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A resolution was adopted by Congress with little consideration of the merits, based almost entirely upon an emotional urge to uphold the President, without thought of the cost. The resolution followed the incomplete and inconclusive formula that the "United States is prepared to take all necessary steps" and so forth, merely declaring a state of preparation which is at least one step short of providing for action.
Action first by the President and consultation with Congress afterward, under the circumstances presented, is the very opposite of constitutional procedure. We are in the Vietnam mess because of the decision of one man—an act of dictatorship, not of constitutional government.
THE MAKING OF FOREIGN COMMITMENTS Now, coming to foreign commitments.
The Southeast Asia Treaty does not constitute a commitment. It provides that in the event of armed attack each party agrees to "act to meet the common danger in accordance with its constitutional processes."
Before there is a commitment, constitutional processes must operate. Our Constitution provides that Congress shall decide whether or not the United States shall engage in war. Congress has not authorized war measures under the treaty and therefore there is no commitment for the President to act upon.
The President is restricted in dealing with other nations. The Constitution provides :
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur: and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors.
Except for ability to "receive ambassadors and other public ministers," the President is hedged in by restraints. Nowhere in the Constitution is to be found authority for the President by himself alone to commit the Nation to any international undertaking. That may be done only by treaty duly approved by the Senate, or by act of Congress where a treaty is not involved.
Recently, President Johnson stated the United States is "firmly committed" to support the political independence and territorial integrity of all Middle East nations. His only basis for the statement appeared to be that our last four Presidents had so declared. If it depends upon what these Presidents have said, there is no commitment because Presidents are not empowered by the Constitution to commit the United States to any such undertaking.
SUPREME COURT DETERMINATIONS
When the Constitution is definite and precise regarding a procedure to be followed, it thereby is saying no other method is permissible. When the Constitution says "No," the Supreme Court has no authority to say "Yes.”
Yet the Supreme Court has presumed to hold that a different method is permissible; that is, the President alone may, without restriction, make treaties and thereby commit the United States. The attitude of the Court has been stated in the determination of several cases, one of
which is United States v. Belmont regarding a Presidential transaction (301 U.S. 324, 1937). The time allowed me does not permit an analysis of the Court's decision in that case. Briefly, it is a curious hodgepodge, calls the executive agreement a treaty and places it exactly on the same level as an actual treaty approved by the Senate.
After World War II status-of-forces treaties were made with Western European nations, whereby U.S. soldiers charged with crime against nationals of the nation concerned would be tried in that nation's courts, which treaties were submitted to and approved by the Senate. Afterward the President alone made a similar arrangement with Japan, which on coming before the Supreme Court was held to be a valid treaty.
Thus it is seen that the Supreme Court gives a Presidential "commitment," if it may be called such, exactly the same standing as a treaty made in accordance with the Constitution. It must follow, according to the Supreme Court, that a President may choose which method to pursue. He may perfunctorily refer a proposed treaty to the Senate, or if there should be doubt about Senate approval, or for any other reason, he may complete the transaction by himself. The Supreme Court would make a nullity of the treatymaking provision of the Constitution.
The Court cannot be said to have been “interpreting” the treaty provision, because that provision is a direction stated in such precise terms that interpretation is neither called for nor permitted. The Court has in fact been acting in defiance and violation of the Constitution.
The Supreme Court is not infallible. It concedes this when on occasion it overrules its own previous decisions. Nor is the Constitution “what the judges say it is;" it is what it itself says it is.
The Supreme Court is subordinate, not superior to the Constitution. Its members recognize this when they swear fealty upon taking office; but it is apparent that in relation to treaties, at least, they have presumed to place themselves above the Constitution when they arbitrarily accord to the President alone the power to make treaties. The Court is without authority to amend, remake, or ignore any part of the Constitution.
RESPONSIBILITY CONFERRED ON CONGRESS BY THE CONSTITUTION
In conclusion, all is not well with our Republic. The executors of the Constitution have wandered far afield in conducting the affairs of Government in at least two very vital aspects and must be headed off if constitutional government is to prevail. A President ambitious for power will not limit himself. The Supreme Court offers no hope. The task, then, devolves upon Congress, even though its tendencies toward weakness do not inspire great confidence.
It would be incumbent upon Congress to divest itself of the idea that a President is allwise and not subject to mistake; its Members must be brought to realize that their allegiance is to the Constitution representing the people—not to the President. They must face up to the responsibility conferred upon them by the Constitution.
The impeachment provision is available. Either one or both Houses could correct the situation by refusing to implement in the slightest degree unauthorized military action and spurious treaties. If this or other measures having the same effect are not taken, the Constitution will be a shambles and we shall indeed have an elective monarchy with the President wielding unlimited power.
Madison recorded the view of Hugh Williamson, of North Carolina, as expressed in the Constitutional Convention, thus:
Another objection against a single magistrate is that he will be an elective king and will feel the spirit of one ... It was pretty certain, he thought, that we should at some time or other have a king, but he wished no precaution to be omitted that might postpone the event as long as possible.
Do we care enough to “postpone the event as long as possible” in our time? If we do, we should bestir ourselves without delay because the trend has already gone too far. Adoption of Senate Resolution 151 would be a step in the right direction. Other steps may be necessary.
Mr. Chairman and members, I thank you for your attention as well as for the privilege of addressing you.
(The prepared statement of Mr. Montross follows:)
STATEMENT BY GEORGE M. MONTROSS
WHY SENATE RESOLUTION 151 IS NEEDED
The authors of the Constitution expressed in debate abhorrence of the President functioning as an elective monarch-who, though elected, would wield the powers that monarchs of the time exercised (not the mere figureheads of today)—and imposed restrictions as safeguards to protect the people against the evils of one-man government. Although all officials, including the President, members of Congress and of the courts, are under oath to observe and abide by the terms of the Constitution, all three branches of government have shamefully ignored vital restraints and limitations with the result that if today we do not have an elective monarch in the Presidency, we have something very close to it.
Mere existence of a Constitution on paper does not insure constitutional government; that depends upon observance.
The resolution under consideration by the Senate Committee on Foreign Relations would not be necessary if the Constitution had been lived up to. Its adoption would mark a turning point, a warning that henceforth the Constitution is to be observed.
The safeguards dealt with in this statement concern the limitations on the powers of the President as Commander-in-Chief of the Army and Navy and to make commitments to foreign nations.
COMMANDER-IN-CHIEF OF THE ARMY AND NAVY
Article II of the Constitution provides that "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States."
Under this provision, standing by itself, the idea often expressed that the President has absolute control of the armed forces would seem to be justified ; but though it is not all, that is all the President and Congress have been looking at. They have not been looking at provisions under Article I that specify the powers of Congress which very severely limit the President's military authority.
First: “Congress shall have power to declare war.” This expresses the principle that the people shall not be victims of the frail judgment of one man, but shall have the benefit of the judgment of their many representatives in Congress. The method or fashion of beginning a war may change, but the principle-substance and essence remains.
Thus, the decision, except when the nation is actually attacked or when specifically bound by treaty to act upon the occurrence of certain circumstances, shall be made by the Congress-not by the President.
Second : "Congress shall have power to make rules for the government and regulation of the land and naval forces.” The power to govern and regulate is the
power to control. The President at the head of the armed forces is necessarily part of them and therefore is subject to congressional control. The President is commander-in-chief of the army and navy, subject to the will of Congress.
How often we hear that the President is commander-in-chief of the army and navy; how seldom, if ever, do we hear or read that Congress has power to govern and regulate the armed forces !
If the clear, definite and unambiguous language employed requires explanation, that was supplied by Alexander Hamilton in Federalist Paper No. 69:
**The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy, while that of the British king extends to the declaration of war and to the raising and regulating of fleets and armies-all which, by the Constitution under consideration, would appertain to the legislature."
Under the Articles of Confederation, from which the authority “to make rules for the government and regulation," etc., was transferred to the Constitution, the appointment of a “commander-in-chief of the army or navy” was provided for. It could hardly be contended that such an appointed personage, with the overhanging power of Congress to govern and regulate, would have complete control of the armed forces. It was only the authority possessed by such an appointee that was transferred to the President, and no more.
The stock superficial argument of those who say the President, as commanderin-chief of the army and navy, has control of the armed forces is that the power has been exercised by Presidents at least 150 times. A recitation of what has been done in the past is not proof that it was in accordance with the Constitution.
The power "to make rules for the government and regulation of the land and naval forces” is a very broad power which vests in Congress control of the military forces, including their commander-in-chief.
It is perhaps unfortunate that Congress has failed to enact general rules under which the President could lawfully take military action to protect the lives and property of United States citizens while in other countries, because the many times such actions have been taken have been without congressional authority, have become commonplace and given rise to the unwarranted assumption that the President possesses unlimited military power.
Early in his administration, President Eisenhower expressed recognition of constitutional military limitations by stating he would not take the nation into war without congressional authorization. This was in contrast to the course pursued by President Roosevelt, who involved the United States in World War II long before the tragic event at Pearl Harbor-not only without congressional permission, but actually in violation of the Lend-Lease Act provision (inserted against presidential wishes) that "Nothing in this Act shall be construed to authorize or to permit the authorization of convoying vessels by naval vessels of the United States."
The President is directed by the Constitution to "take care that the laws be faithfully executed.” Nevertheless President Roosevelt directed that convoying operations be carried on, seeking to disguise them by deceitfully using the word "patrolling” to describe the program, during the course of which United States destroyers were damaged or sunk with serious loss of life. Secretary of War Stimson recorded in his diary under date of April 24, 1941, after conferring with the President:
"He kept reverting to the fact that the force in the Atlantic was merely going to be a patrol to watch for any aggressor and to report that to America. I answered there, with a smile on my face, saying, 'But you are not going to report the presence of the German Fleet to the Americas. You are going to report it to the British Fleet.' I wanted him to be honest with himself. To me it seems a clearly hostile act to the Germans, and I am prepared to take the responsibility of it. He seems to be trying to hide it into the character of a purely reconnaissance action which it really is not.”
Notwithstanding the flouting of the law, Congress did nothing about it.
President Eisenhower confirmed his early statement by requesting Congress to authorize him to use the armed forces in connection with the defense of Formosa, later making the same request in regard to the Middle East. In the case of Formosa, Congress complied by adopting a resolution of outright authorization:
“That the President of the United States be and be hereby is authorized to employ the Armed Forces of the United States as he deems necessary for the specific purpose of securing and protecting Formosa and the Pescadores against armed attack, ...".
However, when it came to the Middle East, although the House of Representatives passed a similar resolution, some Senators demurred, contending without warrant that military action was the responsibility of the President alone, that congressional authorization would transgress presidential power, ignoring the power of Congress to govern and regulate the land and naval forces as well as to decide whether or not the nation was to be involved in war. The result was that the resolution as finally adopted was diluted to the nebulous and enigmatie declaration :
“Furthermore, the United States regards as vital to the national interest and world peace the preservation of the independence and integrity of the nations of the Middle East. To this end, if the President determines the necessity thereof, the United States is prepared to use armed forces to assist any nation or group of such nations requesting assistance against armed aggression from any country controlled by international communism; Provided, That such employment shall be consonant with the treaty obligations of the United States and with the Constitution of the United States."
This was not saying the President's determination was to be or could be acted upon, but only that the United States was "prepared” to act. The President was even warned by the proviso “That such employment shall be consonant with the treaty obligations ... and Constitution of the United States." Although it was not an authorization and not intended to be actually incomplete and inconclusive-President Eisenhower later did send troops into Lebanon.
The Middle East resolution and that relating to Formosa cannot possibly have the same meaning.
Congress has authorized the President to draw upon the armed forces for personnel to assist other countries in noncombatant capacities only, including advising and training. For this purpose a contingent of United States troops was stationed in South Vietnam. After a time, without further congressional authorization and only with the sanction of successive Presidents, advisers were assigned to the battle line armed with guns and hand grenades and thus, by becoming participants in battle with South Vietnamese troops, ceased to have the noncombatant status required by law. Likewise, United States planes manned hy United States pilots were engaged in transporting South Vietnamese troops to battle areas.
In pursuing these activities, more than 100 American soldiers were killed and many more wounded before full scale military operations began with the North Vietnamese torpedo boat attack against a United States destroyer patrolling the Gulf of Tonkin. The destroyer, successfully maneuvering so as to avoid the torpedo, responded by sinking the attacking boats. A few days later, war planes of the United States raided North Vietnam, causing loss of life and destruction of property.
President Johnson called the raid retaliation for the torpedo attack on the destroyer and asked Congress for approval of his action to show the world that he had the support of Congress.
The claim that the raid was in retaliation was untenable because suitable retaliation had already taken place by the destroyer sinking the torpedo hoats. The attack on North Vietnam was an unauthorized act of war. After all, the destroyer was not hit and no one was injured, so that the incident was only trivial and should have been treated accordingly.
A resolution was adopted by Congress with little consideration of the merits, based almost entirely upon an emotional urge to uphold the President. The resolution followed the incomplete and inconclusive formula that “the United States is prepared to take all necessary steps," etc., merely declaring a state of preparation which is at least one step short of providing for action.
Action first by the President and consultation with Congress afterward, under the circumstances presented, is the very opposite of constitutional procedure. We are in the Vietnam mess because of the decision of one man-an act of dictatorship, not of constitutional government.
The Southeast Asia Treaty does not constitute a commitment. It provides that in the event of an armed attack each party agrees to "act to meet the common danger in accordance with its constitutional processes."