use armed forces to repel attacks on the United States or its forces, and to protect American citizens, would not cover that situation. Nor is it clear that the Nation was under imminent threat of attack. Hence most, if not all, of these pending bills would apparently require prior congressional authorization. Yet, the situation was a grave one, posing a substantial threat to our security and requiring immediate action. I believe there are few who would suggest that the speedy and effective response ordered by President Kennedy was inconsistent with our constitutional framework. Not only must the Nation be able to act quickly when its security requires such action, but our adversaries must realize that we have the ability to do so. Otherwise stated, we must be prepared to act and our adversaries must know that we are prepared to act. To the extent that some of these proposals would contribute to a belief among the leaders of foreign nations that the United States would be unable to mount an immediate response to an international crisis, the purposes of the world peace would be ill-served. Secretary Rogers made the point in his testimony before the Senate Committee on Foreign Relations when he observed: To circumscribe Presidential ability to act in emergency situations—or even to appear to weaken it--would run the grave risk of miscalculation by a potential enemy regarding the ability of the United States to act in a crisis. This might embolden such a nation to provoke crises or take other actions which undermine international peace and security. Apart from the consideration just discussed, and independent of them, it does not seem to me that the necessity for such legislation has been demonstrated. No President could fail to recognize the need for a popular concensus and a working relationship with Congress in connection with decisions to deploy or commit the Armed Forces. PENDING BILLS WOULD COERCE PRESIDENT These bills can only be predicated on a contrary belief-namely, that the Chief Executive must be coerced into recognizing congressional prerogatives. I simply do not believe this is a realistic assumption in view of the checks and balances which exist throughout our political system. Underlying these bills is the assumption that Congress must assert itself and that the restrictions on the President's authority to deploy and commit troops are an appropriate means to this end. The fallacy in this, it seems to me, is that the Constitution grants Congress numerous powers in this area. Article I, section 8, contains specific grants of the powers "to raise and support armies", "provide for the common defense", to "declare war, grant letters of marque and reprisal", and "make rules concerning captures on land and water", "provide and maintain a navy", "to make rules for the government of the land and naval forces", and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers Can it reasonably and realistically be contended that Congress is without constitutional authority to assure for itself a meaningful role 63-510-71-5 in relation to the use of the Armed Forces or that bills such as those now pending before the committee are necessary to assure that role? As a final general observation about these proposals, it must, of course, be noted that legislation cannot alter the constitutional balance. Thus, if the President has certain exclusively Executive powers, as, for example, to repel sudden attacks, those powers may not be intruded upon by conflicting congressional mandates. To the extent then that the proposed legislation would attempt to narrow the President's constitutionally recognized prerogatives, it is unconstitutional. And, to the extent that any such legislation gives full recognition to Presidential prerogatives, it becomes an unnecessary codification of the status quo entailing the potential consequences to which I have referred. SPECIFIC DIFFICULTIES IN PENDING PROPOSALS Let me now turn to a few of the more specific difficulties with the pending proposals. Most of the bills do recognize the President's constitutional authority to a very considerable extent. There are instances, however, where they do not. Other provisions are unclear. Each of the bills would contain an exception permitting the President to repel an attack on the United States. As noted, however, it does not appear that any of the bills would have covered the Cuban missile crisis. Certain of the bills cover "imminent threats" as well as actual attacks, and we agree that the former must be included. However, even with this addition, the provisions in the bill might be too restrictive to cover the Cuban missile situation. A number of the bills would permit a Presidential response to attacks on the Armed Forces only if the troops when attacked were "on the high seas or lawfully stationed on foreign territory." What if the troops happened to be lawfully within the territorial waters of a foreign nation at the time they were attacked? Similarly, the term "lawfully stationed" is ambiguous. Would the term permit a Presidential response to an attack on troops deployed at the President's sole direction? Historically, the President has repeatedly deployed troops abroad, and we would assume, therefore, that such troops would be "lawfully stationed." OPPOSE CONDITIONS ON "PROPRIETY" OF ACTION ON TROOPS ABROAD Any other construction would present a serious constitutional issue. We oppose in principle, moreover, the attempt to condition the propriety of a Presidential response on the location of the troops at the time they were attacked. With respect to the so-called "national commitment" exception, I would point out the approach followed in Congressman Nix's bill differs from that of the other bills. The Congressman's proposal would explicitly provide that congressional authorization would be necessary prior to use by the President of the Armed Forces in discharging a treaty commitment. The other bills, in contrast, would permit the President to employ the Armed Forces in this situation without prior specific authorization. The sharply differing approaches taken to this question in these bills tend to highlight the extraordinary difficulty in trying to define in advance of actual, concrete circumstances, the authority of the President to act in emergency situations. In suggesting the deficiencies in the pending bills and implying that certain of these deficiencies might be remedied, I in no way wish to recede from the opposition of the Department of Justice to legislation attempting to define the respective constitutional roles of the President and Congress. As already noted, these deficiencies in themselves reflect the extraordinary difficulty and danger in attempting to place limitations on the use of Armed Forces well in advance of wholly unpredictable situations. CONSTITUTIONAL PROBLEMS WITH PENDING LEGISLATION Moreover, we do not believe that any of the bills recognizes adequately the President's constitutional responsibility to respond immediately to emergencies presenting substantial threats to the vital interests of the Nation. It is precisely this failure which in my judgment throws a cloud over the constitutionality of each of these bills. Entirely different considerations are involved in the reporting requirements that each of the bills contain. As Assistant Attorney General Rehnquist indicated last year in his testimony before the subcommittee, the Department does not regard a reporting requirement as raising a substantial constitutional question, the only reservation being that the time allowed is not unduly short and the report is not unduly burdensome. 24-HOUR REPORTING PROVISION NOT REALISTIC Certain of the bills contain a 24-hour provision, and we would suggest that this may not be realistic. We would prefer the formulation contained in Chairman Zablocki's resolution which requires that the President report promptly. As to the scope of the report, a full account of the circumstances seems entirely appropriate, but a requirement that the President estimate or evaluate the expected scope or duration may be unwise in that it would appear to call for some degree of Presidential guesswork which could prove adverse to the national interest, to the extent that it requires a disclosure of American intentions. Finally, we wish to express our reservation about the provision in the chairman's resolution which would require the President to explain his reasons for not seeking specific prior congressional authorization. If the President explains the legal justification for his action, we would submit that his duty to justify or explain should be at an end. OPPOSES 30-DAY PROVISIONS I shall now turn to the provision in a number of bills to the effect that Presidential action falling within one of the exceptions would be terminated after 30 days unless Congress had affirmatively acted to authorize a continuation of the hostilities. It seems paradoxical that those who support the assertion of congressional authority in the warmaking field would support a provision which would effectively permit the Congress to assert itself by inaction. If the President commits the Armed Forces and continues the commitment for 30 days, he would presumably be in favor of a further continuation. Congress, however, would be in the position of denying the authority for that continuation by taking no action at all. While those in support of the provision contend that it will assure a role for Congress in that the President will be required to consult Congress before continuing beyond the 30-day limit, it would seem that Congress should at least be required to vote the extension either up or down and not escape the issue by silence. If one, however, agrees that an up or down vote is the appropriate way for Congress to assert itself on a commitment or deployment of the Armed Forces, then the 30-day limit creates an artificial and arbitrary limit which would serve only to impose pressure on the Congress in its deliberations. The 30-day maximum presents other difficulties. Any time limitation upon the President's authority to repel an attack presents a serious constitutional issue. Moreover, it may be well nigh impossible in some situations for the President to withdraw the forces immediately upon the tolling of the 30-day period. The President as Commander in Chief has constitutional responsibility and authority to protect the safety of troops in the field. Any attempt by Congress to require an immediate withdrawal not taking into account the troops' safety would surely be an unconstitutional application of this provision. Even were the troops' safety taken into account, a 30-day limitation might be constitutionally objectionable on the ground that the President might at the 30th day be engaged in repelling a sudden attack— an exclusive Presidential prerogative. Each of these reasons compels us to urge against the adoption of a provision imposing an arbitrary time limit on the President's use of the Armed Forces already committed. Several of the proposals contain provisions which would explicitly authorize Congress to terminate, prior to the expiration of the 30-day period, the President's authority to commit the Armed Forces. This provision seems unnecessary. Either such congressional termination, when enacted, would be constitutionally valid or it would not. The critical consideration in each instance is not whether authorizing legislation of this nature has been enacted previously, but instead whether the congressionally ordered termination would conflict with any of the President's powers as Commander in Chief. The point for present purposes, however, is that Congress is in no way required to enact legislation authority itself to terminate hostilities. CONGRESS HAS TOOLS FOR WAR AUTHORITY NOW I would conclude with what I think is a point at the heart of the issue. In my view, Congress has broad authority over matters integrally related to the exercise of the war-making authority. If, in any given case, Congress is desirous of asserting itself, it has all the tools at its command. I think it derogates the congressional role for Congress to feel the need to assert itself through the rather artificial means embodied in the legislative proposals which would codify what is conceived to be the constitutional allocation of authority. Such a step would be wholly inconsistent with our historical constitutional traditions, and would in no significant way aid in assuring a meaningful role is war making for Congress. Thank you, Mr. Chairman. VIEW OF HOUSE JOINT RESOLUTION 1 Mr. ZABLOCKI. Thank you, Mr. Kauper. From your presentation and that of Mr. Stevenson, there is no question that consultation with, and reporting to, Congress is desirable? Mr. KAUPER. You are speaking of your resolution? Mr. ZABLOCKI. Yes. Mr. KAUPER. That is correct from our point of view. Mr. ZABLOCKI. One page 6 you state that war power bills are predicated on the belief that the Chief Executive must be "coerced into recognizing congressional prerogatives." Do you believe that description fits House Joint Resolution 1? Mr. KAUPER. That description is intended to refer to the bills which are described in the preceding section, those which define powers. No; I don't think that is true as to House Joint Resolution 1. Mr. ZABLOCKI. In your estimation, would House Joint Resolution 1, if enacted, be unconstitutional at any point? Mr. KAUPER. I don't believe it would, Mr. Chairman. Mr. ZABLOCKI. On page 10-and I don't believe you mean this for House Joint Resolution 1, either-but you state there that you "do not believe that any of the bills recognizes adequately the President's constitutional responsibility to respond immediately to emergencies presenting substantial threats to the vital interests of the Nation." Earlier, on page 8 you similarly say, "As noted, however, it does not appear that any of the bills would have covered the Cuban missile crisis.” Do you mean to apply that observation also to the House Joint Resolution 1? Mr. KAUPER. No; that observation on page 10, again, relates to our statement of opposition to legislation which attempts to define the respective constitutional roles. Mr. ZABLOCKI. Page 8 of your statement refers to what particular bill? You make a rather blanket statement, that not any of the bills would have covered the Cuban missile crisis. Mr. KAUPER. I am looking for it on page 8. |