with regard to Senate Resolution 151.

(The document referred to above follows:)

STATEMENT OF SENATOR PETER H. DOMINICK ON SENATE RESOLUTION 151

Mr. Chairman and distinguished members of the Committee on Foreign Relations, within the entire framework of inter-governmental relations there exists a lack of a clear definition as to the meaning of the word "commitment." It is evident in domestic programs as well as in our relations with other nations. I commend the distinguished Chairman for his authorship of this resolution and the committee for undertaking action to clarify this term as it applies to actions by representatives of this government and representatives of any foreign power. Your resolution could well open the door to clarification of precisely what constitutes a national commitment and the specific requirements for its binding creation. It is of immense importance to define just who, in fact, has such power. I believe the records should provide answers as whether such power can be delegated and if so to what extent and under what circumstances can the power to commit this nation be delegated. Of particular significance would be a determination as to what extent a national commitment which is binding upon the United States can result from an impromptu meeting between our President and the Head of a foreign power. In the past, such meetings have produced agreements which, while not having status of treaties, have had the effect of binding this nation to fulfill obligations of enormous and far reaching proportions. And we have seen the Vice President assume the power to obligate our taxpayers for large financial expenditures without prior consultation with the Congress.

It strikes me that the situation which now confronts us occurred to our forefathers as they labored to draft our Constitution. I believe this concern was inherent in George Washington's admonition against foreign entanglements. I do not believe that an after-the-fact briefing can qualify as consultation within the meaning of our Constitution. More nearly what exists today is that Congress no longer is requested to advise on matters of foreign relations, only to consent to what has already been reduced to finality.

We need to re-define with utmost clarity the limitations imposed upon the power of the President by the Constitution and the responsibilities clearly assigned to the Congress. At present there exists the interpretation that the Senate has but four ways in which it may exercise any degree of control in our foreign relations. But, are they adequate?

First. The right of review and confirmation of Presidential appointees has, in terms of present day concepts. been rendered relatively ineffective.

Second. The Senate is called upon to advise and consent to treaties in an almost perfunctory manner, and most often after the fact.

Third. The power to declare war has been circumvented by the assertion of the powers of the President as Commander in Chief of the Armed Forces.

Fourth. The responsibility imposed upon Congress to raise and support armies has been seriously undermined for the reason that once the President has committed our Armed Forces into conflict Congress has no alternative but to provide for their effective support.

None of the foregoing four Congressional responsibilities seem realistic in this day and age when it has become acceptable for the President to move our troops into any area at any time whenever he determines that we have a "commitment" to do so.

Congress has not been asked to declare war since 1941, and even then we were in fact already at war. Since 1941, we have been involved in two major conflicts and numerous incidents of American military personnel being sent into hostile areas without prior consultation with Congress. The most recent of such incidents occurred last month and involved our sending C-130 jet aircraft into the Congo. There is serious room to question whether this action could be justified under the constitutional authority of the President, as Commander-in-chief, to order American military personnel to foreign soil to repel attack, protect the lives and property of U.S. citizens, or to fulfill United States treaty obligations.

It is of utmost importance that any ambiguity which exists, by interpretation or otherwise, in the limitations imposed by the Constitution upon the powers of the President and the responsibilities and powers of the Congress be clarified.

I appreciate the opportunity to be heard on this question of such overriding importance to the future of our nation.

The CHAIRMAN. Professor Holt, will you please come forward? I apologize, Professor Holt, for the hearing taking so long this morning, but I hope you have enjoyed hearing some of our colleagues discourse upon a subject which is your specialty. We now, I think, are particularly happy to have an authority on our Constitution, because it gives us a basis against which we can weigh and judge what has been said by others who have responsibilities other than purely that of a constitutional lawyer.

Will you proceed, sir?

STATEMENT OF W. STULL HOLT, PROFESSOR, UNIVERSITY OF

WASHINGTON

Mr. HOLT. Mr. Chairman, no apology is necessary. It is a great honor for any citizen to be invited to be present at a hearing before this committee. It is also, Mr. Chairman, a very grave responsibility, and in trying to meet that responsibility, I have prepared a brief state

ment.

Before I read it, may I say that I attempted in it to report the facts as I have been able to discover them by my study of American history, and may I further say, in following Senator Ervin's example of using a homely illustration, if I looked out that window and saw a bear eating a little child and report here that the bear is eating the little child, I am reporting a fact, I am not sympathizing with the bear, and in my statement I tried to report the facts.

Senate Resolution 151 is an attempt to solve one of the most important and most persistent problems involved in the formulation of American foreign policy.

CONFLICT OVER SHARED POWERS TO MAKE TREATIES

From the very beginning of the government the President and the Senate have struggled over the power to control foreign policy. They are condemned to this contest because the Constitution shared the power to make treaties between them. I do not criticize this arrangement. On the contrary, I think it is wise. The Senate became the first agency in the modern world for the democratic control of foreign policy. But with the benefits we must accept the disadvantages. One of the latter is that considerations of prerogative or control have pro

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duced conflict and embittered relations between the two branches of the government.

The instinctive and inevitable attitude of the Senate toward the President in their joint exercise of the treatymaking power emerged when President Washington first appeared in person to seek the Senate's advice and consent. What happened is described in the diary of Senator Maclay.

He explained that a motion was made to refer the matter to a committee so that the Senators could speak freely in Washington's absence. This caused Washington to start up "in a violent fret" and to oppose the motion strongly. Finally, he agreed to postpone a decision until the following Monday. Senator Maclay summed up the episode in these words:

I cannot now be mistaken. The President wishes to tread on the necks of the Senate. Commitment will bring the matter to discussion, at least in the committee, where he is not present. He wishes us to see with the eyes and hear with the ears of his Secretary only. The Secretary to advance the premises, the President to draw the conclusions, and to bear down our deliberations with his personal authority and presence. Form only left will be to us. This will not do with Americans.

In fact, it has not done with Americans and throughout the almost two centuries since Senator Maclay wrote in his diary, Senator after Senator has repeated his views and often his very words. I note that in a statement printed in the record on the day Senate Resolution 151 was introduced the present distinguished Chairman of the Committee on Foreign Relations urged that matters of foreign policy be considered in Committee rather than at a consultation or briefing in the White House. And he ended his statement with the obviously correct assertion that "A Senator has the obligation to defend the Senate as an institution by upholding its traditions and prerogatives."

SENATE AS A FORUM FOR DISCUSSION

In addition to its participation in the making of foreign policy through the provisions of the Constitution regarding treaties, the Senate can influence or shape foreign policy by serving as a forum for discussion. In so doing the Senate performs a vitally important and valuable function, one for which the Committee on Foreign Relations has a special responsibility.

The need and propriety of subjecting foreign policy to criticism is not always recognized. In times of emotional tension, as presently over Vietnam, responsible criticism of American policy has been denounced as unpatriotic. Naturally, Senators have resented this. On the other hand, other emotionally disturbed people, as I have read and heard in debate, have called President Johnson a murderer and have held the United States guilty of genocide. These fantastic accusations are a part of the price of democracy.

Aside from the making of treaties there is no constitutional or legal requirement that the President must take the advice of the Senate or of any of its Members of foreign policy. On the contrary, from the very beginning of our history, President after President has announced foreign policies without seeking the advice, much less the consent, of the Senate. Thus, to cite only one example, President Monroe announced the Monroe Doctrine without any advice from the Senate

and it was not until nearly 100 years later that the Senate formerly approved that famous policy.

The only way the Senate has to avoid a commitment through a Presidential statement of policy or to force the President to accept its advice is through political pressure.

The CHAIRMAN. May I ask a question for semantics?
Mr. HOLT. Yes, sir.

IS A POLICY STATEMENT THE SAME AS A COMMITMENT?

The CHAIRMAN. Do you equate a statement of policy with a commitment? Are they all the same thing?

Mr. HOLT. It can be, or it can, I think, in many cases force the Senate and Congress to make a commitment. In other words, if the President announces a policy as a policy of the United States, inevitably great pressure will be exerted on Congress to approve it in some fashion or other.

The CHAIRMAN. What has bothered me is there has been the idea that a statement of policy by a President, announcing that so long as he is President he expects to pursue this attitude or general policy, that this is the same as a commitment?

Mr. HOLT. When Monroe issued the Monroe Doctrine he did not say this was just a policy of the United States "as long as I am President." He laid it down as a permanent policy of the United States, and that has been true in many other cases.

When action by Congress, as I point out in a minute, is required either by an appropriation or ratification of a treaty or some other legislation, then the Congress does participate, and the President has to foresee that.

The CHAIRMAN. It bothered me as to just how to interpret such an action. Could it be said to be an incipient commitment? It still has to be implemented by Congress.

Mr. HOLT. In some cases it may not require actual action by Congress. It may be done immediately as, for instance, intervention, many times, especially in the Caribbean countries, the object of which was to protect the lives and property of American citizens.

International law permitted that, but under our Government we might say that decision should be left to the Congress.

The CHAIRMAN. I did not want to delay you.

Senator GORE. May I interject? The Monroe Doctrine was not a commitment to any particular country.

Mr. HOLT. It was an announcement of foreign policy. There was no commitment to a specific country.

Senator GORE. That is a distinction I wish to draw. This was an announced foreign policy of which all nations were advised, but by which no commitment to any other country was specifically made. Mr. HOLT. That is correct. But it was a statement that the United States would regard as an unfriendly act, certain acts by European governments, interposition by them.

Senator GORE. But neither the Congress nor the President, nor any future President was bound thereby.

Mr. HOLT. It became, through public acceptance and precedence, a binding foreign policy.