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The original documents are located in Box 65, folder "War Powers Resolution Legislative
History (1)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 65 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
93D CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
1st Session
No. 93-547
WAR POWERS
FORD
STATE
OCTOBER 4, 1973.-Ordered to be printed
Mr. ZABLOCKI, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany H.J. Res. 542]
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the Senate to the joint resolution (H.J.
Res. 542) concerning the war powers of Congress and the President,
having met, after full and free conference, have agreed to recommend
and do recommend to their respective Houses as follows:
That the House recede from its disagreement to the amendment of
the Senate and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment insert the following:
SHORT TITLE
SECTION 1. This joint resolution may be cited as the "War Powers
Resolution".
PURPOSE AND POLICY
SEC. 2. (a) It is the purpose of this joint resolution to fulfill the
intent of the framers of the Constitution of the United States and
insure that the collective judgment of both the Congress and the Pres-
ident will apply to the introduction of United States Armed Forces
into hostilities, or into situations where imminent involvement in hos-
tilities is clearly indicated by the circumstances, and to the continued
use of such forces in hostilities or in such situations.
(b) Under article I, section 8, of the Constitution, it is specifically
provided that the Congress shall have the power to make all laws neces-
sary and proper for carrying into execution, not only its own powers
but also all other powers vested by the Constitution in the Govern-
ment of the United States, or in any department or officer thereof.
(c) The constitutional powers of the President as Commander-in-
Chief to introduce United States Armed Forces into hostilities, or into
situations where imminent involvement in hostilities is clearly indi-
cated by the circumstances, are exercised only pursuant to (1) a decla-
99-006
2
3
ration of war, (2) specific statutory authorization, or (3) a national
Foreign Relations of the Senate for appropriate action. If, when the
emergency created by attack upon the United States, its territories or
report is transmitted, the Congress has adjourned sine die or has ad-
possessions, or its armed forces.
journed for any period in excess of three calendar days, the Speaker
of the House of Representatives and the President pro tempore of the
CONSULTATION
Senate, if they deem it advisable (or if petitioned by at least 30 per-
SEC. 3. The President in every possible instance shall consult with
cent of the membership of their respective Houses) shall jointly re-
Congress before introducing United States Armed Forces into hostili-
quest the President to convene Congress in order that it may consider
ties or into situations where imminent involvement in hostilities is
the report and take appropriate action pursuant to this section.
clearly indicated by the circumstances, and after every such intro-
(3) Within sixty calendar days after a report is submitted or is
duction shall consult regularly with the Congress until United States
ręquired to be submitted pursuant to section 4(a) (1), whichever is
Armed Forces are no longer engaged in hostilities or have been re-
earlier, the President shall terminate any use of United States Armed
Forces with respect to which such report was submitted (or required
moved from such situations.
to be submitted), unless the Congress (1) has declared war or has
REPORTING
enacted a specific authorization for such use of United States Armed
Forces, (2) has extended by law such sixty-day period, or (3) is
SEC. 4. (a) In the absence of a declaration of war, in any case in
physically unable to meet as a result of an armed attack upon the
which United States Armed Forces are introduced-
United States. Such sixty-day period shall be extended for not more
(1) into hostilities or into situations where imminent involve-
than an additional thirty days if the President determines and certifies
ment in hostilities is clearly indicated by the circumstances;
to the Congress in writing that unavoidable military necessity respect-
(2) into the territory, airnpace or waters of a foreign nation,
ing the safety of United States Armed Forces requires the continued
while equipped for combat, except for deployments which relate
use of such armed forces in the course of bringing about a prompt re-
solely to supply, replacement, repair, or training of such forces; or
moval of such forces.
6321 in numbers which substantially enlarge United States
(c) Notwithstanding subsection (b), at any time that United States
Armed Forces equipped for combat already located in a foreign
Armed Forces are engaged in hostilities outside the territory of the
nation;
United States, its possessions and territories without a declaration of
the President shall submit within 48 hours to the Speaker of the House
war or specific statutory authorization, such forces shall be removed by
of Representatives and to the President pro tempore of the Senate a
the President if the Congress so directs by concurrent resolution.
report, in writing, setting forth-
(4) the circumstances necessitating the introduction of United
CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL
States Armed Forces;
(B) the constitutional and legislative authority under which
SEC. 6. (a) Any joint resolution or bill introduced pursuant to sec-
such introduction took place; and
tion 5(b) at least thirty calendar days before the expiration of the
(0) the estimated scope and duration of the hostilities or in-
sixty-day period specified in such section shall be referred to the
volvement.
Committee on Foreign Affairs of the House of Representatives or the
(b) The President shall provide such other information as the Con-
Committee on Foreign Relations of the Senate, as the case may be,
gress may request in the fulfillment of its constitutional responsibili-
and such committee shall report one such joint resolution or bill,
ties with respect to committing the Nation to war and to the use of
together with its recommendations, not later than twenty-four calen-
United States Armed Forces abroad.
'dar days before the expiration of the sixty-day period specified in
(c) Whenever United States Armed Forces are introduced into hos-
such section, unless such House shall otherwise determine by the yeas
tilities or into any situation described in subsection (a) of this section,
and nays.
the President shall, 80 long as such armed forces continue to be en-
(b) Any joint resolution or bill 30 reported shall become the pend-
gaged in such hostilities or situation, report to the Congress periodi-
ing business of the House in question (in the case of the ,Senate the
cally on the status of such hostilities or situation as well as on the scope
time for debate shall be equally divided between the proponents and
and duration of such hostilities or situation, but in no event shall he
the opponents), and shall be voted on within three calendar days
report to the Congress less often than once every six months.
thereafter, unless such House shall otherwise determine by yeas and
nayes.
CONGRESSIONAL ACTION
(c) Such a joint resolution or bill passed by one House shall be re-
ferred to the committee of the other House named in subsection (a)
Sec. 5. (a) Each report submitted pursuant to section 4(a) (1) shall
and shall be reported out not later than fourteen calendar days before
be transmitted to the Speaker of the House of Representatives and to
the expiration of the sixty-day period specified in section 5(b). The
the President pro tempore of the ,Senate on the same calendar day.
joint resolution or bill 80 reported shall become the pending business
Each report 80 transmitted shall be referred to the Committee on For-
of the House in question and shall be voted on within three calendar
eign Affairs of the House of Representatives and to the Committee on
H. Rept. 93-547
H. Rept. 93-547
4
5
days after it has been reported, unless such House shall otherwise
(1) from any provision of law (whether or not in effect before
determine by yeas and nays.
the date of the enaçtment of this joint resolution), including any
(d) In the case of any disagreement between the two Houses of Con-
provision contained in any appropriation Act, unless such pro-
gress with respect to a joint resolution or bill passed by both Houses,
vision specifically authorizes the introduction of United States
conferees shall be promptly appointed and the committee of confer-
Armed Forces into hostilities or into such situations and states
ence shall make and file a report with respect to such resolution or bill
that it is intended to constitute specific statutory authorization
not later than four calendar days before the expiration of the sixty-
within the meaning of this resolution; or
day period specified in section 5(b). In the event the conferees are
(2) from any treaty heretofore or hereafter ratified unless such
unable to agree within 48 hours, they shall report back to their re-
treaty is implemented by legislation specifically authorizing the
spective Houses in disagreement. Notwithstanding any rule in either
introduction of United States Armed Forces into hostilities or
House concerning the printing of conference reports in the Record or
into such situations and stating that it is intended to constitute
concerning any delay in the consideration of such reports, such re-
specific statutory authorization within the meaning of this joint
port shall be acted on by both Houses not later than the expiration of
resolution.
such sixty-day period.
(b) Nothing in this joint resolution shall be construed to require
any further specific statutory authorization to permit members of
CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION
United States Armed Forces to participate jointly with members of
SEC. 7. (a) Any concurrent resolution introduced pursuant to sec-
the armed forces of one or mare foreign countries in the headquarters
tion 5(c) shall be referred to the Committee on Foreign Afairs of
operations of high-level military commands which were established
the House of Representatives or the Committee on Foreign Relations
prior to the date of enactment of this joint resolution and pursuant to
of the Senate, as the case may be, and one such concurrent resolution
the United Nations Charter or any treaty ratified by the United States
shall be reported out by such committee together with its recommen-
prior to such date.
dations within fifteen calendar days, unless such House shall otherwise
(c) For purposes of this joint resolution, the term "introduction of
determine by the yeas and nays.
United States Armed Forces" includes the assignment of members of
(b) Any concurrent resolution so reported shall become the pend-
such armed forces to command, coordinate, participate in the move-
ing business of the House in question (in the case of the Senate the
ment of, or accompany the regular or irregular military forces of any
time for. debate shall be equally divided between the proponents and
foreign country or government when such military forces are engaged,
the opponents) and shall be voted on within three calendar days there-
or there exists an imminent threat that such forces will become engaged,
after, unless such House shall otherwise determine by yeas and nays.
in hostilities.
(c) ,Such a concurrent resolution passed by one House shall be re-
(d) Nothing in this joint resolution-
ferred to the committee of the other House named in subsection (a)
(1) is intended to alter the constitutional authority of the Con-
and shall be reported out by such committee together with its rec-
gress or of the President, or the provisions of existing treaties, or
ommendations within fifteen calendar days and shall thereupon become
(2) shall be construed as granting any authority to the Presi-
the pending business of such House and shall be voted upon within
dent with respect to the introduction of United States Armed
three calendar days, unless such House shall otherwise determine by
Forces into hostilities or into situations wherein involvement in
yeas and nays.
hostilities is clearly indicated by the circumstances which au-
(d) In the case of any disagreement between the two Houses of
thority he would not have had in the abence of this joint
Congress with respect to a concurrent resolution passed by both
resolution..
Houses, conferees shall be promptly appointed and the committee of
SEPARABILITY CLAUSE
conference shall make and file a report with respect to such concur-
SEC. 9. If any provision of this joint resolution or the application
rent resolution within six calendar days after the legislation is re-
thereof to any person or circumstance is held invalid, the remainder
ferred to the committee of conference. Notwithstanding any mile in
either House concerning the printing of conference reports in the
of the joint resolution and the application of such provision to any
Record or concerning any delay in the consideration of such reports,
other person or circumstance shall not be affected thereby.
such report shall be acted on by both Houses not later than six calen-
EFFECTIVE DATE
dar days after the conference report is filed. In the event the conferees
are unable to agree within 48 hours, they shall report back to their
SEC. 10. This joint resolution shall take effect on the date of its
respective Houses in disagreement.
enactment.
INTERPRETATION OF JOINT RESOLUTION
Sec. 8. (a) Authority to introduce United States Armed Forces
into hostilities or into situations where involvement in hostilities is
clearly indicated by the circumstances shall not be inferred-
H. Rept. 93-547
H. Rept. 93-547
6
And the Senate agree to the same.
CLEMENT J. ZABLOCKI,
THOMAS E. MORGAN,
WAYNE L. HAYS,
DONALD FRASER,
DANTE B. FASCELL,
JOINT EXPLANATORY STATEMENT OF THE
PAUL FINDLEY,
COMMITTEE OF CONFERENCE
WM. BROOMFIELD,
Managers on the Part of the House.
The managers on the part of the House and the Senate at the con-
J. W. FULBRIGHT,
ference on the disagreeing votes of the two Houses on the amendment
MIKE MANSFIELD,
of the Senate to the joint resolution (H.J. Res. 542) concerning the
STUART SYMINGTON,
war powers of Congress and the President, submit the following joint
of
EDMUND S. MUSKIE,
statement to the House and the Senate in explanation of the effect
to
G. AIKEN,
of the action agreed upon by the managers and recommended in the
CLIFFORD P. CASE,
accompanying conference report:
J. K. JAVITS,
The Senate amendment to the joint resolution struck out all after
Managers
the
the resolving clause and inserted a new text. Under the conference
on
Part
of
the
Senato
agreement the House recedes with an amendment which substitutes a
new text explained below except for clerical corrections, incidental
changes made necessary by reason of agreements reached by the con-
ferees, and minor drafting and clarifying changes.
to
SHORT TITLE
Section 1 of the Senate amendment substituted "War Powers Act"
as a short title in lieu of the short title "War Powers Resolution of
1973" in the House joint resolution. Section 1 of the conference sub-
stitute provides a short title of "War Powers Resolution".
PURPOSE AND POLICY
The Senate amendment contained a section entitled "Purpose and
Policy" (section 2) and a section entitled "Emergency Use of the
Armed Forces" (section 3) which defined the emergency powers of the
President to introduce United States Armed Forces into hostilities or
situations of imminent hostilities.
The House joint resolution did not contain similar provisions.
The conference report contains a section entitled "Purpose and
Policy!'. The new section states that:
(a) the purpose of the joint resolution is to fulfill the intent of the
framers of the Constitution of the United States and insure that the
collective judgment of both the Congress and the President will
apply to the introduction of United States Armed Forces into hostili-
ties, or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances, and to the continued use of
such forces in hostilities or in such situations;
(3) Article I, section 8 of the Constitution provides the basis for
congressional action in this area and
(c) the constitutional powers of the President as Commander-in-
Chief to introduce United States Armed Forces into hostilities, or
into situations where imminent involvement in hostilities is clearly in-
dicated by the circumstances, are exercised only pursuant to (1) a
(7)
H. Rept. 93-547
H. Rept. 93-547
8
9
declaration of war, (2) specific statutory authorization, or (3) a na-
tional emergency created by attack upon the United States, its terri-
In section 5 (a) the conferees accepted the provisions of the House
tories or possessions, or its armed forces.
joint resolution relating to the transmittal of the presidential report
Section 2(c) is a statement of the authority of the Commander-in-
to Congress, with amendments which (1) provide for the possibility
Chief respecting the introduction of United States Armed Forces into
of reconvening of Congress in case of adjournment in order to consider
hostilities into situations where imminent involvement in hostilities
such report, and (2) provide that 30 percent of the membership of
is clearly indicated by the circumstances. Subsequent sections of the
the respective Houses may petition for such reconvening.
joint resolution are not dependent upon the language of this subsec-
The House joint resolution provided that use of United States
tion, as was the case with a similar provision of the Senate bill
Armed Forces by the President without a declaration of war or specific
(section 3).
statutory authorization could be terminated by Congress:through the
use of a concurrent resolution. The Senate amendment provided for
CONSULTATION
such termination by a bill or joint resolution. The conference Deport
The House joint resolution provided for presidential consultation
contains the concurrent resolution provision.
with the leadership and appropriate committees of Congress before
The House joint. resolution provided for termination of certain
and after the President introduces United States Armed Forces into
peacetime deployments of United States Armed Forces through the
hostilities or situations of imminent hostilities. The conferees modified
elapsing of a time period in which Congress failed to approve such
the House provision, to provide for consultation with the Congress.
deployments. The Senate amendment did not include such deploy-
Section 3 of the conference report is not a limitation upon or substitute
ments in its congressional action provisions. The confèrence report
for other provisions contained in the report. It is intended that consul-
requires presidential reporting on such deployments but section 5 (b)
tation take plaće during hostilities even when adyance consultation
does not require their termination.
is not possible.
REPORTING
CONGRESSIONAL PRIORITY PROCEDURES
Section 4 of the conference report concerns reporting both the House
Both the House joint resolution and the Senate amendment con-
joint resolution and the Senate amendment contained similar report-
tained congressional priority procedures. They differed primarily. in
ing provisions requiring the President to report to the Congress on
that the House language specifically stipulated resort to a procedure
specified actions. In the case of the House joint resolution, the report-
of committee consideration while in the Senate version any pertinent
ing provisions triggered the subsequent congressional action provi-
bill or joint resolution was to be considered as reported directly to the
sions. In the Senate version, congressional action provisions were not
floor of the House in question unless otherwise decided by the yeas and
triggered by the reporting provision, but were otherwise brought into
nays. The language agreed to by the conference in sections 6 and 7
play. Section 4 of the conference report draws on both the Senate and
corresponds to the House version including separately stipulated
House versions. It requires that the President provide such other in-
priority procedures for consideration of concurrent resolutions re-
formation as the Congress may request following his initial report on
quiring removal of forces. The following changes, however, were
the introduction of United States Armed Forces, and further requires
made:
supplementary reports at least every six months SO long as those forces
(1) language was added at the end of sections 6(a) and 7(a)
are engaged. The initial presidential report is required to be submitted
allowing each House to change the procedures by the yeas and
within 48 hours. The objective is to ensure that the Congress by right
nays;
and as a matter of law will be provided with all the information it
(2) the various time frames in section 6 for full cycle consid-
requires to carry out its constitutional responsibilities with respect to
eration of a joint resolution or bill were shortened to conform to
committing the Nation to war and to the use of United States Armed
the change in section 5 (b) from 120 days to 60 days;
Forces abroad.
(3) following the reporting of a joint resolution or bill or con-
CONGRESSIONAL ACTION
current resolution by the appropriate committee it was stipulated
that the time for debate in the Senate shall be equally divided be-
Both the House joint resolution and the Senate amendment pro-
tween the proponents and the opponents; and
vided for termination within a specified time of presidential use of
(4) section 6(d) and section 7(d) provide for expedited con-
United States Armed Forces without a declaration of war or specific
ference committee procedures in the consideration of pertinent
prior statutory authorization. The termination period in the House
legislation passed by both houses.
joint resolution was 120 days; in the Senate amendment, 30 days,
The conferees agreed on a 60 day period following the forty-eight
TERMINATION OF CONGRESS
hour period in which the President is required to report under section
4. The 60-day period can be extended for up to 30 additional days if the
Section 7 of the House joint resolution provided a mechanism to
President determines and certifies in writing to the Congress that un-
insure that the time period provided for under section 4 of the joint
avoidable military necessity respecting the safety of the troops requires
resolution would not expire while Congress was in adjournment. The
their continued use in bringing about a prompt disengagement from
Senate amendment had no similar provision. The conference report
hostilities.
does not contain the House provision on the grounds that the language
H. Rept. 93-547
H. Rept. 93-547
10
of section 5 of the conference report had obviated the need of this
section.
INTERPRETATION OF JOINT RESOLUTION
The Senate amendment contained definitions of certain terms. The
House joint resolution, while incorporating some broad interpretations
of the meaning of the joint resolution, did not contain such definitive
language. The conferees agreed to combine both definitions and in-
terpretations in a single section 8 with changes including:
(1) adoption of modified Senate language defining specific
statutory authorization, and defining the phrase "introduction of
United States Armed Forces" as used in the joint resolution;
(2) elimination of House language concerning the constitu-
tional process requirement contained in mutual security treaties;
and
(3) addition of Senate language which makes clear that the
resolution does not prevent members of the United States Armed
Forces from participating in certain joint military exercises with
allied or friendly organizations or countries. The "high-level
military commands" referred to in this section are understood to
be those of NATO, the North American Air Defense command
(NORAD) and the United Nations command in Korea (UNC).
SEPARABILITY CLAUSE
The Senate amendment contained a separability clause stipulating
that, if any of its provisions or the application thereof to any person
or circumstance is held invalid, the remainder of the Act and the
application of such provision to any other person or circumstance
would not be affected. The House version did not contain a correspond-
ing provision. The conferees accepted the language of the Senate
amendment, with certain technical modifications.
EFFECTIVE DATE
Both the House joint resolution and the Senate amendment con-
tained language providing that the legislation would take effect on the
date of its enactment. This provision was not in disagreement.
CLEMENT J. ZABLOCKI,
THOMAS E. MORGAN,
WAYNE L. HAYS,
DONALD FRASER,
DANTE B. FASCELL,
PAUL FINDLEY,
WM. BROOMFIELD,
Managers on the Part of the House.
J. W. FULBRIGHT,
MIKE MANSFIELD,
STUART SYMINGTON,
EDMUND S. MUSKIE,
G. Aiken,
CLIFFORD P. CASE,
J. K. JAVITS,
Managers on the Part of the Senate.
H. Rept. 93-547
93D CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
1st Session
No. 93-287
WAR POWERS RESOLUTION OF 1973
JUNE 15, 1963.-Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. ZABLOCKI, from the Committee on Foreign Affairs,
submitted the following
REPORT
TOGETHER WITH MINORITY AND
SUPPLEMENTAL VIEWS
[To accompany H.J. Res. 542]
The Committee on Foreign Affairs, to whom was referred the joint
resolution (House Joint Resolution 542) concerning the war powers
of Congress and the President, having considered the same, report fa-
vorably thereon with amendments and recommend that the joint res-
olution as amended do pass.
The amendments are as follows:
On page 2, line 19, strike out "forty-eight" and insert in lieu thereof
"seventy-two".
On page 4, line 18, insert "one such resolution or bill" immediately
after "and".
On page 5, line 13, insert "one such resolution" immediately after
"and".
On page 6, immediately after line 2, insert the following:
TERMINATION OF CONGRESS
SEC. 7. For purposes of subsection (b) of section 4, in the
event of the termination of a Congress before the expiration
of the one hundred and twenty-day period specified in such
subsection (b), without action having been taken by the Con-
gress under such subsection, such one hundred and twenty-
day period shall not expire sooner than forty-eight days
after the convening of the next succeeding Congress, pro-
vided that a resolution or bill is introduced, pursuant to such
subsection (b), within three days of the convening of such
next succeeding Congress.
(1)
FORD LIBRARY
83-006
2
3
On page 6, line 4, strike out 66799 and insert in lieu thereof "8".
Relating to the power of Congress to declare war.
On page 6, line 16, strike out "hereof" and insert in lieu thereof "of
H.J. Res. 315-Leggett
this Act".
Relating to the war power of the Congress.
On page 6, immediately after line 16, insert the following:
H.J. Res. 21-Danielson
H.J. Res. 71-Chappell et al.
H.J. Res. 72-Chappell et al.
APPLICABILITY TO CERTAIN EXISTING COMMITMENTS
H.J. Res. 89-Matsunaga
H.J. Res. 250-Dickinson
SEC. 9. All commitments of United States Armed Forces
H.J. Res. 271-Fuqua
to hostilities existing on the date of the enactment of this
H.J. Res. 409-Chappell et al.
H.J. Res. 448-Cronin
Act shall be subject to the provisions hereof, and the Presi-
Relative to the commitment of U.S. Armed Forces.
dent shall file the report required by section 3 within seventy-
H. Res. 112-Rarick
two hours after the enactment of this Act.
To define the authority of the President of the United States to intervene
abroad or to make war without the express consent of Congress.
On page 6, line 18, strike out 66899 and insert in lieu thereof "10".
H.R. 3722-Sisk
On page 6, lines 4 and 18, strike out "resolution" and insert in lieu
H.R. 4834-Nix
To make rules respecting military hostilities in the absense of a declaration
thereof "Act".
of war.
BACKGROUND
H.R. 926-Quie
H.R. 2616-Railsback
On three occasions in the past two sessions of Congress, the House
H.R. 2740-Tiernan
of Representatives has passel war powers legislation. In the 91st Con-
To make rules governing the use of the Armed Forces of the United States
gress a joint resolution reported by unanimous vote from the Commit-
in the absence of a declaration of war by the Congress.
H.R. 454-Dellenback
tee on Foreign Affairs was adopted under suspension of the rules in
H.R. 1454-Ullman
the House by a vote of 288 to 39. The House-passed measure was sent
H.R. 3139-Harrington
to the Senate where, because of that body's failure to act, it died with
H.R. 3333-Charles H. Wilson of Calif.
H.R. 3408-Fish
the end of the 91st Congress.
H.R. 3832-Mazzoli
In the 92d Congress, the Committee on Foreign Affairs, again
H.R. 4725-Sandman
unanimously, reported House Joint Resolution 1 to the House. It was
H.R. 4858-Ruppe
passed unanimously in the House by a voice vote under a suspension
H.R. 4966-Meeds
H.R. 5455-Zwach
of the rules. The Senate, however, passed its own version of a war
H.R. 5594-Esch
powers measure, and because of a parliamentary snarl which devel-
To make rules governing the use of the Armed Forces of the United States
oped, it became necessary for the House to act once again. The Senate
in the absence of a declaration of war by the Congress of the United States
bill was amended with the language of House Joint Resolution 1 in
or of a military attack upon the United States.
H.R. 3046-Dennis et al.
the House-by. a vote of 344 to 13-and sent to conference. The con-
H.R. 4295-Rousselot
ferees met once near the end of the 92d Congress but could come to
H.R. 6318-Dennis et al.
no agreement and the war powers resolution died once again,
Testifying were seven Members of the House, two Senators, a spokes-
man for the Department of State, and five private experts. Four
ACTION IN THE 93D CONGRESS
markup sessions followed at which new language was drafted. A re-
Upon the opening of the 93d Congress the chairman of the Sub-
vised war powers resolution was ordered reported to the full commit-
committee on National Security Policy and Scientific Developments,
tee by a vote of 9 to 1 on May 2. The following day the measure, House
and 11 cosponsors, introduced a new war powers resolution (House
Joint Resolution 542, was introduced by the subcommittee chairman
Joint Resolution 2), somewhat modified from those of prior years.
with 14 cosponsors, including Mr. Fountain, Mr. Fraser, Mr. Bing-
Six days of hearings were held by the subcommittee on that reso-
ham, Mr. Fascell, Mr. Davis of Georgia, Mr. Charles Wilson of Texas,
lution and other war powers measures which had been referred to
Mr. Findley, Mr. du Pont, Mr. Biester, Mr. Nix, Mr. Broomfield, Mr.
the Committee on Foreign Affairs. Among those proposals were:
Pepper, Mr. Hays, and Mr. Holifield. The committee considered the
bill in markup on May 22, May 31, and June 7. The resolution was
Concerning the war powers of the Congress and the President.
reported with amendments on the latter date by a vote of 31 to 4, with
H.J. Res. 96-Pepper
H.R. 2058-Matsunaga
one member answering "present."
H.R. 4378-Gude
H.J. Res. 408-du Pont
CONSTITUTIONAL CONTEXT
Governing the use of the Armed Forces of the United States in the absence
of a declaration of war by the Congress,
The Cambodian incursion of May 1970 provided the initial im-
H.R. 317-Bingham
petus for a number of bills and resolutions on the war powers.
H.R. 4038-Nix
H.R. 5669-Bingham
Many Members of Congress, including those who supported the action,
H.R. 6424-Bingham et al.
were disturbed by the lack of prior consultation with Congress and
5
4
the near crisis in relations between the executive and legislative
The objective, throughout the consideration of war powers legisla-
tion, was to outline arrangements which would allow the President and
branches which the incident occasioned.
The issue concerns the "twilight zone" of concurrent authority
Congress to work together in mutual respect and maximum harmony
which the Founding Fathers gave the Congress and the President
toward their ultimate, shared goal of maintaining the peace and
security of the Nation.
over the war powers of the National Government.
The term "war powers" may be taken to mean the authority in-
herent in national sovereignties to declare, conduct, and conclude
THE INTENT AND EFFECT OF HOUSE JOINT RESOLUTION 542
armed hostilities with other states. In the U.S. Constitution the war
The issue of the war powers is a complex and challenging one. The
powers which are expressly reserved to the Congress are found in
committee's objective was to reaffirm the constitutionally given author-
article 1, section 8, of the Constitution:
ity of Congress to declare war. At the same time, the committee was
1. The Congress shall have power
sensitive to and cognizant of the President's right to defend the Nation
against attack, without prior congressional authorization, in extreme
circumstances such as a nuclear missile attack or direct invasion. On
11. To declare war, grant letters of marque and reprisal,
the basis of the deepened understanding generated over recent years,
and make rules concerning captures on land and water;
12. To raise and support armies, but no appropriation of
however, it became increasingly evident that the problem did not
center on such extraordinary circumstances. Rather, the main difficulty
money to that use shall be for a longer term than 2 years;
involved the commitment of U.S. military forces exclusively by the
13. To provide and maintain a Navy;
President (purportedly under his authority as Commander in Chief)
14. To make rules for the government and regulation of
without congressional approval or adequate consultation with the
the land and naval forces;
Congress.
15. To provide for calling forth the militia to execute the
As a result of extensive hearings and the contributions made by
laws of the Union, suppress insurrections and repel invasions;
many members of the House who have given thought to, and sponsored
16. To provide for organizing, arming, and disciplining
legislation on, war powers, it was possible to arrive at a consensus as
the militia and for governing such part of them as may be
to what legislation in this important area should encompass. House
employed in the service of the United States;
Joint Resolution 542 embodies that consensus. Briefly, the legislation
*
*
does the following:
18. To make all laws which shall be necessary and proper
1. Directs the President in every possible instance to consult
for carrying into execution the foregoing powers vested by
with the leadership and appropriate committees of Congress be-
this constitution in the Government of the United States,
fore, and regularly during, the commitment of United States
or in any department or officer thereof.
Armed Forces to hostilities or situations where hostilities may be
imminent;
The war powers of the President are expressed in article II,
2. Requires that the President make a formal report to Con-
section 2:
gress whenever, without a declaration of war or other prior specific
The President shall be Commander in Chief of the Army
congressional authorization, he takes significant action committing
and Navy of the United States, and of the militia of the
U.S. Armed Forces to hostilities abroad or the risk thereof, or
several States, when called into the actual service of the
places or substantially increases U.S. combat forces on foreign
United States *
territory;
The interpretation and application of these constitutional grants
3. Provides for a specific procedure of consideration by Con-
have varied widely through our Nation's history. Testimony received
gress when a Presidential report is submitted;
during hearings held in the 91st, 92d, and 93d Congresses confirmed
4. Denies to the President the authority to commit U.S. Armed
the view of many Members of Congress and outside observers that the
Forces for more than 120 days without specific congressional
constitutional "balance" of authority over warmaking has swung
approval, while also allowing the Congress to order the President
heavily to the President in modern times. To restore the balance pro-
to disengage from combat operations at any time before the 120-
vided for and mandated in the Constitution, Congress must now
day period ends through passage of a concurrent resolution.
reassert its own prerogatives and responsibilities.
5. Stipulates a specific congressional priority procedure for
In shaping legislation to that purpose, the intention was not to re-
consideration of any relevant bill or resolution which may be
flect criticism on activities of Presidents, past or present, or to take
introduced-in other words, an antifilibuster provision; and
punitive action. Rather, the focus of concern was the appropriate
6. Specifies that the measure is in no way intended to alter the
scope and substance of congressional and Presidential authority in
constitutional authority of the Congress or the President, or the
the exercise of the power of war in order that the Congress might ful-
provisions of existing treaties.
fill its responsibilities under the Constitution while permitting the
President to exercise his responsibilities.
6
7
COST ESTIMATE
and opinions and, in appropriate cireumstances, their approval of
Pursuant to clause 7, Rule XIII, of the House Rules, the commit-
action contemplated. Furthermore, for consultation to be meaningful,
tee believes that the adoption and implementation of this war powers
the President himself must participate and all information relevant to
resolution will result in little or no additional cost to the Government
the situation must be made available.
of the United States. If adopted, however, application of the legisla-
In the context of this and following sections of the resolution, a
tion could result in substantial future savings to the Nation, both in
commitment of armed forces commences when the President makes
blood and treasure, by preventing U.S. military combat involvements
the final decision to act and issues orders putting that decision into
abroad which are found by Congress to be not in the national interest.
effect.
The word hostilities was substituted for the phrase armed conflict
SECTION-BY-SECTION ANALYSIS
during the subcommittee drafting process because it was considered
to be somewhat broader in scope. In addition to a situation in which
Section 1. Short title and introductory clause
fighting actually has begun, hostilities also encompasses a state of con-
The introductory clause simply reads: "Concerning the war powers
frontation in which no shots have been fired but where there is a clear
of Congress and the President." Sec. 1, the "Short Title," reads:
and present danger of armed conflict. "Imminent hostilities" denotes
"This measure may be cited as the 'War Powers Resolution of 1973'."
a situation in which there is a clear potential either for such a state of
The word "concerning" was chosen because the resolution is merely
confrontation or for actual armed conflict.
intended to elaborate upon the application of the warmaking powers
Section 3. Reporting
of the Congress and the President mentioned in the Constitution. By
This section contains a reporting requirement obligating the Presi-
contrast with other war powers proposals, House Joint Resolution 542
dent to submit a written report to Congress when "without a prior
does not attempt any itemized definition of the war powers.
declaration of war by Congress", he takes certain actions committing
Section 2. Consultation
U.S. Armed Forces. The section stipulates the circumstances
This section directs that the President "in every possible instance
requiring such a report, prescribes its form, specifies the nature of its
shall consult with the leadership and appropriate committees of the
contents, and states the timing of its submission. A central purpose of
Congress before committing United States Armed Forces to hostilities
the reporting requirement is to cause the President, in the process of
or to situations where hostilities may be imminent.
decisionmaking, to take into account the legal and constitutional
The use of the word "every" reflects the committee's belief that
foundation for his actions, as well as the constitutional role of the
such consultation prior to the commitment of armed forces should be
Congress in warmaking.
inclusive. In other words, it should apply in extraordinary and emer-
Three sets of circumstances which would require a report are
gency circumstances-even when it is not possible to get formal con-
enumerated in the resolution as follows:
gressional approval in the form of a declaration of war or other spe-
(1) When the President "commits United States Armed Forces
cific authorization.
to hostilities outside the territory of the United States, its posses-
At the same time, through use of the word "possible" it recog-
sions and territories." This includes all commitments of U.S.
nizes that a situation may be SO dire, e.g. hostile missile attack under-
Armed Forces abroad to situations in which hostilities already
way, and require such instantaneous action that no prior consultation
have begun and where there is reasonable expectation that Ameri-
will be possible. It is therefore simultaneously firm in its expression
can military personnel will be subject to hostile fire.
of Congressional authority yet flexible in recognizing the possible need
The language makes clear that the subsection applies to hostili-
for swift action by the President which would not allow him time to
ties outside the territory of the United States, as opposed to at-
consult first with Congress.
tacks directly upon, or within, the territory of the United States.
The second element of section 2 relates to situations after a commit-
This language implicitly recognizes the President's right to pro-
ment of forces has been made (with or without prior consultation). In
tect the United States against attacks by all enemies, foreign and
that instance, it imposes upon the President, through use of the word
domestic. There is no implication whatsoever that the resolution is
"shall", the obligation to "consult regularly with such Members and
intended to impair the President's authority to provide such
committees until such United States Armed Forces are no longer en-
defense.
gaged in hostilities or have been removed from areas where hostilities
(2) Reporting is required when the President "commits United
may be imminent."
States Armed Forces equipped for combat to the territory, air-
A considerable amount of attention was given to the definition of
space or waters of a foreign nation, except for deployments which
consultation. Rejected was the notion that consultation should be
relate solely to supply, replacement, repair or training of United
synonymous with merely being informed. Rather, consultation in this
States Armed Forces". While subsection (1) refers to the com-
provision means that a decision is pending on a problem and that
mitment of U.S. troops to an area where armed conflict actually
Members of Congress are being asked by the President for their advice
is in progress, subsection (2) covers the initial commitment of
troops in situations in which there is no actual fighting but some
8
9
risk, however small, of the forces being involved in hostilities. A
It is the belief of the committee that a report which fulfills the cri-
report would be required any time combat military forces were
sent to another nation to alter or preserve the existing political
teria set forth above will provide the Congress with adequate informa-
tion on which to base its deliberations and possible action concerning
status quo or to make the U.S. presence felt. Thus, for example,
the commitment of U.S. Armed Forces by the President.
the dispatch of Marines to Thailand in 1962 and the quarantine of
Cuba in the same year would have required Presidential reports.
Section 4. Congressional action
Reports would not be required for routine port supply calls, emer-
Section 4 has four basic purposes: first, to provide for a specific
gency aid measures, normal training exercises, and other noncom-
procedure of consideration by Congress when a report is submitted
bat military activities.
pursuant to section 3; second, to provide for the receiving of a report
(3) Reporting is required when the President "substantially
when Congress is not in session; third, to deny the President the au-
enlarges United States Armed Forces equipped for combat al-
thority to commit U.S. Armed Forces for more than 120 days without
ready located in a foreign nation." While the word "substantially"
further specific congressional approval; fourth, to authorize both
designates a flexible criterion, it is possible to arrive at a common-
Houses of Congress to order the President to disengage any forces
sense understanding of the numbers involved. A 100-percent in-
from hostilities outside the United States at any time during or after
crease in numbers of Marine guards at an embassy-say from 5 to
the 120-day period through passage of a concurrent resolution.
10-clearly would not be an occasion for a report. A thousand
Subsection (a) of section 4 provides that each report submitted by
additional men sent to Europe under present circumstances does
the President pursuant to section 3 shall be transmitted to the Speaker
not significantly enlarge the total U.S. troop strength of about
of the House and President pro tempore of the Senate on the same day.
300,000 already there. However, the dispatch of 1,000 men to
It further provides that if such a report is received when Con-
Guantanamo Bay, Cuba, which now has a complement of 4,000
gress is not in session the Speaker and President pro tempore, if they
would mean an increase of 25 percent, which is substantial. Under
deem it advisable, shall jointly request the President to convene Con-
this circumstance, President Kennedy would have been required
gress: to provide for consideration of it and allow the Congress to
to report to Congress in 1962 when he raised the number of U.S.
take appropriate action pursuant to this section. There are three rea-
military advisers in Vietnam from 700 to 16,000.
sons for this language:
The latter half of section 3 deals with the timing, form, and scope
By use of the phrase 66* * if they deem it advisable **9 it is in-
of the report submitted by the President.
tended that the good judgment of these two officials would determine
(1) Timing.-Although prior war powers legislation had used the
whether the report covered a situation of sufficient urgency, im-
word "promptly" in designating the time period in which a Presiden-
portance and severity to warrant the extraordinary measure of order-
tial report had to be submitted following an action specified under the
ing the reconvening of Congress. There may be instances when a report
resolution, the committee saw the need for more precision and adopted
is filed on a relatively minor action.
72 hours as the time limit. This period is assumed to be sufficient for
The language 66* * * shall jointly request" makes clear that both
the President to assemble all the pertinent information necessary to
the Speaker and President pro tempore would have to concur in the
make a full report to the Congress.
importance of and urgency of the situation covered in the report and
(2) Form.-The report by the President is stipulated to be in writ-
in the desirability of asking the President to reconvene Congress.
ing. Moreover, to the maximum extent possible, it is to be unclassified.
Yet, through use of the word "shall" the committee intended to con-
If the President desires to make classified information available to the
vey its strong belief that reports dealing with situations of urgency
Congress as additional justification for his actions, he is free to do so.
and importance would obligate these two officials to request the Presi-
The procedure of submitting the report to the Speaker of the House
dent to reconvene Congress. In this connection the committee recog-
and the President pro tempore of the Senate is a normal one for re-
nizes that the Constitution states clearly that only the President
ceiving such reports on behalf of Congress.
"may" reconvene Congress.
(3) Scope.-Five stipulations are made on the contents of the
The language * that it may consider the report and take appro-
report. By prescriptive language in the resolution, the President is
priate action * *" refers to the congressional action and procedures
to include:
outlined in section 4 (b) and (c) as well as sections 5 and 6, "Congres-
(A) the circumstances necessitating his action;
sional Priority Procedure."
(B) the constitutional and legislative provisions under the au-
The resolution further stipulates that following receipt of the re-
thority of which he took such action;
port the Speaker and President pro tempore shall refer "it to the
(C) the estimated scope of activities;
Committee on Foreign Affairs of the House of Representatives and to
(D) the estimated financial cost of such commitment or such
the ,Senate Foreign Relations Committee.
*
*
*"
The purpose of this
enlargement of forces; and
language was to make clear that these two committees have proper
(E) such other information as the President may deem useful
jurisdiction over declarations of war and with foreign affairs gen-
to the Congress in the fulfillment of its constitutional responsibili-
erally. Further, in order to make the report available to all members
ties with respect to committing the Nation to war and to the use
of Congress the resolution stipulates that it "be printed as a docu-
of United States Armed Forces abroad.
ment for each House."
H. Rept. 287, 93-1-2
11
10
Subsection (b) of the resolution is one of its major provisions. In
of the committee was simply that the President shall stop the
brief, it stipulates that "within one hundred and twenty calendar *" days
action to which he has committed the forces by releasing the
after a report is submitted or is required to be submitted * * the
forces from the order which committed them, and removing them
President would be required to terminate the commitment referred to
from the situation.
in the report and "remove any enlargement of U.S. Armed Forces"
The language 66% * * if the Congress so directs by concurrent
unless the Congress enacts a declaration of war or a specific authoriza-
resolution" is the heart of subsection (c). It authorizes the use of
tion for the use of U.S. Armed Forces. Considerations which entered
a concurrent resolution to "veto" or disapprove an action of the
President committing United States Armed Forces to hostilities.
into this provision are as follows:
The language 66* * * * within one hundred and twenty calendar
In effect, the joint resolution "endows" this concurrent resolution
days * * *99 was used as a means of providing an adequate but
with the binding force of statute. Since the language applies to a
fixed limitation on the period of the Presidential action. The
situation where there is no congressional authorization for the
Congress recognizes that the President has, from time to time,
President's action it thereby avoids the possibility of a Presi-
assumed a power to act from provision of treaties, laws, and
dential veto-and resulting impasse-which would be possible on
resolutions as well as from the Constitution itself which do not
a bill or a joint resolution. A discussion of the use of a concurrent
constitute an explicit or specific authorization. This provision
resolution for this purpose may be found on pages 13-14.
enables Congress to consider the necessity or wisdom of a Presi-
Sections 5 and 6. Congressional priority procedure
dent's action and to require the President to abandon such action
Sections 5 and 6 stipulate a specific congressional priority proce-
if Congress is not persuaded that the action is in the interest of
dure for consideration of a relevant bill or joint resolution which may
the United States, or to endorse the action if Congress believes
it to be in the national interest. As is made clear in section 8 of
be introduced pursuant to section 4(b) or a concurrent resolution
introduced pursuant to section 4(c). Sections 5 and 6 are, in other
the resolution, this provision is not to be construed as a grant of
authority to the President to act for 120 days. Rather, it should
words, the "antifilibuster" provisions of the resolution. While it was
recognized that filibusters are primarily a problem of the Senate, it
be considered a specific time limitation upon any power to act
was felt that these provisions would protect the interests of the House.
assumed by the President from sources other than a specific
It would achieve that objective, for example, by allowing the House
authorization by Congress.
Nor should this limitation and the power contained in subsec-
enough time to deal with any relevant bill or resolution sent by the
Senate. Section 5 relates to section 4(b) and section 6 relates to sec-
tion (c) be interpreted as limiting the means now available to
Congress and citizens to challenge the authority of the President
tion 4(c). In both cases, the language provides for referral to relevant
bills or resolutions to the House Committee on Foreign Affairs and
to act.
the Senate Foreign Relations Committee in accord with the tradi-
The language "*** or is required to be submitted *99 takes
into account a situation in which the President for whatever
tional jurisdiction of those committees.
The intent of the committee in including sections 5 and 6 is to
reason may decide not to submit a report. In that case, the 120-
establish the status of relevant legislation as "privileged motions,"
day period would begin after the 72-hour period referred to in
approximate to the procedure followed when a discharge petition is
section 3.
filed for the consideration of a resolution.
The language 66* * * the President shall terminate any com-
mitment * * *99 obligates the President explicitly to stop the com-
TIMING OF SECTION 5
mitment or enlargement and remove U.S. Armed Forces to which
the report refers.
As prescribed in section 5 which relates to section 4(b), the tim-
The phrase 66* * * unless the Congress enacts a declaration of
ing of congressional procedures would be as follows:
war or a specific authorization for the use of United States
Forty-five days before end of 120-day period.-Bill or joint
Armed Forces" spells out either of the two specific affirmative
resolution must be introduced to be guaranteed protection of
actions which the Congress would have to take in order for the
committee consideration.
President to continue his action, namely, a declaration of war or
Thirty days before end of 120-day period.-One such resolu-
a specific authorization in the form of a joint resolution.
tion or bill must be reported out by committee.
Subsection (c) is another of the resolution's major provisions. It
Within 3 legislative days of being reported by committee.-
provides for the termination of the President's action covered in the
Legislation becomes pending business of either House and shall
réport through passage of a concurrent resolution by both Houses,
be voted on and sent to the other body.
before the end of the 120-day period referred to in section 4(b) and
Fifteen days before end of 120-day period.-Legislation acted
notwithstanding section 4(b). It is, in other words, an option of con-
upon by one body and sent to the other body and referred to
gressional action. Considerations which entered into the legislative
appropriate committee shall be reported out.
language here are as follows:
Within 3 legislative days of being reported by committee in
The phrase "shall be disengaged" has as its antecedent the
other body.-Legislation SO reported shall become pending busi-
President's action of committing U.S. Armed Forces. The intent
12
13
ness and shall be voted on unless such body shall otherwise deter-
ance of the proposition that Executive action alone can satisfy the
mine by yeas and nays.
constitutional process requirement contained in the provisions of mu-
End of 120-day period.-Presidential action must stop unless
tual security treaties to which the United States is a party."
previously sanctioned by Congress.
This statement is aimed at rejecting those interpretations of the
treaty obligations of the United States which hold that mutual secu-
TIMING OF SECTION 6
rity treaties such as NATO, SEATO, and ANZUS are "self-execut-
ing" and do not require congressional sanction of any kind for Presi-
The timing for congressional consideration under section 6, which
dential actions taken in pursuit of such obligations, including actions
relates to section (c) is as follows:
which involve the deployment of U.S. Armed Forces into hostilities.
Within 15 calendar days of introduction of concurrent resolu-
The intent of subsection (c) is to emphasize that this resolution
tion.-One such resolution shall be reported out by committee
does not grant the President any new authority and, in connection
with recommendations and shall become pending business.
with the 120-day period referred to in section 4(b), that the President
Within 3 legislative days of being reported out.-Shall be voted
would not have any freedom of action during the 120-day period
on unless otherwise determined by yeas and nays.
which he does not already have.
Within 15 calendar days of concurrent resolution passed by one
Section 9. Applicability to certain existing commitments
House and referred to other body's appropriate committee.-
Shall be reported out by committee and become pending business.
This section provides that the resolution would apply to those com-
Within 3 legislative days of being reported out by committee.-
mitments of U.S. Armed Forces to hostilities which are in progress
Shall be voted on unless otherwise determined by yeas and nays.
on the date of its enactment into law. The section further provides
that upon enactment of the resolution the President should proceed
,Section.,7. Termination of Congress
to file the report as required by section 3 and that the 120-day period
Section 7 deals with a situation in which a Congress terminates
called for by subsection 4(b) would begin on the date of the filing of
during the 120-day period specified in subsection 4(b) without having
the report.
taken final action to approve or disapprove a commitment of armed
Section 10. Effective date
forces.
The committee did not wish to force the President to cease a mili-
This section states that the resolution, except to the extent otherwise
tary action abroad simply because Congress was not in session at the
provided in section 9, shall take effect on the date of its enactment.
expiration of 120 days and it had not been possible to take final action
USE OF A CONCURRENT RESOLUTION
before adjournment.
Thus, section 7 provides that in such a case the 120-day period shall
Section 4(c) provides that an action by the President committing
not expire sooner than 48 days after the convening of the next succeed-
U.S. troops to hostilities or into areas or situations where hostilities
ing Congress, providing that a resolution or bill is introduced pursuant
are imminent could be terminated by both Houses of Congress acting
to subsection 4(b) within 3 days of the convening of the next suc-
through a concurrent resolution. Some question has been raised about
ceeding Congress. This language is meant to insure that in any case
the constitutionality of the use of a concurrent resolution for this pur-
in which the 120-day period is interrupted by statutory termination of
pose. After careful study of the issues involved the committee believes
Congress without congressional action, there would be an extension of
that there is ample precedent for the use of the concurrent resolution
the period. It also would allow the antifilibuster provisions to come
to "veto" or disapprove a future action of the President, which action
into effect.
was previously authorized by a joint resolution or bill.
Section 8. Interpretation of act
There are many examples of legislative actions which have the effect
Section 8 deals with the construction, intent, and effect of the resolu-
of law without a Presidential signature. Perhaps the most notable is
tion.
the ability of Congress to veto executive branch reorganization plans
The intent of subsection (a) is to disclaim any intention of alter-
under the Executive Reorganization Act. Other examples are amend-
ing the constitutional grants of war powers to the legislative and
ments to the Constitution of the United States and orders to spend
executive branches. It thereby helps insure the constitutionality of
money appropriated to the use of the Congress.
the resolution by making it clear that nothing in it can be interpreted
Further, most of the important legislation enacted for the prose-
as changing in any way the powers delegated to each branch of govern-
cution of World War II provided that the powers granted to the Pres-
ment by the Constitution. In addition, it reassures U.S. allies that
ident would come to an end upon adoption of concurrent resolutions
passage of the resolution will not affect U.S. obligations under mutual
to that purpose. Among those acts were:
defense agreements and other treaties to which the United States is
The Lend-Lease Act;
First War Powers Act;
a party.
The intent of subsection (b) is to state explicitly that nothing in
Emergency Price Control Act;
the resolution "shall be construed to represent congressional accept-
Stabilization Act of 1942;
War Labor Disputes Act.
14
In more recent times both the Middle East Resolution and the Gulf
of Tonkin Resolution provided for their repeal by concurrent resolu-
tion.
This use of a concurrent resolution has been accepted by various
authorities as a constitutionally valid practice. It might be noted that
Senator Sam J. Ervin, a noted constitutional scholar, has authored a
SUPPLEMENTAL VIEWS OF REPRESENTATIVES MAILLIARD, BROOMFIELD,
bill which would permit international executive agreements to be
MATHIAS, GUYER, AND VANDER JAGT
"vetoed" by the Congress through passage of a concurrent resolution.
This proposal has been endorsed by many constitutional experts and a
We voted in committee to report this resolution because we strongly
former Supreme Court justice.
support the reporting and consulting provisions of the legislation, al-
The constitutional validity of such usage of a concurrent resolution
though we have equally strong reservations over the operating pro-
is based on the capacity of Congress to limit or to terminate the author-
visions. In our opinion the House should have the opportunity to de-
ity it delegates to the Executive. In the case of the war powers, the
bate the resolution.
Constitution is clear that the power to declare war, as well as the power
It is our hope that as the House works its will, the Members will
to raise and maintain an army and a navy, belong to Congress. Under
carefully scrutinize section 4 (b) and (c). In our opinion, section 4(b)
the Constitution, the President is designated as the Commander in
is dangerous and perhaps unconstitutional. It would unwisely put into
Chief to prosecute wars authorized by Congress.
law a provision whereby the failure of the Congress to act could force
When the President commits U.S. Armed Forces to hostilities
Presidential action with major national and international implica-
abroad on his own responsibility, he has, in effect, assumed congres-
tions. Specifically, section 4(b) requires that within 120 calendar days
sional authority. Under this war powers resolution the Congress can
after a report is submitted or required to be submitted pursuant to
rescind that authority as it sees fit by a concurrent resolution and
section 3, the President shall terminate any commitment and remove
thereby avoid the problem of a Presidential veto. The authority for
any enlargement of U.S. Armed Forces with respect to which such
the Congress to establish a legislative process for rescinding an assumed
report was submitted, unless the Congress enacts a declaration of war
power to act on the part of the President can be found in Article 1,
or a specific authorization for the use of U.S. Armed Forces. In our
clause. Section 8, of the Constitution through the "necessary and proper"
opinion, the Congress ought to exercise its powers in a positive way
and not have major consequences ensue from the inaction of the
This authority of Congress was recognized as legitimate when Con-
Congress.
gress passed legislation permitting the President to prosecute World
There are several objections to terminating the President's authority
War II. This authority of Congress was recognized as legitimate in
in this manner. Recognizing that the war powers are shared by the
the passage of the Middle East Resolution and the Gulf of Tonkin
President and the Congress, the President-to cite one example-ob-
Resolution. It is no less legitimate and constitutional today as em-
viously has the authority to commit U.S. Armed Forces stationed
bodied in this war powers resolution.
overseas to hostilities in order that they might protect themselves from
attack or threat of imminent attack. We doubt that the Congress can
consitutionally terminate the President's authority to protect the
Armed Forces. We further doubt that the Congress can constitution-
ally terminate the President's authority by a failure to act, as pro-
vided for by section 4(b).
This section appears to be as unwise as it may be unconstitutional.
Section 4(b) could require the disengagement of our Armed Forces
even in the face of a continuing attack. It could destroy an adversary's
incentive to reach an early settlement of a dispute, since he surely
would hope that the Congress-by failure to act or otherwise-would
compel the President to disengage U.S. Armed Forces.
We should also consider the constitutionality of section 4(c), which
would permit the Congress by a concurrent resolution to require the
President to disengage U.S. Armed Forces from hostilities. We have
no problem with the policy envisioned in section 4(c) ; namely that in
exercising a shared constitutional power a majority of both Houses
(15)
16
of Congress should have the power to require the disengagement of
Armed Forces committed to hostilities by the President without con-
gressional approval.
We would, however, call attention to the constitutional question of
whether a concurrent resolution, not requiring the approval of the
President, would be binding upon the President.
WILLIAM S. MAILLIARD,
SUPPLEMENTAL VIEWS OF REPRESENTATIVES BUCHANAN AND WHALEN
WILLIAM S. BROOMFIELD,
ROBERT B. (BoB) MATHIAS,
We concur that there is great need for war powers legislation. Con-
TENNYSON GUYER,
gress must possess the means by which it can act on the question of
Guy VANDER JAGT.
placing U.S. Armed Forces in combat. House Joint Resolution 542
goes a long way toward providing such a mechanism.
Nevertheless, the language in section 4(b) troubles us. It permits
the exercise of congressional will through inaction. It is our opinion
that in order to fulfill its constitutional responsibility, Congress must
act, whether it be in a positive or negative manner.
Therefore, during the committee's markup of the resolution, we
supported replacing the committee's language in section 4(b) with an
amendment similar to the following:
Not later than one hundred twenty days after the receipt of
the report of the President provided for in section 3 of this
Act, the Congress, by a declaration of war or by the enact-
ment within such period of a bill or resolution appropriate
to the purpose, shall either approve, ratify, confirm, and au-
thorize the continuation of the action taken by the President
and reported to the Congress, or shall disapprove, in which
case the President shall terminate any commitment and re-
move any enlargements of the United States Armed Forces
with respect to which such report was submitted.
We shall offer this amendment during floor debate on House Joint
Resolution 542. On an issue which may involve the death of thousands
of Americans, we cannot delude ourselves that no action at all is an
appropriate response. Rather, each Member of Congress should de-
clare his views-through a "yes" or "no" vote-when the President
commits our Armed Forces to combat or substantially enlarges our
military presence abroad. Passage of our amendment will afford this
opportunity.
JOHN BUCHANAN,
CHARLES W. WHALEN, Jr.
(17)
19
Section 2, and most of section 3, seek to insure reasonable consulta-
tion with Congress, by requiring submission of reports to Congress by
the President whenever he commits the U.S. forces to hostilities or
potentially hostile situations, or when he enlarges our combat forces
already located in foreign nations. Essentially the same provisions
MINORITY VIEWS OF REPRESENTATIVES FRELINGHUYSEN, DERWINSKI,
have been enacted previously by the House of Representatives in two
THOMPSON, AND BURKE
preceding Congresses. Section 4(a), which seeks to insure prompt
action by Congress on such reports, also is the same language as that
We are opposed to the enactment of House Joint Resolution 542. Its
already twice approved by the House. We consider these requirements
most important provisions are probably unconstitutional and certainly
to be entirely appropriate.
are unwise. We strongly doubt the wisdom of attempting to draw rigid
We have reservations, however, about the wisdom of the inclusion
lines between the President and Congress in the area of warmaking
of section 3(d), language which was not contained in the resolutions
powers. Ironically, enactment of this resolution in some respects would
previously approved by the House. Section 3(d) requires that the
expand considerably the constitutional authority of the President, and
President communicate to Congress the estimated financial cost of any
in other respects would severely restrict his authority. In our opinion,
commitment of U.S. forces outside the United States. What point
the only appropriate way to make such far-reaching changes would
would there be in requiring the President to announce at the outset of
be by an amendment to the Constitution.
a national security emergency his judgment as to the cost of com-
While we are in accord with the understandable desire of Members
mitting of our forces? It may be argued that Congress needs a specific
to assure Congress its proper role in national decisions of war and
estimate of costs in order to help us make up our minds about whether
peace, we consider the severe restrictions which this resolution seeks to
or not to support the President. In our opinion, that information
impose on the authority of the President to be dangerous. Should they
would be of no particular value to Congress but might be extremely
become effective, they could affect adverşely important national se-
revealing to an enemy. We believe that Congress would receive ade-
curity interests of the United States.
quate information under the requirements of the other subsections of
Flexibility-not the exact delimitation of powers-is a basic char-
section 3, and that the advantages to be gained by hostile powers
acteristic of the Constitution. The framers of the Constitution clearly
through the required financial disclosure would far outweigh any
had that aim in mind when they refrained from closely defining the
incremental benefit to Congress.
responsibilities of the executive and legislative branches in the areas of
Section 4 (b) and (c) are at the heart of our objections to the resolu-
warmaking powers. Moreover, throughout our history, Presidents have
tions. Section (b) provides that the President at the end of 120 days,
employed the power which that flexibility has allowed them to en-
without regard even to the immediate safety of our armed forces,
courage peaceful resolutions of potentially dangerous situations.
must terminate any involvement of U.S. forces in hostilites outside
What is most ironic is that this joint resolution, constructed as it is
the United States, and withdraw newly dispatched combat forces
with an eye to our unfortunate experiences during the mid-1960's,
from the area of any foreign country (except for supply, replace-
would not have prevented our steadily deepening involvement in Viet-
ment, repair or training deployments), unless the Congress by that
nam, had it been on the books 10 years ago. For example, there is no
time has enacted a declaration of war or "specifically" authorized the
reason to believe that Congress after the Gulf of Tonkin incident
use of our Armed Forces.
would have refused to approve Presidential action through the mech-
This effort to limit the President's power-by the failure of Con-
anism provided in this measure. Congress at the time would have de-
gress to take affirmative action-strikes us as highly dangerous. For
clared war, had that been requested, or we would have specifically
example, suppose the President were to commit troops in Europe in
authorized the use of our Armed Forces.
order to defend our own country That he has such power as Com-
House Joint Resolution 542 cannot give Congress foresight or wis-
mander in Chief is not challenged, but the 120-day limitation might
dom, and will not force an uncooperative Executive to be more forth-
make it necessary for him to withdraw troops already fully committed
coming. In fact, it may achieve just the opposite effect. A President
to combat. At best, the limitation could only be construed as an effort
faced with a possible congressional veto of his actions might be
to circumscribe sharply his ability to continue to exercise his power.
tempted to circumvent Congress. He might, for example, appeal di-
To avoid such a reversal of national policy, a President might hur-
rectly to the American people in order to force Congress to support
riedly escalate hostilities, to force Congress to support him, or in an
him. If that were to happen, Congress could be virtually excluded
effort to win the conflict within 120 days-or an enemy might seek to
from the decisionmaking process. Moreover, House Joint Resolution
avoid negotiating a settlement in the belief that the President would
542, which seeks to provide a "trip wire," invoking restrictions on Ex-
soon be forced to withdraw our troops. Thus the 120-day provision
ecutive action, might well encourage a President to be less than candid
might actually promote, rather than deter, our involvement in
when setting forth the circumstances and justifications for his actions.
hostilities.
Following are our views in more detail with respect to each section
Proponents may argue that in such a situation Congress would
of the resolution.
recognize the necessity of declaring war, or of specifically authorizing
the use of troops. As a practical matter, however, Congress does not
(18)
20
always move quickly and a legislative deadlock might develop. More-
over, in our opinion it is highly undesirable for Congress, through its
own inaction, to be able to determine whether a course of Presidential
action should be continued.
The manifold constitutional and national security problems created
by the 120-day provision of section 4 (b) are compounded by section
4(c). This section provides that hostilities and deployments may be
terminated by Congress alone at any time within the 120-day period,
by means of a concurrent resolution having no force of law.
If the Commander in Chief, acting within his constitutional au-
thority, orders our forces to deploy or to engage in hostilities, Con-
gress may affect such action if it wishes, but necessarily must do so
through use of its constitutionally granted powers. By seeking to
provide that a concurrent resolution shall have the force of law, we are
embarking on an extremely dangerous, and probably unconstitutional
course of action.
There may be cases in which Congress has specifically authorized
hostilities or deployments by constitutional means other than a dec-
laration of war. Under Article I, Section 7 of the Constitution, au-
thority granted by any bill, order or resolution may be repealed or
amended only through the same process; once Congress has given its
consent to legislation it may not be withdrawn unilaterally by the
Congress with less than a two-thirds vote.
Section 5 is another example of the difficulty of trying to establish
rigid procedures where, in fact, flexibility is required. During com-
mittee consideration it was clear that the practical effects of the time
requirements were not adequately explored. For example, the question
was raised, if the beginning of the last 45 days of the 120-day period
coincided with the end of a Congress, would be the 15 days for commit-
tee consideration be binding upon the next Congress? A related ques-
tion was whether Congress would be able to organize quickly enough
to meet the deadline. These questions, in our opinion, were not an-
swered satisfactorily.
While sections 7 and 8 are generally helpful, given their context, we
strongly oppose the requirement of section 9 that this resolution be
applied retroactively to cover hostilities existing on the day of its
enactment which were previously authorized and initiated.
The proper and most useful role for Congress to play, in decisions
of war and peace, cannot be developed through confrontation with the
Executive. To function effectively, particularly in times of national
crisis, our system of government must exhibit a maximum amount of
cooperation between the two branches-executive and legislative. In
the past such cooperation has been the means by which we have
achieved successful policy decisions. It is to this end that we should
be striving. House Joint Resolution 542 will not help-indeed, we be-
lieve it will seriously impede-the achievement of this objective.
PETER H. B. FRELINGHUYSEN,
EDWARD J. DERWINSKI,
VERNON W. THOMSON,
J. HERBERT BURKE.
THE WHITE HOUSE
WASHINGTON
May 14, 1975
MEMORANDUM FOR: Philip W. Buchen
FRO M:
Jay T. French
The paper clips mark those sections of the
legislative history which deal with
"consultations".
BERALD ? FORD
LEGISLATIVE HISTORY
P.L. 93-148
B.
of
WAR POWERS RESOLUTION
&
of
P.L. 93-148, see page 614
in
th
House Report (Foreign Affairs Committee) No. 93-287,
for
June 15, 1973 [To accompany H.J.Res. 542]
no
Senate Report (Foreign Relations Committee) No. 93-220,
June 14, 1973 [To accompany S. 440]
House Conference Report No. 93-547, Oct. 4, 1973
8
[To accompany H.J.Res. 542]
a:
Cong. Record Vol. 119 (1973)
J.
It
DATES OF CONSIDERATION AND PASSAGE
th
House July 18, October 12, 1973
Senate July 20, October 10, 1973
The House bill was passed in lieu of the Senate bill. The House
Report and the House Conference Report are set out.
HOUSE REPORT NO. 93-287
HE Committee on Foreign Affairs, to whom was referred the joint
resolution (House Joint Resolution 542) concerning the war powers
of Congress and the President, having considered the same, report fa-
vorably thereon with amendments and recommend that the joint res-
olution as amended do pass.
APPLICABILITY TO CERTAIN EXISTING COMMITMENTS
SEC. 9. All commitments of United States Armed Forces
to hostilities existing on the date of the enactment of this
Act shall be subject to the provisions hereof, and the Presi-
dent shall file the report required by section 3 within seventy-
two hours after the enactment of this Act.
BACKGROUND
On three occasions in the past two sessions of Congress, the House
of Representatives has passed war powers legislation. In the 91st Con-
gress a joint resolution reported by unanimous vote from the Commit-
tee on Foreign Affairs was adopted under suspension of the rules in
the House by a vote of 288 to 39. The House-passed measure was sent
to the Senate where, because of that body's failure to act, it died with
the end of the 91st Congress.
In the 92d Congress, the Committee on Foreign Affairs, again
unanimously, reported House Joint Resolution 1 to the House. It was
2346
WAR POWERS RESOLUTION
P.L. 93-148
passed unanimously in the House by a voice vote under a suspension
of the rules. The Senate, however, passed its own version of a war
powers measure, and because of a parliamentary snarl which devel-
oped, it became necessary for the House to act once again. The Senate
bill was amended with the language of House Joint Resolution 1 in
the House-by a vote of 344 to 13-and sent to conference. The con-
ferees met once near the end of the 92d Congress but could come to
no agreement and the war powers resolution died once again.
ACTION IN THE 93D CONGRESS
Upon the opening of the 93d Congress the chairman of the Sub-
committee on National Security Policy and Scientific Developments,
and 11 cosponsors, introduced a new war powers resolution (House
Joint Resolution 2), somewhat modified from those of prior years.
Six days of hearings were held by the subcommittee on that reso-
lution and other war powers measures which had been referred to
the Committee on Foreign Affairs. Among those proposals were:
Concerning the war powers of the Congress and the President.
H.J. Res. 96-Pepper
H.R. 2053-Matsunaga
H.R. 4378-Gude
H.J. Res. 498-du Pont
Governing the use of the Armed Forces or the United States in the absence
of a declaration of war by the Congress.
H.R. 317-Bingham
H.R. 4038-Nix
H.R. 5669-Bingham
H.R. 6424-Bingham et al.
Relating to the power of Congress to declare war.
H.J. Res. 315-Leggett
Relating to the war power of the Congress.
H.J. Res. 21-Danielson
H.J. Res. 71-Chappell et al.
H.J. Res. 72-Chappell et al.
H.J. Res. 89-Matsunaga
H.J. Res. 250-Dickinson
H.J. Res. 271-Fuqua
H.J. Res. 409-Chappell et al.
H.J. Res. 448-Cronin
Relative to the commitment of U.S. Armed Forces.
H. Res. 112-Rarick
To define the authority of the President of the United States to intervene
abroad or to make war without the express consent of Congress.
H.R. 3722-Sisk
H.R. 4834-Nix
To make rules respecting military hostilities in the absense of a declaration
of war.
H.R. 926-Quie
H.R. 2616-Railsback
H.R. 2740-Tiernan
To make rules governing the use of the Armed Forces of the United States
in the absence of a declaration of war by the Congress.
H.R. 454-Dellenback
H.R. 1454-Ullman
H.R. 3139-Harrington
H.R. 3333-Charles H. Wilson of Calif.
H.R. 3408-Fish
H.R. 3832-Mazzoli
H.R. 4725-Sandman
H.R. 4858-Ruppe
H.R. 4966-Meeds
H.R. 5455-Zwach
H.R. 5594-Esch
2 U.S.Cong. & Adm.News '73-39
2347
LEGISLATIVE HISTORY
P.L. 93-148
To make rules governing the use of the Armed Forces of the United States
in the absence of a declaration of war by the Congress of the United States
or of a military attack upon the United States.
H.R. 3046-Dennis et al.
H.R. 4295-Rousselot
H.R. 6318-Dennis et al.
Testifying were seven Members of the House, two Senators, a spokes-
man for the Department of State, and five private experts. Four
markup sessions followed at which new language was drafted. A re-
vised war powers resolution was ordered reported to the full commit-
tee by a vote of 9 to 1 on May 2. The following day the measure, House
Joint Resolution 542, was introduced by the subcommittee chairman
with 14 cosponsors, including Mr. Fountain, Mr. Fraser, Mr. Bing-
ham. Mr. Fascell, Mr. Davis of Georgia, Mr. Charles Wilson of Texas,
Mr. Findley, Mr. du Pont, Mr. Biester, Mr. Nix, Mr. Broomfield, Mr.
Pepper, Mr. Hays, and Mr. Holifield. The committee considered the
bill in markup on May 22, May 31, and June 7. The resolution was
reported with amendments on the latter date by a vote of 31 to 4, with
one member answering "present."
CONSTITUTIONAL CONTEXT
The Cambodian incursion of May 1970 provided the initial im-
petus for a number of bills and resolutions on the war powers.
Many Members of Congress, including those who supported the action,
were disturbed by the lack of prior consultation with Congress and
the near crisis in relations between the executive and legislative
branches which the incident occasioned.
The issue concerns the "twilight zone" of concurrent authority
which the Founding Fathers gave the Congress and the President
over the war powers of the National Government.
The term "war powers" may be taken to mean the authority in-
herent in rational sovereignties to declare, conduct, and conclude
armed hostilities with other states. In the U.S. Constitution the war
powers which are expressly reserved to the Congress are found in
article 1, section 8, of the Constitution:
1. The Congress shall have power * **
*
*
*
*
*
*
*
11. To declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and water;
12. To raise and support armies, but no appropriation of
money to that use shall be for a longer term than 2 years;
13. To provide and maintain a Navy;
14. To make rules for the government and regulation of
the land and naval forces;
15. To provide for calling forth the militia to execute the
laws of the Union, suppress insurrections and repel invasions;
16. To provide for organizing, arming, and disciplining
the militia and for governing such part of them as may be
employed in the service of the United States;
*
*
*
*
*
18. To make all laws which shall be necessary and proper
for carrying into execution the foregoing powers vested by
this constitution in the Government of the United States,
or in any department or officer thereof.
2348
WAR POWERS RESOLUTION
P.L. 93-148
The war powers of the President are expressed in article II,
section 2:
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 * *
r
The interpretation and application of these constitutional grants
t-
have varied widely through our Nation's history. Testimony received
during hearings held in the 91st, 92d, and 93d Congresses confirmed
se
the view of many Members of Congress and outside observers that the
n
constitutional "balance" of authority over warmaking has swung
g-
S,
heavily to the President in modern times. To restore the balance pro-
r.
vided for and mandated in the Constitution, Congress must now
reassert its own prerogatives and responsibilities.
1e
In shaping legislation to that purpose, the intention was not to re-
as
:h
flect criticism on activities of Presidents, past or present, or to take
punitive action. Rather, the focus of concern was the appropriate
scope and substance of congressional and Presidential authority in
the exercise of the power of war in order that the Congress might ful-
fill its responsibilities under the Constitution while permitting the
n-
President to exercise his responsibilities.
S.
The objective, throughout the consideration of war powers legisla-
n,
tion, was to outline arrangements which would allow the President and
id
Congress to work together in mutual respect and maximum harmony
ve
toward their ultimate, shared goal of maintaining the peace and
security of the Nation.
ty
nt
THE INTENT AND EFFECT OF HOUSE JOINT RESOLUTION 542
n-
The issue of the war powers is a complex and challenging one. The
de
committee's objective was to reaffirm the constitutionally given author-
ity of Congress to declare war. At the same time, the committee was
ar
in
sensitive to and cognizant of the President's right to defend the Nation
against attack, without prior congressional authorization, in extreme
circumstances such as a nuclear missile attack or direct invasion. On
the basis of the deepened understanding generated over recent years,
however, it became increasingly evident that the problem did not
center on such extraordinary circumstances. Rather, the main difficulty
involved the commitment of U.S. military forces exclusively by the
President (purportedly under his authority as Commander in Chief)
without congressional approval or adequate consultation with the
Congress.
As a result of extensive hearings and the contributions made by
many members of the House who have given thought to, and sponsored
legislation on, war powers, it was possible to arrive at a consensus as
to what legislation in this important area should encompass. House
Joint Resolution 542 embodies that consensus. Briefly, the legislation
does the following:
1. Directs the President in every possible instance to consult
with the leadership and appropriate committees of Congress be-
fore, and regularly during, the commitment of United States
Armed Forces to hostilities or situations where hostilities may be
imminent;
2349
LEGISLATIVE HISTORY
P.L. 93-148
2. Requires that the President make a formal report to Con-
gress whenever, without a declaration of war or other prior specific
congressional authorization, he takes significant action committing
U.S. Armed Forces to hostilities abroad or the risk thereof, or
places or substantially increases U.S. combat forces on foreign
territory;
3. Provides for a specific procedure of consideration by Con-
gress when a Presidential report is submitted;
4. Denies to the President the authority to commit U.S. Armed
Forces for more than 120 days without specific congressional
approval, while also allowing the Congress to order the President
to disengage from combat operations at any time before the 120-
day period ends through passage of a concurrent resolution.
5. Stipulates a specific congressional priority procedure for
consideration of any relevant bill or resolution which may be
introduced-in other words, an antifilibuster provision; and
6. Specifies that the measure is in no way intended to alter the
constitutional authority of the Congress or the President, or the
provisions of existing treaties.
COST ESTIMATE
Pursuant to clause 7, Rule XIII, of the House Rules, the commit-
tee believes that the adoption and implementation of this war powers
resolution will result in little or no additional cost to the Government
of the United States. If adopted, however, application of the legisla-
tion could result in substantial future savings to the Nation, both in
blood and treasure, by preventing U.S. military combat involvements
abroad which are found by Congress to be not in the national interest.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title and introductory clause
The introductory clause simply reads: "Concerning the war powers
of Congress and the President." Sec. 1, the "Short Title," reads:
"This measure may be cited as the 'War Powers Resolution of 1973'."
The word "concerning" was chosen because the resolution is merely
intended to elaborate upon the application of the warmaking powers
of the Congress and the President mentioned in the Constitution. By
contrast with other war powers proposals, House Joint Resolution 542
does not attempt any itemized definition of the war powers.
Section 2. Consultation
This section directs that the President "in every possible instance
shall consult with the leadership and appropriate committees of the
Congress before committing United States Armed Forces to hostilities
or to situations where hostilities may be imminent. *
**
The use of the word "every" reflects the committee's belief that
such consultation prior to the commitment of armed forces should be
inclusive. In other words, it should apply in extraordinary and emer-
gency circumstances-even when it is not possible to get formal con-
gressional approval in the form of a declaration of war or other spe-
cific authorization.
At the same time, through use of the word "possible" it recog-
nizes that a situation may be so dire, e.g. hostile missile attack under-
2350
WAR POWERS RESOLUTION
P.L. 93-148
way, and require such instantaneous action that no prior consultation
will be possible. It is therefore simultaneously firm in its expression
of Congressional authority yet flexible in recognizing the possible need
for swift action by the President which would not allow him time to
consult first with Congress.
The second element of section 2 relates to situations after a commit-
ment of forces has been made (with or without prior consultation). In
that instance, it imposes upon the President, through use of the word
"shall", the obligation to "consult regularly with such Members and
committees until such United States Armed Forces are no longer en-
gaged in hostilities or have been removed from areas where hostilities
may be imminent."
A considerable amount of attention was given to the definition of
consultation. Rejected was the notion that consultation should be
synonymous with merely being informed. Rather, consultation in this
provision means that a decision is pending on a problem and that
Members of Congress are being asked by the President for their advice
and opinions and, in appropriate circumstances, their approval of
action contemplated. Furthermore, for consultation to be meaningful,
the President himself must participate and all information relevant to
the situation must be made available.
In the context of this and following sections of the resolution, a
commitment of armed forces commences when the President makes
the final decision to act and issues orders putting that decision into
effect.
The word hostilities was substituted for the phrase armed conflict
during the subcommittee drafting process because it was considered
to be somewhat broader in scope. In addition to a situation in which
fighting actually has begun, hostilities also encompasses a state of con-
frontation in which no shots have been fired but where there is a clear
and present danger of armed conflict. "Imminent hostilities" denotes
a situation in which there is a clear potential either for such a. state of
confrontation or for actual armed conflict.
Section 3. Reporting
y
This section contains a reporting requirement obligating the Presi-
is
dent to submit a written report to Congress when "without a prior
declaration of war by Congress", he takes certain actions committing
2
U.S. Armed Forces. The section stipulates the circumstances
requiring such a report, prescribes its form, specifies the nature of its
contents, and states the timing of its submission. A central purpose of
the reporting requirement is to cause the President, in the process of
decisionmaking, to take into account the legal and constitutional
foundation for his actions, as well as the constitutional role of the
Congress in warmaking.
Three sets of circumstances which would require a report are
enumerated in the resolution as follows:
e
(1) When the President "commits United States Armed Forces
to hostilities outside the territory of the United States, its posses-
1-
sions and territories." This includes all commitments of U.S.
Armed Forces abroad to situations in which hostilities already
have begun and where there is reasonable expectation that Ameri-
can military personnel will be subject to hostile fire.
The language makes clear that the subsection applies to hostili-
ties outside the territory of the United States, as opposed to at-
2351
LEGISLATIVE HISTORY
P.L. 93-148
tacks directly upon, or within, the territory of the United States.
This language implicitly recognizes the President's right to pro-
tect the United States against attacks by all enemies, foreign and
domestic. There is no implication whatsoever that the resolution is
intended to impair the President's authority to provide such
defense.
(2) Reporting is required when the President "commits United
States Armed Forces equipped for combat to the territory, air-
space or waters of a foreign nation, except for deployments which
relate solely to supply, replacement, repair or training of United
States Armed Forces". While subsection (1) refers to the com-
mitment of U.S. troops to an area where armed conflict actually
is in progress, subsection (2) covers the initial commitment of
troops in situations in which there is no actual fighting but some
risk, however small, of the forces being involved in hostilities. A
report would be required any time combat military forces were
sent to another nation to alter or preserve the existing political
status quo or to make the U.S. presence felt. Thus, for example,
the dispatch of Marines to Thailand in 1962 and the quarantine of
Cuba in the same year would have required Presidential reports.
Reports would not be required for routine port supply calls, emer-
gency aid measures. normal training exercises, and other noncom-
bat military activities.
(3) Reporting is required when the President "substantially
enlarges United States Armed Forces equipped for combat al-
ready located in a foreign nation." While the word "substantially"
designates a flexible criterion, it is possible to arrive at a common-
sense understanding of the numbers involved. A 100-percent in-
crease in numbers of Marine guards at an embassy-say from 5 to
10-clearly would not be an occasion for a report. A thousand
additional men sent to Europe under present circumstances does
not significantly enlarge the total U.S. troop strength of about
300,000 already there. However, the dispatch of 1,000 men to
Guantanamo Bay, Cuba, which now has a complement of 4,000
would mean an increase of 25 percent, which is substantial. Under
this circumstance, President Kennedy would have been required
to report to Congress in 1962 when he raised the number of U.S.
military advisers in Vietnam from 700 to 16,000.
The latter half of section 3 deals with the timing, form, and scope
of the report submitted by the President.
(1) Timing.-Although prior war powers legislation had used the
word "promptly" in designating the time period in which a Presiden-
tial report had to be submitted following an action specified under the
resolution, the committee saw the need for more precision and adopted
72 hours as the time limit. This period is assumed to be sufficient for
the President to assemble all the pertinent information necessary to
make a full report to the Congress.
(2) Form.-The report by the President is stipulated to be in writ-
ing. Moreover, to the maximum extent possible, it is to be unclassified.
If the President desires to make classified information available to the
Congress as additional justification for his actions, he is free to do so.
The procedure of submitting the report to the Speaker of the House
and the President pro tempore of the Senate is a normal one for re-
ceiving such reports on behalf of Congress.
2352
WAR POWERS RESOLUTION
P.L. 93-148
(3) Scope.-Five stipulations are made on the contents of the
report. By prescriptive language in the resolution, the President is
1
to include:
S
(A) the circumstances necessitating his action;
(B) the constitutional and legislative provisions under the au-
thority of which he took such action;
(C) the estimated scope of activities:
(D) the estimated financial cost of such commitment or such
enlargement of forces; and
d
(E) such other information as the President may deem useful
1-
to the Congress in the fulfillment of its constitutional responsibili-
y
ties with respect to committing the Nation to war and to the use
of
of United States Armed Forces abroad.
1e
It is the belief of the committee that a report which fulfills the cri-
A
teria set forth above will provide the Congress with adequate informa-
e
tion on which to base its deliberations and possible action concerning
al
the commitment of U.S. Armed Forces by the President.
e,
Section 4. Congressional action
of
Section 4 has four basic purposes: first, to provide for a specific
S.
procedure of consideration by Congress when a report is submitted
r-
pursuant to section 3; second, to provide for the receiving of a report
- -
when Congress is not in session; third, to deny the President the au-
ly
thority to commit U.S. Armed Forces for more than 120 days without
il-
further specific congressional approval; fourth, to authorize both
y"
Houses of Congress to order the President to disengage any forces
from hostilities outside the United States at any time during or after
n-
the 120-day period through passage of a concurrent resolution.
n-
Subsection (a) of section 4 provides that each report submitted by
to
ad
the President pursuant to section 3 shall be transmitted to the Speaker
of the House and President pro tempore of the Senate on the same day.
es
ut
It further provides that if such a report is received when Con-
to
gress is not in session the Speaker and President pro tempore, if they
deem it advisable, shall jointly request the President to convene Con-
00
ler
gress to provide for consideration of it and allow the Congress to
ed
take appropriate action pursuant to this section. There are three rea-
.S.
sons for this language:
By use of the phrase 66* * * if they deem it advisable * * "" it is in-
tended that the good judgment of these two officials would determine
pe
whether the report covered a situation of sufficient urgency, im-
the
portance and severity to warrant the extraordinary measure of order-
ing the reconvening of Congress. There may be instances when a report
en-
the
is filed on a relatively minor action.
ted
The language 66* * * shall jointly request" makes clear that both
for
the Speaker and President pro tempore would have to concur in the
importance of and urgency of the situation covered in the report and
to
in the desirability of asking the President to reconvene Congress.
rit-
Yet, through use of the word "shall" the committee intended to con-
ied.
vey its strong belief that reports dealing with situations of urgency
the
and importance would obligate these two officials to request the Presi-
dent to reconvene Congress. In this connection the committee recog-
so.
nizes that the Constitution states clearly that only the President
ouse
"may" reconvene Congress.
re-
The language 66* * * that it may consider the report and take appro-
priate action * * *" refers to the congressional action and procedures
2353
LEGISLATIVE HISTORY
P.L. 93-148
outlined in section 4 (b) and (c) as well as sections 5 and 6, "Congres-
sional Priority Procedure."
The resolution further stipulates that following receipt of the re-
port the Speaker and President pro tempore shall refer "it to the
Committee on Foreign Affairs of the House of Representatives and to
the Senate Foreign Relations Committee. * * *") The purpose of this
language was to make clear that these two committees have proper
jurisdiction over declarations of war and with foreign affairs gen-
erally. Further, in order to make the report available to all members
of Congress the resolution stipulates that it "be printed as a docu-
ment for each House."
Subsection (b) of the resolution is one of its major provisions. In
brief, it stipulates that "within one hundred and twenty calendar days
after a report is submitted or is required to be submitted * * **9 the
President would be required to terminate the commitment referred to
in the report and "remove any enlargement of U.S. Armed Forces"
unless the Congress enacts a declaration of war or a specific authoriza-
tion for the use of U.S. Armed Forces. Considerations which entered
into this provision are as follows:
The language
66*
*
*
*
within one hundred and twenty calendar
days * * *" was used as a means of providing an adequate but
fixed limitation on the period of the Presidential action. The
Congress recognizes that the President has, from time to time,
assumed a power to act from provision of treaties, laws, and
resolutions as well as from the Constitution itself which do not
constitute an explicit or specific authorization. This provision
enables Congress to consider the necessity or wisdom of a Presi-
dent's action and to require the President to abandon such action
if Congress is not persuaded that the action is in the interest of
the United States, or to endorse the action if Congress believes
it to be in the national interest. As is made clear in section 8 of
the resolution, this provision is not to be construed as a grant of
authority to the President to act for 120 days. Rather, it should
be considered a specific time limitation upon any power to act
assumed by the President from sources other than a specific
authorization by Congress.
Nor should this limitation and the power contained in subsec-
tion (c) be interpreted as limiting the means now available to
Congress and citizens to challenge the authority of the President
to act.
The language "* * or is required to be submitted * * *) takes
into account a situation in which the President for whatever
reason may decide not to submit a report. In that case, the 120-
day period would begin after the 72-hour period referred to in
section 3.
The language 66* * * the President shall terminate any com-
mitment * * *" obligates the President explicitly to stop the com-
mitment or enlargement and remove U.S. Armed Forces to which
the report refers.
The phrase 66* * * unless the Congress enacts a declaration of
war or a specific authorization for the use of United States
Armed Forces" spells out either of the two specific affirmative
actions which the Congress would have to take in order for the
President to continue his action, namely, a declaration of war or
a specific authorization in the form of a joint resolution.
2354
WAR POWERS RESOLUTION
P.L. 93-148
Subsection. (c) is another of the resolution's major provisions. It
provides for the termination of the President's action covered in the
report through passage of a concurrent resolution by both Houses,
before the end of the 120-day period referred to in section 4 (b) and
,
notwithstanding section 4(b). It is, in other words, an option of con-
S
gressional action. Considerations which entered into the legislative
language here are as follows:
The phrase "shall be disengaged" has as its antecedent the
3
President's action of committing U.S. Armed Forces. The intent
of the committee was simply that the President shall stop the
action to which he has committed the forces by releasing the
1
forces from the order which committed them, and removing them
s
from the situation.
e
The language 66* * * if the Congress 30 directs by concurrent
o
resolution" is the heart of subsection (c). It authorizes the use of
"
a concurrent resolution to "veto" or disapprove an action of the
:-
President committing United States Armed Forces to hostilities.
d
In effect, the joint resolution "endows" this concurrent resolution
with the binding force of statute. Since the language applies to a
r
situation where there is no congressional authorization for the
it
President's action it thereby avoids the possibility of a Presi-
le
dential veto-and resulting impasse-which would be possible on
5
a bill or a joint resolution. A discussion of the use of a concurrent
d
resolution for this purpose may be found on pages 13-14.
ot
Sections 5 and 6. Congressional priority procedure
m
ii-
Sections 5 and 6 stipulate a specific congressional priority proce-
on
dure for consideration of a relevant bill or joint resolution which may
of
be introduced pursuant to section 4(b) or a concurrent resolution
es
introduced pursuant to section 4(c). Sections 5 and 6 are, in other
of
words, the "antifilibuster" provisions of the resolution. While it was
of
recognized that filibusters are primarily a problem of the Senate, it
Id
was felt that these provisions would protect the interests of the House.
ct
It would achieve that objective, for example, by allowing the House
fic
enough time to deal with any relevant bill or resolution sent by the
Senate. Section 5 relates to section 4(b) and section 6 relates to sec-
ec-
tion 4(c). In both cases, the language provides for referral to relevant
to
bills or resolutions to the House Committee on Foreign Affairs and
ent
the Senate Foreign Relations Committee in accord with the tradi-
tional jurisdiction of those committees.
kes
The intent of the committee in including sections 5 and 6 is to
er
establish the status of relevant legislation as "privileged motions,"
20-
approximate to the procedure followed when a discharge petition is
in
filed for the consideration of a resolution.
m-
TIMING OF SECTION 5
m-
ich
As prescribed in section 5 which relates to section 4(b), the tim-
ing of congressional procedures would be as follows:
i of
Forty-five days before end of 120-day period.-Bill or joint
ites
resolution must be introduced to be guaranteed protection of
committee consideration.
tive
the
Thirty days before end of 120-day period.-One such resolu-
tion or bill must be reported out by committee.
or
2355
LEGISLATIVE HISTORY
P.L. 93-148
Within 3 legislative days of being reported by committee.-
Legislation becomes pending business of either House and shall
be voted on and sent to the other body.
Fifteen days before end of 120-day period.-Legislation acted
upon by one body and sent to the other body and referred to
appropriate committee shall be reported out.
Within 3 legislative days of being reported by cammittee in
other body.-Legislation SO reported shall become pending busi-
ness and shall be voted on unless such body shall otherwise deter-
mine by yeas and nays.
End of 120-day period.-Presidential action must stop unless
previously sanctioned by Congress.
TIMING OF SECTION 6
The timing for congressional consideration under section 6, which
relates to section 4 (c) is as follows:
Within 15 calendar days of introduction of concurrent resolu-
tion.-One such resolution shall be reported out by committee
with recommendations and shall become pending business.
Within 3 legislative days of being reported out.Shall be voted
on unless otherwise determined by yeas and nays.
Within 15 calendar days of concurrent resolution passed by one
House and referred to other body's appropriate committee.-
Shall be reported out by committee and become pending business.
Within 3 legislative days of being reported out by committee.-
Shall be voted on unless otherwise determined by yeas and nays.
Section 7. Termination of Congress
Section 7 deals with a situation in which a Congress terminates
during the 120-day period specified in subsection 4(b) without having
taken final action to approve or disapprove a commitment of armed
forces.
The committee did not wish to force the President to cease a mili-
tary action abroad simply because Congress was not in session at the
expiration of 120 days and it had not been possible to take final action
before adjournment.
Thus, section 7 provides that in such a case the 120-day period shall
not expire sooner than 48 days after the convening of the next succeed-
ing Congress, providing that a resolution or bill is introduced pursuant
to subsection 4 (b) within 3 days of the convening of the next suc-
ceeding Congress. This language is meant to insure that in any case
in which the 120-day period is interrupted by statutory termination of
Congress without congressional action, there would be an extension of
the period. It also would allow the antifilibuster provisions to come
into effect.
Section 8. Interpretation of act
Section 8 deals with the construction, intent, and effect of the resolu-
tion.
The intent of subsection (a) is to disclaim any intention of alter-
ing the constitutional grants of war powers to the legislative and
executive branches. It thereby helps insure the constitutionality of
the resolution by making it clear that nothing in it can be interpreted
as changing in any way the powers delegated to each branch of govern-
2356
WAR POWERS RESOLUTION
P.L. 93-148
ment by the Constitution. In addition, it reassures U.S. allies that
all
passage of the resolution will not affect U.S. obligations under mutual
defense agreements and other treaties to which the United States is
ed
a party.
to
The intent of subsection (b) is to state explicitly that nothing in
the resolution "shall be construed to represent congressional accept-
in
ance of the proposition that Executive action alone can satisfy the
si-
constitutional process requirement contained in the provisions of mu-
er-
tual security treaties to which the United States is a party."
This statement is aimed at rejecting those interpretations of the
ess
treaty obligations of the United States which hold that mutual secu-
rity treaties such as NATO, SEATO, and ANZUS are "self-execut-
ing" and do not require congressional sanction of any kind for Presi-
dential actions taken in pursuit of such obligations, including actions
which involve the deployment of U.S. Armed Forces into hostilities.
ich
The intent of subsection (c) is to emphasize that this resolution
does not grant the President any new authority and, in connection
lu-
with the 120-day period referred to in section 4 (b). that the President
tee
would not have any freedom of action during the 120-day period
which he does not already have.
ted
Section 9. Applicability to certain existing commitments
me
This section provides that the resolution would apply to those com-
mitments of U.S. Armed Forces to hostilities which are in progress
ess.
on the date of its enactment into law. The section further provides
that upon enactment of the resolution the President should proceed
to file the report as required by section 3 and that the 120-day period
called for by subsection 4(b) would begin on the date of the filing of
tes
the report.
ing
ned
Section 10. Effective date
This section states that the resolution, except to the extent otherwise
ili-
provided in section 9, shall take effect on the date of its enactment.
the
ion
USE OF A CONCURRENT RESOLUTION
all
ed-
Section 4(c) provides that an action by the President committing
ant
U.S. troops to hostilities or into areas or situations where hostilities
uc-
are imminent could be terminated by both Houses of Congress acting
ase
through a concurrent resolution. Some question has been raised about
of
the constitutionality of the use of a concurrent resolution for this pur-
of
pose. After careful study of the issues involved the committee believes
me
that there is ample precedent for the use of the concurrent resolution
to "veto" or disapprove a future action of the President, which action
was previously authorized by a joint resolution or bill.
lu-
There are many examples of legislative actions which have the effect
of law without a Presidential signature. Perhaps the most notable is
the ability of Congress to veto executive branch reorganization plans
ter-
and
under the Executive Reorganization Act. Other examples are amend-
of
ments to the Constitution of the United States and orders to spend
ted
money appropriated to the use of the Congress.
Further, most of the important legislation enacted for the prose-
rn-
cution of World War II provided that the powers granted to the Pres-
2357
LEGISLATIVE HISTORY
P.L. 93-148
ident would come to an end upon adoption of concurrent resolutions
to that purpose. Among those acts were:
The Lend-Lease Act;
First War Powers Act;
Emergency Price Control Act;
Stabilization Act of 1942;
War Labor Disputes Act.
In more recent times both the Middle East Resolution and the Gulf
of Tonkin Resolution provided for their repeal by concurrent resolu-
tion.
This use of a concurrent resolution has been accepted by various
authorities as a constitutionally valid practice. It might be noted that
Senator Sam J. Ervin, a noted constitutional scholar, has authored a
bill which would permit international executive agreements to be
"vetoed" by the Congress through passage of a concurrent resolution.
This proposal has been endorsed by many constitutional experts and a
former Supreme Court justice.
The constitutional validity of such usage of a concurrent resolution
is based on the capacity of Congress to limit or to terminate the author-
ity it delegates to the Executive. In the case of the war powers, the
Constitution is clear that the power to declare war, as well as the power
to raise and maintain an army and a navy, belong to Congress. Under
the Constitution, the President is designated as the Commander in
Chief to prosecute wars authorized by Congress.
When the President commits U.S. Armed Forces to hostilities
abroad on his own responsibility, he has, in effect, assumed congres-
sional authority. Under this war powers resolution the Congress can
rescind that authority as it sees fit by a concurrent resolution and
thereby avoid the problem of a Presidential veto. The authority for
the Congress to establish a legislative process for rescinding an assumed
power to act on the part of the President can be found in Article 1,
Section 8, of the Constitution through the "necessary and proper"
clause.
This authority of Congress was recognized as legitimate when Con-
gress passed legislation permitting the President to prosecute World
War II. This authority of Congress was recognized as legitimate in
the passage of the Middle East Resolution and the Gulf of Tonkin
Resolution. It is no less legitimate and constitutional today as em-
bodied in this war powers resolution.
SUPPLEMENTAL VIEWS OF REPRESENTATIVES MAILLIARD, BROOMFIELD,
MATHIAS, GUYER, AND VANDER JAGT
We voted in committee to report this resolution because we strongly
support the reporting and consulting provisions of the legislation, al-
though we have equally strong reservations over the operating pro-
visions. In our opinion the House should have the opportunity to de-
bate the resolution.
It is our hope that as the House works its will. the Members will
carefully scrutinize section 4 (b) and (c). In our opinion, section 4(b)
is dangerous and perhaps unconstitutional. It would unwisely put into
law a provision whereby the failure of the Congress to act could force
Presidential action with major national and international implica-
tions. Specifically, section 4(b) requires that within 120 calendar days
2358
WAR POWERS RESOLUTION
P.L. 93-148
after a report is submitted or required to be submitted pursuant to
section 3, the President shall terminate any commitment and remove
any enlargement of U.S. Armed Forces with respect to which such
report was submitted, unless the Congress enacts a declaration of war
or a specific authorization for the use of U.S. Armed Forces. In our
opinion, the Congress ought to exercise its powers in a positive way
and not have major consequences ensue from the inaction of the
Congress.
1-
There are several objections to terminating the President's authority
in this manner. Recognizing that the war powers are shared by the
is
President and the Congress, the President-to cite one example-ob-
viously has the authority to commit U.S. Armed Forces stationed
a
overseas to hostilities in order that they might protect themselves from
be
attack or threat of imminent attack. We doubt that the Congress can
n.
constitutionally terminate the President's authority to protect the
a
Armed Forces. We further doubt that the Congress can constitution-
ally terminate the President's authority by a failure to act, as pro-
on
vided for by section (b).
r-
This section appears to be as unwise as it may be unconstitutional.
he
Section 4(b) could require the disengagement of our Armed Forces
er
even in the face of a continuing attack. It could destroy an adversary's
er
incentive to reach an early settlement of a dispute, since he surely
in
would hope that the Congress-by failure to act or otherwise-would
compel the President to disengage U.S. Armed Forces.
ies
We should also consider the constitutionality of section 4(c), which
es-
would permit the Congress by a concurrent resolution to require the
an
President to disengage U.S. Armed Forces from hostilities. We have
nd
no problem with the policy envisioned in section 4(c) ; namely that in
for
exercising a shared constitutional power a majority of both Houses
ed
of Congress should have the power to require the disengagement of
1.
Armed Forces committed to hostilities by the President without con-
er"
gressional approval.
We would, however, call attention to the constitutional question of
on-
whether a concurrent resolution, not requiring the approval of the
rld
President, would be binding upon the President.
in
WILLIAM S. MAILLIARD,
kin
WILLIAM S. BROOMFIELD,
em-
ROBERT B. (BoB) MATHIAS,
TENNYSON GUYER,
Guy VANDER JAGT.
ELD,
gly
SUPPLEMENTAL VIEWS OF REPRESENTATIVES BUCHANAN AND WHALEN
al-
pro-
We concur that there is great need for war powers legislation. Con-
de-
gress must possess the means by which it can act on the question of
placing U.S. Armed Forces in combat. House Joint Resolution 542
will
goes a long way toward providing such a mechanism.
(b)
Nevertheless, the language in section 4(b) troubles us. It permits
into
the exercise of congressional will through inaction. It is our opinion
orce
that in order to fulfill its constitutional responsibility, Congress must
lica-
act, whether it be in a positive or negative manner.
days
FORD
2359
LIBRARY
LEGISLATIVE HISTORY
P.L. 93-148
Therefore, during the committee's markup of the resolution, we
supported replacing the committee's language in section 1 (b) with an
amendment similar to the following:
Not later than one hundred twenty days after the receipt of
the report of the President provided for in section 3 of this
Act, the Congress, by a declaration of war or by the enact-
ment within such period of a bill or resolution appropriate
to the purpose, shall either approve, ratify, confirm, and au-
thorize the continuation of the action taken by the President
and reported to the Congress, or shall disapprove, in which
case the President shall terminate any commitment and re-
move any enlargements of the United States Armed Forces
with respect to which such report was submitted.
We shall offer this amendment during floor debate on House Joint
Resolution 542. On an issue which may involve the death of thousands
of Americans, we cannot delude ourselves that no action at all is an
appropriate response. Rather, each Member of Congress should de-
clare his views-through a "yes" or "no" vote-when the President
commits our Armed Forces to combat or substantially enlarges our
military presence abroad. Passage of our amendment will afford this
opportunity.
JOHN BUCHANAN,
CHARLES W. WHALEN, Jr.
MINORITY VIEWS OF REPRESENTATIVES FRELINGHUYSEN, DERWINSKI,
THOMPSON, AND BURKE
We are opposed to the enactment of House Joint Resolution 542. Its
most important provisions are probably unconstitutional and certainly
are unwise. We strongly doubt the wisdom of attempting to draw rigid
lines between the President and Congress in the area of warmaking
powers. Ironically, enactment of this resolution in some respects would
expand considerably the constitutional authority of the President, and
in other respects would severely restrict his authority. In our opinion,
the only appropriate way to make such far-reaching changes would
be by an amendment to the Constitution.
While we are in accord with the understandable desire of Members
to assure Congress its proper rolé in national decisions of war and
peace, we consider the severe restrictions which this resolution seeks to
impose on the authority of the President to be dangerous. Should they
become effective, they could affect adversely important national se-
curity interests of the United States.
Flexibility-not the exact delimitation of powers-is a basic char-
acteristic of the Constitution. The framers of the Constitution clearly
had that aim in mind when they refrained from closely defining the
responsibilities of the executive and legislative branches in the areas of
warmaking powers. Moreover, throughout our history, Presidents have
employed the power which that flexibility has allowed them to en-
courage peaceful resolutions of potentially dangerous situations.
What is most ironic is that this joint resolution, constructed as it is
with an eye to our unfortunate experiences during the mid-1960's,
would not have prevented our steadily deepening involvement in Viet-
nam, had it been on the books 10 years ago. For example, there is no
reason to believe that Congress after the Gulf of Tonkin incident
2360
WAR POWERS RESOLUTION
P.L. 93-148
would have refused to approve Presidential action through the mech-
anism provided in this measure. Congress at the time would have de-
clared war, had that been requested, or we would have specifically
authorized the use of our Armed Forces.
House Joint Resolution 542 cannot give Congress foresight or wis-
dom, and will not force an uncooperative Executive to be more forth-
coming. In fact, it may achieve just the opposite effect. A President
faced with a possible congressional veto of his actions might be
tempted to circumvent Congress. He might, for example, appeal di-
rectly to the American people in order to force Congress to support
him. If that were to happen, Congress could be virtually excluded
from the decisionmaking process. Moreover, House Joint Resolution
542, which seeks to provide a "trip wire," invoking restrictions on Ex-
ecutive action, might well encourage a President to be less than candid
when setting forth the circumstances and justifications for his actions.
Following are our views in more detail with respect to each section
in
of the resolution.
Section 2, and most of section 3, seek to insure reasonable consulta-
tion with Congress, by requiring submission of reports to Congress by
or
the President whenever he commits the U.S. forces to hostilities or
is
potentially hostile situations, or when he enlarges our combat forces
already located in foreign nations. Essentially the same provisions
have been enacted previously by the House of Representatives in two
preceding Congresses. Section 4(a), which seeks to insure prompt
action by Congress on such reports, also is the same language as that
already twice approved by the House. We consider these requirements
to be entirely appropriate.
S
We have reservations, however, about the wisdom of the inclusion
of section 3 (d), language which was not contained in the resolutions
previously approved by the House. Section 3 (d) requires that the
President communicate to Congress the estimated financial cost of any
commitment of U.S. forces outside the United States. What point
would there be in requiring the President to announce at the outset of
a national security emergency his judgment as to the cost of com-
mitting of our forces? It may be argued that Congress needs a specific
estimate of costs in order to help us make up our minds about whether
$
or not to support the President. In our opinion, that information
would be of no particular value to Congress but might be extremely
revealing to an enemy. We believe that Congress would receive ade-
quate information under the requirements of the other subsections of
section 3, and that the advantages to be gained by hostile powers
through the required financial disclosure would far outweigh any
incremental benefit to Congress.
Section 4 (b) and (c) are at the heart of our objections to the resolu-
tions. Section 4(b) provides that the President at the end of 120 days,
without regard even to the immediate safety of our armed forces,
must terminate any involvement of U.S. forces in hostilites outside.
the United States, and withdraw newly dispatched combat forces
from the area of any foreign country (except for supply, replace-
ment, repair or training deployments), unless the Congress by that
time has enacted a declaration of war or "specifically" authorized the
use of our Armed Forces.
This effort to limit the President's power-by the failure of Con-
gress to take affirmative action-strikes us as highly dangerous. For
2361
LEGISLATIVE HISTORY
P.L. 93-148
example, suppose the President were to commit troops in Europe in
order to defend our own country? That he has such power as Com-
mander in Chief is not challenged, but the 120-day limitation might
make it necessary for him to withdraw troops already fully committed
to combat. At best, the limitation could only be construed as an effort
to circumscribe sharply his ability to continue to exercise his power.
To avoid such a reversal of national policy, a President might hur-
riedly escalate hostilities, to force Congress to support him, or in an
effort to win the conflict within 120 days-or an enemy might seek to
avoid negotiating a settlement in the belief that the President would
soon be forced to withdraw our troops. Thus the 120-day provision
might actually promote, rather than deter, our involvement in
hostilities.
Proponents may argue that in such a situation Congress would
recognize the necessity of declaring war, or of specifically authorizing
the use of troops. As a practical matter, however, Congress does not
always move quickly and a legislative deadlock might develop. More-
over, in our opinion it is highly undesirable for Congress, through its
own inaction, to be able to determine whether a course of Presidential
action should be continued.
The manifold constitutional and national security problems created
by the 120-day provision of section 4(b) are compounded by section
4(c). This section provides that hostilities and deployments may be
terminated by Congress alone at any time within the 120-day period,
by means of a concurrent resolution having no force of law.
If the Commander in Chief, acting within his constitutional au-
thority, orders our forces to deploy or to engage in hostilities, Con-
gress may affect such action if it wishes, but necessarily must do so
through use of its constitutionally granted powers. By seeking to
provide that a concurrent resolution shall have the force of law, we are
embarking on an extremely dangerous, and probably unconstitutional
course of action.
There may be cases in which Congress has specifically authorized
hostilities or deployments by constitutional means other than a dec-
laration of war. Under Article I, Section 7 of the Constitution, au-
thority granted by any bill, order or resolution may be repealed or
amended only through the same process; once Congress has given its
consent to legislation it may not be withdrawn unilaterally by the
Congress with less than a two-thirds vote.
Section 5 is another example of the difficulty of trying to establish
rigid procedures where, in fact, flexibility is required. During com-
mittee consideration it was clear that the practical effects of the time
requirements were not adequately explored. For example, the question
was raised, if the beginning of the last 45 days of the 120-day period
coincided with the end of a Congress, would be the 15 days for commit-
tee consideration be binding upon the next Congress? A related ques-
tion was whether Congress would be able to organize quickly enough
to meet the deadline. These questions, in our opinion, were not an-
swered satisfactorily.
While sections 7 and 8 are generally helpful, given their context, we
strongly oppose the requirement of section 9 that this resolution be
applied retroactively to cover hostilities existing on the day of its
enactment which were previously authorized and initiated.
2362
WAR POWERS RESOLUTION
P.L. 93-148
The proper and most useful role for Congress to play, in decisions
of war and peace, cannot be developed through confrontation with the
Executive. To function effectively, particularly in times of national
crisis, our system of government must exhibit a maximum amount of
cooperation between the two branches-executive and legislative. In
the past such cooperation has been the means by which we have
achieved successful policy decisions. It is to this end that we should
be striving. House Joint Resolution 542 will not help-indeed, we be-
lieve it will seriously impede-the achievement of this objective.
PETER H. B. FRELINGHUYSEN,
EDWARD J. DERWINSKI,
VERNON W. THOMSON,
J. HERBERT BURKE.
CONFERENCE REPORT NO. 93-547
JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE OF CONFERENCE
The managers on the part of the House and the Senate at the con-
ference on the disagreeing votes of the two Houses on the amendment
of the Senate to the joint resolution (H.J. Res. 542) concerning the
war powers of Congress and the President, submit the following joint
statement to the House and the Senate in explanation of the effect
of the action agreed upon by the managers and recommended in the
accompanying conference report:
The Senate amendment to the joint resolution struck out all after
the resolving clause and inserted a new text. Under the conference
agreement the House recedes with an amendment which substitutes a
new text explained below except for clerical corrections, incidental
changes made necessary by reason of agreements reached by the con-
ferees, and minor drafting and clarifying changes.
SHORT TITLE
Section 1 of the Senate amendment substituted "War Powers Act"
as a short title in lieu of the short title "War Powers Resolution of
1973" in the House joint resolution. Section 1 of the conference sub-
stitute provides a short title of "War Powers Resolution".
PURPOSE AND POLICY
The Senate amendment contained a section entitled "Purpose and
Policy" (section 2) and a section entitled "Emergency Use of the
Armed Forces" (section 3) which defined the emergency powers of the
President to introduce United States Armed Forces into hostilities or
situations of imminent hostilities.
The House joint resolution did not contain similar provisions.
The conference report contains a section entitled "Purpose and
Policy". The new section states that:
(a) the purpose of the joint resolution IS to fulfill the intent of the
framers of the Constitution of the United States and insure that the
collective judgment of both the Congress and the President will
2 U.S.Cong. & Adm.News '73-40
2363
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21
by the full committee in the bill, the
forty-eight hours from and after the taking
[Roll No. 272]
amount of my proposed amendment and,
of such action.
Abdnor
Eckhardt
Mills, Ark.
finally, the figure for the items covered
SEC. 3. Not later than ninety days after the
Adams
Fisher
Minish
if my package of amendments should be
receipt of the report of the President pro-
Anderson, Calif.Flynt
Moorhead,
vided for in section 2 of this Act, the Con-
Andrews, N.C.
Ford,
Moss
adopted.
gress, by the enactment within such period
Ashbrook
William D.
Murphy, I
of a bill or resolution appropriate to the
Badillo
Gibbons
O'Neill
Beard
Gray
Patman
purpose, shall either approve, ratify, confirm,
PROPOSED AMENDMENT TO WAR
Bell
Gross
Pepper
and authorize the continuation of the action
Blatnik
Gubser
Powell, Of
POWERS RESOLUTION
taken by the President and reported to the
Breaux
Guyer
Price, Tex
(Mr. DENNIS asked and was given
Congress, or shall disapprove and require the
Burke, Calif.
Hanna
Reid
discontinuance of the same.
Burlison, Mo.
Heinz
Rodino
permission to address the House for 1
SEC. 4. If the Congress, acting pursuant to
Chisholm
Hogan
Rooney, N
minute, and to revise and extend his re-
Clark
Ichord
and under the provisions of section 3, shall
Ryan
marks and include extraneous material.)
Danielson
Jarman
Stokes
approve, ratify, and confirm and shall au-
Davis, S.C.
Jordan
Thompson
Mr. DENNIS. Mr. Speaker and Mem-
thorize the continuation of the action taken
Delaney
Landrum
Wiggins
bers of the House, when we consider the
by the President and so reported to the Con-
Dellums
McCormack
Young, Al
war powers resolution, House Joint Reso-
gress, the President shall thereafter report
Derwinski
McKinney
periodically in writing to the Congress at
Diggs
Maraziti
lution 542, on Wednesday afternoon un-
der the 5-minute rule, I intend to offer as
intervals of not more than six months as to
The SPEAKER. On this rollcal
an amendment, in the nature of a sub-
the progress of any hostilities involved and as
Members have recorded their pre
to the status of the situation, and the Con-
stitute, a war powers bill which I have
gress shall, within a period of thirty days
by electronic device, a quorum.
drawn which would differ in several im-
from and after the receipt of each such six-
By unanimous consent, further
portant respects from that resolution,
month report, again take action by the enact-
ceedings under the call were disp
notably in the fact that under my bill
ment of an appropriate bill or resolution, to
with.
an affirmative vote on the part of the
either ratify, approve, confirm, and authorize
Congress would be necessary in order to
the continuation of the action of the Presi-
dent, including any hostilities which may be
CONFERENCE REPORT ON
require the President to terminate hostil-
involved, or to disapprove and require the
ities abroad rather than permitting the
7447, SUPPLEMENTAL APPROI
discontinuance of the same.
expiration of a time by inaction on our
TIONS, 1973
SEC. 5. If the Congress shall at any time,
part which would bring such hostilities
acting under the provisions of section 3 or
Mr. MAHON. Mr. Speaker, I c
to a close.
section 4, disapprove the action of the Prest-
the conference report on the bill
Mr. Speaker, I insert in the RECORD
dent and require the discontinuance of the
7447) making supplemental appr
at this point my proposed amendment:
same, then the President shall discontinue
tions for the fiscal year ending Ju
AMENDMENT OFFERED BY MR. DENNIS IN THE
the action so taken by him and so reported
1973, and for other purposes, ar
NATURE OF A SUBSTITUTE TO THE BILL, HOUSE
to the Congress, and shall terminate any
hostilities which may be in progress and shall
unanimous consent that the statem
JOINT RESOLUTION 542, AS REPORTED
withdraw, disengage, and redeploy the Armed
the managers be read in lieu (
Strike out all after the enacting clause
Forces of the United States which may be in-
report.
and insert in lieu thereof the following:
volved, just as expeditiously as may be pos-
The Clerk read the title of the 1
SECTION 1. In the absence of a declaration
sible having regard to, and consistent with,
The SPEAKER. Is there object
of war by the Congress or of a military
the safety of the Armed Forces of the United
attack upon the United States, its territories
the request of the gentleman
States, the necessary defense and protection
or possessions, the Armed Forces of the
Texas?
of the United States, its territories and pos-
United States shall not be committed to
sessions, the safety of citizens and nationals
There was no objection.
combat or introduced into a situation where
of the United States who may be involved,
The Clerk read the statement.
combat is imminent or likely at any place
and the reasonable safety and necessities, af-
(For conference report and stat
outside of the United States, its territories
ter due and reasonable notice, of allied or
see proceedings of the House of J1
and possessions, without prior notice to and
friendly nationals and troops.
1973.)
specific prior authorization by the Congress,
SEC. 6. For the purposes of this Act the
The SPEAKER. The gentlemar
except in case of emergency or necessity, the
Panama Canal Zone shall be taken and
existence of which emergency or necessity is
Texas is recognized for 30 minute
deemed to be a territory or possession of the
to be determined by the President of the
United States.
GENERAL LEAVE
United States.
SEC. 7. Nothing contained in this Act shall
Mr. MAHON. Mr. Speaker,
SEC. 2. Whenever, in the absence of a
alter or abrogate any obligation imposed on
unanimous consent that all Mem
declaration of war by the Congress or of a
the United States by the provisions of any
the House may have 5 legislative
military attack upon the United States, its
treaty to which the United States is present-
territories or possessions, the President of
which to revise and extend their r
ly a party.
the United States nevertheless determines
SEC. 8. If any provision of this Act or the
in the RECORD in regard to the p
that an emergency or necessity exists which
application thereof to any particular circum-
conference report on the supple
justifies such action, and shall, by conse-
stance or situation is held invalid, the re-
appropriation bill and also on €
quence, commit the Armed Forces of the
mainder of this Act, or the application of
the amendments in disagreemer
United States to combat or shall introduce
such provision to any other circumstance or
that all Members may have per
them into a situation where combat is im-
situation, shall not be affected thereby.
to insert tables and extraneous
minent or likely at any place outside of the
SEC. 9. This Act shall take effect on the
in connection with their remarks
United States, its territories or possessions,
date of its enactment but shall not apply
to hostilities in which the Armed Forces
The SPEAKER. Is there objec
without prior notice to and authorization by
of the United States are involved on the
the request of the gentlemar
the Congress, as is provided and authorized
effective date of this Act.
Texas?
in such cases under and pursuant to the pro-
There was no objection.
visions of section 1 of this Act, the President
Mr. MAHON. Mr. Speaker, I
shall report such action to the Congress in
CALL OF THE HOUSE
going to try to make a dramatic
writing, as expeditiously as possible and, in
but what I am about to say is sign
all events, within twenty-four hours from and
Mr. WYDLER. Mr. Speaker, I make
and important and it relates to W
after the taking of such action. Such report
the point of order that a quorum is not
conferees have done on this bill
shall contain a full account of the circum-
present.
what all of us as Members of th
stances under which such action was taken
The SPEAKER. Evidently a quorum
and shall set forth the facts and circum-
gress have done on appropriati
is not present.
stances relied upon by the President as au-
since the current fiscal year 197:
thorizing and justifying the same. In the
Mr. McFALL Mr. Speaker, I move a
on July 1, 1972.
call of the House.
event the Congress is not in session the
This bill is for about $3.3 billi
President shall forthwith convene the Con-
A call of the House was ordered.
as large as the $32 billion Labo
gress in an extraordinary session and shall
The call was taken by electronic de-
bill which will be before us tomori
make such report to the Congress as expedi-
vice, and the following Members failed
it seems to me it does merit dis
tiously as possible and, in all events, within
to respond:
and explanation.
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21205
SEC. 103. The Commission is authorized to
PERSONAL EXPLANATION
not expect any new costs as a result of
perform construction design services for any
Commission construction project whenever
Mr. PEPPER. Mr. Speaker, with re-
enactment of this legislation.
gard to rollcall No. 273, I was detained
Mr. Speaker, the framers of the Con-
(1) such construction project has been in-
cluded in a proposed authorization bill trans-
on official business and did not return
stitution were explicit in their desire
mitted to the Congress by the Commission
until after the vote was taken.
that the ultimate warmaking powers be
and (2) the Commission determines that
Had I been present, I would have voted
in the hands of the Congress, the repre-
the project is of such urgency that construc-
sentatives of the people.
"aye."
tion of the project should be initiated
promptly upon enactment of legislation ap-
Also, Mr. Speaker, on rollcall No. 274,
This is a salutary proposal. I commend
propriating funds for its construction.
I was again detained on official business
the distinguished Committee on Foreign
SEC. 104. When so specified in an appro-
and did not return until the vote was
Affairs, after long deliberations on the
priation Act, transfers of amounts between
taken.
subject, for bringing forth this resolu-
"Operating expenses" and "Plant and capital
Had I been present, I would have voted
tion to be considered by the House.
equipment" may be made as provided in such
"no."
I therefore urge the adoption of House
appropriation Act.
Resolution 456 in order that we may dis-
SEC. 105. AMENDMENT OF PRIOR YEAR AcTs.-
cuss and debate this very important
(a) Section 101 of Public Law 91-273, as
PROVIDING FOR CONSIDERATION
measure, House Joint Resolution 542.
amended, is further amended by (1) strik-
OF HOUSE JOINT RESOLUTION
Mr. MARTIN of Nebraska. Mr. Speak-
ing from subsection (b) (1), project 71-1-e,
542, WAR POWERS OF CONGRESS
er, I yield myself 5 minutes.
gaseous diffusion production support facili-
AND THE PRESIDENT
Mr. Speaker, as the gentleman from
ties, the figure "$72,020,000" and substituting
Florida has explained, House Resolution
therefor the figure "$105,900,000", (2) strik-
Mr. PEPPER. Mr. Speaker, by direc-
ing from subsection (b) (1), project 71-1-f,
456 provides for an open rule and 3 hours
tion of the Committee on Rules, I call
process equipment modifications, gaseous dif-
of debate on House Joint Resolution 542,
fusion plants, the figure "$34,400,000" and
up House Resolution 456 and ask for its
the war powers resolution of 1973.
substituting therefor the figure "$172,100,-
immediate consideration.
The resolution directs the President to
000", and (3) striking from subsection (b)
The Clerk read the resolution, as
consult with the Congress before and
(9), project 71-9, fire, safety, and adequacy
follows:
during the commitment of U.S. forces to
of operating conditions projects, various lo-
H. RES. 456
hostile situations.
cations, the figure "$69,000,000" and substi-
Resolved, That upon the adoption of this
This resolution requires the President
tuting therefor the figure "$193,000,000".
resolution it shall be in order to move that
to report to the Congress within 72 hours
(b) Section 106 of Public Law 91-273, as
the House resolve itself into the Committee
whenever, without specific congressional
amended, is further amended by adding the
of the Whole House on the State of the Union
following sentence at the end of the present
authorization, he commits U.S. forces to
for the consideration of the joint resolution
text of subsection (a) thereof:
(H.J. Res. 542) concerning the war powers
hostile situations, or places, or substan-
"Notwithstanding the foregoing, authoriza-
of Congress and the President. After gen-
tially increases U.S. forces on foreign soil.
tion of additional appropriations for the con-
eral debate, which shall be confined to the
Section 4(b) provides that within 120
duct of Project Definition Phase activities
joint resolution and shall continue not to
days after the report is submitted the
subsequent to the execution of the afore-
exceed three hours, to be equally divided and
President is to. terminate any commit-
mentioned cooperative arrangement, in the
controlled by the chairman and ranking
ment of U.S. troops covered by the report
amount of $2,000,000, is hereby authorized.".
minority member of the Committee on For-
(c) Section 101 of Public Law 92-314 is
unless Congress specifically authorizes
eign Affairs, the joint resolution shall be
amended by (1) striking from subsection
read for amendment under the five-minute
the commitment.
(b) (1), project 73-1-d, component test facil-
rule. At the conclusion of the consideration
Congress is also allowed to order the
ity, Oak Ridge, Tennessee, the figure "$20,-
of the joint resolution for amendment, the
President to disengage from combat op-
475,000" and substituting therefor the figure
Committee shall rise and report the joint
erations at any time before the 120-day
"$26,675,000", and (2) striking from subsec-
resolution to the House with such amend-
period ends through passage of a con-
tion (b) (5), project 73-5-h, S8G prototype
ments as may have been adopted, and the
current resolution. Generally a concur-
nuclear propulsion plant, West Milton, New
previous question shall be considered as
rent resolution does not require a signa-
York, the figure "$56,000,000" and substitut-
ordered on the joint resolution and amend-
ing therefor the figure "$125,000,000".
ments thereto to final passage without in-
ture by the President.
SEC. 106. RESCISSION.-(a) Public Law 91-
tervening motion except one motion to re-
I should like to analyze very quickly
273, as amended, is further amended by re-
commit.
and briefly, Mr. Speaker, some of the
scinding therefrom authorization for a proj-
provisions in this joint resolution.
ect, except for funds heretofore obligated,
The SPEAKER. The gentleman from
First of all, it requires the President to
as follows:
Florida is recognized for 1 hour.
report within 72 hours to the House and
Project 71-5-a, addition to physics building
Mr. PEPPER. Mr. Speaker, I yield 30
Senate in respect to hostile action by the
(human radiobiology facility), Argonne Na-
minutes to the able gentleman from Ne-
U.S. military. Then the resolution sets
tional Laboratory, Illinois, $2,000,000.
braska (Mr. MARTIN) and pending that
forth five different reasons which the
(b) Public Law 92-314 is amended by re-
I yield myself such time as I may
scinding therefrom authorization for a proj-
President must report in writing ex-
consume.
ect, except for funds heretofore obligated, as
plaining his actions.
follows:
Mr. Speaker, House Resolution 456 pro-
One of these is as follows: The esti-
Project 73-1-1, radioactive solid waste re-
vides for an open rule with 3 hours of
mated financial cost of such commitment
duction facility, Los Alamos Scientific Lab-
general debate on House Joint Resolu-
or such enlargement of forces.
oratory, New Mexico, $750,000.
tion 542, a resolution concerning the war
Mr. Speaker, it is virtually impossible
The Senate bill was ordered to be read
powers of Congress and the President.
for the President or any other individual
a third time, was read the third time,
The joint resolution provides that the
to make an estimate as to the cost of fu-
and passed.
President make a formal report to the
ture activities in this area. This is just
A motion to reconsider was laid on the
Congress whenever, without a declaration
one of the weaknesses in this bill.
table.
of war or other prior specific congres-
Then it provides in section 4(b) that
A similar House bill (H.R. 8662) was
sional authorization, he takes significant
within 120 calendar days after a report is
laid on the table.
military action, by either the commit-
submitted or is required to be submitted,
ment of U.S. Armed Forces to hostilities
pursuant to section 3, the President shall
outside the United States, the commit-
terminate any commitment or remove
GENERAL LEAVE
ment of combat-equipped U.S. forces to
any enlargement of the Armed Forces
Mr. PRICE of Illinois. Mr. Speaker,
any foreign nation, or the substantial
overseas.
I ask unanimous consent that all Mem-
enlargement of combat-equipped U.S.
Mr. Speaker, I note that the bill says:
bers may have 5 legislative days in which
forces already in a foreign nation.
Within 120 calendar days after a report
is submitted or is required.
to extend their remarks on the bill just
House Joint Resolution 542 also denies
Evidently the authors of this legisla-
passed.
to the President the authority to commit
tion are not sure the President will com-
The SPEAKER. Is there objection to
U.S. Armed Forces for more than 120
ply with it. Evidently the authors of this
the request of the gentleman from Illi-
days without specific congressional
bill are not sure that the President con-
nois?
approval.
stitutionally has to respond to this ac-
There was no objection.
The Committee on Foreign Affairs does
tion by the Congress itself, because they
21206
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
to veto a concurrent resolution action by the
Mr. WOLFF. I refer the gentleman to
have put in the phrase, "or is required
Congress?
the committee report. I am also a mem-
to be submitted."
Senator ERVIN. That is right. That would
ber of the Committee on Foreign Affairs,
Mr. Speaker, let us take a look at sec-
be the second time he would have a chance
as was the gentleman who preceded me.
tion 4(c). It states as follows:
to veto the same proposition really.
In the report the use of a concurrent
Notwithstanding subsection (b), at any
time that the United States Armed Forces
The SPEAKER. The time of the gen-
resolution is discussed at length. It evi-
are engaged in hostilities outside the terri-
tleman has again expired.
dences how, during World War II, this
tory of the United States, its possessions and
Mr. MARTIN of Nebraska. Mr. Speak-
device was used on the Lend-Lease Act,
territories without a declaration of war or
er, I yield myself 2 additional minutes.
the Price Control Act, the War Labor Act,
other specific authorization of the Congress,
Consequently, Mr. Speaker, you can
and so forth. So that the device of con-
such forces shall be disengaged by the Presi-
see that section 4C does not have much
current resolution has been used in the
dent if the Congress so directs by concurrent
substance as far as the Constitution is
past constitutionally and effectively.
resolution.
concerned and as far as Senator ERVIN'S
Mr. FRELINGHUYSEN. Will the gen-
The Commission on Rules, Mr. Speak-
testimony before our committee on im-
tleman yield again on that point?
er, has held extensive hearings on the
poundment legislation is concerned.
Mr. MARTIN of Nebraska. I yield to
impoundment legislation. This legisla-
Mr. FRELINGHUYSEN. Will the gen-
the gentleman.
tion on which we have held our hearings
tleman yield to me on that point?
Mr. FRELINGHUYSEN. I might say
was authorized by the gentleman from
Mr. MARTIN of Nebraska. I yield to
the illustrations used in the committee
Texas (Mr. MAHON), the chairman of the
the gentleman.
report with respect to concurrent reso-
Committee on Appropriations. Senator
Mr. FRELINGHUYSEN. As a member
lutions involve powers granted by the
ERVIN, one of the foremost authorities
of the Committee on Foreign Affairs, I
Congress to the President during a time
in Congress on the Constitution, testi-
would like to congratulate the gentleman
of hostilities with the proposal that those
fied before our committee.
for pointing out some of the weaknesses
powers can be terminated by concurrent
The bill of the gentleman from Texas
in the language and provisions of the
resolution. Here we are talking about the
(Mr. MAHON) has a similar provision in
joint resolution.
constitutional power of the President.
regard to a concurrent resolution coun-
With respect to the concurrent resolu-
This is an attempt to deny or abrogate
termanding the impoundment of funds
tion proposal, the pros and cons and the
that power.
by the President. It states that if the
wisdom and constitutionality of that
So the situation with respect to the
funds are impounded and the Congress
provision were discussed in the commit-
concurrent resolutions developed during
acts within 60 days, with a concurrent
tee. It should be pointed out at the outset
a war-time period is quite different from
resolution, the funds would immediately
of this discussion-and I hope we have a
their attempt to curtail Presidential
be released.
reasonable discussion-that the reason
power over the disposition of troops as
Mr. Speaker, I questioned Senator
for the concurrent resolution was an
the Commander in Chief.
ERVIN on this point. Let me read from the
awareness on the part of the proponents
Mr. MARTIN of Nebraska. I appreci-
colloquy I had with Senator ERVIN on the
that if a joint resolution were the mecha-
ate the gentleman from New Jersey
day that he testified. This is Mr. Martin
nism with which to express disapproval,
pointing that out.
speaking:
the President would have to participate.
Mr. FINDLEY. Mr. Speaker, will the
Senator, the legislation which we have be-
This is a deliberate attempt to bypass
gentleman yield?
fore us today provides for a concurrent reso-
the necessity of an operation which
Mr. MARTIN of Nebraska. I yield to
lution to be passed by the Congress if we
wish to override or disagree with impound-
would be legislative in effect. The as-
the gentleman from Illinois.
ment of funds. I would like to quote from
sumption is a situation which involves a
Mr. FINDLEY. Mr. Speaker, I think
Jefferson's Manual in regard to the House:
President who would be presumably in
that the gentleman from Nebraska (Mr.
"A concurrent resolution is binding on
an opposite camp, opposing what the
MARTIN) is rendering a service in point-
neither House until agreed to by both. Since
Congress is trying to do. It is this aspect
ing to the concurrent resolution provision
not legislative in nature it is not sent to the
of the resolution which disturbs me most
on the war powers legislation now before
President for approval."
of all. The feeling is that there has to be
us. I assume, however, that the gentle-
Then I proceed as follows:
independence from the President with
man has no objection to the form of the
Then I would like to quote from Cannon's
respect to these judgments. However, the
rule that is now pending. Am I correct
Precedents of the House:
very confrontation which is being invited
on that point?
by sections 4B and 4C are likely to pro-
Mr. MARTIN of Nebraska. I am not
This is volume 7, page 150:
voke a situation involving the basic con-
objecting to the rule. I want the House
"A concurrent resolution is without force
and effect beyond the confines of the Capi-
stitutionality of what is being attempted.
to be able to work its will, and to debate
It surely is not eliminating any of the
this matter carefully and they will have
tol."
problems that presently exist with re-
3 hours in which to do that.
Then I proceed as follows:
spect to the relationship between the
Mr. FINDLEY. I appreciate the clari-
Then I would like to quote from section
executive and the legislative branches.
fication, because there is quite an ex-
7, article I of the Constitution, which I
The SPEAKER. The time of the gen-
tensive set of precedents which support
think you referred to, and it states as fol-
tleman has again expired.
the use of concurrent resolutions. The
lows:
Mr. MARTIN of Nebraska. Mr.
precedents go well beyond those cited in
Every order, resolution or vote to which
Speaker, I yield myself 2 additional min-
the committee report; they are very ex-
the concurrence of the Senate and House
tensive. We have broad scholarly support
of Representatives may be necessary, except
utes.
on the question of adjournment, shall be
I yield further to the gentleman.
for this position. But, Mr. Speaker, I
presented to the President of the United
Mr. FRELINGHUYSEN. The colloquy
think it would be more appropriate for
States and before the same shall take effect
between you and Senator ERVIN points
me to reserve discussion on that until we
shall be approved by him or being disap-
proved by him shall be repassed by two-
up the weaknesses of the concurrent res-
are in the Committee of the Whole in
order to have a more extended time to
thirds of the Senate and House of Repre-
olution.
But I do want to point out a concur-
debate it.
sentatives.
The legislation we have before us provid-
rent resolution is proposed for a specific
Mr. MARTIN of Nebraska. I would
reason, namely, to avoid the necessity for
suggest that the gentleman from Illinois
ing for a concurrent resolution does not
Presidential involvement in the process
withhold his remarks on these matters
provide nor give to the President the power
to veto. It seems to me it is in violation of
of expressing disapproval of a Presi-
until we are in the Committee of the
Cannon's Precedents of the House and the
Whole.
dential action.
Constitution itself.
Mr. MARTIN of Nebraska. I appre-
Mr. DU PONT. Mr. Speaker, will the
Senator ERVIN. It is because it has legisla-
ciate the gentleman's remarks, and I
gentleman yield?
tive effect. That is what it is designed to
believe he is exactly right. I think this
Mr. MARTIN of Nebraska. I yield to
have. You cannot pass a resolution which
is not subject to the Presidential veto which
will raise more constitutional questions
the gentleman from Delaware.
has legislative effect. This certainly has
than we have at the present time.
Mr. DU PONT. Mr. Speaker, I do not
Mr. WOLFF. Will the gentleman yield?
want to prolong the debate on the rule,
legislative effect.
Mr. MARTIN of Nebraska. Then, in your
Mr. MARTIN of Nebraska. I yield very
but I do think the gentleman from New
briefly to the gentleman.
Jersey misstates the constitutional argu-
opinion, the President would have the power
June 25, 1973
CONGRESSIONAL
21207
without a clear declaration of war. Such
different, this legislation would still be
ment very seriously as to what power is
delegated by whom. The war power rests
situations were not anticipated to be a
needed. It will assure deliberation over
problem when our Constitution was
our purpose militarily and it will pro-
in the Congress, and that is why we
originally written, but with the advent
vide the mechanism for insuring unity
can use a concurrent resolution, and the
Presidential power is not involved when
of the nuclear age, the so-called unde-
if that purpose is warranted. The time
it comes to war making. I will expand
clared war has become more the excep-
has come for Congress to reaffirm and
on that further when we get into the gen-
tion than the rule due to both modern
clarify its powers regarding the commit-
eral debate during the Committee of the
diplomatic and technological realities
ment of U.S. forces to any armed con-
Whole. But I do want to add that the
and developments. These same realtities
flict, as the framers of the Constitution
gentleman from New Jersey (Mr. FRE-
and developments have given rise to the
so clearly intended. We are not assum-
LINGHUYSEN) was here and voted for the
strong chief executive in the conduct of
ing in this bill an initiative or a prero-
Gulf of Tonkin Resolution-I am sorry,
foreign policy and response to interna-
gative of the executive. Rather, we are
I do not know whether the gentleman
national military crises.
implementing our function which is to
voted for or against the Gulf of Tonkin
But the protracted conflict in Indo-
oversee government.
Resolution-but the gentleman was here
china and its consequences have given us
As reported by the House Committee
when the debate was going on on the
good cause to reassess the wisdom in
on Foreign Affairs, House Joint Resolu-
Gulf of Tonkin Resolution which in-
arrogating so much power to one person
tion 542 does not restrict the President's
cluded a concurrent resolution repealer,
without the participation of the legis-
flexibility to deal with an emergency
and there was no debate in the House
lative branch in decisions which may
military situation. This is important. As
of Representatives as to whether that
involve a major and prolonged commit-
Commander in Chief he has the respon-
was constitutional or not. So, we have
ment. In my testimony before the House
sibility to repel an attack on the United
plowed this ground many times before,
Foreign Affairs Committee in July of
States. Wisely, the bill speaks only to
and I do not think we have a prima facie
1970 on war powers legislation I noted
commitments to hostilities abroad. It re-
case so far as constitutional interpreta-
the growing unease and alarm pervading
quires that the President report to Con-
tion is concerned.
the general public and the Congress over
gress within 72 hours after he commits
Mr. MARTIN of Nebraska. Mr. Speak-
this imbalance between the President
U.S. Armed Forces to hostilities
er, I would hope that this debate would
and Congress. To quote from that
abroad, where there has been no prior
be deferred until after the rule is adopted.
testimony:
specific congressional authorization. Fur-
Mr. Speaker, I yield such time as he
This sudden upsurge of concern, of course,
thermore, the resolution states that un-
may consume to the gentleman from
is not difficult to explain: it is the direct
less Congress enacts a declaration of
Illinois (Mr. ANDERSON).
product of a long, bitter, divisive war which
war or a specific authorization for use
has been almost exclusively an Executive
Mr. ANDERSON of Illinois. Mr.
of U.S. Armed Forces within 120 days
undertaking. If the traumatic Vietnam ex-
after the submission of the report, then
Speaker, I rise in support of the rule.
perience teaches us anything, it is that such
Mr. Speaker, I think the House Foreign
heavy commitments of American blood and
the President must terminate all such
Affairs Committee is to be commended
treasure must have strong democratic sanc-
activities.
on bringing to this body what is basically
tion if they are to be sustained, they can-
Mr. Speaker, it is important that the
a sound and strong war powers bill. I
not be entered into by stealth, dissumula-
House of Representatives accept the
have felt for some time now that the
tion, and deliberate ambiguity on the part
principle of war powers legislation. The
of the Executive We simply cannot af-
Congress must take affirmative action to
procedures for a congressional role con-
ford to undertake another major commit-
in this area, especially in view of our
tained in this resolution are reasonable,
ment in which we begin to falter in mid-
tragic Vietnam experience. On May 23
course because of public confusion over the
workable, and acceptable. It is an imple-
of this year I introduced my own war
purposes and legitimacy of Executive initi-
mentation of the Constitution not a
powers bill, H.R. 8066, the Defense Emer-
ated actions.
change in our basic law.
I strongly urge the House to act favor-
gency Procedures Act of 1973.
I think those words ring just as true
Like the Zablocki bill, my bill would
ably on the war powers resolution. The
today and explain the basic need for the
require prior consultation between the
national interest requires Congress to
type of legislation which we are today
President and Congress on committing
share responsibility with the executive
considering. The time has come to right
American forces overseas, would require
at the onset of all wars. We owe it to
that imbalance in a responsible manner
that President to make a full report in
ourselves and to the American people
and to reinvolve the Congress in the
writing to the Congress when forces are
whom we serve.
war making process. I think the Amer-
Ms. ABZUG. Mr. Speaker, I join in
committed, and would provide proce-
ican people fully expect this of us and I
dures whereby the Congress could ap-
think we owe it to the American people
appealing to my colleagues to follow up
prove or disapprove that action. Unlike
their historic vote of May 10 by approv-
after what we have just gone through.
the Zablocki bill, my bill would have ter-
ing today a total ban on the use of any
Mr. MARTIN of Nebraska. Mr.
funds to finance American bombing in
minated the President's authority to use
Speaker, I support the rule, and urge its
troops without specific authorization
Cambodia and Laos.
adoption.
after 90 days instead of 120 days, would
When the House took its unprece-
Mr. FISH. Mr. Speaker, today we are
dented action last month it was respond-
require that early termination of the
debating not only a piece of legislation
President's authority could only be
ing to the overwhelming desire of the
but a principle. We are called upon to
American people to end once and for all
achieved by enactment of a bill or joint
determine whether or not the institution
U.S. military intervention in Indochina.
resolution rather than by passage of con-
of the Congress has the will to recap-
Our vote was limited to a denial of a
current resolution, and would have es-
ture its proper constitutional role with
tablished a new Joint Committee on
request by the Department of Defense for
respect to warmaking.
"transfer authority" to use funds to pay
National Security to consult with the
The history of a President engaging
for military activities in and over Laos
President on decisions to commit troops
in military operations without direct
and Cambodia, but the significance of our
and to advise the appropriate committees
congressional authorization can be traced
action was clear to the entire world. For
of Congress with respect to related
back to Andrew Jackson. But these OC-
the first time this body had acted in a
legislation.
currences have become frighteningly
While a good part of our debate will
decisive way to say no to the adminis-
common since World War II, spurred by
tration's policy of massive terror bomb-
be consumed today and on Wednesday
the cold war, and the expansion of our
in discussing the proper mechanics of a
ing in a distant and tiny Southeast Asian
defense role throughout the world. As
war powers bill, the truly important as-
land.
pect of this whole exercise, it seems to
Henry Steele Commanger has noted:
During the debate last month there
me, is that the Congress is now willing
Five times in the past ten years Presi-
were some expressions of concern that a
dents have mounted major military inter-
to face up to its war powers responsi-
stand by the House at that point might
ventions in foreign nations without prior
bilities under article I of the Constitu-
undercut Henry Kissinger in his negotia-
consultations with the Congress.
tion by prescribing certain guidelines
tions in Paris. The Paris talks have come
and procedures for the Congress and the
It is not necessary to belabor the sad
and gone, and we have heard Mr. Kis-
President to follow in those situations
history of this country's involvement in
singer's declaration that there is noth-
in which we are committed to hostilities
Indochina. Had our recent history been
ing in the new agreement that commits
21208
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
the United States to cease the Cam-
No end to the bombing is in sight un-
broached by several of my colleagues, this
bodian bombing.
less we act. Henry Kamm of the New
is not even a question for discussion. It
We also have heard the testimony on
York Times reports that there is "no
was decided several hundred years ago
June 18 of James R. Schlesinger, the pro-
likelihood that the Cambodian armed
in the constitutional conventions which
posed new Secretary of Defense, who de-
forces can reach a level of competence
formed this Government that each
fended the bombing as necessary. He also
that will make the use of American air
branch of Government and every elected
made the arrogant claim that the bomb-
power less needed." About the only act
official within each branch, was to be
ing in Cambodia lies within the consti-
of independent self-defense Lon Nol has
directly accountable to the people.
tutional authority of the President, a
reportedly been able to mount was his
Certainly much has changed since that
statement for which there is no basis
regime's recent arrest of astrologers who
time, but if you start to talk about
in fact. Mr. Schlesinger also held out the
had predicted his ouster.
changing the basic principle of account-
possibility that the administration might
We have a choice today. We can vote
ability then you had better realize that
decide to resume bombing in Vietnam
to accept the Eagleton amendment and
you are talking about changing, and
under certain circumstances, presumably
thus end the unimaginable suffering of
sacrificing, the entire democratic struc-
without any authorization from Con-
the Cambodian people. Or we can stand
ture of our Government.
gress.
pat any say, Yes, last month we voted to
However, it is the congressional ac-
Clearly, if this House leaves it up to
limit funds for bombing, but only until
tion section of the bill which provides
the administration to decide when to
the end of June, and after June the ad-
the meat of the legislation and thus is
end the bombing, that day may not come
ministration has our blessing to continue
the greatest subject of controversy. The
until all of Cambodia is turned into a
its unconstitutional, cruel, and wanton
question here is not what type of say
wasteland. It is already on the way to
bombing of a nation that in no way af-
we want in the manipulation of this
becoming that. In April, a near record
fects our security or represents any
country's vital resources, the most vital
of 54,725 tons of bombs were dropped
threat to our people or Government. We
of which is still her man, and woman,
on Cambodia, the equivalent of two and
are voting today to prohibit the use of
power, but if we want any say at all. The
one-half Hiroshimas. Observers reported
transfer funds for this kind of activity.
degree of our control is a matter which
that because of the escalated Cambodian
How could we then turn around and
will be decided by the dictates of the in-
bombing, the "devastation of the coun-
permit the use of other funds for it?
dividual situations. Whether or not we
tryside and the movement of refugees
I do not believe we can do that. I do
have any say at all, is a question to be
have reached unprecedented levels."
not believe that we can welcome the
solved by us here, this week, in our pas-
Civilians, including children, are being
detente and hopes for world peace rep-
sage of a war powers resolution.
slaughtered. Hospitals and schools are
resented by the Brezhnev visit and at the
But to pass a war powers resolution
being bombed, reportedly by the Cam-
same time continue this policy of mad-
without a meaningful congressional ac-
bodian air force under the direction of
ness in Indochina.
tivity clause is, well, to simply go on
American commanders.
We have, in this House by our vote,
passing-passing by your responsibility
A report in April by a study mission
the power to save human lives. We have
to the thousands of people whose multi-
representing the Senate Judiciary Sub-
the power to save billions of dollars by
ple voices are combined in your one
committee on Refugees presents a tragic
stopping the bombing. We have the
voice, passing by your responsibility to
portrait of a tiny nation, caught in a
power-and the duty-to reassert our
the thousands of young men who may,
civil war, undergoing agonizing punish-
constitutional authority to make and
in the future, have to fight and die for
ment from the skies, with men, women,
unmake war.
a decision made in the White House,
and children the victims of bombs
Let us choose to make peace.
passing by your responsibility to the
dropped by American Air Force men who
Mr. MITCHELL of Maryland. Mr.
Constitution which assumes, that as a
do not even see the havoc they create.
Speaker, I rise today in support of
Congressman, you want a meaningful
Inevitably, of course, some American
House Joint Resolution 542, although, to
say in the foreign affairs of your coun-
planes have been shot down and new
be honest, there are parts of the bill
try.
American prisoners of war are being
which should be unnecessary, although
There are two objections voiced
created, but what happens to them pales
unfortunately they are not. I am refer-
against the stipulation of a 120-day pe-
in comparison to what is happening to
ring to the consultation and reporting
riod during which time Congress may
the people of Cambodia.
clauses of the bill. It seems to me that
halt action and after which time action
The Senate subcommittee report
it should have been the natural state of
will be automatically halted unless other-
points out. that in the 3 years since
affairs for the executive branch, as it
wise stipulated by congressional ruling.
the United States invaded Cambodia-
sought to concentrate more and more of
These two objections are, basically, that
ostensibly to end the war in Vietnam-
the powers of troop commitment,
the President will in time of crisis, launch
at least one-third of Cambodia's popu-
hostility escalation and arms provision in
an unusually hostile attack, feeling
lation, some 2 million people, have fled
its own domain to grant Congress the
"pushed" by the 4-month limit.
the bombing and battle in the country-
token respect of periodic reports and
The other is that a peace settlement
side. It has become a nation of refugees.
occasional conferences.
will be put off until the end of the 4-
Thousands of civilian casualties have
However, the last few decades of Ex-
month period at which time the United
been reported. Orphans number some
States will lose whatever bargaining
ecutive activity in this area are surpris-
260,000. Over 50,000 war widows have
ingly devoid of any consideration of the
power. she had. The reasonings behind
registered with the government.
constitutionally invested authority of
these two objections, generally put forth
And the report said:
Congress to make the vital decisions of
by the same people, are mutually an-
Nowwhere is the tragedy in Cambodia bet-
troop and materiel commitment to con-
nulling. The first idea assumes the possi-
ter seen than in the gaunt faces of the thou-
flict areas. Therefore we find ourselves in
bility of a phenomenally rapid escala-
sands of hungry children our Subcommittee
the almost embarrassing position of hav-
tion; the second, of an equally phe-
mission saw-little bodies thrown together
nomenal deescalation. Now, in the wake
in makeshift camps, the human debris of
ing to legislate two points which should
of our 10-year involvement in Vietnam,
the bombing and war.
have been the simplest products of
this argument takes on a particular sig-
courtesy and logic.
This once rich rice-exporting land now
Moreover, I do not understand what
nificance. During that time, two very
imports 75 percent of the rice it con-
possible objections there could be to the
powerful, yet very different Presidents
sumes. War damage to civilian and gov-
told us time and again of the need for
requirement that the President file a
ernment installations totals over $2 bil-
time.
report within 72 hours, stating the nature
lion. Nearly 45 percent of the hospital
For 10 years, it was more time that
and scope of a major action to be taken
facilities have been destroyed. Over 40
they needed. If we had to make the dis-
in the name of the American people. Cer-
percent of the roads are destroyed or
tinction, some would argue that it took
damaged. More than one third of the
tainly, the President has adequate staff
us 5 years to escalate and 5 years to de-
bridges are out. These are the blessings
to prepare such a report. We are assum-
escalate. And that was merely for an
American air power has brought. And
ing that he has sufficient evidence to sub-
undeclared war in an area the size of
presiding over this destruction of a na-
stantiate the need for the action or it
New Jersey. It is hard then for me to
tion is the feeble, discredited, and un-
should not be taken. As for the basic
view with any alarm objections made,
popular Lon Nol regime.
concept of accountability which is being
based on the possibility of substantive
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21209
escalation or deescalation within a 4-
WAR POWERS OF CONGRESS AND
tive branches, whether or not we believe
month period.
THE PRESIDENT
in ourselves and the oath of office we
Again, I stress the fact that we are
Mr. ZABLOCKI. Mr. Speaker, I move
took.
here to discuss a war powers resolution,
that the House resolve itself into the
Madam Chairman, at the conclusion of
not a war courtesy resolution. The power
in this resolution lies in the congres-
Committee of the Whole House on the
the debate on this issue of war powers,
sional action section. If we refuse to
State of the Union for the consideration
I am confident our colleagues will decide
of the joint resolution (H.J. Res. 542)
the question on its merits. That is as it
accept that section, we are just wasting
concerning the war powers of Congress
should be. The basic question is whether
our time here today.
and the President.
House Joint Resolution 542 is a practical,
If the third section is the congressional
ability clause, then the fourth is certainly
The SPEAKER. The question is on the
equitable, and effective legislative answer
the congressional responsibility clause.
motion offered by the gentleman from
to the problem of how this Nation's war-
By outlining a definite time sequence to
Wisconsin (Mr. ZABLOCKI).
making powers should be exercised and
be followed, it insures that Congress will
The motion was agreed to.
by whom.
In an effort to help answer that ques-
act with the same effectiveness, in terms
IN THE COMMITTEE OF THE WHOLE
tion, allow me to outline briefly some of
of thoroughness and speed, that we are
Accordingly the House resolved itself
the background and history of this
demanding of the executive branch. It
into the Committee of the Whole House
legislative proposal, as well as the intent
emphasizes our contention that we are
on the State of the Union for the con-
and effect of the provisions. As the Mem-
not afraid to accept the rigors of crisis
sideration of the joint resolution, House
bers know, this House has passed war-
situations. It emphasizes, too, that as
Joint Resolution 542, with Mrs. GRIF-
making powers three times, in the last
large a body as Congress is, it will not
FITHS in the chair.
Congress twice.
accept the characterization of a lumber-
The Clerk read the title of the joint
Madam Chairman, in the 91st Congress
ing bear whose cumbersome nature and
resolution.
House Joint Resolution 1355 passed the
slow movements impede, rather than ex-
By unanimous consent, the first read-
House by a vote of 280 to 39 on November
pedite, the course of government, and I
ing of the joint resolution was dispensed
16, 1970. The Senate failed to act.
am including here the activities which
with.
In the 92d Congress House Joint Reso-
result from our commitments abroad.
The CHAIRMAN. Under the rule, the
lution 1 was introduced and passed the
Another source of disagreement seems
gentleman from Wisconsin (Mr. ZA-
House by a voice vote on August 2, 1971.
to be the question of whether or not a
BLOCKI) will be recognized for 1½ hours,
The Senate passed its own version and
war powers resolution should cover our
and the gentleman from California (Mr.
a parliamentary snarl ensued, and the
present commitments. I assume that this
MAILLIARD) will be recognized for 1½
House was required to act again to pass
is a point of contention since Mr. Den-
hours.
its version, and it did, by a vote of 344
nis' substitute bill specifically exempts
The Chair recognizes the gentleman
to 13 on August 14, 1972. In this, the
our present commitments in crisis areas.
from Wisconsin (Mr. ZABLOCKI).
93d Congress, 30-some bills and resolu-
The question as I see it is: Are we going
Mr. ZABLOCKI. Madam Chairman, I
tions were introduced, and a listing of
to pass a bill saying, "Yes, we are going to
yield myself such time as I may consume.
the sponsors of the bills appears on pages
be effective-tomorrow," or "Yes, we will
Madam Chairman, the resolution
2 and 3 of the report by the committee
be effective today."
which we are considering today, House
on this war powers resolution. This fact
Let me stress the fact that House Joint
Joint Resolution 542, gives this Congress
certainly is ample evidence that the sub-
Resolution 542 does not tie the Presi-
a historic opportunity to correct the im-
ject has deep interest.
dent's hands. It merely slows them up
balance in warmaking powers, which
Hearings were held and the subcom-
to the point where we can see what they
through the practice of recent years have
mittee has gone into depth in its study
are doing. There is a carefully inserted
swung too heavily to the President. I
and consideration of all the bills intro-
provision in the bill which allows for
think it was very succinctly stated in
duced in this session of Congress. After
the necessity of an instantaneous deci-
the opening statement, the opening sen-
4 days of markup in the subcommittee
sion in the case of nuclear attack. How-
tence, indeed, of our first witness dur-
and 3 more days in the full committee,
ever, in the wake of General Secretary
ing the hearings in this session of Con-
we reported the bill, Madam Chairman,
Brezhnev's visit it should be obvious that
gress. It was the Senator from New York,
that is before us for consideration.
the administration itself seeks an em-
Senator JAVITS. I think he put the issue
Throughout that extensive effort our pri-
phasis on detente legislation and no
in perspective, and I quote:
mary objective was to find a workable
longer on legislation a la Joseph Mc-
There is no longer any serious argument
and equitable solution which would re-
Carthy.
as to the existence of a constitutional crisis
affirm the constitutionally given author-
It is still true that the best philosophy
over the exercise of the nation's war powers.
ity of Congress to declare war.
of postattack recovery is preattack
The pertinent question is what will
Given that goal of restoring the bal-
restraint. And the best assurance of pre-
the Congress and the President do about
ance between the executive and the leg-
attack restraint is the proper filtering of
this crisis? The defacto concentration of
islative branches intended by the Found-
decisions through both the branches of
plenipotentiary war powers in the hands
ing Fathers, the committee was at the
Government responsible for making
of the President has subverted the letter
same time very sensitive to the Presi-
them.
and the spirit of the Constitution. The
dent's constitutional war powers. For
Mr. PEPPER. Mr. Speaker, I have no
issue of war powers is undoubtedly one
example, we were determined to avoid
further requests for time.
Mr. Speaker, I move the previous ques-
of the most complex and challenging we
any approach defining or codifying the
will ever face. It involves important and
war powers of the President. Such an
tion on the resolution.
The previous question was ordered.
intricate constitutional questions which
action would draw rigid lines between
go to the very heart of our democratic
the Congress and the President in the
The resolution was agreed to.
system.
area of warmaking powers.
A motion to reconsider was laid on the
table.
The legislation before us deals with a
We were also highly cognizant of the
democratic control over that most vital
President's right to defend the Nation
of national decisions: the declaration to
against attack without prior congres-
GENERAL LEAVE
go to war. The issue of war powers is a
sional authorization in extreme instances
subject that, as I said, is subject to deli-
such as nuclear attack or direct invasion.
Mr. ZABLOCKI. Mr. Speaker, I ask
cate constitutional consideration. In the
On the basis of the deepened under-
unanimous consent that all Members
may have 5 legislative days in which to
final analysis, however, the question is
standing provided in the hearings and
quite simple: whether we do or do not
from observations over the recent years,
revise and extend their remarks on the
believe in our Constitution, whether or
it became increasingly evident that the
pending resolution, House Joint Resolu-
not we believe in the unlimited power in
tion 542.
problem did not center on such extreme
this area, and whether this unlimited
circumstances. Rather the main dif-
The SPEAKER. Is there objection to
power should rest with one man-the
ficulty involved the commitment of the
the request of the gentleman from Wis-
President of the United States, whether
U.S. troops, Armed Forces, exclusively by
consin?
or not we believe ii the checks and bal-
the President without congressional ap-
There was no objection.
ances system of the legislative and execu-
proval or adequate consultation with the
CXIX—1338-Part 17
21210
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
Congress in overseas areas, in foreign
Madam Chairman, I urge the adoption
When we deal with the subject of war
countries.
of the war powers resolution without
powers, we are in the area of shared
I have gone into both the background
amendment.
powers of the Congress and of the Presi-
of the issue and the complexity of the
Madam Chairman, in an effort to give
dent. It is almost impossible to draw a
constitutional questions which governed
every Member an opportunity to discuss
precise line where the power of the Pres-
the committee in an effort to show the
this very intricate legislation, I will with-
ident begins and the power of the Con-
challenge we faced. Clearly the problem
hold a detailed explanation for others of
gress ends, and vice versa.
demanded a balanced and delicate solu-
the subcommittee and the full commit-
However, I think that the committee
tion and a solution was born of con-
tee to pursue the debate, and we shall all
and the gentleman have done a very good
sensus. I believe House Joint Resolution
on the committee attempt to try to reply
job in this respect. Even more important
542 represents that solution. As a con-
to the intricate questions and the pointed
than defining or limiting powers is the
sensus I believe House Joint Resolution
questions that may be asked of us.
act of setting up a mechanism whereby
542 meets also the test as demonstrated
Mr. FINDLEY. Madam Chairman, will
both the Congress and the President can
by the subcommittee's vote of 9 to 1 and
the gentleman yield?
exercise their shared powers.
the full committee's favorable vote of
Mr. ZABLOCKI. I yield to the gentle-
However, I do have a question on page
31 to 4 with one Member voting
man from Illinois.
3, section 4(b), wherein it is stated:
"present."
Mr. FINDLEY. Madam Chairman, I
(b) Within one hundred and twenty cal-
Briefly, the legislation does the follow-
have had the great pleasure of working
endar days after a report is submitted or is
closely with the gentleman from Wis-
required to be submitted pursuant to sec-
ing:
consin on the subject of war powers now
tion 3, the President shall terminate any
Directs the President in every possible
commitment and remove any enlargement of
instance to consult with the leadership
for a least 3 years, perhaps longer, and I
United States Armed Forces with respect to
and appropriate committees of Congress
have had a chance to witness firsthand
which such report was submitted, unless
before, and regularly during, the com-
the diligence with which he has ap-
the Congress enacts a declaration of war or
mitment of U.S. Armed Forces to hostili-
proached the problem, his patience, his
a specific authorization for the use of
ties or situations where hostilities may
willingness to listen to all viewpoints, his
United States Armed Forces.
be imminent;
determination to see it through, until we
I would like to ask the gentleman, and
Requires that the President make a
finally get a proper war powers bill on
this is what concerns me about the word-
formal report to Congress whenever,
the statute books.
ing of the legislation: Does the gentle-
without a declaration of war or other
It has not been an easy task. I know
man believe that the Gulf of Tonkin Bay
prior specific congressional authoriza-
that his efforts are largely responsible
resolution would satisfy this requirement
tion, he takes significant action commit-
for the fact that on two previous occa-
of a specific authorization for the use of
ting U.S. Armed Forces to hostilities
sions this body did approve a war powers
U.S. Armed Forces?
abroad or the risk thereof, he places or
bill. His efforts are also largely respon-
Mr. ZABLOCKI. Madam Chairman,
substantially increases U.S. combat
sible for the fact that despite the fact
the direct reply to that question is "yes."
forces on foreign territory;
that these two initiatives did not lead to
The Tonkin Gulf resolution would satisfy
Provides for a specific procedure of
a law, he nevertheless had the determi-
the provisions of that section, of this
consideration by Congress when a Presi-
nation to bring the subject back out, to
resolution, section 4(b).
dential report is submitted;
work out a different approach. I certainly
I might say to the gentleman from
Precludes the President from commit-
commend the gentleman.
Missouri that Presidents in recent years
ting U.S. Armed Forces for more than
I think his efforts will be considered in
and over the history of our country have
120 days without specific congressional
the light of history as a great contribu-
assumed certain warmaking powers, and
approval, while also allowing the Con-
tion to the longtime efforts which many
the Congress was silent too often. Our
gress to order the President to disengage
people have been involved in, to try to
intentions in this legislation are to bring
from combat operations at any time be-
establish a proper relationship between
us into the formation of policy. There-
fore the 120-day period ends through
the legislative branch and the President
fore, we have provided for, in a section of
passage of a concurrent resolution;
in this most vital of all fields of govern-
the proposal for consultation to the ex-
Stipulates a specific congressional pri-
ment action.
tent possible. We have provided for the
ority procedure for consideration of any
Mr. ZABLOCKI. Madam Chairman, I
President to report to us. Specific con-
relevant bill or resolution which may be
thank the gentleman from Illinois for
gressional actions will follow, thereby
introduced. In this connection, Madam
his very generous and kind remarks. I
taking care of some of the concerns of
Chairman, I wish to reassure you and
would be remiss if I did not call the at-
many that the Congress may not act.
the other members of this distinguished
tention of our colleagues to the fact that
Therefore, the congressional priority pro-
committee that these provisions of House
the gentleman from Illinois has indeed
cedure was included in the legislation.
Joint Resolution 542-Sections 5 and 6-
contributed much to the consideration of
Section 4(b) would require affirmative
are in no way intended to bypass or
war power resolutions over the years.
congressional action within 120 days. I
otherwise violate your proper jurisdic-
The reporting section was drawn en-
cannot imagine that at a time when the
tion. First and foremost, these two sec-
tirely as a result of his efforts, as well as
President commits troops a resolution
tions are intended as so-called antifili-
section 4(c) which has come under ques-
would not be introduced by one Member
buster provisions. Their purpose is to
tion and debate earlier.
of Congress in either body which would
protect the interests of Congress.
Madam Chairman, as he has in the
require either the affirmation, the ap-
Specifies that the measure is no way
subcommittee and in whole committee,
proval of the President's action, or a res-
intended to alter the constitutional au-
I know that when we discuss the legisla-
olution disapproving it.
thority of the Congress or the President,
tion in detail, he will most adequately de-
Therefore, the very introduction of a
or the provisions of existing treaties;
fend his position and that of the
resolution would trigger the legislative
and
committee.
procedure by which the Congress would
Provides that the resolution would ap-
I also wish to commend the chairman
thereby be required to act. House Joint
ply to those commitments which are in
of the Committee on Foreign Affairs (Mr.
Resolution 542 provides for affirmative
progress on the date of its enactment
MORGAN) for his wise counsel and assist-
action.
into law.
ance. I also wish to thank the members
Mr. ICHORD. I believe I understand
In conclusion, I can assure you, Madam
of the subcommittee for their help, and
the gentleman in the well, but I am still
Chairman, that House Joint Resolution
for the contribution of the other cospon-
concerned about the extreme difficulty
542 is the result of much serious thought,
sors of the resolution.
we get into as a free Nation when we
comprehensive review, and many hours
Mr. ICHORD. Madam Chairman, wll
are involved in an undeclared war. Re-
of careful deliberation. In short, it ful-
the gentleman yield?
gardless of how one has felt about the
fills our determined objective of pro-
Mr. ZABLOCKI. I yield to the gentle-
war in Vietnam, one of the main difficul-
viding a means whereby the President
man from Missouri (Mr. ICHORD)
Mr. ICHORD. Madam Chairman, I
ties was that the Government of the
and the Congress can work together in
want to commend the gentleman in the
country had defined certain objectives
mutual respect and maximum harmony
well for the leadership which he has
but did not have the body of law to pro-
toward their ultimate, shared goal of
maintaining the peace and security of
demonstrated and exerted in this legis-
tect the objectives of the U.S. Govern-
lation.
ment. That is, we had so many acts on
the Nation.
June 25, 1973
CONGRESSIONAL RECORD
21211
the part of many citizens both within and
mittee of the Whole House on the State
and the President, nevertheless, commits
without the country which, in a time of
of the Union, reported that that Com-
troops to combat, he must make a report
declared war, would have been treason.
mittee, having had under consideration
to us, and within 90 days, under my
Never again do I want this Nation to be-
the joint resolution (H.J. Res. 542), and
proposal, we must vote it up or down. We
come involved in another undeclared war.
finding itself without a quorum, she had
have to vote, but we do not make him
We are still not solving the problem
directed the Members to record their
stop unless we vote it down.
as to how we protect the aims and ob-
presence by electronic device, whereupon
I cannot help but suggest to the gen-
jectives of the Government if we do not
320 Members recording their presence, a
tleman-and I am very, very sincere
have a declared war.
quorum, and she submitted herewith the
about this-that if we are going to take
Mr. ZABLOCKI. From the testimony
names of the absentees to be spread upon
such an important step and determine
we received during the hearings I believe
the Journal.
such important policy, we should do it
it can be assumed that declared wars are
The Committee resumed its sitting.
by an affirmative vote, not just by letting
probably something for the pages of his-
The CHAIRWOMAN. When the point
120 days drift by without acting, which
tory
of order that a quorum was not present
then automatically ends the authority to
I might say to the gentleman, with the
was made, the gentleman from Wisconsin
conduct the hostility.
reporting requirements and the consulta-
(Mr. ZABLOCKI), had the floor and had
Mr. ZABLOCKI. May I say to the gen-
tion required of the President, I believe
consumed 19 minutes.
tleman from Indiana very sincerely that
the Congress will be in a much better
The Chair recognizes the gentleman
we certainly appreciated the impact the
position to deal not only with the com-
from Wisconsin (Mr. ZABLOCKI).
gentleman made in this area of discus-
mitment of troops but also with the prob-
Mr. DENNIS. Madam Chairman, will
sion when he testified before the sub-
lem the gentleman from Missouri raised.
the gentleman yield?
committee. Certainly we are fully cogni-
Mr. ICHORD. I agree with the gentle-
Mr. ZABLOCKI. I yield to the gentle-
zant of his interest and the legislation
man that I believe it would be better than
man from Indiana.
he has introduced, and we gave it full
having nothing at all, but I am still con-
Mr. DENNIS. I thank the gentleman
consideration.
cerned about our getting involved again
for yielding.
Let me point out, however, where the
in an undeclared war situation.
I should like to join with my colleagues
gentleman's proposal does not, indeed, re-
Mr. ZABLOCKI. I might say to the
who have complimented the gentleman
turn the balance in the war powers area,
gentleman from Missouri that we are all
from Wisconsin for his pioneering effort
as does the provision of section 4(b) that
concerned about that development.
in this very difficult and important field.
within 120 days Congress must act
Therefore, this legislation is before us
I join unreservedly in that compliment,
affirmatively.
today, not only to allay our concern but
even though I, unfortunately, do not
Indeed, if it might not be able to pass
also to bring about a solution to the prob-
agree with the gentleman's bill. I do
any legislation, such a situation could, I
lem.
agree with the gentleman's intent on the
might add, develop because, as in the
Mr. YOUNG of Florida. Madam Chair-
subject of war powers, but there are cer-
gentleman's bill, if the Congress would
man, this is too important an issue to
tain features of the gentleman's bill
pass legislation disapproving the Presi-
be discussed before an empty House. I
which give me great concern.
dent's commitment of troops and if it
make the point of order that a quorum
When we rose here a minute ago, the
were a bill or a joint resolution the Presi-
is not present.
gentleman from Missouri had been talk-
dent could veto it. If the President would
The CHAIRMAN. The Chair will
ing with the gentleman about section 4
veto the bill it would take a two-thirds
count.
(b). That section gives me great concern,
vote of Congress to override. Under the
Twenty-five Members are present, not
too, because that section says that the
provisions of section 4(b) if the Presi-
a quorum. The call will be taken by elec-
President must make a report of commit-
dent vetoes and there is not sufficient
tronic device.
ting troops to combat when there has
strength to override, then a resolution
The call was taken by electronic de-
been no declaration of war, and that
of disapproval is not enacted and after
vice, and the following Members failed
then within 120 days, after that report
120 days the commitment of troops must
to respond:
has been submitted, his authority to con-
cease. This could not happen under the
[Roll No. 279]
duct the hostility expires, unless the Con-
gentleman's proposal.
Adams
Diggs
Murphy, N.Y.
Addabbo
gress in the meantime has affirmatively
As for the gentleman from Indiana's
Edwards, Calif.
Nichols
Alexander
Esch
acted either to declare war or to other-
Nix
proposal, I further humbly submit that it
Anderson,
Eshleman
Owens
wise approve the action taken.
gives the President more power than he
Calif.
Evans, Colo.
Patman
Mr. ZABLOCKI. Or disapprove.
Anderson, Ill.
has now. Indeed, the President in the
Evins, Tenn.
Pepper
Archer
Fisher
Mr. DENNIS. That is right, but if it
Peyser
gentleman's proposal could veto a con-
Ashbrook
Flynt
Powell, Ohio
is disapproved, of course, it would expire.
gressional bill of disapproval. If we did
Ashley
Fraser
Railsback
The point I am making is that under
Badillo
not have a two-thirds majority the troops
Gray
Rees
Baker
the gentleman's bill there is no ques-
could remain.
Green, Oreg.
Reid
Beard
Gross
Riegle
tion but what the very important policy
We have given this matter some con-
Bell
Gubser
Roe
determination of whether hostilities
Bergland
sideration. If we want to bring in mean-
Hansen, Wash.
Roncalio, Wyo.
Bingham
should continue or not can be decided
Harvey
ingful legislation we must close all these
Rooney, N.Y.
Blatnik
Hawkins
Rooney, Pa.
by our inaction. In other words, if we
little loopholes in war powers legislation.
Boland
Hays
Rosenthal
do not do a thing in the Congress, when
Bolling
Mr. WOLFF. Madam Chairman, will
Hébert
Runnels
Bowen
the 120 days have expired, we have there-
the gentleman yield?
Heckler, Mass.
Sandman
Breaux
by made the fateful decision that the
Hogan
Sikes
Mr. ZABLOCKI. I yield to the gentle-
Broomfield
Hunt
Steiger, Ariz.
hostilities commenced by the Executive
man from New York.
Burke, Calif.
Johnson, Pa.
Stubblefield
should end.
Burlison, Mo.
Jones, Ala.
Mr. WOLFF. Madam Chairman, I
Sullivan
Byron
Karth
I submit to the gentleman that we
Carney, Ohio
Symms
would say so far as the Congress not de-
King
Cederberg
Teague, Calif.
should have the authority-and the gen-
claring war, this is an action in itself
Kluczynski
Teague, Tex.
tleman's bill I know grants that-to re-
Chisholm
Koch
because the full power-and I do not
Clark
Thompson, N.J.
quire the Executive under those circum-
Kuykendall
Thomson, Wis.
agree with those who say it is shared
Clay
Landrum
Conable
Tiernan
stances to terminate his action, but it
power-to declare war resides in the Con-
Mathias, Calif.
Van Deerlin
seems to me only fair and proper that
Conyers
Meeds
Coughlin
Whitten
if we want to take an important step
gress of the United States. I quote John
Michel
Crane
Widnall
Mills, Ark.
Wyatt
at that time, we should be required to
Marshall:
Danielson
Minshall, Ohio
take some vote affirmatively to termi-
The war powers being by the Constitution
Davis, Ga.
Wydler
Mitchell, Md.
Davis, Wis.
Yates
nate.
vested in the Congress, the actions of that
Mizell
Young, Alaska
body alone can be resorted to as our guide.
Delaney
Moorhead, Pa.
As the gentleman knows, I, myself,
Derwinski
Zion
Moss
Zwach
have a war powers bill before the Con-
The mere fact that the Congress does
Accordingly the Committee rose; and
gress which so provides. Under my bill
not declare war is in itself an affirmative
the Speaker having resumed the chair,
if there has been no declaration of war
action.
Mrs. GRIFFITHS, Chairman of the Com-
or any attack on the United States-the
Mr. ZABLOCKI. We do intend to com-
bill does not apply in those two cases-
plete the general debate tonight, Madam
21212
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
Chairman. We have a heavy schedule
Mr. ZABLOCKI. Madam Chairman,
its powers in a positive way by voting
for the entire week. This is important
that is not the interpretation at all. If
"yes" or "no."
legislation. We would want every Mem-
we are going to reassert our constitu-
There are some other sections that
ber of the Congress to be here for the
tional obligation and responsibility, and
we ought to look at very carefully. Sec-
debate and we will have a further oppor-
bring balance in the warmaking powers
tion 4(c) provides that the Congress can
tunity on Wednesday when we read the
area, it is necessary that we take such
by a concurrent resolution force the
bill for amendment under the 5-minute -
steps and enact such legislation where-
President to disengage U.S. Forces when
rule. We must finish the debate tonight
in a veto will not negate the outcome
they are engaged in hostilities without a
and I hope we will not have any interup-
a majority of Congress wishes to bring
declaration of war or other specific au-
tions. I want to make the announcement
about. In so doing, I point out to the
thority. The constitutionality has been
that we will finish debate whatever the
gentleman, 4(b) closes that "little loop-
questioned by many people, and there
hour. Within the 3 hours, we will hear
hope" of a veto that the President can
are many distinguished lawyers, of which
everybody's views and try to answer the
use in vetoing actions of the majority
I cannot claim to be one, who suggest
questions.
of the Congress or the majority of the
that such a concurrent resolution can-
Mr. DENNIS. Madam Chairman, will
people of the United States. The Presi-
not be made binding on the President
the gentleman yield?
dent could veto and it would require two-
since it does not comply with the con-
Mr. ZABLOCKI. I yield to the gentle-
thirds of Congress to overrule him. That
stitutional requirement that anything
man from Indiana for a question.
is what I was referring to.
with legislative effect be presented to
Mr. DENNIS. I am sure the gentleman
Madam Chairman, I reserve the bal-
the Chief Executive for his approval or
has given my bill the utmost consider-
ance of my time.
disapproval.
ation, there is no question about it in
Mr. MAILLIARD. Madam Chairman, I
Madam Chairman, I could discuss the
my mind, and I wish the gentleman had
yield myself such time as I may consume.
provisions of this resolution at great
arrived at a different solution, but un-
Madam Chairman, I am glad the House
length, but I believe we know already
der my bill as the gentleman knows, if
is considering this war powers resolu-
from the debate what the principal and
there has been a declaration of war or
tion, but I do very much regret that a
significant points are, over which we
attack on this country the bill does not
matter as important and precedent set-
should be concerned. The gentleman from
apply at all, and the bill further says
ting as this should be debated so late with
Wisconsin (Mr. ZABLOCKI) has already
that we in Congress must be consulted
so few Members to hear the debate.
discussed the joint resolution very effec-
first except in emergencies.
But, Members of this body ought to
tively. Other Members are interested in
It is only in emergency that the Pres-
have the opportunity to discuss this res-
expressing their views.
ident is going to be able to commit troops
olution, and this is one of the reasons I
In conclusion let me say that when
without consulting us, under the terms
voted in the Foreign Affairs Committee
the time comes I expect to support the
of my bill, but if he does that then it
to report the resolution, even though I
efforts of two members of our commit-
just seems to me if we want to call him
have considerable misgivings about it.
tee, the gentleman from Alabama (Mr.
off and end it, it is only in an emergency
Madam Chairman, I want to join those
BUCHANAN) and the gentleman from
situation where he can do it at all, and
who have commended and complimented
Ohio (Mr. WHALEN) to amend section
it ought to be incumbent on us to tell him
the distinguished chairman of the sub-
4(b) to correct the shortcomings I have
our views and to vote them, and we
committee. As ex officio member of that
described and basically to conform pretty
should not decide a question like that
subcommittee, I attended as many of the
much to the provisions that are in the
just by letting 120 days go by and not
hearings and as much of the markup as
bill which was introduced by the gentle-
doing anything.
I could, and he certainly gave full atten-
man from Indiana.
I would say to the gentleman, in my
tion to the rather delicate and compli-
I would urge support of this amend-
humble opinion under the legislative set-
cated problems that are involved here.
ment. I believe then we would have a
up in the Constitution, we cannot pass
Members will recall that on three prior
good measure. If the amendment could
a binding law and completely circumvent
occasions the House has passed legisla-
be adopted I would vote "yea" on final
the Executive as the gentleman tries to do
tion concerning war powers. Twice in
passage. As it is, I have very serious
with his resolution, if we try to act to
the 92d Congress we approved the lan-
reservations.
stop the war. If our action is going to
guage of House Joint Resolution 1,
I should like also to mention in pass-
have the binding force of law, it has to
which contained sections calling upon
ing that I expect to offer what I feel
be reported to the Executive. We cannot
the President to consult with the Con-
will be a perfecting amendment to pro-
avoid the problem of the veto because
gress before involving the Armed Forces
vide for contingencies, when the Presi-
it is built into the constitutional scheme.
of the United States in conflict, and then
dent may have to continue hostilities
Mr. ZABLOCKI. Madam Chairman,
report to the Congress all actions taken
after he has been directed to cease them
this resolution is, as I said, a double-
without specific prior authority by the
in order to disengage our forces with
barreled attempt to deal with the issue
Congress.
reasonable safety. There is such a pro-
of war powers in a legislative manner.
While I supported these resolutions
vision in the Senate bill. I do not know
Mr. FRELINGHUYSEN. Madam
and still strongly support the consulting
whether it was discussed in subcommit-
Chairman, will the gentleman yield?
and reporting provisions of the resolu-
tee, but it would seem to me it is almost
Mr. ZABLOCKI. I yield to the gentle-
tion before us, I must say that I have
essential to have some mechanism by
man from New Jersey (Mr. FRELINGHUY-
reservations-serious reservations-over
which, if the Congress should act posi-
SEN).
some of the operating provisions that
tively, or after 120 days, if the automatic
Mr.
FRELINGHUYSEN. Madam
have been added to this year's bill. In
provision remains in the bill, the Presi-
Chairman, I wonder if I misheard what
particular, I am concerned, as others
dent could take action. If the 120 days
the gentleman said. Did I understand
who have already spoken have expressed
are up and he has to undo whatever he
the gentleman to say that a decision had
their concern, over section 4(b), through
has done it would seem to me certainly
been made in subcommittee against posi-
which the President can be forced to act
we would want to let him have authority
tive action by Congress to upset a Pres-
as a result of the failure of the Congress
to let the troops fight their way out with
idential determination to use troops? Did
to act.
maximum safety, instead of just having a
he describe that decision as, "We must
Under section 4(b), the President will
pell-mell automatic dropping of guns
close all these little loophopes?"
be required to terminate any commit-
and leaving.
Is the gentleman suggesting that the
ment and to remove any enlargement of
I suppose one could say it was implied.
President's authority to commit troops
the U.S. Forces with respect to which a
I believe the Senate was wise to include
overseas is a "little loophole" that Con-
report would be required and had been
the provision. If under those circum-
gress must close? I wrote down what I
submitted to Congress, unless the Con-
stances he certifies to the Congress that
thought I understood the gentleman to
say. I can hardly believe my ears, if he
gress enacts a declaration of war or some
this is the situation and in order to
is describing the situation that is pre-
specific authorization for the use of the
safely withdraw from hostilities the
U.S. Armed Forces. The effect of 4(b)
hostilities must go on for a given period
sented to us by 4(b) as simply an at-
tempt by his subcommittee to close "lit-
would be to permit the exercise of con-
of time, this would give him legal au-
tle loopholes" now available to our Chief
gressional will through inaction.
thority to do it.
Executive.
Surely the Congress ought to exercise
I do not agree with too much of the
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21213
Senate bill, but I believe this is one provi-
ers of each of the three branches, and
In other words, the constitutional au-
sion we should copy.
limiting overall power as well, knowing
thority of both the President and the
Mr. SKUBITZ. Madam Chairman, will
that unlimited government is tyranny.
Congress are left intact. We couldn't
the gentleman yield?
The Congress, and only the Congress,
change their respective powers, if we
Mr. MAILLIARD. I yield to the gentle-
was given the constitutional authority to
tried to, not by legislation.
man from Kansas.
declare war. But, as we have all observed,
What the resolution does do, however,
Mr. SKUBITZ. On page 4 are we really
down through many years this power
is require the President to use his con-
saying that the President shall terminate
has been dangerously eroded.
stitutional authority in a responsible
any commitment and remove any en-
No President, however sincere and
manner, when he deems it necessary to
largement of U.S. Armed Forces unless
dedicated, ought ever to have unlimited
involve the United States militarily
the Congress enacts a declaration of war
power to commit our Nation to war,
overseas.
or a specific authorization for the use of
without the express approval of the Na-
At the same time, House Joint Resolu-
U.S. Armed Forces, on the basis of some-
tion through its duly elected, locally re-
tion 542 places a burden on the Congress
thing similar to the Gulf of Tonkin
sponsible representatives, in the Con-
to act responsibly in addressing itself to
gress of the United States.
such situations.
Resolution?
Mr. MAILLIARD. That is precisely
America must profit by the sorrowful
Some Members have expressed uneasi-
what we are saying, yes.
lessons learned on the mainland of Asia
ness about the mechanism provided in
Mr. FINDLEY. Madam Chairman, will
during the course of the past three dec-
section 4(b) of the resolution, which
the gentleman yield?
ades.
would require that any commitment of
Mr. MAILLIARD. I yield to the gentle-
Congress never declared war, nor did
U.S. Armed Forces to military action
man from Illinois.
it take other clear-cut affirmative action
must end after 120 days, if Congress has
Mr. FINDLEY. I thank the gentleman.
during the Korean police action. It never
not acted affirmatively to endorse the
I appreciate very much the gentleman
formally declared war during the Viet-
President's action.
mentioning the possibility of a perfect-
nam conflict, although the Gulf of Ton-
I believe this section to be the key to
ing amendment. I noticed the language
kin Resolution was looked upon by many
effective war powers legislation. Perhaps
in the Senate bill, and I felt that it was
as having produced that effect.
the period for congressional action
not necessary, that it was understood.
As a result, confusion and uncertainty
should be shorter or longer-30 days, 60
Nevertheless, I am sure the gentleman is
throughout the Nation has existed about
days, 90 days, or 120 days as provided by
sincere in presenting this as a problem
the purpose and objectives of our mili-
this measure. On that, reasonable men
which has to be faced.
tary commitment. As the costs in men
may differ-and compromise.
As a courtesy to the Members of this
and treasure escalated, disunity and dis-
There can be no compromising, how-
body, I wonder if the gentleman would
sension, confusion and frustration, and
ever, on the issue of affirmative action as
read the language into the RECORD at this
fears and doubts increased.
provided in section 4(b). The people of
time, so that it would be in the printed
Such a situation just must never be
the United States must at some point be
RECORD and therefore we could examine
allowed to develop again.
permitted to have their voices heard
it in advance, for consideration on
We must make every effort to prevent
through their elected representatives in
Wednesday?
our Nation from ever again embarking
the Congress.
Mr. MAILLIARD. I will say to the
on full-scale war without the full moral
Opponents of the provision have sug-
gentleman that I may be able to do that
sanction and support of the American
gested that we run the risk of requiring
before the debate is over. The Senate
people.
the President to disengage from combat
language does not apply directly to our
In practical effect, this means that
abroad simply as a result of congressional
joint resolution. It had to be rewritten,
without further delay, we the elected
inaction.
and I do not have the text yet.
representatives of the people of the
Such a view demeans the seriousness
Mr. ZABLOCKI. Madam Chairman, I
United States must act. We must never
with which the Congress conducts its re-
yield 8 minutes to the gentleman from
let ourselves become involved in another
sponsibilities in issues of war and peace.
North Carolina (Mr. FOUNTAIN).
war without appropriate affirmative ac-
The attitude proceeds from a kind of
Mr. FOUNTAIN. Madam Chairman,
tion by the Congress.
"worst case analysis" which overlooks the
the issue of war or peace has troubled
That is the purpose and effect of the
totality of the war powers resolution
mankind since the creation.
measure before the House today-House
and the political environment which
Time and time again throughout his-
Joint Resolution 542, the War Powers
would prevail if events triggered its pro-
tory, that awesome question has con-
Resolution of 1973.
cedures.
fronted every nation. The way in which
This landmark measure simply reaf-
Under the resolution, the President
nations have answered that question has
firms congressional responsibility under
would be expected to consult with con-
often determined their fate and affected
the Constitution. It would require the
gressional leaders before making deci-
the lives of millions of people-for bet-
President to act within constitutional
sions which would send American fight-
ter or for worse.
limits, in any commitment of U.S. forces
ing men abroad into combat.
Sometimes the answers brought forth
abroad.
Under the resolution, the President
turmoil and terror. Kingdoms were lost,
The resolution calls for prompt Presi-
would be required to report to the fullest
empires crumbled, and democracies were
dential consultation with the Congress
extent possible on objectives and scope
subjugated by dictatorships.
in any such situation. It provides a pro-
of the commitment he had undertaken.
In other cases, the answers have re-
cedure for consideration by Congress,
Without question, legislation calling
sulted in democracy-as in the American
when U.S. forces are committed, and it
for an affirmation of the President's ac-
Revolution-and have brought about the
requires a withdrawal of those forces if
tion would be introduced into the Con-
defeat of vicious aggression-as in World
congressional approval is not forthcom-
gress, probably immediately after the
War II.
ing in 120 days.
commitment.
Always unwelcome, this question of
This resolution was shaped by the For-
After all, it takes only one Member of
war or peace is probably the most signif-
eign Affairs Subcommittee on National
either body-1 out of 535-to drop in
icant and far-reaching question any
Security Policy and Scientific Develop-
such a bill or resolution of support for
nation is ever compelled to face up to.
ments, of which I am a member.
the President.
In a democracy, surely the question is
It is the fourth such resolution on war
Once that single bill is introduced, the
not to be answered by one man alone.
powers to be reported by that subcom-
procedures which require congressional
Consequently, our debate today, estab-
mittee in the last 3 years. Moreover, it is
action would be set in motion, and a final
lishing responsibie guidelines relative to
the most comprehensive and strongest
vote would have to be taken in both
the war powers of the Presidency is a
measure to be reported.
Houses before the 120-day period ends.
crucial one. The manner in which we
After careful study and consideration
Under these circumstances, it is im-
of the voluminous testimony before the
possible to see Congress not acting at
settle it will have long-lasting effects on
subcommittee on the issue of war powers,
all. It must act and it will act.
the future of democracy in our country.
I am convinced that the proposal we are
I, therefore, urge that this body reject
Our Founding Fathers very wisely di-
debating today neither takes away from,
any attempts to delete section 4(b)-a
vided up the powers of the Federal Gov-
nor adds to the constitutional rights or
deletion which would destroy the heart
ernment, defining and limiting the pow-
powers of the President.
of the resolution.
21214
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
Madam Chairman, I have stood with
fact, I emphatically disagree-that this
must now reassert its own prerogatives and
three Presidents on the need for protect-
is a practical solution.
responsibilities.
ing the American commitment in Viet-
I do not think it is effective. I do
In his letter to Members, the chairman
nam. Once our forces were fighting there,
not think it is fair. I do not think it is
of the Committee on Foreign Affairs (Mr.
once our honor had been committed, I
equitable. Above all I do not think it
MORGAN) talked of balance, and the
believed we had to see the conflict
is workable. I do not think it is sensi-
gentleman from Wisconsin has also
through.
tive to the President's constitutional war
talked of balance. Dr. MORGAN said:
This was particularly Impressed upon
powers. I do not think it is a delicate
There is growing opinion in and out of
me during a study mission to the Far
solution. I do not think there has been
Congress that in recent years the balance of
East in 1969. Our group met with the
any subversion of the letter or spirit of
war-making powers in practice has swung
distinguished Prime Minister of Singa-
the Constitution which makes this ill-
too heavily to the President.
pore, Lee Kuan Yew.
advised effort in order.
He impressed upon us that the United
Likewise I disagree with my eloquent
Certainly I do not argue over the need
States as the "bulwark of freedom"-
friend, the gentleman from North Caro-
for any President to consult closely with
those were his very words-could not
lina. I do not think it will avoid the
Congress, especially on matters involving
leave Asia under conditions of defeat,
repetition of past mistakes. In fact, I can
the use of our troops. There is a need for
surrender, or disgrace. His words were,
see nothing that would justify the reso-
him to report fully and frequently on the
indeed, convincing.
lution as written except a compulsion for
nature of threats to peace or the reason
At the same time I have supported
self-assertion on the part of Congress.
for an outbreak of hostilities.
our Vietnam commitments, however, I
I know that Members of the House
For this reason I fully support the ap-
have had grave misgivings about the
have all received letters concerning this
proach of section 3 of House Joint Res-
lack of consultation and cooperation be-
resolution, some urging support for the
olution 542. However, I agree with the
tween the Executive and the Congress
measure as it came out of committee,
gentleman from Nebraska (Mr. MARTIN)
about the conflict in Southeast Asia.
and others urging major changes in its
that it is unwise to include in those re-
The Congress has not been permitted
language.
quirements an extension of the financial
to play the role in these hostilities which
My purpose here tonight is to examine
cost of a commitment of troops. The in-
the Constitution mandates. Conse-
briefly the reasons for the resolution.
formation would be of little value to us
quently, we must have more concrete
What is it that we seek to accomplish?
in deciding whether the initiative taken
guidelines for both the President and
What is the mechanism proposed to
by the President was good, bad, or in-
the Congress, if we are to avoid repeti-
achieve these goals? And even more im-
different, and it might well be of sub-
tion of past mistakes.
portantly, what is the likely result should
stantial help to an enemy in determining
Madam Chairman, we are pondering
this resolution as written be enacted?
the depth of our commitment of troops
matters of great significance today. The
In recent years many Americans in
overseas.
outcome of these deliberations may well
Government as well as in private life
I should point out in another place in
affect future decisions on war and peace
have voiced concern over what they see
the committee report, at the top of page
for this Nation.
as a diminution of the historic role of
9, in commenting on section 3, it states
Let us hope and pray that we will
Congress as the final arbiter of war and
that compliance "will provide the Con-
never again be forced to make such
peace. The proponents of House Joint
gress with adequate information on
decisions. Recognizing the possibility of
Resolution 542 would have us believe that
which to base its deliberations and pos-
such decisions in the future, however,
this measure addresses itself to that
sible actions" regarding the President's
let us be prepared to reach a national
problem and helps correct it. In fact,
commitment of forces. I agree with that
consensus on a course of action before
nothing could be further from the truth.
statement. But if information furnished
the Nation has become irretrievably
The obvious spot to look to determine
under section 3 will provide an adequate
committed.
the purpose of the legislation is the re-
basis for action by Congress, why is there
That is the purpose of the war powers
port of the committee and, I might say,
any need for the unfortunate language
resolution of 1973. I urge its adoption.
of section 4?
the statements of the proponents.
Mr. MAILLIARD. Madam Chairman,
Let us look at the report. On page 3 it
The gentleman from Wisconsin (Mr.
I yield 10 minutes to the gentleman from
asserts that the Cambodian incursion of
ZABLOCKI) has attempted to provide an
New Jersey (Mr. FRELINGHUYSEN).
answer. He said it is to correct an im-
May 1970, caused many Members to be
Mr. FRELINGHUYSEN. Madam
balance. If there is an imbalance that
disturbed by the lack of consultation
Chairman, I feel constrained to begin
requires a reassertion of our right to de-
with Congress. Another reference on
by expressing regret that we should be
clare war, I do not see why that should
page 5 is to the commitment of U.S.
discussing one of the most important
be necessary. Surely no one has ever
Forces exclusively by the President with-
pieces of legislation to be considered
doubted that the Constitution specifical-
out congressional approval or adequate
this year at so late an hour. No neces-
ly grants Congress that important power.
consultation with the Congress.
sity compels us to do so. I might point
And I doubt very much, though I wish
Madam Chairman, if all that were in-
out that it is now 12 minutes past 7
volved in this resolution were the impor-
it were the case, that the gentleman from
and I am the fourth speaker on this
tance of emphasizing the necessity for
Wisconsin is correct in saying that de-
proposal. I regret that this should be the
adequate consultation and reporting by
clared war is something for the pages of
case because I sense a feeling among
the executive to Congress, I would be for
history. Time alone will tell, but I as-
proponents that we should not debate
it, as I have been in favor of previous
sume if we are to prove anything by this
the issue at all. In fact, during the quo-
exercise, it is to remind us that we have
war powers resolutions.
rum call just now I was asked if I would
Mention has been made by several
the inescapable obligation of declaring
not submit my remarks for the RECORD.
Members with respect to the fact that
war if circumstances so indicate. So why
If I would do so, it was suggested that
is there now need to reassert this partic-
the House has acted favorably in previ-
others who were planning to speak
ular power of declaring war? And just
would do likewise. It is my opinion that
ous years on war powers resolutions, but
what are the other powers which must be
what is involved in this legislation is too
this resolution is quite different from
reasserted to restore balance? And why
important for us to treat this so casu-
what we have approved before. What we
must these unspecified powers be reas-
ally.
have approved previously was basically
serted at this particular time?
Quite obviously there are men and
to underscore the necessity of Congress
The gentleman from Pennsylvania
women with good intentions who are
getting updated and adequate informa-
(Mr. MORGAN) says approval of House
supporting this joint resolution. But as
tion so it could play its historic constitu-
Joint Resolution 542 will express our
I said when I appeared before the Com-
tional role.
"willingness"-this is his expression-to
mittee on Rules, good intentions do not
In another place, on page 5 the com-
accept responsibilities in the war powers
make good legislation. My misgivings
mittee's aim was "to reaffirm the con-
which were "intended" by our fore-
about this particular joint resolution,
stitutionally given authority of Congress
fathers. Surely he does not mean that
as it is now phrased, are monumental.
to declare war." The report also declares
Congress has delegated or could dele-
While I respect my colleague, the
on page 4:
gate other powers given to us by the
gentleman from Wisconsin (Mr. ZA-
To restore the balance provided for and
Constitution.
BLOCKI) I do not agree with him-in
mandated in the Constitution, Congress
And has Congress shown itself unwill-
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21215
Let us examine the reasons given for
there is little likelihood in many cases
ing? And what is the meaning of the
cryptic statement that Congress must
this language. Unquestionably, a basic
that Congress will move in any direction,
purpose must be to force Congress to
so the deliberate intent of this resolu-
reassert responsibilities which were "in-
reassert itself; that is, declare war, spe-
tion is to have congressional inaction
tended" by our Founding Fathers? At
this late date is the Foreign Affairs Com-
cifically support the President or specifi-
kick off a key change in national policy.
mittee trying to spell out the intentions
cally oppose him. In simple terms, its
I think this is objectionable. I think it is
purpose is to goad Congress to discharge
unconstitutional. Our past record under-
of those who wrote the Constitution? If
one of its fundamental responsibilities.
lines the basic responsibility of Congress,
so, just what responsibilities did the
Founding Fathers intend to give Con-
Somehow, it seems to me sad and un-
as the gentleman has pointed out earlier,
gress?
justified that there should be this feeling
at the very least, positive action by Con-
The proponents of this legislation con-
that Congress is weak kneed, that we are
gress should be required if there is to be
sider section 4 the core, or the key, as
reluctant or even incapable of action,
a change in the national course begun by
the gentleman from North Carolina put
that we must be reminded of the urgency
the President under his constitutional
it, of the proposal. The provisions of
of fully considering the implications of
authority as Commander in Chief.
hostilities in which our own troops are
Mr. DENNIS. Madam Chairman, if the
section 4 in my opinion lie at the heart
of the problem. They taint the entire
involved.
gentleman will yield again, in the time
But, perhaps section 4(b) needs to be
remaining, I wonder if the gentleman
effort.
Mr. STRATTON. Madam Chairman,
read again. It aims, the committee re-
has any thought on the different but
port says, "to deny the President the
equally interesting subject as to whether,
will the gentleman yield?
Mr. FRELINGHUYSEN. I yield to the
authority" to commit our forces for more
had this resolution been in force at the
gentleman from New York.
than 120 days. This is an extraordinary
time we got into Vietnam, it would in
Mr. STRATTON. Madam Chairman, I
proposition. Especially as this denial will
fact have done anything to prevent that
occur if there is a failure to act on the
involvement?
congratulate the gentleman from New
part of Congress. The language tacitly
Mr. FRELINGHUYSEN. Madam
Jersey for the very reasonable and sen-
assumes that the President, as Com-
Chairman, I am glad the gentleman
sible analysis he is giving of this legis-
mander in Chief, has the power under
asked me that question. If I had more
lation. His contribution in the commit-
the Constitution to commit our troops
tee report was outstanding and I think
time, I would be glad to answer at length.
in times of crisis.
It would not. I was here when we passed
his contributions in connection with the
If he has that power, and I hope there
the Tonkin Gulf resolution. Had a Presi-
debate on this legislation have been out-
is no argument on that point, how can
dent of the United States said, "The best
standing. We are legislating here, and
I hope to have something to say myself
that power be denied him? How can it be
way to defend the people, I believe, and
abrogated by the passage of a fixed time
on that point in a few minutes, in a
to protect our security is to declare war,"
schedule? The gentleman from North
we would have declared war.
highly charged, emotional atmosphere
Carolina says there is no power taken
The conclusion, Madam Chairman,
where fact is fiction and fiction is fact,
away from anyone under this proposal,
and I think the gentleman from New
let me say that this attempt to limit
that nothing is given to Congress or
the President's ability to defend the
Jersey is one of the few sound heads in
taken away from the President. Well,
the Congress today on this subject. We
United States-by failure of Congress
what is this attempt to deny the au-
to take affirmative action-strikes me as
can all feel what the temper of the House
thority to the President except an at-
is, but the remarks of the gentleman are
inexcusably irresponsible. Proponents
tempt to deny a power which he has
going to ring true in years to come.
argue that a fixed time period allows
under the Constitution as Commander in
Mr. FRELINGHUYSEN. I thank the
Congress the necessary time to become
Chief?
gentleman from New York for his com-
knowledgeable about the nature of the
Mr. DENNIS. Madam Chairman, will
crisis and then to decide whether to sup-
pliments.
the gentleman yield?
My real regret about the nature of this
port him or not. But, are we in Congress
Mr. FRELINGHUYSEN. I yield to the
debate is that it seems to have been
so impotent that we must attempt to
gentleman from Indiana (Mr. DENNIS).
taken casually by too many Members. I
transform our inability to act into a
Mr. DENNIS. Madam Chairman, I was
have no intention of calling attention to
positive policy action? Does common-
going to ask the gentleman from New
the fact that there are relatively few
sense not tell us this is a dangerous
Jersey if the President, as Commander
Members on the floor, but I would hope
course?
in Chief, has a constitutional right in the
we are going to have a discussion, pro
It must be obvious, moreover, that if
case of an emergency such as an attack
and con, of some of the unwise provisions
the President can exercise his authority
upon the United States, to deploy troops,
of this bill before the debate concludes.
with reasonable assurance only for the
perhaps on the high seas or even in Eu-
I do not know whether it is supposed to
120-day period that he will act differ-
rope, and I think he does have that con-
be a threat that we may be here until
ently than he would if he faced no such
stitutional right. How can we say that
midnight, but I think it is unfortunate
deadline. Could we in Congress seriously
that constitutional right expires at the
that we should have begun the debate
expect that a President would merely
conclusion of 120 days because we do not
after 6 o'clock and that we have come
stand by to await the ponderous inac-
reaffirm it by a vote in this body?
such a short way into the debate by
tion of Congress to undermine his con-
Mr. FRELINGHUYSEN. Madam
almost 7:30.
sidered course of action? To win sup-
Chairman, to answer the gentleman's
In any event, the framers of the Con-
port for his actions, he might hurriedly
question, I consider as a practical mat-
stitution, as I was saying, had flexibility
accelerate the fighting, he might "go for
ter, if there is authority in the President
in mind when they deliberately refrained
broke" when he otherwise would move
to take these actions, the lapse of a time
from closely defining the responsibilities
more deliberately. He might turn a rela-
period could not deprive him of that
of the legislative and the executive
tively minor affair into a situation call-
branches with respect. to the power to
power.
We should be pragmatic about what
ing for the upholding of national honor.
make war. Section 4(a) and section 4(b),
we are discussing. The proponents of this
Similarly, an enemy might avoid com-
on the other hand, seek to develop a
resolution realize that inaction is the
ing to terms with our Government, in
mechanism under which the President
strongest weapon Congress has. We have
the hope that with the passage of time
and the Congress would necessarily have
the President's authority would expire.
had Vietnam as a problem for 10 years,
to follow a rigid series of procedures.
This 120-day limitation, it seems to
and until today we did not take any pos-
Section 4(b), in the words of the com-
itive, direct action with respect to wind-
me, represents an attempt to deal with
mittee report, seeks "to deny the Presi-
an unforeseeable future situation, al-
ing down that war.
dent the authority to commit U.S. Armed
The CHAIRWOMAN. The time of the
most surely of critical importance to
Forces for more than 120 days without
our Nation's security, in a way which
gentleman has expired.
specific approval"-by Congress, of
Mr. MAILLIARD. Madam Chairman,
might well jeopardize our national in-
course. This termination of our involve-
I yield 1 additional minute to the gentle-
terests. Its strict definition, in advance,
ment in hostilities and the enforced
man from New Jersey (Mr. FRELINGHUY-
of our mode of operations, would have
withdrawal of our forces is uncondi-
SEN).
the effect of upsetting, and quite pos-
tional. It must be done without regard
Mr. FRELINGHUYSEN. Madam
sibly destroying, the flexibility by which
even to the safety of our Armed Forces.
Chairman, the fact of the matter is that
successful policy decisions are reached.
21216
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
Hard as it is to believe, section 4b as
period the executive branch proved to be
That, of course, is utter hogwash. Any-
now written could create a situation in
less than forthcoming in its relationship
body who was here in Congress during
which no one in the U.S. Government—
with Congress.
the long time of the Vietnam war, under
neither the President, nor the Con-
I, for one, desire, indeed expect, the
President Kennedy, President Johnson
gress-would have the responsibility for
Executive to report fully and consult
and President Nixon, knows that this
handling a national security crisis. The
closely with Congress, particularly dur-
House repeatedly supported the action
section provides that if the Congress
ing times of crisis. For that reason, I
that was taken. There is no question
fails to act-fails neither to approve or
wholeheartedly support the reporting and
about that.
disapprove the deployment of forces
consulting approach to warpowers legis-
I was here at the time of the Tonkin
abroad to meet a security crisis-then
lation. The role of Congress would be
Gulf resolution, along with the gentle-
the President is enjoined from contin-
enhanced by legislation which would spell
man from New Jersey, and this House
uing the deployment.
out the circumstances under which com-
could hardly restrain ourselves from
In other words, let us assume that at
plete information would be provided
rushing to put that measure through and
some time in the future a situation arises
promptly. At that point Congress can
send it on the way. to the Senate by a
which threatens American security. The
best be able to decide what legitimate,
unanimous vote. In fact, there were only
President meets it by deploying U.S.
and constitutionally appropriate, steps
two who voted against it in both Houses,
forces abroad. He reports that action to
it should take.
and both of them failed to return to the
the Congress. The Congress is unable
I should like now to digress. Our role
Senate the next time they were up for
either to approve or disapprove the
in the war in Indochina-the obvious
reelection.
Presidential action. After 120 days, re-
motivating force behind House Joint Res-
So there is no question about the fact
gardless of the situation and regardless
olution 542-is virtually at an end.
that the Congress had plenty of oppor-
of the threat to the United States, the
Had House Joint Resolution 542 been
tunity to repeal the war if we had wanted
President is enjoined from continuing
on the books 10 years ago it would not
to, and this thing was not slipped over
to act to meet the situation in his best
have changed the role of Congress in that
because of some failure on the part of
judgment. The threat to U.S. security
conflict, or in its resolution. It would
the Foreign Affairs Committee to devise
continues, and there is no one in the
have given us no powers we did not al-
proper legislation to equal out the bal-
U.S. Government willing and legally able
ready possess, nor would have given us
ance of power.
to take the responsibility for making the
the wisdom to know what course to take.
Oh, there has been a lot of talk in this
decisions necessary to meet the crisis.
It is almost certain, had a 120-day dead-
session about the need for Congress re-
It is one thing for the Congress to
line been in effect at the time of the
asserting its control and taking away
insist upon being able to participate in
incident in the Gulf of Tonkin that Con-
some of the powers the White House has
the decision to deploy forces abroad. But,
gress would have voted approval of Pres-
stolen from us. Well, the one area where
surely it is altogether another thing to
ident Johnson's decisions, or indeed have
there is no question about our authority
say that if the Congress is unable or un-
made a declaration of war. That kind of
to control is in appropriations, in the
willing to make a decision, then the
action would not have made our struggle
budgetmaking process. We have got the
President also should be legally required
in Vietnam any easier, in fact, it would
purse strings, all right, and no constitu-
to share that paralysis. Must Congress,
have tied us more tightly to the massive
tional lawyer would ever dispute that
in its desire to "assert itself," leave this
involvement which followed.
fact. But there are a lot of constitutional
country incapable of taking the steps
In trying to discover a more effective
lawyers who have trouble in trying to
necessary to meet some future threat to
role for Congress to play-particularly
decide exactly where the President's
the security of our people? Surely not.
in times of national crisis-we should not
powers as Commander in Chief end and
Yet that is exactly what section 4(b)
be tempted to embrace anything that
the congressional power to declare war
would do.
appears at first glance to contain
begins.
The manifold constitutional and na-
"strong" provisions. House Joint Resolu-
One can get lawyers on both sides of
tional security problems created by the
tion 542, while certainly insuring an im-
that issue, and we could argue until the
120-day provision of section 4(b) are
portant role for Congress, so perverts the
COWS come home on it. But here we are,
compounded by section 4(c). This sec-
warmaking process that there could be
3 or 4 days away from the beginning of
tion provides that hostilities and deploy-
confusion and confrontation within our
fiscal year 1974, a year when we are sup-
ments initiated by the President may be
system at a time of major crisis. We
posed to be asserting the independence
terminated by Congress alone at any time
should recognize the truth of what Jus-
of the Congress, and the authority to
within the 120-day period by means of
tice Goldberg once said, "The Constitu-
exercise our powers. And yet we have
a concurrent resolution. Concurrent res-
tion is not a suicide pact." The war
still not even come up with an alternate
olutions, of course, do not carry the
power, we should remember, is the power
budget to the one the President has pro-
weight of law. Previous legislative use
to wage war successfully.
posed for 1974 back in January.
of a concurrent resolution-primarily
Mr. ZABLOCKI. Madam Chairman, I
There have been a few Members of
during the Second World War-provided
yield 5 minutes to the gentleman from
the other body who have devised an al-
for the recall of additional powers
New York (Mr. STRATTON).
ternate congressional budget of their
granted the Executive by Congress. In
Mr. STRATTON. Madam Chairman,
own. But I have been urging the leader-
contrast, its use in House Journal Reso-
as I said a moment ago in the colloquy
with the gentleman from New Jersey
ship of the House, "If you do not like
lution 542 simply represents a bald effort
the President's budget"-and I do not
to terminate existing constitutional au-
(Mr. FRELINGHUYSEN), I believe this de-
like it too much myself-"then let us
thority. Under such a theory, Congress
bate is taking place today in a kind of
come up with an alternate budget." But
could decide tomorrow that henceforth
Alice in Wonderland situation, where we
we still have not gotten it. And we are
it could negate by concurrent resolution
are really forgetting what the true facts
dragging our feet in developing budget
any legislation it has ever passed.
are. We are setting up some fictions; we
control legislation. We are still back to-
Furthermore, it is doubtful that this
are setting up some straw men, and then
day in the old business of passing indi-
provision could ever be workable. As
we are knocking them down.
vidual appropriation bills without know-
Presidents have throughout our history,
I do not know whether I can get my
ing what they are likely to add up to.
it is predictable that a Chief Executive
remarks in in 5 minutes, but I believe
there are some things that ought to be
So the one authority we have the clear-
will ignore a concurrent resolution if he
does not agree with it. It seems to me
said in this debate and ought to be in
est and most certain ability to exercise
particularly unwise to invite him to do
the RECORD to be read.
we refuse to exercise; but here we are
so at a time of national crisis.
One of them certainly is the concept
trying to take away the powers of the
that we got into Vietnam because this
President as Commander in Chief under
Sections 4 (b) and (c) do not aid in
Congress was unable or unwilling to act;
certain dubious interpretations of con-
clarifying a twilight zone of authority
that somehow or other the President
stitutional distribution of power.
between Congress and the President.
slipped this war over on us when we
Of course, everybody knows what we
Rather, they succeed in raising a host of
were not looking and we are only now
are really doing here. We are trying to
new problems. In the past decade the
getting around to retrieving the "balance
repeal the Vietnamese war. And we are
United States has gone through a sear-
of power" between the House and the
doing it after that war has come to an
ing experience in Indochina. During that
White House.
end, or very largely to an end. It was an
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21217
unpopular war; there is no question about
tion-certainly not this legislation-
emy would simply nibble away at our
it. I do not believe it has been especial-
would ever prevent that.
rights and interests, and perhaps even
ly popular in my district. But I have stuck
We simply cannot pass a law to pre-
our territory, bit by bit the old salami
with it because I believe it was in keep-
vent everything that we do not like. This
technique, and never so dramatically as
ing with all our efforts since World War
Government of ours could never have
to precipitate a strong and obvious
II to create a world of stability and free
functioned as long as it has if there had
majority in the Congress.
of aggression. I stuck with President
not been some element of mutual under-
This of course is what Hitler did suc-
Kennedy. And I believed that just be-
standing and mutual respect between all
cessfully for 3 years in Europe, in the
cause we changed from President Ken-
three of the branches. And not even this
Rhineland, in Austria, and in Czecho-
nedy to President Johnson was no reason
legislation is going to repeal that very
slovakia. And it is what some people be-
to change my opinion that our commit-
necessary part of a functioning democ-
lieve some Soviet leaders would like to
ment over there was proper, so I did not
racy.
be able to do in Western Europe, to bring
change my mind under President John-
Actually, Madam Chairman, this ef-
about the "Finlandization" of that con-
son, and I did not change it later on
fort to try to set some kind of outside
tingent, weaken its will to resist, and nib-
when President Nixon became President
control over the Nation's military activ-
ble away at its territory and its interests.
and continued a policy carried on under
ity is nothing new. I served back in
So I do not support this legislation,
three previous Presidents.
1941 as a congressional secretary here
Madam Chairman.
But it is an unpopular war, no doubt
and I can remember that one of the
I am especially disturbed over the pro-
about that, and now has finally gotten
more famous House Members then was a
vision of this bill which other speakers
out of the way. Let us not forget that
gentleman from Indiana, Louis Ludlow.
have referred to, which permits inaction
the Congress continued to support this
Louis Ludlow was the author of the Lud-
on the part of Congress to override and
war at every opportunity, including un-
low amendment, which was designed to
rescind an action of the President.
der President Nixon. But now, that it is
keep America out of war especially an-
If we are not to undermine the credi-
finally over, we are going to try to square
other world war, simply by requiring a
bility of our country and our vital deter-
ourselves with the voters by repealing the
national referendum before we could go
rent power, I believe the legislation
Vietnam war by putting this legislation
to war. Think what might have happened
should be amended to require positive ac-
on the books.
on December 7, 1971, if we could not have
tion of disapproval on the part of Con-
Actually, as the gentleman from In-
moved at Pearl Harbor until after a na-
gress to override the President. The
diana (Mr. DENNIS) pointed out, if it had
tional referendum had been held.
gentleman from Indiana (Mr. DENNIS)
been on the books at the time it would
What we would really be doing if we
has offered an amendment along these
not have done any good anyway.
were to pass this legislation is under-
lines, I would support his amendment,
Madam Chairman, just to show that I
mining the proper power of the President
and if it is not successful shall myself
am not choosing up political sides here
to speak for the country in foreign af-
offer a simpler amendment along the
tonight, let me say that this reminds me
fairs. Think, for example, what might
same lines. We have a precedent for this
of another futile action, equally futile
have happened during the 1962 Cuban
action in the Reorganization Act, and I
and equally ridiculous, and equally based
missile crisis had President Kennedy
believe something like it would be far
on a fiction. That is the 22d amendment
been restricted by this kind of legisla-
more acceptable than the present word-
to the Constitution, which was an at-
tion. Would Khrushchev have taken
ing of the bill.
tempt to repeal the third and fourth
President Kennedy's threats to invade
Mr. MAILLIARD. Madam Chairman,
terms of President Franklin Delano
Cuba seriously if this legislation had
I yield 10 minutes to the gentleman from
Roosevelt years after he was in his grave.
been on the books?
Illinois (Mr. FINDLEY).
The Republicans could not defeat him,
And in that connection, incidentally,
Mr. FINDLEY. Madam Chairman, I
so when the finally got control of Con-
let me say to my Democratic friends who
have already paid my compliments to
gress, they tried to constitutionally
are supporting this legislation so
the distinguished chairman of the sub-
amend those third and fourth terms out
strongly that we ought not to overlook
committee which brought this bill be-
of existence. They did it all right, but
the fact that some day we may have a
fore us today. I would like also to com-
they lived to regret it when President
Democratic President in the White
pliment several other members of the
Eisenhower became President, because if
House again-in fact that is likely to be
Committee on Foreign Affairs. The gen-
he had not been mortal he might still
the case. I would say, before this legis-
tleman from Pennsylvania (Mr. MOR-
be our President. The Rebublicans re-
lation would actually make much dif-
GAN), the chairman, rendered great serv-
gretted that amendment in 1960 and we
ference in our foreign affairs. Do you
ice to this body when he sent a "Dear
will live to regret this bill if we pass it in
really want to hamstring a new Demo-
Colleague" letter to all of us outlining
the form it has come out of the com-
cratic President as he tries to provide
his views, and I think eloquently so.
mittee.
some worldwide leadership in building a
Also, on the Democratic side my col-
The CHAIRWOMAN. The time of the
peaceful and stable world?
league, the gentleman from Florida
gentleman from New York (Mr. STRAT-
Actually the real effect of this legis-
(Mr. FASCELL) nearly 4 years ago
TON) has expired.
lation, if it passes, will be to undermine
dropped into the hopper a war powers
Mr. ZABLOCKI. Madam Chairman, I
our deterrent power rather than enhance
bill. This by coincidence happened with-
yield the gentleman 1 additional min-
it, because a great deal of deterrent power
in a few days of when I introduced my
ute.
depends on keeping the enemy guessing
first proposal. I also compliment the
Mr. STRATTON. Madam Chairman, I
about just what we are likely to do. This
gentleman from Minnesota (Mr.
thank the distinguished gentleman for
bill would remove a significant portion
FRASER) and the gentleman from New
yielding me another minute.
of that element of predictability.
York (Mr. BINGHAM).
The thing that disturbs me most about
Likewise, this legislation would cer-
Over these years I have certainly
this legislation is that it is based on the
tainly impair our current treaty commit-
learned a lot about this bill. I do not
assumption that somehow the people of
ments, especially in connection with our
pretend to be an expert at this point,
the United States are going to elect a
NATO Alliance in this new year of
but I have learned a lot from the dis-
devil and put him in the White House
Europe." Surely this is not the time to
cussion and the deliberations and the
and, therefore, we have got to watch
give one more body blow to one of our
consideration now of three different bills
him and tie him up with legislative re-
most successful measures of foreign
which have come to the floor.
strictions. But this bill is not going to
policy-our NATO Alliance.
Madam Chairman, I also want to pay
prevent that kind of individual in the
The fact is this legislation will not
my compliments to two Republican first-
White House from getting us into trou-
make us more secure. It will simply force
term members of the Committee on For-
ble, because he would still be the Com-
our enemies or our competitors, if you
eign Affairs, the gentleman from Penn-
mander in Chief of the Armed Forces
wish to call them that to shift their tac-
sylvania (Mr. BIESTER) and the gentle-
and he would still have at his fingertips
tics just a little bit. Instead of attacking
man from Delaware (Mr. DU PONT). Both
the nuclear button. And if he really
us directly, as the Japanese did at Pearl
of them have contributed greatly to the
wanted to get us into war, if he really
Harbor-and thereby turned a strongly
deliberations of the subcommittee.
wanted to get us into trouble, he could
anti-war Nation overnight into a strongly
It is very clear to me after the ex-
always push that button and no legisla-
pro-war Nation-a future potential en-
perience of the past 4 years that our
21218
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
Founding Fathers deliberately left some
couple of, I think, very reasonable and
the most extreme care before he made a
aspects of the war powers relationship
very rational safeguards.
fundamental commitment.
very unclear.
It provides, first of all, that the Presi-
Furthermore, he would also be impelled
Both the Congress and the President
dent may not continue this course of pol-
to great care by the knowledge that
were given the tools for warmaking.
icy to which the Congress has not yet as-
at any point from the first day forward
These powers were in parallel to a sur-
sented beyond 120 days. No President is
a majority vote of both Houses could di-
prising extent, and it may well be that
going to want to be left high and dry and
rect him to disengage from that commit-
our forefathers deliberately set the stage
any President deciding on a course of
ment.
for a struggle between the Congress and
action, whether it be the commitment of
I might add, Madam Chairman, that I
the President in this very imporant field.
military forces in a foreign field or en-
would be glad to keep on yielding here
In any event, the struggle has certainly
gaging in hostilities there, is going to
to the Members, but I know the con-
ensued, and the debate here this eve-
think carefully before he gets himself in
stitutionality of the concurrent resolu-
ning is a part of that struggle. Regal dless
a position from which he may have to
tion exists as an issue, and I suspect
of what we do with this resolution in this
retire after 120 days. He is going to think
from what the gentleman from Wiscon-
Congress, I dare say the struggle will
carefully before making the fundamental
sin has said, time will run short before
continue in some form and no doubt will
decision, and then, once he has made that
we know it. So, I would like to take a
continue as long as the Republic survives.
decision and set in train the sequence
little time at this point to deal with that
The President has obvious advantages.
of events which will eventually terminate
and related questions.
He has the opportunity for very swift
with the expiration of that period, he will
The war powers resolution of 1973 con-
action, even secret action. He has the
surely use that time interval to try to
tains the machinery to assure more ef-
unified branch of the Government. He is
sell his position to the Congress. He will
fective participation by Congress in fu-
the one ultimately who makes the de-
not want to be left high and dry.
ture national decisions involving war
cision. No cumbersome parliamentary
The other safeguard that this joint
and peace. First, in section 3 it requires
procedure is required for the President to
resolution puts into the statute is the
the President to report to Congress any
reach a decision of policy, whether it
authority of the Congress, which I say is
time he commits Armed Forces to hostili-
applies to war policy or otherwise. He can
a very reasonable and proper application
ties outside the United States; commits
act with dispatch.
of its war powers under the Constitution,
Armed Forces equipped to combat to the
He also has vast resources at his dis-
to require the President to disengage
territory, airspace, or waters of a foreign
posal which are much greater and much
from hostilities at any time by a simple
nation; or substantially enlarges the
more effective than those available to
majority of both Houses.
number of Armed Forces equipped for
the Congress to rally public opinion be-
That is the concurrent resolution ap-
combat already located in a foreign na-
hind a course of action.
proach.
tion. This provision is virtually identical
If we were to adopt a very strict read-
Mr. FRELINGHUYSEN. Will the gen-
to one which passed the House over-
ing of the Constitution and the minutes
tleman yield?
whelmingly in each of the last two Con-
of the debates of the Constitutional Con-
Mr. FINDLEY. I am glad to yield to
gresses.
vention as kept by James Madison, we
my friend from New Jersey.
While it is highly important that Con-
would probably be considering here a
Mr. FRELINGHUYSEN. I thank the
gress be involved intimately in decisions
bill which would prohibit the President
gentleman for yielding.
which actually engage our forces in mili-
from doing anything with military force
In his defense of the 120-day provi-
tary hostilities, it is also essential that we
beyond the borders of the United States
sion the gentleman seems to be suggest-
be similarly involved in decisions which
unless he had advance approval of the
ing that a President as Commander in
place our forces in circumstances where
Congress. That would be pretty close to
Chief would take a decision to commit
armed conflict may later develop.
what I deem to be the intent of at least
troops lightly really unless there were
The decision to place U.S. Armed
the majority of those who took part in
language that he could commit troops
Forces in foreign areas where hostilities
the formation of the Constitution. But
only for a period of 120 days.
may subsequently break out could well
it is obvious that that procedure has not
Mr. FINDLEY. No. That interpreta-
have greater and graver implications
been regarded as proper by most of the
tion is not justified. Under the terms of
than a subsequent decision authorizing
Presidents throughout history, and in my
section 4, I think he would be much more
such forces to continue-or discon-
view it does not accord with modern day
careful in making a decision. I do not
tinue-their engagement in actual hos-
want to suggest that any President would
tilities.
necessities.
Almost every President in this century
take lightly the commitment of military
Certainly, the political, psychological,
has seen at least one situation in which
force any place in the world, but there
and emotional factors present when the
he felt a necessity to act, without in ad-
are degrees of care and reflection.
earlier decision is made would be much
vance getting policy approval of the Con-
Mr. FRELINGHUYSEN. The gentle-
more conducive to thoughtful, objec-
gress. Was he acting in an unconstitu-
man suggests that the President would
tive deliberation than later when guns
tional and unlawful manner when he did
use the time to sell his position. This may
are blazing. On the later occasion, our
this? How can anyone really decide, be-
well be one of the weaknesses of the pro-
forces and our flag would be under at-
cause the Supreme Court traditionally
posal, because a President may escalate
tack. Concern would center on the safety
shies away from any ruling which settles
hostilities in order to sell the country on
of our forces and the broad-and impor-
issues of war powers between the Con-
the advisability of the course of action he
tant-questions of national honor, pres-
gress and the President.
is undertaking.
tige, and influence. At that juncture, the
Those of us sitting here in this body
In other words, it may have quite the
wisdom of our presence could not re-
might well argue that President Kennedy
opposite effect from what the gentleman
ceive the same dispassionate considera-
exceeded his authority when he sent
is assuming. This proposal may well keep
tion that would have been possible
18,000 troops to Vietnam-I think it was
a President from making a wise decision
earlier.
in 1962-and shortly thereafter con-
with respect to commitment, or it may
Most Americans, I would judge, today
verted them into combat forces. Where
have him make an over commitment in
believe the United States acted unwisely
was his authority for so acting? Well, he
order to emphasize the gravity of the
when it first placed forces equipped for
did not have the necessity for finding an
situation.
combat in South Vietnam. They would
authority, because Congress made no re-
Mr. FINDLEY. I argue exactly the op-
like to turn the calendar back and not
action and expressed no approval or dis-
posite.
have them there at all, regardless of the
approval of what he had done. But still
Mr. FRELINGHUYSEN. I know the
consequences for the South. But, pri-
the cloud hangs over that decision.
gentleman does.
marily because our forces and our flag
I think this bill approaches the prob-
Mr. FINDLEY. The certainty, absent
were under attack, many of these same
lem in a very rational manner, recogniz-
congressional approval, which would
people opposed a quick departure of our
ing that there will be certain circum-
confront the President that on the ex-
forces, and as today's votes show clearly,
stances in which future Presidents will
piration of the 120-day period he would
many Congressmen still support the
act without getting advance authority
have to withdraw any enlargement of
bombing of Cambodia.
from the Congress in committing forces
his forces, disengage them from hostili-
Unfortunately, the Congress did not
beyond our borders, but it provides a
ties, would surely cause him to exercise
deal directly and promptly with the ques-
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21219
tion as to whether the initial commit-
Had this reporting requirement been
is to facilitate the fulfillment by Con-
ment of forces equipped for combat to
in effect in 1962 when the number of
Vietnam was either constitutional or in
gress of its responsibility for committing
U.S. advisers in Vietnam was raised
the Nation to war, and also its respon-
the national interest.
from 700 without combat gear to 16,000
sibility to "provide for the regulation of
Congress was never called upon to
equipped for combat, President Ken-
its Armed Forces."
grant specific approval in connection
nedy would have been required to ex-
Congress can hardly regulate the
with the stationing by President Ken-
plain promptly and in writing to Con-
Armed Forces as the Constitution re-
nedy of 16,000 troops equipped for com-
gress the circumstances necessitating
quires if it does not even know where
bat in Vietnam in 1962, troops which were
his decision, the constitution or legisla-
they are or where they are being sent.
initially identified as military advisers
tive provisions under which he took
This expanded reporting requirement
but soon were given direct combat re-
such action, and his reasons for not
would place congressional influence far
sponsibility.
seeking specific prior congressional au-
closer to the points and moments of
While we cannot turn the calendar
thorization.
great decision. It would require the Pres-
back, hopefully we can profit from this
This reporting requirement of itself
ident and his advisers to give thorough
experience. You can establish rules which
might have caused sober second
consideration to the judgment and re-
will enhance the likelihood that in simi-
thoughts by the President. It might have
action of Congress, as well as to the
lar future circumstances-before fight-
caused him to reconsider. If he went
relevant provisions of laws, treaties, and
ing breaks out-Congress will receive
ahead, the report on the action would
the Constitution, to which they must
promptly a formal written report from
have provided Congress with a formal
turn for authority. Consideration of
the President detailing and justifying the
document on which to hold hearings.
legal justification would become part of
steps he has ordered. Upon such a report,
Certainly the consideration of the re-
the decisionmaking process-not a sub-
hearings could be expected. Congress, if
port in 1962 would have been in circum-
sequent exercise of small importance in
it deemed such advisable, could pass
stances more favorable to objectivity
which State Department lawyers hand-
judgment on the wisdom, propriety, con-
than existed when the Gulf of Tonkin
craft a legal garment to cover the sub-
stitutionality, and necessity of the action
resolution was passed in 1964.
ject long after the military action has
reported.
To be sure, this procedure provides no
been decided upon and undertaken. And
Under sections 2 and 3 of the war
guarantee that the Congress will under-
the Congress, charged under the Con-
powers resolution, the President must
take an examination of the report, but
stitution with the power to commit the
give attention to a detailed report to
the basic information and opportunity
Nation to war, would be better equipped
Congress at the very time he ponders a
would be at hand.
to fulfill its responsibility.
decision to commit military forces to
Reports would be required within 72
If enacted, House Joint Resolution
foreign territory or to enlarge substan-
hours, with the modest exceptions listed,
542 will establish for the first time in
tially forces already there. At the very
whenever forces equipped for combat are
our history a formal statutory relation-
least, this would remind the President
sent to foreign areas for any purpose.
ship between the President and the Con-
and his advisers forcibly and before the
Would the reports be so numerous as
gress with respect to the stationing of
commitment is made of congressional
to bog down both the executive and legis-
military forces on foreign territory.
responsibility and authority in this area.
lative branches? Based on past history,
For the first time the President will be
As a practical matter, this reporting
the answer must be "No." Reports would
required to inform the Congress prompt-
requirement should also cause the Presi-
be required only when the original force
ly and in detail as to what he is doing
dent to consult directly with the legisla-
commitment is made, or when forces are
with military forces abroad and why.
tive branch before making the final deci-
substantially enlarged. Additional reports
Second, the war powers resolution pro-
sion on force commitment.
would not be required as personnel and
vides that within 120 days after receiving
Had Senate Joint Resolution 1 been
equipment are rotated.
this report, the Congress must specifi-
law, it would have required a prompt,
"Substantially" is open to varied def-
cally authorize the commitment of troops
written detailed report on:
initions, but, I do not feel, admit of too
reported by the President or the troops
The Berlin airlift following the block-
much flexibility or is overly vague. A
must be withdrawn.
ade of that city in 1948.
thousand additional men sent to Europe
Third, within the 120-day period, Con-
The intervention of U.S. troops in
under present circumstances clearly
gress may by concurrent resolution order
Korea in 1950.
would not "substantially enlarge" our
the disengagement from hostilities of
The enlargement of our forces in
300,000 men already stationed there. A
American troops committed without spe-
Europe in 1951.
thousand men sent to Guantanamo Bay,
cific congressional authorization.
The sending of reinforcements to Ber-
Cuba, to "beef up" a 4,000-man contin-
This latter provision is the safety valve
lin after the German border was closed
gent there would indeed be "substantial."
of the resolution. It serves the dual func-
in 1961.
During consideration by the committee
tion of permitting the President maxi-
The deployment of our troops in
of the resolution, a question was raised
mum flexibility to commit troops for a
Thailand in 1961-62.
as to the necessity and wisdom of requir-
relatively long period of time-120 days.
The various troop build-up stages in
ing the President to include within his
At the same time, it permits the Congress
Vietnam through August 1964, when
report "the estimated financial cost of
to fulfill its constitutional responsibility
Congress approved the Culf of Tonkin
such commitment or such enlargement
to decide by majority vote whether the
resolution.
of forces." Some thought "that informa-
Nation shall continue at war.
The sending of Marines to the Do~
tion would be of no particular value to
Some objections have been made to the
minican Republica in 1965.
Congress," forgetting that when it was
use of a concurrent resolution for this
The bombing of Laos in early 1971.
costing us more than $25 billion a year
purpose. An examination of 200 years of
Present activities over Cambodia.
to fight the Vietnam war, that fact
American history, as well as the writings
These are some of the major events
seemed quite important to most Amer-
and opinions of the most prominent con-
since the end of World War II involving
icans who were beset by problems of in-
stitutional and legal minds of this cen-
American troops in which neither prior
flation and poverty caused by the incred-
tury convinced me, and presumably the
nor subsequent congressional approval
ible expense of that war.
Foreign Affairs Committee that the use
was sought by the President.
Some also questioned whether the
of a concurrent resolution to terminate
Each of these force movements was
financial information also "might be ex-
hostilities is both constitutional and wise
undertaken without specific prior au-
tremely revealing to an enemy." Yet,
policy.
thorization of the Congress. Each in-
they raised no similar objection to the
Use of a concurrent resolution to dis-
volved armed conflict or the definite
requirement that the President include
approve Presidential action is hardly
risk thereof. Most importantly, several
in his report "the estimated scope of
new. Beginning in the 1930's, Congress
of the instances would not have invoked
activities." Nor do they worry that in
regularly incorporated provisions for a
the provisions of the war powers bill
any case, the President will be required
legislative veto in legislation authorizing
sponsored by Senator JAVITS and widely
the President to effect a reorganization
to cutline the costs of a military com-
endorsed in the U.S. Senate, while each
of agencies in the executive branch of
mitment in the next defense or supple-
would have required a report to Congress
the Government. All of the dozen or so
mental appropriations bill.
under House Joint Resolution 542.
Reorganization Acts of this century have
The aim of the reporting requirement
contained a provision that disapproval
21220
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
of the President's plan by either House
that that body might examine them and
One of the notable exceptions to this
of Congress would preclude the President
veto their going into effect if contrary to
overwhelming preponderance of legal
from putting his plan into effect.
the policy of the legislature.
opinion in favor of the use of concurrent
In the last decade five different reor-
The value of the reservation of the power
resolutions for this purpose is former
ganization plans submitted to Congress
to examine proposed rules, laws and regu-
Attorney General and now Secretary of
by the President have been vetoed by
lations before they become effective is well
State William P. Rogers. In 1958, he de-
understood by Congress. It is frequently, as
simple resolutions, three times by the
here, employed to make sure that the action
livered an opinion to President Eisen-
House. On June 15, 1961, the House
under the delegation squares with the Con-
hower that the concurrent resolution
vetoed President Kennedy's plan to reor-
gressional purpose
That no adverse ac-
might be so used only if a two-thirds vote
ganize the Federal Communications
tion was taken by Congress indicated, at
were required. Thus, it is not surprising
Commission. On July 20, 1961, the House
least, that no transgression of legislative
that today, as Secretary of State, he
vetoed the President's plan to reorganize
policy was found.
takes a dim view of the legislative veto,
the National Labor Relations Board. On
In addition to the dozens of prece-
despite the weight of historical precedent
February 21, 1962, the House vetoed the
dents, most legal authorities agree that
and legal opinion against his position.
President's reorganization plan for the
the Congress may use a concurrent res-
The use of a concurrent resolution to
Housing and Home Finance Agency.
olution as a means of checking Presi-
require the President to disengage U.S.
Many members of this body were present
dential decisions. The most eminent
troops from hostilities is also wise policy.
for these votes, as well as several more
constitutional lawyer of the century,
This resolution recognizes that often
recent votes approving reorganization
Prof. Edward S. Corwin, has written:
the President has assumed the power to
plans, and I do not recall even a whisper
engage U.S. forces in hostilities, going
It is generally agreed that Congress, being
of criticism of this procedure as being
far beyond what can be justified on the
free not to delegate power, is free to do so
unconstitutional.
on certain stipulated conditions. Why, then,
basis of his Commander in Chief func-
The precedents for use of a simple or
should not one condition be that the dele-
tion, and in the absence of any specific
concurrent resolution go far beyond re-
gation shall continue only as long as the
delegation of authority by Congress.
organization plans. According to the Li-
two houses are of the opinion that it is
Realizing that certain circumstances
brary of Congress:
working beneficially To argue other-
might make such an assumption of power
wise is to affront common sense.
Most of the important legislation enacted
necessary and desirable, the committee
for prosecution of World War II provided
Prof. Louis Henkin, of the University
does not attempt to preclude the Presi-
that the powers granted to the President
of Pennsylvania and Columbia Univer-
dent from acting in such circumstances.
should come to an end upon adoption of a
sity, author of a recent book entitled
In the Senate, the Javits bill which
concurrent resolution to that effect.
"Foreign Affairs and the Constitution,"
passed that body last year, takes just the
Among the examples that the Library
agrees. Speaking of the use of concur-
opposite approach. The Senate Foreign
cites were:
rent resolutions he states:
Relations Committee has spelled out four
Lend-Lease Act of March 11, 1941.
By the devices described, Congress is not
circumstances only in which the Presi-
First War Powers Act of December 18,
repealing or modifying the original legis-
dent may employ U.S. troops in hostili-
1941.
lation but is exercising power reserved in that
ties without first coming to Congress for
Emergency Price Control Act of January 30,
legislation. Surely Congress should be able
approval.
1942.
to recapture powers it delegates to the Presi-
The House Foreign Affairs Committee
Stabilization Act of October 2, 1942.
dent without the consent of the agent.
felt it would be unwise to draw such rigid
War Labor Disputes Act of June 25, 1943.
The Senate Foreign Relations Com-
lines between the President and Con-
Other precedents where the effect of
mittee has been considering a bill which
gress, or to define in advance all of the
law is achieved by resolutions not sub-
would permit the Congress by concurrent
circumstances under which the Presi-
mitted to the President include:
resolution to repeal Executive agree-
dent could act. To do so might prevent
ments. Testifying in favor of the con-
the President from acting in a crisis sit-
Amendments to the Constitution.
To set aside suspensions of the deporta-
stitutionality of this approach have
uation. It might cast doubt upon our U.S.
tion of aliens by the Attorney General under
been: former Supreme Court Justice
defense commitment at home or else-
authority vested in him by the Alien Reg-
Arthur Goldberg; Prof. Richard Falk of
where in the world.
istration Act of 1940.
the Woodrow Wilson School at Prince-
In order to preserve the maximum
To disallow or set aside dispositions of
ton; and Prof. Henry Field Haviland,
amount of flexibility in the war powers
federally owned property, including obsolete
vessels owned by the Department of the
Jr., director of the Fletcher School of
resolution, the Foreign Affairs Commit-
Navy and surplus rubber plants.
Law and Diplomacy at Tufts University.
tee does not attempt to preclude the
To reject executive agreements with other
Prof. Raoul Berger of Harvard Uni-
President from acting in a circumstance
nations providing for the exchange of atomic
versity, who testified before the National
where he determines that the need for
energy materials.
Security Subcommittee on the war
action is immediate and precludes prior
To override a Presidential determination
powers bill and who reviewed section 4
congressional authorization. Realizing
not to abide by an import duty increase
(c) containing the concurrent resolution
that the standards are vague, the House
recommendation of the Tariff Commission.
approach, has written:
bill requires the President to explain and
To effectuate allocations of highway aid
Of course, I vastly prefer your concurrent
justify to Congress why he has assumed
to the States recommended to Congress
resolution approach to the view that a presi-
the power to commit troops to hostilities.
under the Federal Highway Act of 1956.
dential war may be terminated only by joint
If Congress approves of the assumption
To terminate foreign aid to a given coun-
resolution, which requires the concurrence
of power, it may ratify it. If it does not
try.
of the President. The latter approach repre-
approve, it may let the powers lapse after
Two precedents are particularly sig-
sents still another abdication
120 days, or terminate them sooner by
nificant and relevant to the war powers
Several attorneys general have also
concurrent resolution.
bill. The Middle East resolution and the
supported the constitutionality of the
The point is that the Constitution
Gulf of Tonkin resolution both provided
legislative veto, beginning as early as
delegates the authority to declare war to
for the commitment of U.S. forces to
1854. In that year, Attorney General
the Congress, not to the President. It is
hostile action, and both provided for
Cushing stated:
Congress which must raise armies and
the termination of that commitment by
Of course, no separate resolution of either
navies, make rules governing them, call
concurrent resolution.
House can coerce a Head of Department, un-
forth the militia, and organize and pay
The use of concurrent resolutions for
less in some particular in which a law, duly
for it all. The President's only constitu-
such purposes has also been cited ap-
enacted, has subjected him to the direct ac-
tionally specified power is that of Com-
provingly by the Supreme Court. In 1941,
tion of each; and in such case it is to be
mander in Chief, which is hardly a man-
in the case of Sibbach against Wilson
intended, that, by approving the law, the
date for Presidential warmaking.
& Co., the validity of the Rules of Civil
President has consented to the exercise of
The war powers resolution would in no
such coerciveness on the part of either House.
Procedure for the district courts of the
way inhibit the President from using
United States was challenged. The Court
In 1949, a memorandum prepared by
troops to defend the United States or
stated:
the Department of Justice found the two-
repel attacks. Congress may by concur-
Moreover, in accordance with the Act, the
House form of the veto to be definitely
rent resolution order disengagement of
rules were submitted to the Congress so
constitutional.
U.S. troops from hostilities only when
June 25, 1973
CONGRESSIONAL RECORD HOUSE
21221
they "are engaged in hostilities outside
explicit constitutional requirement that
traneous matter can, in the opinion of the
the territory of the United States, its
"Every order, resolution, or vote-shall
committee, be regarded in no other light than
possessions and territories without a dec-
be presented to the President of the
a defacement of the public records and ar-
laration of war or other specific author-
United States, and before the same shall
chives.
ization of the Congress." Thus, if there
take effect, shall be approved by him."
Thus, while the Roosevelt memoran-
is an attack upon the United States it-
Again, the exceptions are legion.
dum is an interesting historical foot-
self, a concurrent resolution would not
Hinds Precedents is anything but con-
note, it is neither constitutional nor rele-
be appropriate. And I might add surely,
clusive upon the question of whether
vant to the subject under consideration.
no Member of Congress would wish to
such a concurrent resolution must be
If Roosevelt felt that the concurrent res-
disengage our troops under such circum-
presented to the President for signature.
olution was unconstitutional, then ac-
stances.
In chapter XCII, Hinds states:
cording to the Constitution he should
Finally, if the House in its wisdom de-
"In general, orders, resolutions, and votes
have vetoed the Lend-Lease Act so stat-
cides to retain section 4(b) requiring
in which the concurrence of the two Houses
ing. Anything less was null and void.
that Congress act within 120 days to
is necessary must be presented to the Presi-
ratify the commitment of troops, then it
dent on the same conditions as bills" (em-
It is a fact that Congress repealed the
would be logically inconsistent for the
phasis added).
Gulf of Tonkin resolution with an
House to delete section 4(c) or to require
amendment to the military sales bill,
He then goes on to say:
a joint resolution of disapproval.
rather than acting upon the concurrent
Although the requirement of the Constitu-
Under section 4(b), after 120 days the
resolution passed by the Senate. This was
tion seems specific, the practice of Congress
a matter of convenience, not of consti-
Congress may by inaction force the
has been to present to the President for ap-
President to terminate a commitment
tutional principle. The record does not
proval only such concurrent resolutions as
and disengage troops engaged in hos-
are legislative in effect.
show any support whatsoever for infer-
tilities abroad. It would be ironic indeed
ring that the House acted as it did out
Thus Hinds acknowledges that there
if the Congress could require the Pres-
of fear that a concurrent resolution was
are exceptions.
insufficient. What is clear is that the
ident to disengage our troops by inac-
Hinds stopped compiling his precedents
tion, but could not require the President
Senate obviously felt that a concurrent
in 1907. Since then, as noted in the re-
to disengage those same troops by pass-
resolution was sufficient to repeal the
sponse to question one, literally dozens
Gulf of Tonkin resolution.
ing a concurrent resolution as provided
of bills have specified that Congress may
for in section 4(c).
The "necessary and proper" clause of
by concurrent or simple resolution take
the Constitution states:
Section 4(c) of the war powers resolu-
legislative action. Hinds would today
tion provides a means of preserving con-
The Congress shall have power
to
make
have a whole new body of precedents to
gressional authority and augmenting
all laws which shall be necessary and proper
compile.
for carrying into execution the foregoing
congressional control in an area that
No example has been found wherein
powers
presently is not subject to effective con-
the Congress used a concurrent resolu-
trol through Congress' traditional over-
tion to repeal the President's authority
The war powers resolution is a joint
sight powers. It strengthens the checks
resolution which must be signed into law
under the five bills cited above. However,
and balances which the Founding
by the President in order to have effect.
Congress has five times in the last decade
Fathers put at the base of our political
If the "necessary and proper" clause is
used a simple resolution to repeal the
system. And, at the same time, it pre-
held to preclude the use of concurrent
President's authority to carry out certain
serves essential flexibility to the Presi-
resolutions such as in 4(c), then it must
reorganization plans he has proposed.
dent.
also be held to prohibit the use of con-
President Franklin D. Roosevelt asked
No attempt is made to equate the
current and simple resolutions for vir-
his Attorney General to prepare a mem-
process by which amendments to the
tually all purposes I have enumerated.
orandum questioning the constitution-
Constitution are proposed and section
Such a result would be absurd and ob-
ality of section 3(c) of the Lend-Lease
4(c) of the war powers resolution. The
viously at variance with the intentions
Act of 1941, which provided for Congress
constitutional amendment procedure is
to terminate the delegation of powers
of the Founding Fathers and 200 years of
cited as one example of a resolution
constitutional history.
contained in the act by a concurrent
which is not submitted to the President
resolution. The memorandum was never
The CHAIRMAN. The time of the gen-
for signature, as section 7 of the Con-
tleman has again expired.
made public and was found in Roosevelt's
stitution would seem to explicitly re-
Mr. YOUNG of Florida. Madam Chair-
private papers after his death. Roosevelt
quire, but which nevertheless has the
signed the Lend-Lease Act without a
man, I make the point of order that a
effect of law.
whisper of dissent. Thus, it can hardly be
quorum is not present.
The amendment procedure simply
said Roosevelt's private dissent on this
The CHAIRMAN. The Chair will
states:
count.
one section of the act negates 200 years
The Congress, whenever two thirds of both
of constitutional history.
Forty-two Members are present, not
Houses shall deem it necessary, shall pro-
The attempt by Roosevelt to reserve
a quorum. The call will be taken by elec-
pose Amendments to this Constitution, or,
tronic device.
on the Application of the Legislatures of
the judgment upon the effectiveness of
repeal by concurrent resolution by means
The call was taken by electronic device,
two thirds of the several States, shall call a
of a written dissent-private or public-
and the following Members failed to re-
Convention for proposing Amendments,
which, in either Case, shall be valid to all
while signing the bill into law at the
spond:
Intents and Purposes, as Part of the Con-
same time is of no force for yet another
[Roll No. 280]
stitution, when ratified by the Legislatures
Abzug
Broomfield
reason. Returning to Hind's precedents,
Diggs
Adams
of three fourths of the several States.
Brown, Calif.
Dorn
in paragraph 3492 we find that in 1842,
Addabbo
Burke, Calif.
Drinan
The Constitution does not state
President Tyler signed a bill and filed
Alexander
Burlison, Mo.
Dulski
Anderson,
Butler
whether the President shall sign a reso-
Edwards, Calif
with it his reasons for doing so:
Calif.
Byron
Eilberg
lution proposing an amendment, and
Mr. John Quincy Adams, of Massachusetts,
Anderson, III.
Carey, N.Y.
Esch
therefore the explicit requirement of
Archer
said that this message was a novelty in the
Casey, Tex.
Eshleman
Arends
section 7 of the Constitution would seem
history of the country. The Constitution re-
Cederberg
Evans, Colo.
Ashbrook
Chamberlain
Evins, Tenn.
to require that the President sign con-
quired the President, if he approve a bill, to
Ashley
Chisholm
Fish
stitutional amendments. As early as
sign it and not accompany his signature with
Badillo
Clark
Fisher
1798, the Supreme Court decided in Hol-
reasons. After dwelling on the dangers of
Baker
Clawson, Del
Flynt
the precedent Mr. Adams moved that the
Barrett
Clay
Ford,
lingsworth against Virginia that a Presi-
message be referred to a select committee.
Beard
Collins, Ill.
William D.
dential signature was not required, sec-
Bell
Conable
Forsythe
tion 7 of the Constitution notwithstand-
The report of that committee referring
Bevill
Conyers
Fraser
to the President states:
Biaggi
Corman
ing.
Frey
Bingham
Crane
Froehlich
Thus, although the ratification by
No power is given him to alter, to amend,
Blatnik
Daniel, Dan
Fulton
three-fourths of the State legislatures
to comment or to assign reasons for the
Bolling
Danielson
Fuqua
performance of his duty. His signature is the
Bowen
Davis, Ga.
Gettys
might be analogous to a Presidential
Brademas
exclusive evidence admitted by the Constitu-
Davis, Wis.
Gray
signature, it cannot be squared with the
Breaux
Derwinski
tion of his approval, and all addition of ex-
Green, Oreg.
Brooks
Dickinson
Green, Pa.
21222
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
Gross
Moorhead,
Shriver
going to fulfill its constitutional obliga-
section 8, clauses 11, 12, 13, 14, 15, and
Gubser
Calif.
Sikes
tions.
Guyer
Moorhead, Pa.
Sisk
16. In comparison there is only one such
Hanna
Mosher
Smith, N.Y.
The need for this legislation does not
grant of authority for the President
Hansen, Idaho
Moss
Stanton,
simply arise out of the tragic involvement
under article II, section 2, which vests
Hansen, Wash.
Murphy, N.Y.
James V.
in Southeast Asia. I think the war in
him with the powers of Commander in
Harsha
Nedzi
Stark
Harvey
Nelsen
Steed
Vietnam represents the culmination of
Chief of the Armed Forces.
Hastings
Nichols
Steiger, Ariz.
a historical decline in the assertion of
The notes made by both Hamilton and
Hawkins
Nix
Steiger, Wis.
congressional prerogatives in warmaking
Madison at and after the Constitutional
Hays
O'Hara
Stephens
Hébert
Owens
Stubblefield
authority. In the early days of the Re-
Convention support the theory that the
Heckler, Mass.
Patman
Stuckey
public, the executive and the Congress
Congress was preeminent in the field of
Hillis
Perkins
Sullivan
worked in close cooperation with one an-
warmaking. The American Constitution
Hogan
Peyser
Symington
Horton
Pickle
Symms
other, often resulting in the President de-
was going to avoid the European example
Howard
Pike
Teague, Calif.
ferring to the opposition, to an active
of giving to the Executive broad powers
Hungate
Poage
Teague, Tex.
Congress. By World War II the Executive
to unilaterally commit the Nation to war.
Hunt
Powell, Ohio
Thompson, N.J.
Hutchinson
made commitments abroad totally in-
Preyer
Thomson, Wis.
Even though Hamilton argued that for-
Johnson, Pa.
Railsback
Thornton
dependent of the will of the Congress;
eign policy was inherently an Executive
Jones, Ala.
Rangel
Tiernan
after World War II, in Korea, the Do-
function, implementation of that policy
Karth
Rarick
Treen
minican Republic and Southeast Asia,
must depend on the independent au-
King
Rees
Ullman
Kluczynski
Reid
Van Deerlin
the warmaking powers had shifted com-
thority of the Congress. Against this
Koch
Rhodes
Vander Jagt
pletely from the Congress to the Execu-
background, I find unpersuasive argu-
Kuykendall
Riegle
Vanik
tive after the fact. Absent any positive
ments that cite the Commander in Chief
Kyros
Robison, N.Y.
Vigorito
Landrum
Roe
Whitehurst
action by the Congress, there is little evi-
clause as the basis for the grant of broad,
Leggett
Roncalio, Wyo.
Whitten
dence to suggest this trend will reverse.
independent warmaking authority. On
Lehman
Rooney, N.Y.
Widnall
Continued acquiescence by the Congress,
the contrary, I think the limited refer-
Long, Md.
Rooney, Pa.
Wiggins
can only lead to a domination by the
ences to the President's authority make
Madigan
Rosenthal
Wilson, Bob
Martin, Nebr.
Runnels
Winn
Executive in warmaking authority in di-
him, as Hamilton stated, "The first gen-
Mathias, Calif.
Ruth
Wright
rect conflict with the intent of the fram-
eral and admiral of the confederacy."
Meeds
Ryan
Wyatt
ers of the Constitution. While it is natu-
At the very least the Constitution and
Mezvinsky
St Germain
Wylie
Michel
Sandman
Yates
rally more expedient to conduct warmak-
its legislative history show that Congress
Mills, Ark.
Satterfield
Yatron
ing functions through the Executive
and the President were intended to be
Minshall, Ohio
Scherle
Young, Alaska
alone, the drafters of the Constitution
partners in warmaking. The weight of
Mizell
Schneebeli
Young, S.C.
Montgomery
Shipley
Zion
consciously avoided concentrating in the
evidence suggests that Congress was in-
Executive the authority to unilaterally
tended to be the dominant partner, re-
Accordingly the Committee rose; and
lead the country to war. In retrospect,
taining the independent authority to
the Speaker having resumed the chair,
this country has moved too far from this
commit the Nation to hostilities.
Mrs. GRIFFITHS, Chairman of the Com-
ideal. We can no longer allow the in-
The practice of the Executive, however,
mittee of the Whole House on the State
stitutional advantages of the Executive
has resulted in a total reversal of the
of the Union, reported that that Commit-
to become justification for further ero-
letter and spirit of the Constitution. As
tee having had under consideration the
sion of congressional warmaking power.
Members of Congress sworn to uphold the
joint resolution House Joint Resolution
Much will be heard in debate today
Constitution, we have a duty to protect
542, and finding itself without a quorum,
about the Constitution, about what that
and exercise the powers granted to us by
she had directed the Members to record
Constitution says or does not say about
the Constitution. We have a clear choice
their presence by electronic device,
the war powers of the Congress. I would
of action. We can condone that reversal
whereupon 236 Members recorded their
like to address myself to that specific
that has taken place and allow the prac-
presence, a quorum, and she submitted
question.
tice of history to dominate the express
herewith the names of the absentees to
I believe that the Constitution gives
provisions of the Constitution. That
be spread upon the Journal.
to the Congress, not to the Executive but
choice, I believe, would effectively aban-
The Committee resumed its sitting.
to the Congress, the power to commit the
don the ideal proposed by the drafters
The CHAIRMAN. The Chair would like
United States to a cause of war. Debate
of the Constitution. Our alternative is to
to advise the Members that 1 hour and
during the Constitutional Convention
reverse the trend of history, and restore
36 minutes of time remain, and 100 Mem-
made it very clear that the delegates felt
Congress to a position of partnership in
bers are a quorum.
that the risk of economic and physical
shaping warmaking policy. House Joint
Mr. MAILLIARD. Madam Chairman,
sacrifice during a war, and the serious
Resolution 542 is, in my estimation, a
I yield 8 minutes to the gentleman from
legal and moral consequences that flow
bill which closely reflects the intent of
Delaware (Mr. DU PONT).
from the use of force against a foreign
the Constitution, and would set in motion
Mr. DU PONT. Madam Chairman, I rise
sovereign, were sufficiently grave that
the machinery necessary for making
in support of House Joint Resolution 542,
the elected representatives of the people
Congress an effective force in shaping
a bill which I believe offers the Members
should express their approval of such
the Nation's armed policy abroad.
of this body an opportunity to reassert
action.
First, House Joint Resolution 542
the powers authority vested in them by
Of course the practice has been very
would give the Congress the ability to
the Constitution. As a member of the
different from the theory; we have seen
fulfill its constitutional responsibilities
subcommittee which drafted the bill,
an almost total erosion or perhaps abdi-
for warmaking powers. The consultation
and as one of its sponsors, I believe it is
cation of congressional input into for-
próvisions and the reporting require-
a strong bill, a good bill, and one that
eign policy decisions. The Executive has
ments will give the Congress the intel-
deserves passage.
been preeminent.
ligence necessary to carry out the obliga-
When the subcommittee began their
All Members of this body have heard
tions mandated by the Constitution. In
extensive deliberations on war powers
the arguments in support of expanded
the past, the Congress has not had ade-
legislation, I will be frank to admit that
Executive power. I think most of the
quate information to effectively direct
I was skeptical about our ability to draft a
arguments are based on Executive prac-
foreign policy decisions, particularly
bill which effectively reasserted the war-
tice rather than on the letter and spirit
when complex issues about directing a
making powers of the Congress but which
of the Constitution itself. Both the Con-
war were at issue. By requiring the Presi-
also retained sufficient flexibility to com-
stitution and the notes taken at the Con-
dent to keep the Congress abreast of
port with the design of the Constitution.
stitutional Convention add great weight
significant changes in our foreign policy
As the hearings and markup sessions con-
to the argument that Congress, not the
posture, the Congress will be able to
cluded, I was convinced that the com-
President, was to be vested with the
impact the policy at each stage of de-
mittee had not only drafted a workable
dominant role in warmaking powers. I
velopment. This stands in sharp contrast
bill, giving Congress an effective role in
think it is significant that the Constitu
with the present practice of coming to
warmaking powers but that passage of
tion contains six express grants of war-
Congress after the commitments have
the bill is essential if the Congress is
making and related authority in article I,
alread been made.
June 25, 1973
CONGRESSIONAL RECORD
21223
rection that our history has taken us:
clear that the President had the author-
Second, section 4 gives Congress the
capacity to exert greater control over the
However, I am not ready to abandon the
ity to repel sudden attacks.
letter and spirit of the Constitution for
In contrast to this evidence support-
Executive's commitment of Armed Forces
the interpretation by the gloss of prac-
ing congressional preeminence in war-
abroad. I think the heart of this section
is subsection C which provides that the
tice.
making authority, the Executive has only
Congress may direct, by concurrent res-
I urge the Members to read this bill in
been given express authority to be the
the context of the checks and balances
Commander in Chief of the Armed
olution, the President to disengage from
embodied in the Constitution. The draft-
Forces. This is hardly a persuasive grant
hostilities. I think this procedure is fully
ers intended to safeguard the Nation
of broad authority in contrast to the
consistent with the Constitution. If the
President was going to abide by the letter
against unchecked Executive decisions to
specific grants conferred upon the Con-
of the Constitution he would have to have
commit the country to a trial of force.
gress. A strict reading of that clause
the support of a majority of both Houses
While institutional advantages have
would make the President, as Hamilton
of Congress. In fact, a simple majority in
caused the Congress to delegate its re-
termed it, the "first general and admiral
one House could block a declaration of
sponsibilities in foreign policy and war-
of the Confederacy." The President's au-
making authority, this should not ob-
thority, however, has been considerably
war. Therefore, if a President acts with-
viate the need for requiring safeguards
expanded by the interpretation of article
out the prior consent of the Congress, it
from the body most directly representa-
II, sections 1 and 3, which give the Pres-
logically follows that a simple majority of
tive of popular sentiment. I can think of
ident executive power and require him
both Houses should be able to direct him
no decision that is more important to
to take care that the laws be faithfully
to disengage from hostilities. We have
executed. This has been construed to
simply reversed the chronology of the
bring before the people than the com-
legislative process because the Executive
mitment to war. Such a decision involves
mean that the President has the power
decided to act prior to congressional
a risk of great economic and physical
to enforce the laws of the United States
authorization. It has been argued that if
sacrifice that should not be incurred
by any means he finds necessary-In re
without approval from the people and
Neagle, 135 U.S. 1-and in practice this
the Congress passed a bill requiring the
President to disengage Armed Forces
their elected representatives. The very
has meant that he has the power to
abroad, the President could veto it and
act of war entails moral and legal con-
maintain internal order and repel sud-
both Houses of Congress would have to
sequences so significant that an expres-
den attack.
sion of popular approval should be re-
Analysis of this legislative history sug-
pass it by two-third vote before it became
quired. I believe that House Joint Res-
gests that the framers never intended
binding. I do not think that the framers
of the Constitution intended to create
olution 542 provides that Members of
troops to be used outside the country
this obstacle to withdrawing the Nation
this body with the instrument that will
without congressional consent. Since
from a course of war when the President
insure the awesome decision to go to
neither a standing army or navy was
acted unilaterally. To remove any doubt
war will be brought directly before the
thought necessary by the framers any
about procedure, section 4(c) should be
body most directly of the people, a result
military venture would have by necessity
enacted to reaffirm the ideal that the
that was intended by the Constitution.
required congressional authorization of
DETAILED ANALYSIS OF THE CONSTITUTIONAL
the expedition by raising troops or call-
Congress and the President are partners
BACKGROUND OF HOUSE JOINT RESOLUTION
ing up the militia. Even where troops
in warmaking. I think that is wholly
were available for foreign deployment,
appropriate that when the majority of
542
the Executive came to the Congress dur-
both Houses disagrees with a course of
It has been frequently contended that
ing the Nation's first 25 years under the
action, then the President no longer has
the powers conferred on the Congress by
Constitution. Despite this intent and
the authority to act. unilaterally. With-
article I, section 8 and those conferred
early practice, rapid expansion of Pres-
out the approval of both Houses of Con-
on the President in article II, section 2
idential use of power abroad took place.
gress there can be no valid warmaking
are logically incompatible. While there
The expansion began with the theory
power.
is an apparent conflict over the delega-
that the duties of the President included
In another sense this bill conditionally
tion of warmaking authority, there is
the power to protect U.S. citizens and
delegates to the President the provisional
ample evidence to show that the drafters
property abroad. By the end of the 19th
authority to commit Armed Forces
of the Constitution intended to give the
century, the power had expanded to the
abroad. In the context of modern diplo-
Congress the primary responsibility for
point where the executive power in-
macy, I think that such a grant is a nec-
making war, consciously avoiding the
cluded a great variety of interests de-
essary expedient. It recognizes the need
pattern of broad authority enjoyed by
fined as foreign policy objectives.
to give the President flexibility in pro-
the monarchs of that period.
Concurrent with this development of
tecting national security. At the same
Because article I, section 8 is the only
foreign policy powers, the President was
time, however, Congress retains its right
instance where warmaking powers are
recognized to have the inherent power
to withdraw that conditional delegation
expressly mentioned, constitutional
to conduct the national defense. Fore-
of authority.
scholars have attached great significance
most in the minds of those who recog-
Unfortunately, we have little judicial
to the amendment that changed clause
nized the importance of such powers was
precedent to look to for guidance. I want
11 from the power to "make war" to the
the fear of a territorial invasion. In the
to point, however, that as Members of
power to "declare war." Some have sug-
modern context, however, global con-
Congress we are sworn to uphold the
gested that the change was designed to
frontation gave rise to the notion of
Constitution. We ourselves have the
restrict the role of Congress to a more
linking the national interest to extra-
ability to make precedent. While I have
formal or ceremonial function, implying
territorial security interests. This re-
heard objections that this bill contains
that the substantive responsibility lay
cent expansion of power leads the power
provisions of dubious constitutionality, I
with the Executive. The debate was not
of the President into collision with the
do not see how a return to the letter and
well reported, but there is strong evi-
warmaking powers of the Congress. While
spirit of the Constitution could be con-
dence that the amendment was in no
it is well recognized that the President
sidered questionable. We are not creating
way intended to weaken congressional
must still be left with the power to
any new policies here; we are simply try-
prerogative. This view is reinforced by
judge in the first interest whether a given
ing to reverse the persistent erosion of
the notes of both Hamilton and Madison.
event. constitutes an imminent threat
our constitutional obligations. In fact,
Hamilton later wrote in the Federalist
to our survival and demands a response
I have serious doubts about the exercise
of Presidential authority that we have
that the Executive normally had the
which leaves no time to seek the Con-
witnessed in the last 50 years. Critics of
power to embark on war, but in the
gress acquiescence in that decision. This
this bill refer to Presidential powers
United States this power was deliberately
limited discretion falls far short of the
which I see as supported only by the gloss
reserved for the legislature. There is ad-
assumption that the President, because
of practice. Nowhere in the Constitution
ditional evidence, supporting the conten-
of his defensive powers, may act uni-
do I see a requirement that two-thirds of
tion that the change in wording was de-
laterally whenever the interest jeopard-
both Houses are required to make a Pres-
signed to relieve Congress from the day-
ized is labeled as a "vital security inter-
ident disengage from hostilities that he
to-day responsibility for conducting war.
est." The authority for the unilateral
initiated unilaterally, without prior con-
The most expansive views that is sup-
acts taken by the Presidents in the last
sent of Congress. Perhaps that is the di-
portable is that the wording would make
20 years rest on questionable constitu-
21224
CONGRESSIONAL RECORDHOUSE
June 25, 1973
tional grounds, and at minimum repre-
shows that we have too easily cast off
does so, however, under the condition
sents policy which the Congress must
constitutional duties to the Executive,
that Congress may retract that authority
seek to curtail.
because of its institutional superiority.
by majority vote of both Houses. This
Early American history indicates that
We must reform our institution so that
does not run counter to article 1, sec-
the result we have reached today was by
it meets the demands of the times and
tion 7, because Congress has simply del-
no means inevitable. We have endowed
enables us to implement the duties dele-
egated power in advance and since they
increasing amounts of authority in the
gated to us under the itution.
are the source of that power, the moment
President yet this seems to be based in
I believe that House Joint Resolution
the power is terminated by concurrence
expediency rather than necessity.
542 makes the necessary institutional
of both Houses, the President's provi-
In the first 125 years of the Republic,
changes so that Congress may once
sional authority has been terminated.
there was genuine cooperation between
again, effectively and responsibly dis-
The essence of this argument is sup-
the President and the Congress, often
charge its warmaking powers and duties.
ported by Harvard's well-known consti-
resulting in deference to the legislative
First, the bill will enable the Congress
tutional law expert, Paul Freund. I wrote
will regarding the initiation of foreign
to have the ability to participate in war-
him a letter requesting his opinion of
conflicts. At one point Jefferson refused
making decisions. Under the reporting
the constitutionality of section 4(c) and
to permit the American naval command-
provisions of the bill, Congress will be
I am enclosing the text of his reply at
ers to do more than disarm and release
provided with a steady flow of informa-
this point in the RECORD:
enemy ships guilty of attacks on the
tion about our foreign policy posture
JUNE 12, 1973.
United States until he had received con-
position abroad, especially as it related
Hon. PIERRE S. DU PONT,
gressional approval for the First Bar-
to potentially hostile activities. This will
U.S. House of Representatives,
bary War. Congress took an active role
be an important factor in making sure
Washington, D.C.
in opposing executive action-Pierce in
that the Congress will not be confronted
DEAR CONGRESSMAN DU PONT: I am glad to
Cuba, Seward in Alaska, and Grant in
with a situation that is so well devel-
respond to your letter of June 1, inviting an
expression of my views on the validity of sec-
Santo Domingo, and. the Executive ac-
oped that the events themselves have
tion 4(c) of H.J. Res. 542, providing that a
quiesced.
dictated future courses of action. Too
concurrent resolution of both Houses of
Between 1900 and 1945, close coopera-
often in the past Congress has been
Congress may require the President to dis-
tion between the Executive and the Con-
handed a fait accompli and given little
engage military forces from action outside
gress became the exception rather than
choice but to approve and finance the
the territory and territorial waters and air-
the rule. The trend gained full momen-
action, think the consultation provision
space of the United States, where the com-
and the broad reporting requirements
mitment of armed forces was made without
tum under Theodore Roosevelt. He acted
unilaterally in South Arterica and in
will arm the Congress with the means to
prior authorization of Congress.
During the past thirty-five years Acts of
the Orient, when he sent several thou-
become a responsible partner in foreign
Congress have not infrequently provided that
sand troops to the Boxer Rebellion.
policy.
in administering the Act operative legal ef-
Franklin Roosevelt continued the prac-
Beyond the reporting provisions which
fect is to be given to a concurrent resolution
tice of bypassing the Congress by ex-
will give the Congress the ability to carry
or to the action of one House. This practice
changing 50 destroyers for British bases
out its warmaking responsibilities, sec-
has brought forth discussion in and out of
in the Western Atlantic, by occupying
tion 4 of House Joint Resolution 542 is
Congress on the constitutional aspects of the
the fulcrum which will give the Con-
subject. A survey of pertinent legislation
Iceland and Greenland and by ordering
and commentary as of 1953, is contained in
the Navy to convoy ships carrying lend-
gress the legislative leverage to assert its
Ginnane, "The Control of Federal Adminis-
lease supplies to Englar !.
warmaking authority. The bill not only
tration by Congressional Resolutions and
We entered a period of almost total
provides a time limit on a President's
Committees," 66 Harv. L. Rev. 569 (1953).
acquiescence by the Congress in the
commitment of troops without prior con-
The present question, however, lies in a
1950's and 1960's. The broad blanket of
gressional authorization, but it provides
narrow compass. It is well to indicate that
for the termination of such commitment
it does not involve the situations listed be-
national security interest provided the
by concurrent resolution passed by both
low, each of which raises distinct questions:
basis for a bipartisanship support which
1. Disapproval of executive action by one
led us through the cold war. Formosa,
Houses of Congress. This is at the heart
House, or by a Committee or other agency.
Korea, Lebanon, Cuba, the Dominican
of the bill and embraces a policy which
2. Disapproval by concurrent resolution of
Republic, and the initiation of the war
I think accurately reflects the intention
executive action in a matter over which the
in Southeast Asia were all Presidential
of the framers of the Constitution. Be-
President has paramount constitutional
decisions.
cause questions have been raised about
power-e.g., the appointment of executive or
Understandably, the shift to Presiden-
its constitutionality, I would like to dis-
military officers.
tial hegemony in warmakirg authority
cuss this mechanism in some detail.
3. Disapproval by concurrent resolution of
did not occur without reason. The exec-
As the committee report notes, the
executive action in a matter committed by
Act of Congress to the executive-e.g., the
utive branch proved to be institutionally
use of a concurrent resolution to veto
Reorganization Act of 1939 and its successors.
superior to the Congress for conducting
executive action has become a common
4. Termination of statutory authority by
wars and even for initiating them. The
legislative device in the last 40 years.
concurrent resolution. See Robert H. Jackson,
Executive has the advantage of unity of
The report covers this aspect adequate-
"A Presidential Legal Opinion," 66 Harv. L.
office and purpose as well as the com-
ly, and I would only point out that the
Rev. 1353 (1953).
mand of a vast intelligence network. The
Gulf of Tonkin resolution, which pro-
The present question arises in a field where
vided for termination of authority by
the legislative and the executive branch each
Executive also has the ability to act
has its constitutional responsibilities, the
quickly and in secret, two attributes not
concurrent resolution was passed with no
Congress (by ordinary legislation) to declare
commonly associated with the Congress.
debate over that particular provision,
war, the President to act as Commander in
This, however, is not to suggest that Con-
nor was there any question about its con-
Chief. The President, it may be premised,
gress should not still be the ultimate
stitutionality when it was signed into law
has emergency powers to protect American
repository of warmaking powers. To the
by President Johnson.
interests abroad by commitment of armed
contrary if the framers had decided that
I think the theoretical basis for this
forces, but the plenary power to engage in
expediency and secrecy were the pre-
procedure is well-founded and based in
continuing hostilities is vested in Congress.
Congress may authorize the continuance of
mium qualities in warmaking, they would
the Constitution. The Constitution
the Presidential action through ordinary
have vested the power in the President.
grants to the Congress warmaking pow-
legislation. If, on the other hand, Congress
Instead they decided that warmaking
ers, and under recognized constitutional
is unwilling to prolong the emergency action
must.necessarily involve popular appro-
precedent, the Congress may delegate au-
into a state of war it may assert its authority
val, and the power should lie with the
thority with which it has been vested.
for that purpose. The most appropriate me-
Congress. We must not substitute ex-
Congress may also retract that which it
dium for such assertion by Congress is a con-
pediency for the wisdom of the framers
delegates; this is the legal justification
current resolution. In this way it makes
clear that one crucial element in the law-
in establishing their ideal of govern-
for the disapproval of reorganization
making process necessary for the making of
ment.
plans by simple resolution. House Joint.
war is lacking-the approval of Congress.
If Congress has not been adequate as
Resolution 542 makes such a provision
My conclusion is that, on the substantive
the body to make warmaking decisions,
grant of authority by giving the Presi-
premises of the bill, the provision respecting
then the institution must be changed to
dent the power to commit troops abroad
a concurrent resolution is a valid and appro-
meet the need. Unfortunately history
without prior consent of Congress. He
priate measure, and does not raise constitu-
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21225
tional issues of the kind mooted in connec-
article I, section 7, clause 3 of the Con-
tion with other categories of legislation.
limited period of time unless the war has
With kindest regards,
stitution which says every order, resolu-
been declared by Congress.
Sincerely yours,
tion, or vote in which the concurrence of
I do not think that we should permit
PAUL A. FREUND.
the Senate and the House may be neces-
our Nation to be engaged in another
sary shall be presented to the President,
The concurrent resolution mechanism
war unless the war has a sufficient degree
he states that means every resolution or
is also supported by logical analysis of
of public support to cause Congress, in
order which is to have the force of law.
its collective judgment, to vote a declara-
the legislative process. For example, if
"Necessary" here, he says, means neces-
the President were faced with a situation
tion of war. In my opinion, the President
sary if a resolution is to have the force
should not be permitted to conduct a
where no emergency existed and he came
of law. A concurrent resolution is merely
future war at his own discretion. Con-
to the Congress for authorization this
for a housekeeping matter for the Con-
would comport with the intention of the
gress should specify and assert its proper
gress. The gentleman says this resolution
constitutional responsibility to share in
Constitution. The Congress would pro-
has the force of law.
committing our nation to war.
ceed to consider either a declaration of
Mr. DU PONT. I do not believe when
I believe that this procedure is in line
war or antecedent authorization for use
the Congress is carving out an exception
with the Constitution which empowers
of Armed Forces abroad. Under the nor-
that that rule applies. I would cite a let-
Congress to declare war and empowers
mal process the majority of one House
ter I have which I will make a part of
the President to respond to sudden at-
could block the authorization and the
the RECORD from Professor Freund of the
tacks and to conduct the war once it has
President would lack the authority under
Department of Constitutional Law at
been declared.
the Constitution to proceed unless some
Harvard University, which states in re-
Mr. BELL. Madam Chairman, I yield
extraordinary national security issue
sponse to a specific question about 4C:
10 minutes to the gentleman from Ohio
were at stake. Yet if the President de-
My conclusion is that, on the substantive
(Mr. WHALEN).
cides to act unilaterally, under extraordi-
premises of the bill, the provision respecting
Mr. WHALEN. Madam Chairman,
nary circumstances, the Congress would
a concurrent resolution is a valid and appro-
many times throughout the history of
have to vote by majority of both Houses
priate measure, and does not raise constitu-
our country American troops have been
to require disengagements. The oppo-
tional issues of the kind mooted in connec-
nents to section 4(c) then would argue
tion with other categories of legislation.
committed to combat without the formal
approval of the U.S. Congress. Indeed,
that the Congress would have to vote by
So, in conclusion, I believe it is consti-
after World War II U.S. troops have been
two-thirds if the President decided to
tutional to have a delegation of power
involved in two major conflicts without
veto the measure. The result is logically
to the President taken back by a simple
any formal declaration of war. It seems
inconsistent. What it boils down to is that
concurrent resolution, and I believe that
to me, therefore, that one of the impor-
if the President goes to the Congress as
is the heart of the bill.
tant problems confronting the Congress
he was supposed to under the Constitu-
Mr. FRELINGHUYSEN. Will the
as we enter this post-Vietnam era is to
tion a simple majority of one House can
gentleman yield?
enact war powers legislation which would
defeat his actions. Yet if the President
Mr. DU PONT. I yield to the gentleman.
accomplish two things:
acts unilaterally, without prior consent
Mr. FRELINGHUYSEN. The gentle-
First, as suggested by the distinguished
from Congress, in a manner not expressly
man suggests that a delegation of power
chairman of the subcommittee (Mr. Za-
recognized in the Constitution, but ac-
by the Congress can be rescinded by a
BLOCKI) we need a vehicle which would
cepted as an extraordinary power, then
concurrent resolution. The gentleman
the House must vote by two-thirds in
redress the imbalance in the warmaking
from Illinois also talked about delega-
power. At the present time, without a
each House to terminate his actions. This
tion of power by the Congress to the
declaration of war, the President has
is an unreasonable obstacle to congres-
President. However, I thought that what
taken this opportunity of committing
sional assertion of power. It also would
we are talking about is the constitutional
American troops without the possibility
encourage the President to act first, be-
authority of the President as Commander
of congressional rejoinder.
cause it takes far more opposition in
in Chief to commit troops overseas. Is
Congress, of course, has seen fit not
Congress to defeat his actions.
the gentleman contending that the Pres-
to use its appropriation powers in re-
The concurrent resolution is fully con-
ident has this power only because Con-
sistent with the design of the framers.
sponse, at least, up until today.
gress in some way delegated it to him?
Second, we need a bill which would
Since war powers were expressly given
Mr. DU PONT. I do not know of any-
to the Congress, logically all war power
give to the Congress an opportunity to
thing in the Constitution that talks about
must flow from Congress. The President's
express its views on the important ques-
the power of the President to commit
authority then must be delegated by the
tion of war or peace, life and death of
troops overseas.
American servicemen.
Congress. Once the majority of both
Mr. FRELINGHUYSEN. No one sug-
I think that the measure which was
Houses withdraw that delegation of au-
gest the Constitution spells that out in
brought out by the subcommittee headed
thority, his provisional authority has
one way or another. The gentleman is
expired and he must accede to the will of
by the gentleman from Wisconsin (Mr.
not answering my question. I am asking
Congress.
ZABLOCKI) goes a long way toward meet-
if he is suggesting the President's au-
Mr. DENNIS. Madam Chairman, will
ing these objectives. I, therefore, would
thority, and his decision to commit troops
the gentleman from Delaware (Mr. DU
like to add my compliments to the gentle-
overseas, is unconstitutional unless the
PONT), yield?
man from Wisconsin (Mr. ZABLOCKI) and
Congress specifically delegates that
Mr. DU PONT. I yield to the gentleman
to the members of the gentleman's sub-
from Indiana (Mr. DENNIS).
power to him, or specifically authorizes
committee for the very fine work that
that use of troops before he makes the
they have done.
Mr. DENNIS. Madam Chairman, may I
decision?
ask, does the gentleman believe that if
I do believe, however, that the measure
the Congress passes a concurrent resolu-
Mr. DU PONT. No. I am saying when
which is before us is defective. Its prin-
tion under section 4(c) calling for the
the President commits troops or com-
cipal defect, insofar as I am concerned,
mits the Nation to a course of war he
ceasing of hostilities, that resolution has
is found in section 4(b). Section 4(b), as
the force and effect of law binding upon
has an obligation to get congressional
has already been discussed, permits the
the President?
approval for that course. I think the
Congress by inaction to arrive at a major
Mr. DU PONT. Yes, sir, I do, because
Constitution is pretty clear on that.
policy decision regarding the most sig-
we have the warmaking power to start
Mr. ZABLOCKI. Madam Chairman, I
nificant matter confronting the U.S.
with, and we are carving out of that an
yield such time as he may require to the
Congress-the question of war or peace.
gentleman from North Carolina (Mr.
exception and we are giving the Presi-
I think that is wrong.
TAYLOR).
dent the right to conduct warmaking
I think it is wrong for three reasons:
Mr. TAYLOR of North Carolina.
operations until such time as the two
First, as written section 4(b) perpetuates
Madam Chairman, I rise in support of
Houses by a simple majority agree we
an imbalance in the warmaking power.
House Joint Resolution 542 and am
should not do it.
It merely shifts shoes from one foot to
proud to be a cosponsor of this legisla-
Mr. DENNIS. If the gentleman will
the other, from the President to the
tion which provides that the United
yield briefly, I would like to point out to
Congress.
States not be taken into any future war
him that Professor Corwin, in discussing
Second, it perpetuates the tendency on
except a purely defensive action for a
the part of Congress to abdicate its re-
CXIX—1339-Part 17
21226
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
sponsibilities in dealing directly with the
one extreme to the other. What I seek to
President from continuing the action he
major issues confronting our country.
do through this amendment is to pro-
initiated?
And, third, it may deny to the Mem-
vide balance.
Mr. WHALEN. If it were a concurrent
bers of Congress the opportunity to voice
Mr. DU PONT. Madam Chairman, will
resolution, it would be, in my opinion,
their views on this major question of war
the gentleman yield?
that it would bind the President. It would
or peace, life and death of American
Mr. WHALEN. I yield to the gentle-
not be subject to a veto. If it were a joint
servicemen.
man from Delaware.
resolution, it would, of course be either
In the light of this deficiency, there-
Mr. DU PONT. Under the gentleman's
accepted or rejected by the President.
fore, I intend at the appropriate time
amendment if both Houses acted to
Mr. BIESTER. Is it the intent of the
this Wednesday to offer an amendment
either approve or disapprove, it is very
gentleman in proposing the amendment
to section 4(b).
clear what would happen. What would
that the language 'resolution" means a
Madam Chairman, I would like to read
the gentleman's opinion be if one House
concurrent resolution? In other words,
this amendment for the record, so that
passed a resolution of approval and the
does the gentleman intend by this
the Members of the House will have an
other House either defeated that resolu-
amendment to make limitation possible
opportunity to review it in the days
tion or passed a resolution the other
by majority rule of the Congress or by a
ahead.
way? Would the President then be able
two-thirds vote?
The amendment reads as follows:
to carry on, or would he have to with-
Mr. WHALEN. I have responded to the
Within 120 calendar days after a report
draw?
gentleman from Illinois that this would
is submitted or is required to be submitted
Mr. WHALEN. I am afraid I am un-
be decided at the time the report required
by the President pursuant to section 3, the
able to answer the gentleman's ques-
by Section 3 was submitted to the Con-
Congress by a declaration of war or by the
tion at this time. I have studied this
passage within such period of a resolution
gress. This would be determined by the
appropriate to the purpose, shall either ap-
question in considerable depth, and I
appropriate committees as to whether it
prove, ratify, confirm and authorize the con-
get different sets of answers. One might
would be a concurrent resolution or a
tinuation of the action taken by the Pres-
equate it with a declaration of war,
joint resolution.
ident and reported to the Congress, or shall
where failure to declare war in one
Mr. BIESTER. I thank the gentleman.
disapprove, in which case the President shall
House would mean that there is no war
Mr. ZABLOCKI. Madam Chairman, I
terminate any commitment and remove any
declaration. On the other hand, I have
enlargement of the United States armed
yield 5 minutes to the gentleman from
forces with respect to which such report was
received advice that it is necessary that
Florida (Mr. FASCELL).
submitted.
both Houses must agree.
Mr. FASCELL. Madam Chairman, we
Let me say this. I intend to research
have several choices. One which has
Madam Chairman, I feel that this
this further, and at the time the amend-
been suggested is to do nothing. I find
amendment, if adopted, will do two
ment is introduced, I would hope to have
that suggestion very difficult to live with.
things. First, it will provide balance to
a more specific answer.
I think all Members of Congress find it
the warmaking powers. It will assure
Mr. FINDLEY. Madam Chairman,
extremely difficult to live with, too. The
equality between the President and the
would the gentleman yield for a ques-
Congress in recent years has three times
Congress. Second, it will give the Con-
tion?
by action decided we ought to do some-
gress an opportunity to voice its opin-
Mr. WHALEN. I yield to the gentleman
thing and has previously adopted three
ion, to express its views-one way or an-
from Illinois.
resolutions.
other-with respect to the question of
Mr. FINDLEY. The gentleman is using
This debate is not a new one. It has
war or peace.
the word "resolution." Does that mean
been raised for a long time. I can remem-
I therefore hope that this amendment
a concurrent resolution or a joint resolu-
ber many campaigns, as other Members
will be adopted at the appropriate time.
tion?
can also, in the last 18 years in which the
Mr. FRELINGHUYSEN. Madam
Mr. WHALEN. I use the word "resolu-
principal issue or a major issue was the
Chairman, will the gentleman yield?
tion" advisedly. This may be either a
fact that the President had exceeded his
Mr. WHALEN. I yield to the gentleman
joint resolution or a concurrent resolu-
authority and had involved the Amer-
from New Jersey.
tion, to be decided at the time that such
ican people in warfare. I do not need to
Mr. FRELINGHUYSEN. Madam
report is submitted to Congress. Specific-
itemize those for the Members, whether
Chairman, I would like to commend the
ally, then it could be either a joint or a
it was Korea, Vietnam, or some other
gentleman from Ohio for his statement,
concurrent resolution.
action.
and to ask the gentleman if the gentle-
Mr. FINDLEY. If section 4(c) remains
So Congress has been concerned and,
man is not fearful that proponents of
in the bill, as I trust it would, this pro-
one way or another, we want to speak and
this measure may not feel that inaction
vides for termination of hostilities by
say something. We can debate the con-
by Congress is a key to what they con-
concurrent resolution. Then would not
stitutional issues, and we should-what it
sider a way of bringing balance?
the presumption be that the reference to
means for the Congress to declare war
I would guess there has been inaction,
the resolution in the preceding subpara-
and what the powers of the President are
and inaction characterizes Congress in a
graph would also have the same
as Commander in Chief of the Army and
number of areas, that it is felt that the
meaning?
Navy. By the way, I have been very curi-
only way to reverse national policy is
Mr. WHALEN. I do not think so. The
ous about whether he is Commander in
by having something happen if Congress
resolution is intentionally flexible. It
Chief of the Air Force and the Depart-
does not act. That is the thing that
gives to the appropriate committees the
ment of Defense. I will leave that ques-
makes me fearful of the prospect for suc-
opportunity to handle it either in terms
tion for another time.
cess of what the gentleman from Ohio is
of a concurrent resolution or a joint res-
But the Constitution is really quite ex-
arguing. If the effort is to underline the
olution, whichever they see fit.
plicit that the President is Commander
necessity of Congress to face up to its
Mr. FINDLEY. It seems to me the lack
in Chief of the Army and Navy.
own responsibility, how could we be
of precision leaves the status of war au-
Madam Chairman, over 160 times, for
against it? But if it refuses to face up to
thority, therefore, too much up in the
one reason or another, the manpower of
its responsibilities, to say they approve
air.
this country has been committed to war.
or disapprove, then we get a change by
Mr. BIESTER. Madam Chairman, will
This has occurred because of, in spite of,
the passage of time. There is an impor-
the gentleman yield?
or without regard to the gray area that
tant principle involved, recognizing that
Mr. WHALEN. I yield to the gentleman
exists between the constitutional respon-
it is an issue the Congress is reckoning
from Pennsylvania.
sibilities and prerogatives of Congress
with.
Mr. BIESTER. I should like to ask a
declaring war and the Executive acting
Mr. WHALEN. I would agree with the
question concerning the gentleman's pro-
in his own capacity as Commander in
gentleman that if the present language
posed amendment. In the event that both
Chief.
is retained in section 4(b), it would, in
Houses took action by a majority, would
It has been suggested that we do not
my opinion at least, mean that Congress
that bind the President, even though he
need to take the kind of action proposed
is not facing up to its responsibilities.
might disagree with it? In other words,
in this resolution because we have the
We hear a great deal of talk these days
would it be subject to a veto in which
power of the purse and therefore we
about Congress reasserting itself. Cer-
both Houses would have to marshal a
could stop the President. I humbly sub-
tainly I think we are just going from
two-thirds majority, to restrain the
mit to the Members that is impossible.
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21227
Unless we bring down the entire Govern-
then we will vote. Of course, we have
stitutional right of Congress to declare
ment there is no way by stopping any
that right anyway.
war and stated the sense of Congress
current appropriation that we can do
So, what do we say if we amend 4(b)
that the President should consult with
that, or to go back and pick up past ap-
as suggested? Answer: Nothing.
Congress "whenever feasible" before
propriations which the President has the
A vote for this resolution is a vote for
sending U.S. troops into conflict. The
power to spend. If the President claims
specific congressional action now.
proposal also directed the President to
he is exercising his right under the Con-
The time to act affirmatively is now on
report to Congress whenever he com-
stitution and spends the money, we have
this resolution. We are saying in a very
mitted troops into combat, sent combat-
no choice. We may have a clear-cut,
limited and careful way that Congress
ready troops into foreign territory or en-
beautiful issue and we would be pre-
wants to be consulted at the very begin-
larged the number of U.S. troops in an-
sented with the question whether we
ning if it is at all possible; then we would
other nation "without specific prior au-
want to impeach our Chief Executive;
expect the President to terminate under
thorization by Congress."
but we do not stop the war that way and
those very limited conditions set forth in
we do not stop expenditures. If the Chief
The House passed the resolution by
the resolution unless the Congress again
an overwhelming majority in November
Executive claims or exercises the power
positively acts again.
of that year, but the Senate failed to act.
as the Commander in Chief without a
So under the pending resolution Con-
In 1971 the chairman reintroduced the
declaration of war by the Congress to
gress would be required to act twice.
War Powers Resolution and I was pleased
push the button on the atom bomb, the
That is an affirmative action now, not
to join as a cosponsor again. The new
fact that we cut off his money will not
only some affirmative action in the fu-
resolution, House Joint Resolution 1, de-
stop him from pushing the button. Fur-
ture. This resolution does not tie the right
leted the phrase "whenever feasible," and
thermore the issue would be moot.
of the Congress to act affirmatively again
declared it the "sense of Congress that
Another choice we have is that we can
if it so desires by a very simple priority
the President should seek appropriate
adopt the pending resolution, as contro-
procedure whereby any single member
consultations with Congress before in-
versial as it may be in the minds of some.
can offer a resolution that must come to
volving" U.S. forces in armed conflict.
The constitutional questions are impor-
the floor.
tant and should be debated although it
The resolution passed the House again,
It seems to me that we have given Con-
by voice vote.
seems to me the committee has made it
gress two opportunities instead of one
Legislation passed by the Senate last
quite clear in its reiteration of the well
to act on the matter. So I say that what
year differed markedly from the resolu-
recognized principle of law that no con-
is involved here is primarily the principle
tion adopted twice by the House. Efforts
gressional act can modify the Consti-
of the Congress stating right now in this
tution. What is important is the fact
in conference to resolve the major dif-
resolution how it feels on future com-
that the Congress speaks on the issue of
ferences between the two proposals were
mitments of U.S. forces by the President.
unsuccessful, and the issue was left un-
war and peace by the determination re-
We have been struggling with this is-
resolved.
flected in the pending resolution.
sue a long time. This committee has
However, let us assume for a moment
The resolution we are considering to-
worked very hard over many years. I
the pending resolution is unconstitu-
day is by far the best proposal submitted
commend the distinguished gentleman
tional because it is a denial or a mitiga-
to this House for our consideration. It is
Mr. ZABLOCKI from Wisconsin and the
tion or in some way attempts to modify
well balanced and achieves, I believe, the
members of his subcommittee who to-
the power of the President under the
objective we have all sought-namely, to
gether with the chairman of the full
Constitution-of course we cannot do
define the relationship within which the
committee the distinguished gentle-
that. The President has certain powers
Chief Executive and the Congress could
man from Pennsylvania (Dr. MORGAN)
under the Constitution. If he claims and
separately and collectively exercise their
brought this bill to the floor of the House
exercises his right under the Constitution
respective constitutional responsibilities
on four occasions.
contrary to the intent of this bill, he has
and preserve the peace and security of
Madam Chairman, as a cosponsor, I
the Nation.
to do it in the face of the expressed in-
rise in strong support of House Joint
tent and will of the Congress of the
In addition, I believe it represents a
Resolution 542, the War Powers Resolu-
United States. He can do it; he can dis-
significantly less rigid position vis a vis
tion of 1973. Again I reiterate that the
regard the will of Congress but he will
the Senate proposal, and its approval
chairman of the Subcommittee on Na-
have to swallow very hard to do it. Some
may make possible enactment of effective
tional Security Policy and Scientific De-
people allege Presidents have been disre-
legislation. It is imperative that this be
velopments, Congressman ZABLOCKI, is to
done.
garding the expressed will and intent of
be commended for his leadership and
the people either as expressed by the
A key to the pending resolution is the
perseverence in pursuing this vital legis-
people themselves or by their Represent-
lation.
provision for prior and ongoing consul-
atives in the Congress, so we would not
tation by the President with the leader-
The need for legislation to clarify the
be faced with a new issue but at least for
ship and appropriate committees of the
respective responsibilities of the Congress
the first time this resolution would have
Congress. This is of course essential.
and the President under the Constitu-
on the statute books the expressed will
There is, in my judgment, no matter of
tion to initiate, to conduct, and to con-
of Congress.
such a sensitive nature that it could not
clude armed hostilities with other na-
I want to get to the third alternative
be entrusted to Members of the Congress.
tions became clear to me in May of 1970
which has been recommended today. It
And we must have the benefit of full
when U.S. Armed Forces were committed
has been suggested that the Congress
knowledge if we are to exercise our role
to combat in Cambodia without prior
should act affirmatively, and the way we
in the most responsible way.
congressional consultation or authoriza-
do that is to amend 4(b) of the pending
I have urged throughout our commit-
tion. In response to the clear need for
resolution. The truth of the matter is if
tee's consideration that the strongest
an affirmative statement of the congres-
we examine that proposition very care-
possible provision be made requiring
fully and amend section 4(b) of this
sional responsibility in committing U.S.
consultation. It serves a twofold pur-
resolution, we would be doing nothing but
combat forces I had drafted a bill, H.R.
pose. Not only do we have the benefit of
reiterating the powers which Congress
17598, which I introduced on May 13,
all the facts, but I believe, we as Mem-
already has. The issue would be more
1970. I hoped that this proposal would
bers of Congress could make a significant
clearly presented by an amendment to
serve as a vehicle for a reappraisal of the
contribution to the Executive's judgment.
war powers issue and a catalyst for a dis-
repeal section 4(b) or to vote against the
The resolution clearly recognizes, as 1t
bill.
cussion of the vital constitutional issue
must, that in some instances military ac-
involved.
Because the truth of the matter is, if
tion absent a declaration of war may be
Chairman ZABLOCKI concurred with the
the Congress can act any time it wants
taken. In any such instance involving
critical need for a review of the respec-
to anyway, and we amend section 4(b)
the commitment of U.S. forces to hostili-
tive congressional and executive powers
to eliminate the 120 day requirement and
ties outside of the United States, com-
and held extensive hearings during the
state that there must be an affirmative
mitment of combat-equipped forces to
summer of 1970. Out of those hearings
vote of the Congress, we are saying that
any foreign nation, or the substantial
came the first war powers resolution,
we do not want to vote on the issue now,
enlargement of combat-equipped U.S.
House Joint Resolution 1355.
Forces already in a foreign nation, the
but wait until sometime in the future,
The 1970 resolution reaffirmed the con-
President is required to submit within 72
21228
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
hours to both Houses a written report
the clear message of the people and
tee on Foreign Relations in the Senate,
clearly setting forth the circumstances
the Congress, however, the President
and that one such resolution or bill shall
necessitating his action, the authority
continues the bombing, with no author-
be reported out by such committee. Who
under which he took that action, and the
ity. The administration has made it
shall decide what resolution or bill shall
anticipated scope and cost of the action.
clear that regardless of whether the
be reported out by the committee, of the
Unlike the legislation passed last year
Congress denies funding for the bomb-
many which may be offered? Who shall
by the Senate and reported again this
ing, funds will be made available.
determine that the chairman of the For-
year by the Foreign Relations Commit-
It is such a situation we must guard
eign Relations Committee of the other
tee, House Joint Resolution 542 does not
against. We must never again let our
body will bring the same kind of resolu-
seek to define those kinds of action which
country go to war, piece by piece, as we
tion as the chairman of the Committee
can be taken absent a declaration of
have done in Southeast Asia.
on Foreign Affairs might? They might be
war. To do so, in my mind, would further
The responsibility belongs in the Con-
entirely opposite resolutions.
expand the President's authority as Com-
gress to insure against that possibility.
How can we be sure that we will not
mander in Chief. Under the House pro-
The responsibility, under the Constitu-
get into a confused state by the differ-
posal, it is up to the President to justify
tion, of committing U.S. troops to armed
ing actions of these committees in the
his action and cite the statutory or con-
conflict is one shared by the legislative
two bodies, so that we shall end up with
stitutional authority under which he
and executive branches of Government.
the 120 days expired and no action taken
acted. To specifically define his authority
The balance between the two branches
by the Congress, so the President would
as S. 440 seeks to do, would give the
has swung heavily to the executive and
be forced to withdraw the troops, al-
President statutory authority he does not
we must act now to restore it.
though it might be not in the national
now have. House Joint Resolution 542
I urge your strong support of House
interest to do so?
avoids this, and in addition specifically
Joint Resolution 542.
I would suggest that as written this
states that the proposal does not add to
Mr. MAILLIARD. Madam Chairman,
joint resolution in this and other re-
any existing powers of the President.
I yield 5 minutes to the gentleman from
spects is a defective resolution.
A significant change in House Joint
Alabama (Mr. BUCHANAN).
I would further suggest in my own
Resolution 542, not included in proposals
Mr. BUCHANAN. Madam Chairman,
humble opinion it is not very easy to
considered by the House previously,
running through the course of this de-
spell out the war powers of the President
would terminate within 120 days author-
bate has been the recurring theme that
or what they may or may not be except
ity for the continued commitment of
Congress ought act to affirm and fulfill
by amendment to the Constitution,
U.S. Forces unless the Congress takes
its constitutional responsibilities in the
which this body and the people together
specific action to declare war or author-
event of military action initiated by the
could do if we saw fit to do it and could
ize the continued use of the Armed
President. In the face of a presidential
agree on the spelling out of the powers.
Forces.
emergency action, Congress should
I would agree that we could cut the
The other body has proposed that
stand up and speak out in approval or
money off, as others have suggested, to
emergency authority exercised by the
disapproval.
stop an action. I would say to my friend
President shall terminate within 30 days
I find it very hard to understand,
from Florida that nothing would pre-
unless the Congress acts to authorize its
therefore, why it would not be a good
clude the President from pushing the
continuation.
idea to not only require the reporting
button on the 119th day under this
I have argued that such a requirement
and the consultation as this bill will do,
measure, if he proposed to push the but-
would place the Congress in the position
by the President with the Congress but
ton for a nuclear holocaust, God forbid.
of ratifying, in a pro forma manner, ac-
also to mandate action by the Congress
I would say, however, Madam Chair-
tion taken by the President. A call by
itself, as the amendment which will be
man, we have the opportunity to make
the President to protect the national
offered by the gentleman from Ohio (Mr.
this joint resolution a better joint reso-
security, and "rally round the flag,"
WHALEN), and a similar amendment
lution. We have the opportunity to make
would build strong sentiment and emo-
offered by me in the committee would do.
it one which will mandate the Congress
tion that I can scarcely imagine that the
Congress has a responsibility under
to act, not to evade action or legislate
Congress would not quickly act to au-
the Constitution, and a responsibility to
by inaction.
thorize action.
the American people to take definite,
Mr. KEMP. Madam Chairman, will
On the other hand, I believe that a
positive action in such a situation. Yes,
the gentleman yield?
120-day period may be a sufficiently
this our prerogative, and Congress must
Mr. BUCHANAN. I yield to the gentle-
lengthy time to allow emotions to sub-
act in response to the Presidential action;
man from New York.
side and to permit a careful study of all
up or down; yea or nay.
Mr. KEMP. I appreciate the gentleman
facts in proper perspective. The Con-
This is positive action, and I would
yielding. I agree with the gentleman's
gress and the country could then be
submit it is preferable action to the
statement that it is difficult to rigidly
able to make a rational decision on
provision of the present bill in section
define those areas constitutionally in
whether the impending action warrants
4(b), which would simply say that if
which the Commander in Chief is going
the continued commitment of the U.S.
Congress does nothing at all, a major
to be allowed to be Commander in Chief.
forces.
policy decision is made thereby.
My question is, would it not perhaps
It is important that there be some
There has been reference made to the
preclude the possibility of successful
boundary of the discretionary authority
requirements of section 5 in this reso-
quiet diplomacy if in fact this is brought
which the President must have. I think
lution as to what shall be required and
to a vote in the Congress within 120 days,
the proposal embodied in House Joint
in case a resolution is presented on this
on an issue that might very well be re-
Resolution 542 meets the objections of
subject. May I refer to the language of
solved, as I say, through quiet diplomacy;
emotional ratification, and provides that
the bill, section 5(a):
that is, the visit by the President to the
boundary.
SEC. 5. (a) Any resolution or bill introduced
6th Fleet at the time of the Soviet-
This bill's applicability to the ongoing
pursuant to section 4(b) at least forty-five
backed Syrian invasion of Jordan a few
conflict in Southeast Asia is vital. It is
days before the expiration of the one hun-
years ago?
because of our military involvement
dred and twenty-day period specified in said
Are not some of the successes of this
there, and the extremely broad interpre-
section shall be referred to the Committee on
administration and previous administra-
tation of Presidential "Commander in
Foreign Affairs of the House of Representa-
tions in international affairs better han-
tives or the Senate Foreign Relations Com-
Chief" powers to continue and expand
dled at a quiet level, rather than exacer-
mittee, and one such resolution or bill shall
that involvement, that has led to this
bated by bringing them to a head?
be reported out by such committee, together
debate and all those that have preceded
with its recommendations, not later than
Mr. BUCHANAN. I would say to my
it.
thirty days before the expiration of the
friend that I would assume when the
The House has again today reiterated
one hundred and twenty-day period specified
President commits American forces to
its opposition to further military in-
in said section.
some kind of combat situation that the
situation is somewhat exacerbated al-
volvement in Southeast Asia, and the
There may be 50 differing resolutions
ready, and it would hardly seem an ap-
bombing of Cambodia and Laos. Despite
offered. The bill says that they shall be
propriate time for quiet diplomacy.
the "end" of the Vietnam war, the
referred to the Committee on Foreign
The CHAIRMAN. The time of the gen-
signing of two peace agreements, and
Affairs in the House and to the Commit-
tleman from Alabaina has expired.
21229
Mr. MAILLIARD. Madam Chairman,
have been interpreted in a situation
American Fleet, when the sailors were ar-
which is not at all a modern day situa-
rested in Tampico, issued an ultimatum
I yield the gentleman 2 additional min-
tion and perhaps is one from which we
to the Mexican Government of Huerta
utes.
Mr. BUCHANAN. I thank the gentle-
may extract the heat of passion today. I
that they give a salute to the American
man for yielding additional time.
shall pose the question to the gentleman
flag or else action would be taken?
Is my friend from New York suggest-
from Wisconsin (Mr. ZABLOCKI) rather
There was not any authority for that
ing that he thinks the present section
in the nature of a hypothetical question
at the time, was there?
than in the nature of an historic fact,
Mr. ZABLOCKI. The President or-
4(b) is a better provision than that we
because the historic facts may be some-
dered the fleet to move, but, as I under-
would offer?
what in dispute.
stand it, he then came to the Congress to
Mr. KEMP. I have not made up my
mind. That is what I stated. I am listen-
Madam Chairman, in 1914 the United
ask permission to act.
ing to the debate.
States was engaged in certain difficulties
Mr. ECKHARDT. Under this act,
There is a very definite influence of the
with Mexico. Several U.S. sailors were ar-
could the President act first and then re-
6th Fleet or the 7th Fleet. Incidentally, it
rested in Tampico. At that time Vittori-
port immediately afterward?
did not bring about a war in the Mid-
ano Huerta was the rather dictatorial
The CHAIRMAN. The time of the gen-
President of Mexico, and there was a rev-
tleman has expired.
east. It was one of those areas in which
olution going on in that country. We had
Mr. ZABLOCKI. I yield to the gentle-
the President made a successful
originally given him clandestine support
man 1 additional minute.
maneuver.
but we had gotten tired of him-he was
Mr. ECKHARDT. Could the President
Once a President either activates or
pretty dictatorial-and we were more or
have acted without prior authority so
visits the 6th Fleet or the 7th Fleet, in the
Formosa Straits, he has taken, at least
less favorable to Carranza.
long as within 72 hours he reported it
as I understand it, some type of action
So on April 14 certain U.S. troops
to the Congress in a situation of the type
which might prevent war or bring on
seized the Port of Vera Cruz in order to
I have described?
prevent a German merchantman from
Mr. ZABLOCKI. Yes, but the resolu-
war. But it has been successful in many
bringing arms to Huerta.
tion does not add to the President's
instances.
Mr. BUCHANAN. May I say to my
Madam Chairman, would that in the
power. And under 4(b) the President
friend that the chances are very great in
gentleman from Wisconsin's opinion, be
could continue the commitment for 120
many instances this could be handled
one of the acts referred to in section 3(1)
days unless Congress took positive action
within the 120 days. Congress would have
on page 2, that is "committing the U.S.
approving or disapproving.
Armed Forces to hostilities outside the
Mr. ECKHARDT. Since my time is
120 days to act up or down.
I would also say that the President
territory of the United States, its posses-
very short, I would say if that be true,
might, by quiet diplomacy, convince the
sions and territories"?
then I think this act purports to expand
Congress of the rightness of his cause, to
Mr. ZABLOCKI. Yes, it would.
the President's constitutional authority
give him approval of his action.
Mr. ECKHARDT. Then, had that oc-
and give him authority to act, at least
That is provided for in the amendment
curred, the procedures involved in the
during that 120 days, far beyond the pro-
remainder of section 3, that is, the Presi-
visions of the Constitution.
which permits approval as well as dis-
dent's requirement to give 72 hours' no-
The best discussion of the President's
approval. I would hope that would be the
case in such instances. I would further
tice to the Speaker and other authorities
authority I think is in Hamilton's Fed-
note the language of the Whalen-Bu-
and to give the circumstances and the
eralist paper 69 wherein he says:
chanan amendment provides for the ac-
constitutional and legislative provisions
The President is to be Commander in Chief
of the Army and Navy of the United States.
tion it mandates either by declaration of
under which the authority existed, would
war or the passage of a resolution appro-
have had to be carried out, I assume.
In this respect his authority would be nomi-
nally the same as that of the king of Great
priate for the purpose. Again, this could
And then congressional action would be
Britain—
be a resolution specifically approving a
provided under section 4.
Madam Chairman, the thing that
The CHAIRMAN. The time of the gen-
specific and limited action by the Presi-
dent or such broader approval or disap-
troubles me is the language under sec-
tleman has again expired.
proval the Congress might in its wisdom
tion 8(c) providing that nothing in this
Mr. ZABLOCKI. I yield the gentleman
grant. Congress would be free to act ac-
act "shall be construed as granting any
1 additional minute.
cording to its best judgment, but would be
authority to the President with respect
Mr. ECKHARDT. He continues:
required to take definite action on what
to the commitment of U.S. Armed Forces
But in the substance much inferior to it.
would surely be an issue of the first prior-
to hostilities or to the territory, airspace,
It would amount to nothing more than the
ity in an area in which in my judgment
or waters of a foreign nation."
supreme command and direction of the mili-
tary and naval forces as First General and
the Constitution itself mandates the
It would seem to me that the applica-
admiral of the Confederacy; while that of the
Congress to assume responsibility and
tion of section 8 of the act would recog-
British king extends to the declaring of war
exercise authority.
nize that President Wilson's act was il-
and to the raising and regulating of fleets
Mr. ZABLOCKI. Madam Chairman,
legal in the first place.
and armies, all of which by the Constitution
will the gentleman yield?
Now, is the gentleman saying that be-
under consideration, would appertain to the
Mr. BUCHANAN. I am glad to yield
cause of the provisions of section 3, he
legislature.
to the gentleman from Wisconsin.
is acting legally until he is called on to
I submit that the action of Wilson in
Mr. ZABLOCKI. But the provisions in
remove the troops, although he would
that case, if it were permitted for 120
section 4(b) and 4(c) do not preclude
have been acting illegally, as I read the
days, would have utterly destroyed
the Congress from giving similar ap-
language under section 8(c) ?
Huerta, because by July he had had to
proval in an expeditious manner, ap-
Mr. ZABLOCKI. Madam Chairman,
resign, the customhouse at Vera Cruz
proving the President's commitment of
the reason for section 8(c) is to make
having been at that time commandeered
troops or whatever action he has taken.
clear that the resolution does not add
or at least restricted by American forces
Mr. BUCHANAN. Yes. I am glad the
any additional powers to the Executive.
in that area.
gentleman mentioned that for the sake
I should add that resolution does not de-
Mr. BELL. Madam Chairman, I yield
of legislative history.
tract any power from the President
10 minutes to the gentleman from In-
I would say what we seek to do is to
when he acts under the Constitution as
diana (Mr. DENNIS).
mandate action by the Congress. I think
Commander in Chief.
Mr. DENNIS. Madam Chairman, we
this is what the American people want
In the specific case of President Wil-
are debating here this evening probably
of us, that we act and not fail to act,
son, to which the gentleman from Texas
the most fateful and important matter
that we accept our responsibility and not
(Mr. ECKHARDT) refers, President Wilson
that either this Congress or any other
evade it.
requested authority to use the Armed
Congress is likely to debate. The fact that
Mr. ZABLOCKI. Madam Chairman, I
Forces 2 days before they were actually
we are forced to do it at 9 o'clock in the
yield 5 minutes to the gentleman from
landed, and Congress passed a joint reso-
evening and to largely empty benches is
Texas (Mr. ECKHARDT).
lution giving him such authority the day
not merely unfortunate, it is outrageous.
Mr. ECKHARDT. Madam Chairman, I
after they landed.
This is not only an important question
rise to ask first a few questions.
Mr. ECKHARDT. But do I not recall
we are debating, but it is an old one
I would like to know how the bill would
that Admiral Mayo, commander of the
which has been with us more or less
21230
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
throughout the history of the Republic
the Vietnamese war was in progress, I
of both of them. I have made a very
and it is one on which it is very difficult
still think it is better to look calmly
serious effort, I will say to the commit-
to draw legislation, because it inevitably
toward future actions rather than try to
tee, to draw that kind of a bill.
involves constitutional questions. It has
deal in this legislation with something in
I would also like to suggest that I sup-
a long and interesting history which
which we are already involved. We do not
pose we are trying to adopt a measure
might be discussed if we had time.
know what we will be involved in when
which will be passed into law and which
The gentleman from Wisconsin and
and if the measure is ever adopted. We
might stand some possibility, even, of
the majority of the committee have pro-
may be in a war in the Middle East, for
overriding a possible Executive veto. I
duced a bill here for which we can thank
instance, by the time this becomes a law,
suggest to the Members that the bill I
them whether we agree with them or not,
and under this committee bill it applies
have drawn has a better change to pass
because it raises a topic for debate which
even though the hostilities started before
and a better chance, if that situation
ought to be debated and considered in
this bill was passed.
should arise, to sustain itself against any
this Congress.
Mr. WOLFF. Madam Chairman, if the
possible Presidential veto than does the
In spite of the work which has gone
gentleman will yield, does the bill pro-
committee resolution.
into that bill by the distinguished com-
vide for a specific war, or is it for all
Mr. FRELINGHUYSEN. Madam
mittee, the distinguished chairman and
wars?
Chairman, will the gentleman yield?
the distinguished subcommittee chair-
Mr. DENNIS. Of course it is for all
Mr. DENNIS. I yield to the gentleman
man, for all of whom I have the very
wars. But the point I am making is
from New Jersey.
greatest respect, I submit to you that
that the committee bill says it applies
Mr. FRELINGHUYSEN. I should like
there are at least four serious and, I
to those which are presently existing.
to commend the gentleman for his state-
think, fatal drawbacks to House Joint
So I suggest it might be wiser to make
ment, because he does underline some
Resolution 542.
it apply only to wars which come into
very serious weaknesses of the proposal
One is the matter which we have dis-
being after the statute has been enacted.
as it is written. I think it also should
cussed at considerable length here today,
Mr. WOLFF. It does not say presently
be emphasized that the gentleman from
that which has the Congress set vital pol-
existing wars; this says wars that are in
Texas underlines another weakness
icy in this vital field, not by doing some-
progress at the time of passage.
which is very dimensional, and that is
thing, but by failing to do anything. I
Mr. DENNIS. Presently in progress at
the extent to which the proposal per-
feel that is a very great weakness in this
the time of passage, so they have to be
haps inadvertently may expand Presi-
bill. And of course I would support the
presently existing, they started before
dential authority far beyand what is
amendment to be offered by the gentle-
the passage of the resolution.
presently understood to be the limits of
man from Ohio (Mr. WHALEN). But, as I
Mr. WOLFF. So we should disregard
his constitutional power. So we have
will discuss with you in a moment. I have
that war, then?
both a contraction and an expansion.
a bill of my own on this subject, which
Mr. DENNIS. It would not disregard
We have limitations imposed on him and
is a complete bill, and which, if the par-
it under this bill. What I am saying to
in an arbitrary and probably unconsti-
liamentary situation permits, I shall offer
the gentleman from New York is that
tutional way.
as a substitute, that will likewise care for
I think it would be a wiser measure if
I think all of this is reason for the gen-
that same situation, in the same way,
we did not try to apply it to some-
eral concern about the wisdom of what
and also do certain other things.
thing which is already in progress when
has been proposed.
Mr. STRATTON. Madam Chairman,
we passed it.
Mr. DENNIS. I agree with the gentle-
will the gentleman yield?
The gentleman may disagree with me,
man from New Jersey, and I will say
Mr. DENNIS. I will be happy to yield
but that is a matter of opinion.
any legislation in this field is extremely
to the gentleman from New York.
The fourth problem-and this is a
difficult. I came to the conclusion only
Mr. STRATTON. Madam Chairman, I
point which I cover in my bill and which
somewhat reluctantly, and after a great
just want to say to the gentleman that I
is not covered in the committee bill, and
deal of study, even that anything should
think his bill is an excellent bill, and I
which I think is a very important point
be attempted, but I believe there has been
certainly would support it if the gentle-
in my bill-I provide that not only must
sufficient erosion of congressional power
man offers it, and if the parliamentary
we vote approval or disapproval within
to justify the effort, providing we can
situation does not prevent its acceptance,
90 days after the initial commitment of
do something with which we have a
then I have a similar version which I in-
troops, if there has been no declaration
chance to live, something which can ac-
tend to offer at the proper time.
of war, or no attack on this country.
tually operate, something which merely
I think what the gentleman from In-
But also the President must make pe-
gives the Congress-and that is all I am
diana wants to do is to require positive
riodic reports, if we approve in the first
doing-a tool to use rather than the
action by the Congress as being the
instance, of the progress of affairs, of
meat ax approach of the appropriation
proper way to proceed. And I commend
the progress of hostilities, if any, at in-
process, I propose a measure which will
the gentleman for his efforts.
tervals not to exceed 6 months; and
permit us to go ahead, and to discharge
Mr. DENNIS. I thank the gentleman
within 30 days after each one of those
our function in this field under the Con-
from New York for his assistance and
subsequent 6-months reports we must
stitution.
support.
again vote approval or disapproval. In
Mr. FRELINGHUYSEN. I thank the
The second thing which I feel is a
no case, under my bill, do we stop the
gentleman.
serious drawback to the committee bill is
action unless we vote disapproval, but
Mr. ZABLOCKI. Madam Chairman, I
this matter of providing that if we wish
we do have a recurring opportunity to
yield 1 minute to the gentleman from
to discontinue hostilities which have
do that, a continuing oversight of the
Texas.
been instituted, we can do it by a con-
situation; and in each case, both the
Mr. MILFORD. Madam Chairman, I
current resolution. I do not want to be-
first time within 90 days and there-
am strongly in favor of a war powers
labor the point unduly, but I think this is
after every 6 months, within 30 days, we
resolution that would once again return
something which, if it means anything,
are required to vote. We have to act. If
to the Congress its constitutional power
if it is going to restrain the executive, has
and when we disapprove, then the Presi-
to declare war or combat actions.
to have the binding force of law. I
dent has to call off the troops.
I am strongly against House Joint Res-
submit to the Members that all the au-
My bill also does not apply to hostili-
olution 542, in its present form. This res-
thorities say that if we are going to do
ties which might be existing before it
olution is dangerous to this Nation, as it
something which has the force of law,
became law, and it does not affect
is drafted.
something which is legislative in charac-
existing treaty obligations, whatever
War or combat actions-in any Na-
ter, then we have to go through the nor-
they are, which I do not attempt in the
tion-come about only as a last resort.
mal legislative process, which, for better
bill to define.
With modern-day weapons, all-out war
or worse, requires presentiment to the
I am going to suggest to the Members
of the World War II variety will prob-
executive. I think there may be an
that a bill to be successful in this field
ably never occur again. I think it is ob-
amendment offered on that subject.
has to be one which provides for con-
vious to all that no country could win
Thirdly, the committee bill applies to
gressional participation, which also does
a nuclear war.
existing hostilities. And while that is not
not hamstring the Executive, and which
Therefore, I do not believe that this
as important as it would have been while
allows flexibility and action on the part
Congress shall ever again be assembled
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21231
for the purpose of declaring war in the
material spats between small nations in
of further procrastination and inaction:
sense written in our Constitution.
other parts of the world, may sometimes
indeed that should be the very cause of
Combat actions are another story. The
have a vital bearing on our survival.
our present determination to act respon-
limited war is a distinct possibility, in-
It is very important that this Nation
sibly and pass this bill. It is no secret that
deed, a probability. The world is seeing
have the ability to respond rapidly and
our branch of government, the Congress
many of these limited action combat en-
decisively, under these circumstances. As
of the United States has come under in-
gagements. In all probability, there will
a practical matter, the President could
creasing criticism from our people for
be many more before the world learns
not consult sensibly with the Congress
having abdicated its full role in many
that we can live together without killing
under the present provisions of House
substantive areas of Federal policymak-
each other.
Joint Resolution 542.
ing. Nor are we unaware that in many
House Joint Resolution 542, in its pres-
In order to give the President a prac-
quarters the legislative arm is viewed if
ent form, does not face up to the realities
tical means of carrying out the desires
not quite with contempt, then certainly
of limited wars. This resolution demands
of all Members of Congress, we have got
with something less than the minimal
that the President consult with the
to establish a responsible vehicle for the
respect due to the body which forges the
Congress. I strongly agree with this
President to communicate with in the
policies that guide our Nation's destiny.
provision. He should consult with the
Congress.
This sorry state is partially of our own
Congress.
This vehicle could consist of a select
making, for many times we have sought
However, House Joint Resolution 542
committee of responsible Members that
refuge in our own self-doubts, and we
does not provide for a practical way for
are nominated by the Speaker and
have yielded to Executive who have told
the President to communicate with the
elected by the House. This select com-
us that we do not share the wisdom, or
Congress. This failure negates the value
mittee must be prohibited, by law under
the foresight, or the concern for the gen-
of a war powers act.
penalty of prison, from revealing the
eral well-being of our people that the
Wars are conducted as a result of data
classified information provided by the
Executive can assert.
accumulated from highly classified in-
President. Having been elected by the
With this viewpoint I cannot disagee
telligence information. Wars are con-
House. these committee members would
more vigorously. But of much greater
ducted on the basis of supersensitive in-
represent the sense of the Congress. In
significance, the very Constitution of
volvements that have a vital effect on
this manner the President would have a
this land, which each and every one of us
the nations concerned. These are not
valuable input that is not now available
takes a solemn oath to protect and de-
matters that one can print in the CON-
to him.
fend, paints a strikingly different picture.
GRESSIONAL RECORD.
I had considered trying to introduce
It would hardly be necessary for me to
Therefore, in House Joint Resolution
an amendment to House Joint Resolution
read the words of that brilliant instru-
542 we are saying, "Mr. President, by
542, that would establish such a com-
ment to my colleagues to show our role in
law you must come over here to Congress
mittee. After consideration, I decided
the operation of our National Govern-
and tell us all of our national secrets
that this would be unwise. Being a new
ment; nor do I desire to lecture on the
before you can take actions that might
Member, I did not feel that I had the
meaning of separation of powers as it
be vital to our survival." This is ridic-
experience to author such an amend-
applies to the division of responsibility
ulous.
ment. Furthermore, it should be care-
between the President and the Congress.
On the other hand, as I stated earlier,
fully drawn by committee action, rather
Rather, I will focus in on the war power,
I think it is vital that the President
than the dubious means of a floor
as it is described in the articles on the
should consult with the Congress before
amendment.
President, and on the Congress. Article
committing this Nation to a combat
Therefore, at the appropriate time, I
II, section 2, defines the powers of the
action.
hope there will be a motion to recommit
Executive with respect to the military
House Joint Resolution 542 does not
this bill to committee with the hope that
operations of the United States:
provide a vehicle for responsible con-
this vital factor will be added. By the
The President shall be the Commander in
gressional communications. The lack of
addition of a responsible War Powers
Chief of the Army and Navy of the United
such a vehicle is the prime reason why
Committee, both the Congress and the
States, and of the militia of the several States
the President has been unable to report
President will be better equipped to make
when called into the actual service of the
to the Congress on the Vietnam and
the awesome decision to use or not use
United States;
To the Congress, the
Cambodian operations.
American troops in a combat action.
Constitution assigned numerous legislative
No individual Member, no committee,
When the motion to recommit is made,
war powers, among them, in article I, section
nor the leadership structure has the
I would hope each of you would sup-
8, "To declare war."
necessary intelligence and information
port it.
The very words of the Constitution
to make a decision to commit or not
Mr. MAILLIARD. Madam Chairman,
would seem to present the case quite
commit troops into a combat action.
I have no further requests for time.
clearly-the Congress is to declare the
That information is available only to
Mr. ZABLOCKI. Madam Chairman, I
wars in which our Nation is to engage,
the administration.
yield 5 minutes to the gentleman from
and the President is to be the military
As presently structured, the adminis-
New York (Mr. WOLFF).
commander of our forces in fighting those
tration has no congressional committee
Mr. WOLFF. Madam Chairman, as I
wars. It might be argued that this ap-
or organization with which it can share
rise today to speak in support of the
proach is too simplistic; that there are
super-secret information responsibility.
War Powers Act of 1973, I am aware of
too many variations and unpredictable
Sure, the President can go to the For-
the gravity of this bill and its implica-
situations that can arise to adhere too
eign Relations Committee or Armed
tion for our Nation and, indeed, for the
closely to this scheme. Indeed it might
Services Committee and give them a
entire world. It is because of the signifi-
be argued that the founders could not
briefing. However, under present House
cance of this piece of legislation that I
have meant that there should be no flexi-
rules, individual Members-at their own
wish to commend the thoughtful and
bility in this arrangement, for there
discretion-can print it in the papers
incisive work of Chairman MORGAN and
would be too much danger from our
the next day.
Chairman ZABLOCKI who chairs the sub-
enemies to cast such a rigid die. And to
Obviously, that is no way to run a war.
committee and the members of the Na-
a certain extent this is true. Yet if we
An army must have only one com-
tional Security Policy Subcommittee.
look to history-if we look to the words
mander. It cannot have 536, particularly
Theirs was no easy task, for in this bill we
and the writings of those who forged the
when 535 of them do not have access to
see the lessons of history, the immortal
United States of America from the 13
the classified data necessary to make
concepts imbedded in the American Con-
Colonies, we will see very clearly what the
reasonable decisions.
stitution, and the results of intensive
original intent was, and where there was
Since the olden days of declared wars,
and emotional debates on our national
room for reasonable men to differ.
the United States has become dependent
structure of government that have raged
Alexander Hamilton, one of the draft-
upon other nations for its survival. Our
over the last several years.
ers who most strongly supported the con-
energy imports are a good example of
Yet the fact that this proposal has
cept of a powerful executive, defended
our dependence upon others. No longer
been the subject of deep controversy
the proposed Constitution in the "Fed-
can we say that actions in other lands
within and without the organs of gov-
eralist Papers" with great vigor. In his
are none of our business. Seemingly im-
ernment should not urge us to the shelter
discussions of the war powers, he com-
21232
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
pared the role of the new American Fed-
Government, from acting to repel attacks
Mr. ZABLOCKI. Madam Chairman, I
eral Executive with the then Governor of
on American soil, to defend American
yield 1 minute to the gentleman from
New York and the powers of the King of
troops from attacks overseas. But what
Florida (Mr. BENNETT).
the Constitution does prohibit, is the
Mr. BENNETT. Madam Chairman, I
England by writing:
The President will have only the occasional
President acting unilaterally to begin
have some reservations about the resolu-
command of such part of the militia of the
hostilities. This country has separated
tion as it stands, and I am going to sug-
nation as by legislative provision may be
the military from the civilian function,
gest some amendments.
called into the actual service of the union.
and indeed has subjugated the military
Madam Chairman, the war powers res-
The King of Great Britain and the Governor
to the civilian authorities, for precisely
olution before us seems to me to grant
of New York have at all times the entire com-
that reason.
war powers to the President which are
mand of all the militia within their several
This view was specifically upheld by
those of the Congress under the Constitu-
jurisdictions. In this article therefore the
power of the President would be inferior to
the Supreme Court of the United States,
tion; and which should stay there. I
that of either the monarch or the governor.
in the 1850 case of Fleming against Page,
would prefer instead to have a more
The President is to be Commander in Chief
which bluntly held that when the Presi-
modest proposal.
of the Army and Navy of the United States.
dent assumed the role of Commander in
For instance, section 2 could read:
In this respect his authority would be nomi-
Chief, "his duty and his power are pure-
The President shall consult with the
nally the same with that of the King of
ly military." The theory that the Com-
leadership and applicable committees of Con-
Great Britain, but in substance much in-
mander in Chief has large powers first
gress before substantially enlarging United
ferior to it. It would amount to nothing
appeared during the Civil War, but this
States Armed Forces in any foreign nation;
more than the Supreme Command and Di-
or before placing any United States Armed
rection of the Military and Naval Forces, as
was justified, as Lincoln repeatedly said,
Forces in any foreign nation where none
First General and Admiral of the Confed-
by the emergency of rebellion and in-
had been immediately prior to such
eracy, while that of the British king extends
vasion. Indeed, it was Congressman
placement.
to the declaring of war and to the raising and
Abraham Lincoln who perhaps most
regulating of fleets and armies-all which, by
clearly delineated the reasons for strict-
Then all of page 2 could be stricken
the constitution under consideration, would
ly inhibiting the role of the Executive as
down to line 19 and that could be amend-
appertain to the legislature.
Commander in Chief, when he said:
ed to read "Sec. 3. The President upon
When Hamilton wrote those words, he
Allow the President to invade a neighbor-
doing any of the things set forth in Sec.
was at the same time arguing for a
ing nation whenever he shall deem it neces-
2 shall submit within seventy-two."
strong executive in matters involving the
sary for such a purpose, and you allow him
Then at page 3 line 1 add after the
conduct of war-that is, he was well
to make war at his pleasure. Study to see if
semicolon the word "and". Then strike
aware that the President must have full
you can fix any limit to his power in this
lines 2 and 3 of page 3; and at line 4
authority to direct the military opera-
respect, after having given him so much
thereof strike the letter "E" and replace
power as you propose
kings have al-
tions of the Nation in conflict. But in dis-
with "D." Strike lines 9 through 25 at
ways been involving and impoverishing their
tinguishing from the powers of the King,
people in wars, pretending, generally, if not
page 3.
he was clearly saying that role of the
always that the good of the people was the
Strike lines 1 through 12 on page 4.
Commander in Chief was a military one,
object. This, our constitutional convention
Strike line 14 on page 4, and substitute
not a policy role. This view was seconded
understood to be the most oppressive of all
the following:
by Madison in the same series of writ-
kingly oppressions, and they resolved to so
SEC. 4. Any resolution or bill introduced
frame the constitution so that no one man
to terminate the utilization of United States
ings, who states quite bluntly:
should hold the power of bringing oppression
armed forces as above described. Strike lines
Every just view that can be taken of this
upon us. But your view destroys the whole
15, 16, 22 and 23 of page 4. Strike the word
subject, admonishes the public of the ne-
matter, and places our presidents where
"section," line 17, said page. Strike line 21,
cessity of a rigid adherence to the simple, the
kings have always stood.
page 4 and substitute the following menda-
received, the fundamental doctrine of the
I can find few better words to concisely
tions, within thirty days.
constitution, that the power to declare war,
including the power of judging the cause of
express the critical need for our action
Strike lines 5, 6, and 7, page 5, and
war, is fully and exclusively vested in the
on the War Powers Act of 1973 that is
substitute "and shall be reported within
legislature; that the Executive has no right,
now before us. If Presidents have accu-
fifteen days. The resolution or bill so
in any case, to decide the question, whether
mulated unto themselves the powers that
reported." Strike lines 12 through 25,
there is or is not cause for declaring war.
are rightfully ours, then we must put a
page 5, and lines 1 through 14, page 6.
Again, as though guiding our own de-
halt to that practice, for preserving and
Renumber sections 8, 9, and 10 to read
liberations, the founders denied the au-
protecting the Constitution is what we
sections 5, 6, and 7. At line 8, page 7,
thority of the Commander in Chief to
are sworn to do.
strike "3" and substitute "2".
bring the Nation into a war, but rather
It is surely not enough to state that
Madam Chairman, as the measure
looked only to his power to guide the
Presidents have acted in such and such
stands before us unamended, it clearly
Nation once the Congress had so directed.
a manner in the past; indeed that very
grants to the President power to involve
This historic interpretation is quite dif-
argument was made and rejected in the
our country in war. Although I presume
ferent from the situation in which we
steel seizure cases before the Supreme
Congress can legally grant that power,
have found ourselves over the last two
Court 20 years ago. The accretion of
since it can declare war itself, I think
or three decades, where proponents of
power beyond the strict confines of con-
there is great wisdom in not granting
the Presidency seem to be claiming that
stitutional definition does not change the
these war powers to the President. If the
the power of the Commander in Chief is
Constitution and does not alter our form
bill remains unamended, I therefore in-
what he himself defines it to be in any
of Government. Mere repetition does not
tend to vote against, as I have previously
given circumstance. This is simply not
make a mode of procedure proper and ac-
done on similar proposals in the past.
the intent or the content of the Consti-
ceptable, nor, most emphatically, does it
Mr. ZABLOCKI. Madam Chairman, I
tion under which we operate.
make that procedure part of the Consti-
yield such time as he may consume to
In Madison's words again:
tution. Ours is not an elective dictator-
our Chairman, the gentleman from
Those who are to conduct the war, cannot
ship. It is a government in which all
Pennsylvania (Mr. MORGAN).
elected officials have carefully limited
Mr. MORGAN. Madam Chairman, I
in the nature of things be proper or safe
powers. As long as the Constitution reads
rise in support of House Joint Resolution
judges, whether a war ought to be com-
menced, continued or concluded.
as it does, and as long as we believe that
542, the War Powers Resolution of 1973.
the framers understood the actions they
As you know, I have been chairman of
Mr. Gerry of Massachusetts com-
took, then it is our duty to retain the
the Committee on Foreign Affairs since
mented in the Constitutional Conven-
power to declare war, restate it as we
1959.
tion, he "never expected to hear in a
must in this resolution, and not allow
During that period, few-if any-bills
republic a motion to empower the Execu-
the Executive, any Executive, to take that
have had more thorough study than the
tive alone to declare war." And indeed
power unto himself.
measure which is before us today.
that motion was wisely defeated by an
People have argued this concurrent res-
In fact, a major portion of House Joint
overwhelming margin.
olution is not binding upon the Presi-
Resolution 542 already has been debated
In no way, of course, does the constitu-
dent-what we are saying here is that
and approved by the House no less than
tional scheme inhibit the Executive, as
the Constitution is binding and the Pres-
three times.
Commander in Chief and as head of the
ident is bound by the Constitution.
In the present Congress-despite past
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21233
House approvals-we once again gave
cisms. The legal authority of the Pres-
procedure for insuring that whenever a
the question of war powers very careful
ident to deploy American Armed Forces
significant number of American forces
consideration.
into hostilities in Indochina has been
are deployed into combat for a significant
The subcommittee chaired by the gen-
under constant attack.
length of time by the President, the Con-
tleman from Wisconsin, (Mr. ZABLOCKI)
Many of us have believed that the
gress must give its assent.
once again held extensive hearings on
Gulf of Tonkin resolution-with its
Passage of this resolution and its ac-
the many war powers bills and resolu-
broad and strong wording-provided au-
ceptance by the President would open a
tions which were referred to the Com-
thority to the President to conduct hos-
new era in the relations between the
mittee on Foreign Affairs.
tilities in Vietnam.
There were some 37 proposals. Each
Congress and the Executive in dealing
The present administration, however,
with the war powers of this Nation.
one of them was given careful considera-
has said that its authority for continued
Therefore, I urge this body to give its
tion in the formulation of the measure
pursuit of the conflict was not derived
approval to House Joint Resolution 542-
which is before us today.
from the Gulf of Tonkin resolution.
as reported from the Committee on For-
During 6 days of hearings, the sub-
Because there has been doubt and con-
eign Affairs.
committee heard 16 witnesses, including
fusion over the right of the President to
Mr. TIERNAN. Madam Chairman, I
eight Members of this body.
conduct large-scale military actions in
rise to speak in favor of House Joint
The subcommittee subsequently con-
Vietnam without specific prior approval
Resolution 542 which will place signifi-
sidered all suggested approaches to war
from Congress, national disunity over
powers and after four long sessions came
cant restraints on the President's ability
the war was accelerated.
to commit U.S. Armed Forces abroad
up with the draft which was introduced
Today, a similar situation exists with
without prior congressional approval.
as House Joint Resolution 542.
regard to the continued bombing in
In the past 20 years we have seen a
The full Committee on Foreign Af-
Cambodia.
growing willingness by our Presidents
fairs devoted three full sessions to per-
Many observers believe that continua-
to bypass congressional approval of in-
fecting the subcommittee version. The
tion of those operations requires that the
volvement of American Armed Forces in
result is-I believe-a measure which
President ask the Congress for specific
represents a consensus of views on how
authorization. Once again there is con-
undeclared conflicts. At the same time,
Congress should legislate in this vital
there has been a continuing usurpation
fusion and the Nation is divided.
of congressional power by the Executive.
area.
As the result of our country's experi-
Madam Chairman, since I have been in
Both the 91st and 92d Congresses at-
ence in Korea and Vietnam, one lesson
the Congress, the United States has par-
should be clear by now to everyone:
tempted to deal with these problems by
ticipated in two major conflicts. Each
considering war powers legislation. Both
Congress must play its rightful role in
one of those conflicts has raised impor-
times I argued vigorously that the Con-
warmaking-not only to satisfy the de-
tant constitutional problems concerning
mands of the Constitution-but also for
gress should act to. prevent any further
war powers.
the practical reason of creating the na-
erosion of the congressional power to
On June 25, 1950, North Korean troops
tional unity and purpose which are
make war. Unfortunately, the House and
crossed the borders of South Korea trig-
necessary for the success of our national
Senate were never able to agree on a
gering the Korean war.
effort.
formula to limit the President's power
On June 27, President Truman an-
to involve the United States in "unde-
Our national security, no less than
clared wars."
nounced that he had ordered U.S. air
our national heritage, demands that Con-
and ground forces to give the Korean
gress fully participate in the decision to
It is my sincere hope that the House
Government troops cover and support.
go to war.
of Representatives will approve House
Following a United Nations resolution
In a statement before a House Foreign
Joint Resolution 542 and that the Sen-
calling on members to stop this aggres-
Affairs subcommittee last year, the Hon.
ate will follow Senator FULBRIGHT'S sug-
sion, President Truman ordered Ameri-
McGeorge Bundy, a former Assistant for
gestion to adopt similar language.
can ground troops to repel the North
National Security Affairs to both Presi-
If we are to "preserve, protect, and
Korean attack.
dents Kennedy and Johnson-stated
defend the Constitution of the United
Congress was not called upon to de-
that the most serious foreign policy
States," we must act now. Too many
clare war at the time of the invasion in
problem facing the United States is the
times the Congress has shirked its duty
Korea.
breakdown of effective relations between
and abandoned its authority to declare
At that time it was believed by many
the executive branch and the Congress.
war through inaction or by underwrit-
in the executive branch, and in the Con-
He noted that the breakdown was most
ing the illegal actions of a President by
gress, that by becoming a member of the
conspicuous-and damaging-with re-
enacting resolutions which give him a
United Nations, the United States was
gard to the Vietnam conflict.
carte blanche in the area of military
obligated by U.N. commitments, includ-
I believe we all recognize the need for
operations overseas.
ing commitments to international police
re-creating a good working relationship
Today we must realize our respon-
actions, and that it would be within the
between the White House and the Con-
sibility under the Constitution and our
power of the President alone to see that
gress on vital foreign policy and security
duty to the American people to preserve
those commitments were carried out.
issues.
our democracy by once-and-for-all lim-
Although the Congress did not for-
Congress must not play a junior part-
iting the President's ability to wage ag-
mally accept this position, neither did
ner role where decisions involving the
gressive undeclared wars.
dt as a whole contest the right of the
commitment of American troops is in-
As written, House Joint Resolution
Executive to respond to the call of the
volved. Neither should we attempt to
542 would allow the President to pre-
United Nations Security Council.
force such a secondary role upon the
serve the security of the United States
Some members, however, were out-
President.
in case of a national emergency. I agree
spoken in their view that power of Con-
Our objective must be to foster a co-
that the President must have the power
gress had been usurped. Among them
operative relationship which will prevent
to defend the United States in case of an
was the great Republican Senator from
the discord over war powers which has
attack. But I believe that no single man
Ohio, Senator Robert Taft.
plagued the Nation for a number of years.
should have the power to commit our
As the war continued into 1951 and
House Joint Resolution 542 fulfills that
lives and resources to the future Viet-
1952, Senator Taft's views gained more
objective. The resolution does not at-
nams of the world.
and more support.
tempt to impose precise and inflexible
The intent of our Founding Fathers
Some of you may recall that the Kore-
definitions of the war powers on either
is clear. Article I, section 8, of the Con-
an conflict came to be called "Truman's
the President or the Congress.
stitution specifically gives to the Con-
War." Unfair as that may have been,
The resolution does not attempt to de-
gress the power to declare war and make
the phrase reflected that this was a Pres-
scribe specific conditions in which the
rules for the regulation of Armed Forces.
idential war since Congress had not de-
President may or may not deploy
The writings of Jefferson, Madison, Mon-
clared it or given specific authorization
troops-for that, too, would introduce
roe and others make it perfectly clear
to the hostilities.
elements of rigidity into our national
that no warmaking power is given to the
In more recent years, the Vietnam war
security system.
President.
has provided the basis for similar criti-
Rather, this resolution sets forth a
Lincoln reiterated this when he said:
21234
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
Allow the President to invade a neighbor-
in all hostilities. Our Nation cannot af-
so that both may wisely exercise their
ing nation whenever he shall deem it neces-
ford any more errors of judgment in our
constitutional responsibilities in case of
sary to repel an invasion, and you allow him
foreign policy. One small mistake could
to do so whenever he may choose to say he
impending or present foreign crises. Sec-
deems it necessary for such purpose, and you
easily drag us down into the quagmire of
tion 4(b) goes beyond this objective, in
allow him to make war at pleasure.
overbroad commitments and entangling
strengthening the warmaking powers of
hostilities.
the Congress at the expense of those of
We in Congress do not seek to reclaim
If there is one lesson that can be
the Executive.
our right to declare war because we are
learned from the events of the sixties, it
It is my understanding that a number
any wiser than the President. We do so
is that no one man should be allowed
of amendments to House Joint Resolu-
first and foremost because the future cf
to monopolize our foreign policymaking
tion 542 will be offered to delete this ob-
our democratic form of government, as
process. Full public discussion, whenever
jectionable provision, substituting lan-
envisioned by our Founding Fathers and
feasible, is an essential ingredient in the
guage which would require some type of
established by the Constitution, is at
working of a democracy. Certainly, the
affirmative congressional action within a
stake. Second, it is my belief that Con-
recent agreements signed by the world's
specific time period after the submission
gress would use this authority more spar-
two major nuclear powers amplifies the
of the President's report on his action in
ingly than the President, as one man,
need, and increases the opportunity, for
committing U.S. Armed Forces.
would. For war is the most crucial issue
reasoned debate. The Presidency is often
Specifically, I would like to direct my
anyone can deal with, and it should not
an isolated and lonely office. It is the
colleagues' attention to H.R. 8898, leg-
and cannot be easy to initiate.
duty of Congress to make sure the will of
islation introduced by my friend Mr.
Open debate by the Congress may
the people is heard and adhered to.
REGULA, which I have cosponsored, and
bring up risks otherwise overlooked or
Some of the most significant provi-
which I understand may be offered all or
alternative courses never considered. It
sions of this legislation are those that
in part as a substitute to House Joint
substitutes the experience of many voices
deal with the obligation of the executive
Resolution 542. According to the provi-
for that of one at a time when no objec-
to keep both the Congress and the Amer-
sions of this bill, if, in the case of a na-
tion is too small. And it may well serve
ican people promptly informed of all
tional emergency, the President should
to secure the consent of our citizenry,
commitments abroad. Overclassification
commit U.S. Armed Forces into combat,
certainly a vital factor as the Vietnam
and excessive secrecy have plagued our
the President would submit to Congress
war has so painfully proved. The Presi-
Nation throughout the last decade. Both
within 24 hours a report of his actions.
dent reaches his decision to go to war
the legislative and executive branches
Congress would then be required to then
through private processes, inaccessible to
must learn to cooperate in pooling their
take affirmative action, within 90 days
the individual citizen, Congress provides
research and analysis, since informa-
after the receipt of the President's re-
that accessibility. Without the moral
tion is the key to any rational foreign
port, either approving or disapproving
sanction of the American people, the
policymaking.
this commitment of U.S. Armed Forces.
consequences of war are no less destruc-
How many more billions of dollars
If the Congress should approve his ac-
tive here in our own country than where
must this Nation spend before Congress
tions, the President would nevertheless
the bombs are falling. Only by returning
is willing to assert its authority? How
be required to report back to the Con-
to the dictates of the Constitution can
many more lives must be lost? This Na-
gress at 6-month intervals on the prog-
we guarantee that we will never again go
tion cannot afford another Vietnam
ress of the hostilities in question. In the
to war without the support of our citizens.
while Congress retreats from its consti-
event of congressional disapproval, the
The war power resolution is the most
tutional responsibilities. The time to act
Armed Forces would be required to be
important consideration on which we
is now. I urge all my colleagues to join
withdrawn as expeditiously as possible.
will undertake during this Congress. I
me in support of this long overdue legis-
Lastly, but most important, in the event
urge every Member of this body to vote
lation.
the Congress failed to take any action to
in favor of this measure.
Mr. PARRIS. Madam Chairman, I
either approve or disapprove the Pres-
Mr. PODELL. Madam Chairman, the
would like to take this opportunity to
ident's action, this would in fact con-
time has come for the Congress of the
comment upon what I consider to be a
stitute approval of the commitment of
United States to reassert its position of
very serious, and indeed dangerous, fault
U.S. Armed Forces.
equality with the executive branch. For
in the legislation which we have before
I support the provisions of H.R. 8898,
too long, have we allowed ourselves to be
us. Specifically, I refer to section 4(b) of
and I hope my colleagues will do likewise
exploited as a rubberstamp for Presiden-
House Joint Resolution 542, which in ac-
in the upcoming debate on House Joint
tial supremacy. This legislation, House
tuality denies to the President of the
Resolution 542.
Joint Resolution 542, which severely lim-
United States the authority to commit
Mr. BINGHAM. Madam Chairman,
its the circumstances under which the
U.S. Armed Forces into combat without
House Joint Resolution 542, the "war
President can commit U.S. troops abroad
specific congressional approval.
powers resolution of 1973" of which
without congressional approval, can be
According to section 4(b) as it is now
I am proud to be a cosponsor, is of major
the first nail in the coffin of congres-
worded, it is required that pursuant to
importance. It reflects successful efforts
sional complacency.
section 3 of the bill, within 120 days
by the Foreign Affairs Committee, and
The Constitution gives the Congress
after a report is submitted or required to
especially the subcommittee which orig-
the power to declare war. Clearly, it was
be submitted, the President shall termi-
inated the legislation, to achieve a com-
the intention of the framers of our gov-
nate any commitment and remove any
promise bill supported by an overwhelm-
ernment to employ the collective wisdom
enlargement of U.S. Armed Forces with
ing majority of the committee's members.
of both the executive and legislative
respect to which such report was sub-
I especially want to compliment the
branches, before committing our Nation
mitted, unless the Congress either en-
chairman of the subcommittee, Mr. ZA-
to armed conflict. Yet, today we are told
acts a declaration of war or a specific
BLOCKI, for his outstanding leadership in
that a declaration of war would prob-
authorization for the use of our Armed
this regard.
ably mean nuclear holocaust. We have
Forces.
House Joint Resolution 542 is superior
been forced to swallow an expansive set
I would like to respectfully submit to
in a number of respects to its sister bill in
of national commitments which have
my colleagues that the Congress cannot
the Senate, S. 440, which shares the same
escaped the careful consideration of this
and probably would not "clear its throat"
laudable purpose-of defining the pow-
body. The founders of our Government
in 120 days unless language is written
ers of the President to engage in mili-
placed a grave responsibility on the
into this bill which would require some
tary hostilities abroad without a con-
shoulders of Congress and we can not
affirmative congressional action in that
gressional declaration of war.
shrink from it and still fulfill our duties
time period.
For one thing, S. 440 yields to the
of office.
Under the Constitution, the power "to
temptation to try to define future cir-
This legislation would not in any way
make war" is jointly shared by the
cumstances in which a President can
inhibit the ability of the Commander in
legislative and executive branches of
commit U.S. Armed Forces to hostilities
Chief to respond to a direct threat to the
our Government. For this reason I
without prior congressional authoriza-
security of our Nation. It would only en-
firmly support legislation which would
tion. This raises a double-edged problem.
sure that the Congress be given the maxi-
strengthen and enhance the flow of in-
If we give a President broad blanket au-
mum opportunity to advise and consent
formation to and between both branches,
thority to send troops into battle when-
June 25, 1973
CONGRESSIONAL RECORD-HOUSE
21235
ever he judges that there is an immi-
Our Founding Fathers wisely left an
committed to combat after 120 days. My
nent threat to the United States, or its
element of flexibility in the authorities
colleagues, this is a chaotic way to con-
forces or citizens anywhere, as provided
of Congress and the President, and this
duct military actions, or for that matter
by S. 440, we are giving the White House
has enabled Presidents to employ the
to conduct a government. It is highly un-
what could become a blank check. On
power which this flexibility has allowed
desirable for Congress through its own
the other hand, if we try to spell out
to encourage peaceful resolvements of
inaction to be able to determine whether
more restricted circumstances in which
potentially dangerous situations.
a course of Presidential action should be
a President could take action, how do
Although I support the constitutional
continued.
we know that we may not be unduly
grant giving authority to the Congress
Under present law, if the Commander
tying his hands in some unforeseeable
to declare war, nevertheless, at the same
in Chief orders our forces to deploy or
future crisis which genuinely threatens
time, I support more the President's right
to engage in hostilities, Congress may
our national security?
to defend our Nation against attack or
effect such action if it wishes, by use of
In my own proposed war power bill
even possible attack without prior con-
constitutionally granted powers. But
(H.R. 5669) I avoided this unnecessary
gressional authorization.
seeking to provide that a concurrent res-
effort to foresee all situations in which
We must give the American voter and
olution shall have the force of law, we
the President might have legitimate need
the American system of elections full
are embarking on an extremely dan-
to use troops. I am happy that House
credit for selecting in most instances able
gerous and probably unconstitutional
Joint Resolution 542 also avoids this
men to be our Presidents.
course of action.
possible pitfall.
Madam Chairman, the President must
Decisions of war and peace by the
In this and other respects I feel that
have the confidence and support of the
United States should not be developed by
House Joint Resolution 542 is reasonable
American people in order for him to be
confrontation between the Congress and
and responsible legislation which would
elected to office. His actions as President
the Executive, but rather it should be
go far toward reasserting the Congress
are similarly subject to public opinion. It
developed by a maximum amount of CO-
constitutional power in this area. I
is most ironic that House Joint Resolu-
operation between the two branches. I
strongly urge its adoption.
tion 542, which is before us today, and
therefore urge that you reçognize that
I will reserve further comments on the
was constructed with an eye toward the
this is bad legislation before us today and
substance of the resolution until we
unfortunate experiences in the mid-
it should be defeated. It is my opinion
reach the amendment stage on the bill.
1960's, would not have prevented our
that the constitutional authorities pres-
Mr. BURKE of Florida. Madam Chair-
steadily deepening involvement in Viet-
ently in existence are sufficient alloca-
man, I must rise in opposition to the pas-
nam had it been on the books since 1789.
tions of the war powers between Congress
sage of House Joint Resolution 542, the
Except perhaps by hindsight, there is no
and the executive branch.
war powers resolution of 1973, because I
reason to believe that the Congress would
Mr. HOLIFIELD. Madam Chairman, I
honestly feel that it is a mistake to at-
not have acted through the mechanism
intend to vote for passage of the war
tempt to draw rigid lines between the
set forth in House Joint Resolution 542,
powers resolution of 1973, and I com-
President and the Congress in the area
had it been in effect at the time of the
mend the Committee on Foreign Affairs
of warmaking. Furthermore, even if this
Gulf of Tonkin incident, to declare war,
for once again bringing this important
action was desirable, it should not be
if this had been the action requested by
measure before the House.
done by a joint resolution of Congress,
President Johnson.
In my view, the war powers resolution
but instead by a constitutional amend-
Yet today we are trying to close the
does two things:
ment. In my humble opinion and in the
barn door after the horse is already out,
First, it helps to fill a long existing
opinion of many lawyers, most of the
with this war powers legislation, but what
constitutional void.
important provisions of House Joint Res-
we are likely to do is to splinter the door
Second, it more clearly defines the war-
olution 542 would probably be declared
into fragments so that passage either
making powers of the President and
unconstitutional.
way through the door is dangerous and
guarantees the participation of the Con-
The term "war powers" may be de-
the control of the horse is impossible.
gress in the foreign policy of this coun-
fined as the authority inherent in na-
Constitutional powers should not be
try-especially where that policy is en-
tional sovereignties to declare, conduct,
tampered with lightly. Our system of
forced by the use of military power.
and to conclude armed hostilities with
government has worked well for almost
other nations. The U.S. Constitution re-
I want to emphasize that the Congress,
200 years, and I honestly feel that his-
serves the following powers expressly to
not just the other body, has a constitu-
tory will reflect that the action being
the Congress in article 1, section 8:
tional role in foreign policy. This House
contemplated by the House today, would
11. To declare war, grant letters of marque
has for too long refused to assert its
work to the detriment of our system of
and reprisal, and to make rules concerning
powers and has, too often, confined its
captures on land and water;
government and against the best inter-
foreign policy role to the appropriations
12. To raise and support armies, but no
ests of the American people in the future.
process.
appropriation of money to that use shall be
Specifically, section 4 (b) and (c) of
As written, our Federal Constitution is
for a longer term than 2 years;
House Joint Resolution 542 are in my
silent in numerous instances with re-
13. To provide and maintain a Navy;
opinion against the best interests of the
spect to the exercise of congressional,
14. To make rules for the government and
United States. Section 4(b) provides that
regulation of the land and naval forces;
judicial and Presidential powers. Those
the President at the end of 120 days,
15. To provide for calling forth the militia
who drafted the Constitution could not
to execute the laws of the Union, suppress
without regard even to the immediate
possibly have foreseen the growth of a
insurrections and repel invasions;
safety of our Armed Forces, must termi-
technological society, or the great com-
16. To provide for organizing, arming, and
nate any involvement of U.S. Forces in
plexities of our foreign relations in a
disciplining the militia and for governing
hostilities outside the United States, and
nuclear age. During crisis after crisis we
such part of them as may be employed in
withdraw newly dispatched combat
have been left floundering in a thicket of
the service of the United States; and
forces from the area of any foreign coun-
18. To make all laws which shall be nec-
controversy over "inherent powers," "as-
try unless the Congress by that time has
essary and proper for carrying into execu-
sumed authority," and claims of usurpa-
enacted a declaration of war or specifi-
tion the foregoing powers vested by this
tion of the powers of one branch of Gov-
cally authorized the use of our Armed
constitution in the Government of the
ernment by another.
United States, or in any department or offi-
Forces. Section 4(c) provides that hos-
The constitutional voids and gray
cer thereof.
tilities and deployments may be termi-
areas having to do with the warmaking
nated by Congress alone at any time
powers became apparent very early in
The war powers of the President are
within the 120-day period, by means of a
our national history, and we have had to
however expressed in article II, section 2,
concurrent resolution having no force of
deal with international situations con-
which states:
law.
tinuously from 1798 until now without
The President shall be Commander in
As a practical matter we all know that
constitutional or statutory guidance.
Chief of the Army and Navy of the United
the Congress does not always move as
For example, the hearings of the For-
States, and of the militia of the several
quickly as it should and a legislative
eign Affairs Committee on the war
States, when called into the actual service
deadlock might develop thereby making
powers resolution list 199 instances where
of the United States.
it necessary to withdraw troops already
the United States has engaged in mill-
21236
CONGRESSIONAL RECORD-HOUSE
June 25, 1973
tary action abroad without a declaration
The preservation of representative gov-
stores as "loss leaders," but they cannot
of war-from the naval war with France
ernment in all facets of our national life;
continue those losses, so they are can-
in 1798 to the Jordanian-Syrian crisis
The preservation of the Congress and
celing orders to the poultrymen at a time
of 1970.
of this House as the representatives of
when feed ingredient prices are the high-
Contrasted with these 199 instances of
the will of the people; and
est in history.
Presidential action-supported by the
The preservation of the rule of law
I have urged the President, for action,
Congress-the Congress has declared
versus the rule of men.
by Executive order which will save the
war only 5 times.
In conclusion, let me say that I have
poultry industry and protect the family
Both declared and undeclared wars
no desire to inhibit any President or fu-
food shoppers of the country.
have resulted in great criticism and dis-
ture Congress in the ability to move in
I shall counsel with other Members
trust of both the Presidency and the
our own national interest. If I believed
from districts where poultry production
Congress. As a result, our democratic
that this resolution would do so, I would
and processing is important to the econ-
processes of government have often be-
not support it.
omy, but I also call on every Member of
come strained and distorted, as they are
This resolution will not inhibit the
this House to become concerned in this
today.
President or the Congress. It merely as-
problem because it is one that vitally
I believe it is now time to end this dis-
sures that we, the elected representatives
affects the entire Nation. An adjustment
tortion and confusion which has plagued
of the people, will help decide whether
of price controls is essential if we are
us for so long, by defining the roles of
future foreign military operations are in
going to continue to have poultry and
Congress and the President with respect
fact in the national interest.
eggs in our retail stores and on our
to undeclared wars. Our position in the
The CHAIRMAN. The Clerk will read.
dinner tables.
world and our relationships with other
The Clerk read as follows:
governments make such action manda-
Resolved by the Senate and House of Rep-
IMPOUNDMENT LEGISLATION RE-
tory.
resentatives of the United States of America
PORTED BY RULES COMMITTEE
Early this year, the State Department
in Congress assembled,
furnished each of us with a 420-page
SHORT TITLE
(Mr. MADDEN asked and was given
document listing the treaties and agree-
SECTION 1. This measure may be cited as
permission to address the House for 1
ments which we have in force with dozens
the "War Powers Resolution of 1973".
minute, to revise and extend his remarks
of other countries.
and include extraneous matter.)
Mr. ZABLOCKI. Madam Chairman, I
Many of these treaties and agreements,
Mr. MADDEN. Mr. Speaker, on last
move that the Committee do now rise.
which we in the House had no part in
Thursday, June 21, the Rules Committee
The motion was agreed to.
making, call for military action by the
reported H.R. 8480, the impoundment
Accordingly the Committee rose; and
United States. Without doubt, if we are
control bill to the floor of the House
the Speaker having resumed the chair,
to carry out our solemn agreements with
which will be considered by the mem-
Mrs. GRIFFITHS, Chairman of the Com-
other nations, while serving our own best
bership after the Fourth of July recess.
mittee of the Whole House on the State
interests, an undeclared war or the com-
This legislation, if enacted into law,
of the Union, reported that that Com-
mitment of troops abroad will be neces-
will require the President to notify the
mittee, having had under consideration
sary in the future.
Congress whenever he impounds funds,
In fact, we would not want to take the
the joint resolution (H.J. Res. 542), con-
to provide a procedure under which the
cerning the war powers of Congress and
grave step of formally declaring war in
House of Representatives or the Senate
the President, had come to no resolution
most cases because of the grave inter-
may disapprove the President's action
thereon.
national implications involved in such a
and require him to cease such impound-
step.
ing and to establish for the fiscal year
The resolution before us is not ad-
POULTRY CRISIS
1974 a ceiling on total Federal expendi-
dressed to any particular war or military
(Mr. KAZEN asked and was given per-
tures.
action. It does not criticize, nor is it
mission to address the House for 1 min-
The Rules Committee held nine pub-
aimed at any President. It does not affect
ute, to revise and extend his remarks and
lic hearings and took testimony from
the President's flexibility in dealing with
include extraneous matter.)
many Members of Congress, Government
any future international crisis.
Mr. KAZEN. Mr. Speaker, I rise to call
departments, and also from Senator
These are the things that the resolu-
attention to a crisis facing poultry grow-
SAM J. ERVIN, JR., who is the sponsor of
tion will do:
ers and processors in my south Texas
an impoundment bill reported by the
It assures that the Congress-includ-
district, and to warn that their problem
Senate some weeks ago.
ing the House at long last-will be fully
Members of the House and Senate
looms from one end of the country to
consulted and will decide whether to
the other. I was in my district over the
have been receiving many complaints
commit the lives of those we represent
weekend, and I talked to poultrymen
regarding the impounding of funds on
to a foreign conflict.
who are drowning and gassing young
legislation and various programs enacted
Also, the Congress will be provided, at
chickens because they see no way to re-
into law by the Congress during the last
long last, with sufficient information to
cover the money it would cost to feed
dozen years. I know the Members of
permit it to intelligently exercise its con-
them. They are destroying eggs because
Congress when they return home over
stitutional duties and prerogatives in
they cannot now expect to provide fryers
the Fourth of July recess will receive
these situations.
and broilers to the Nation's markets at
plenty of protests from the public and
Most importantly, passage of this res-
a break-even point, let alone gaining a
various organizations on the curtailment
olution will apply the rule of law to these
reasonable return for their labor and
and in some cases complete abatement of
future Presidential actions in the foreign
investment.
legislative projects enacted into law by
policy area.
There is a strong possibility that
the Congress. The curtailments and im-
The 43 California Members of this
chickens and eggs will disappear from
poundments have also halted or greatly
House represent more than 10 percent of
reduced urban renewal projects, hous-
the retail markets of the Nation. Every
the young men who would be called upon
ing, pollution, education, and other pro-
one of us knows that the family budget
to fight an undeclared war. Our constitu-
grams passed by the Congress.
ents would be called upon to pay a high
is being strained these days. With some
Mr. Speaker, I ask unanimous con-
share of the costs of such a war. And the
reluctance, we have recognized the need
sent to include with my remarks excerpts
odds are that more of our constituents
for controls. But the goal is to stop the
from the New York Times of yesterday,
would be buried in the course of any such
rise in the cost of living, not to eliminate
Sunday, June 24, 1973, setting out the
war.
a major source of protein in our daily
astounding conditions existing in New
For no other reasons than these, Cali-
diets.
York, New Jersey, and Connecticut,
fornia's people are entitled to their voice
I have communicated my concern to
caused by cuts of funds in health pro-
in these matters through their elected
the President. I have told him that the
grams. The facts set out in these articles
representatives.
June 1 to 8 base period for price controls
as reported by health officials in this area
But there are better reasons for sup-
is striking the poultry industry with bur-
are similar to what is taking place all
porting the war powers resolution. These
dens it cannot sustain. In that period,
over the Nation, especially in urban
retailers were pushing chickens in their
centers.
are:
Public Law 93-118
93rd Congress, H. J. Res. 542
November 7, 1973
Joint Resolution
Concerning the war powers of Congress and the President.
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled,
War Powers
Resolution.
SHORT TITLE
SECTION 1. This joint resolution may be cited as the "War Powers
Resolution".
PURPOSE AND POLICY
SEC. 2. (a) It is the purpose of this joint resolution to fulfill the
intent of the framers of the Constitution of the United States and
insure that the collective judgment of both the Congress and the
President will apply to the introduction of United States Armed
SEAL
FORD
Forces into hostilities, or into situations where imminent involvement
in hostilities is clearly indicated by the circumstances, and to the con-
tinued use of such forces in hostilities or in such situations.
(b) Under article 1, section S, of the Constitution, it. is specifically USC prec.
provided that the Congress shall have the power to make all laws neces- title 1.
sary and proper for carrying into execution, not only its own powers
but also all other powers vested by the Constitution in the Govern-
ment of the United States, or in any department or officer thereof.
(c) The constitutional powers of the President as Commander-in-
Chief to introduce United States Armed Forces into hostilities, or
into situations where imminent involvement in hostilities is clearly
indicated by the circumstances, are exercised only pursuant to (1) a
declaration of war, (2) specific statutory authorization, or (3) a
national emergency created by attack upon the United States, its ter-
ritories or possessions, or its armed forces.
CONSULTATION
SEC. 3. The President in every possible instance shall consult with
Congress before introducing United States Armed Forces into hostili-
ties or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances, and #
fter every such introdue-
tion shall consult regularly with the Congress until United States
Armed Forces are no longer engaged in hostilities or have been removed
from such situations.
REPORTING
Sec. 4. (a) In the absence of n declaration of War, in any case in
which United States Armed Forces are roduced-
(1) into hostilities or into situations where imminent involve-
ment in hostilities is clearly indicated by the circumstances;
87 STAT. 555
(2) into the territory, nirspace or waters of a foreign nation, 07 STAT. 556
while equipped for combat, except for deployments which relate
solely to supply, replacement, repair, or training of such forces;
or
(3) in numbers which substantially enlarge United States
Armed Forces equipped for combat already located in n foreign
nation;
TEXTS OF LEGISLATIVE PROHIBITIONS AGAINST REINTRODUCTION OF
U.S. MILITARY FORCES INTO INDOCHINA
Second Supplemental Sppropriation Act of 1973 (PL 93-50)
Sec. 307. None of the funds herein appropriated under this Act
I why 1, 1973
may be expended to support directly or indirectly combat activities ii
or over Cambodia, Laos, North Vietnam and South Vietnam or off
the shores of Cambodia, Laos, North Vietnam and South Vietnam by
United States forces, and after August 15, 1973, no other funds here-
tofore appropriated under any other Act may be expended for such
1.
purpose.
FORD
Continuing Resolution for FY 1974 (PL 93-52, as. extended by
LIBRARY
PL 93-118 and 93-124) July 1, 1973
SEC. 108. Notwithstanding any other provision of law, on or after
August 15, 1973, no funds herein or heretofore appropriated may be
obligated or expended to finance directly or indirectly combat
activities by United States military forces in or over or from off the
shores of North Vietnam, South Vietnam, Laos or Cambodia.
State Department Authorization Act for FY 1974 (PL 93-126)
(Case-Church Amendment)
Oct 18, 1973
SEC. 13. Notwithstanding any other provision of law. on or after
August 15, 1973, no funds heretofore or hereafter appropriated may
be obligated or expended to finance the involvement of United States
military forces in hostilities in or over or from off the shores of North
Victnam, South Vietnam. Laos, or Cambodia, unless specifically
authorized hereafter by the Congress.
93-155 (Nov. 1973)
Military Procurement Authorization Act (PL-193)
$1107 Notwithstanding any other provision of law, upon enact-
ment of this Act, no funds heretofore or hereafter ap-
propriated may be obligated to finance the involvement
of United States military forces in hostilities in or
over or from off the shores of North Vietnam, South Viet-
nam, Laos, or Cambodia, unless specifically authorized
hereafter, by the Congress.
-
93-189
Foreign
Assistance Act Dec 17,1973
$29 No funds authorized or appropriated under this or any other
law may be expended to finance military or paramilitary opera-
tions by the United States in or over Vietnam, Laos, or Cambodia.
Also - 3839 of PL93-437 (DOD Appropriation F425/
combut activities,