CONSULTATION AND COOPERATION

Mr. STEVENSON. I certainly do. That I think is implicit in my whole statement, that consultation and cooperation are the ways that our system of separation of powers works most effectively. Clearly, any President to be most effective requires both congressional and public support for his policies and it is only through achieving this support that policy can be maximally effected and furthermore Congress does have so many powers in this area. We talked a little earlier about the power of the purse. There is no question that foreign policy depends very greatly on congressional cooperation with respect to all sorts of financial implications of our foreign programs. Indeed, even the organization of the State Department itself is dependent upon cooperation with Congress.

Mr. ZABLOCKI. The power of the purse seems in recent years to be exercised to a greater degree by the Executive through the impoundment of domestic funding of certain projects. I will not go into the constitutionality of that particular action on the part of the executive branch. But I do think and I do agree that Congress does have this power of the purse. At times, however, situations make it very difficult. for Congress to withhold moneys or funding when a decision has already been made. I am referring, for example, to the safety of U.S. Armed Forces sent to foreign lands where there is combat or imminent hostility. It would be foolhardy not to provide the necessary funds which would allow those troops to efficiently and safely conduct the mandate that was placed on them by the executive branch.

Mr. THOMSON. No questions.

Mr. ZABLOCKI. Let me ask one final question. In earlier testimony Prof. Alexander Bickel stated, and I quote, "A vast ambiguity now shrouds the allocation of the warmaking power." Would you agree with him in his statement ?

INTENT OF FOUNDING FATHERS

Mr. STEVENSON. I would not put it quite that way. But I think it has been clear that I have felt that the question of the warmaking powers is something that the founders purposely attempted to deal with in a general way relying on the political interaction between the two branches of government rather than by specifying detailed rules. And I think I prefer the general approach rather than the detailed rulemaking approach in this area.

Mr. ZABLOCKI. I understand that, Mr. Stevenson, but if indeed. there is ambiguity, there must be serious effort to correct it.

Mr. STEVENSON. Again, I guess my only quarrel would be with the word "ambiguity." I don't think that the Founding Fathers intended to be ambiguous. They intended to be general realizing that given diverse circumstances with which this country would have to deal over the years, that any attempts at a greater definition would soon be outdated in a not effective way of dealing with the problem. I prefer not to characterize that as ambiguity. I think they knew what they were doing and they provided for a general framework which could adapt itself to changing circumstances.

Mr. ZABLOCKI. When your successor, Mr. Brower, acting legal adviser to the Department of State, was before the committee, I suggested that this area of warmaking powers could perhaps be clarified by a resolution which would only restate those references to warmaking powers found in the Constitution of the United States article I, section 8, which lists the powers of the Congress, and article II, section 2, the one sentence, which states, "The President shall be Commander in Chief of the Army and Navy of the United States and of the militia of the general States when called into the actual service of the United States." Although I asked the question somewhat facetiously it appears that he thought even this type of legislation would be subject to constitutionality. All I was suggesting was a mere restatement of the Constitution.

DEALING WITH QUESTION COMPLETELY

Mr. STEVENSON. Well, Mr. Chairman, it is a very interesting suggestion. My problem as a lawyer I guess, would be in knowing what significance to attribute to which provisions you selected and which you had left out because I think there would be other relevant provisions certainly if you were attempting to deal with the question completely. So that I would think that perhaps Mr. Brower's apprehensions were that you were not repeating the Constitution as a whole and if you repeated it as a whole, I am not sure that that would serve any purpose.

Mr. ZABLOCKI. Only those sections in the Constitution that deal with war powers would be repeated in legislation.

Mr. STEVENSON. Well, certainly, Mr. Chairman, the Constitution is the Constitution and it would not be altered by the fact that you in a resolution referred to these provisions. If in fact you were attempting to legislate these provisions into law, I cannot see precisely what the legal effect would be, because they are already the supreme law of the land.

Mr. ZABLOCKI. We would hope that would be the case but by restatement attention would be brought to those specific portions of the Constitution. Hopefully that would satisfy those who say the executive powers were increased by historical acceptance and development. We would bring it back to what the Founding Fathers had intended.

Mr. STEVENSON. It is an interesting suggestion. I would wish to urge you to include all the relevant provisions if you will.

Mr. ZABLOCKI. It would not be my intention to omit anything relevant. But I don't think you would suggest the committee should clutter the resolution with irrelevant portions of the Constitution.

AN ORIGINAL SUGGESTION

Mr. STEVENSON. I must say, Mr. Chairman, it is a very original suggestion. I am not sure what the executive branch or the public at large would make of that sort of legislation. I think you certainly have the tradition of referring to constitutional provisions in your bills but to in fact attempt to relegislate something that is in the Constitution, I am not sure that it might not confuse people.

Mr. ZABLOCKI. I would hope not. The only purpose would be that both branches, the executive and the legislative, would live up to the provisions of the Constitution.

Mr. STEVENSON. I think I have about exhausted my comments on that proposal, sir.

Mr. ZABLOCKI. Governor Thomson?

Mr. THOMSON. No questions.

Mr. ZABLOCKI. At this point, I am reluctant to say we have to close this session. I want to thank you again, Mr. Stevenson, for your enlightened views. If you have any influence with the ABA, it would be appreciated if you can hurry the report so that we can have the benefit of their views, not in 1974 but as early as possible. We are very anxious to have the advice of constitutional lawyers and that of such prestigious organizations as the ABA. Though we may not always agree with their suggestions, nevertheless, I am sure the subcommittee would welcome them. I submit if we are going to wait until the fall of 1974, legislation will fall by the wayside. My own view is that we will go to conference in the 93d Congress. Something will be enacted which will be presented for the President's consideration. Hopefully we will have legislation which will be in keeping with our national interests and at the same time restate the intent of Congress to meet its obligations in this very troubled area of war powers.

Thank you again, Mr. Stevenson.

The subcommittee will stand adjourned to the call of the chairman. [Whereupon, at 10:55 a.m., the subcommittee adjourned to reconvene subject to the call of the Chair.]

93-626-73- -19

STATEMENT OF HON. BELLA S. ABZUG OF NEW YORK

*

Ms. ABZUG. Mr. Chairman, it is strange that we have reached the point of extended debate over "war powers." It is strange, that is, if we are still a constitutional democracy; for the Constitution states without qualification that "the Congress shall have the power ** to declare war." There is nothing anywhere in the Constitution that authorizes Presidential wars. Yet that is what we have had and are still enduring in Indochina. After the signing of a cease-fire agreement in Vietnam, the President continues to bomb Cambodia daily. He threatens to resume American bombing in North and South Vietnam also, despite the repeated demand of an overwhelming majority of Americans, that we get out of Southeast Asia and stay out.

It is strange that one man has such power. The Founding Fathers would never have believed it. They envisioned a system in which a vote meant something and was not just a parody of participation in making decisions. This President makes all the decisions, alone, often against the advice even of his own advisers-who then have to scurry around to find legal justification for what he has done. They can't find such justifications, but that doesn't stop Mr. Nixon from continuing to do as he pleases.

It is strange that the Congress seems powerless to stop him. We have the power: that, too, was provided in the Constitution. Congress has the ultimate power, the "power of the purse"-if we had the will, we could put a stop to this madness at once by cutting off all funds for present and future ventures in Indochina.

We could have the backing and the enthusiastic support of a vast majority of our constituents. No war in America's history has ever been so unpopular. The repeal of the Tonkin Gulf resolution repealed every vestige of authorization by Congress for Presidential warsand essentially admitted error in having been tricked into passing the resolution in the first place. There is every evidence that prolonging or renewing this war will meet with tremendous resistance, not just from peace groups, but from moderates and conservatives as well.

Before the cease-fire agreement, the Senate twice passed measures to cut off funds, but the House, fearing that such action would endanger our troops and impede the President's peace efforts, refused to pass similar legislation. By this time, it is surely clear to all that, whether or not the President's peace efforts were sincere, they did not work. There is no peace in Southeast Asia; there is not even a cease-fire in Vietnam. Both sides go on shooting, each blaming the other. Undoubtedly, both sides do violate the cease-fire; but that is not a problem that can or should be settled by American bombs. If we are to avoid continued involvement, the Congress must take firm control of American intervention in the affairs of other nations.