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United States to use the Armed Forces of the United States in offensive war, is sustained by three separate provisions of the Constitution.
The first is found in clause 11 of section 8 of article I of the Constitution, which expressly provides that Congress shall have the power to declare war. That refers to wars which may be designated as offensive wars.
Then there are two provisions in the Constitution which recognize that this country can fight in its own defense without any authorization by Congress.
The first of these is found in clause 3 of section 10 of article I of the Constitution, which provides that no State shall engage in war unless actually invaded or in such imminent danger as will not admit of delay. Under this prori. sion even a State can go to war to defend itself against invasion or imminent threat of invasion, without the consent of the National Government.
The other provision of the Constitution is found in section 4 of article IV. It provides that “the United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invision."
Those constitutional provisions make these two propositions crystal clear: First, that the President has no power under the Constitution to put this Xation at war when the war is offensive in nature; and, second, that the President, or even a State, can fight in self-defense to repeal invasion, without the consent of the Congress.
When the people of the United States adopted the Constitution, vesting in Congress alone the power to authorize offensive warfare, they contemplated that the Members of the Senate and the Members of the House of Representatives should determine, in the exercise of their own judgments, whether sutticient justification exists for committing the Armed Forces of the United States to offensive warfare before they authorize the waging of such warfare. They did not intend that the Members of the Senate and House of Representatives should abdicate their constitutional power and responsibility by delegating to the President the power to engage in offensive warfare or by acquiescing after the fact in such an improper utilization of the Armed Forces.
If, as some believe, the Constitution has become outmoded in respect to which branch should exercise the war power-a view with which I strongly disagree-then the Constitution should be changed by the amendment processes and not by extralegal action of the President and the Congress. I am not impressed with the recitation of precedents to support de facto constitutional amendments. Even 200 years cannot make constitutional what the Constitution declares is unconstitutional.
Mr. President, when the Senate seeks to regain its constitutional role in the field of foreign affairs, much more is at stake than a formalistic observance of a paper distribution of powers, prerogatives, and functions. The framers of the Constitution did more in devising that document than merely deal out the elements of power among three branches of the Government. They recognized that in a government resting ultimately on the consent of the governed, a balance must be struck between the need to have power and exercise it, and the need to control power and keep it disciplined. They sought to strike a balance between tyranny on the one hand and anarchy on the other. This principle was recognized as applicable to foreign policy as well as to domestic policy. It was for this reason that they gave Congress and especially to the Senate such important responsibilities in this field. The Senate's ultimate responsibility is to make certain that our Nation's foreign policy remains responsive to the wishes of the people. This is because in a democratic society, no policy, however enlightened, can long survive without the consent and support of the peo. ple.
The importance of the congressional role in formulating foreign policy lies in mobilizing and expressing popular support. Through the Congress, the people have a voice and a way to make it heard. Neither the Department of State, nor the Supreme Court, nor even the President can perform this great function of giving expression to the people's wishes on an issue.
This is the lesson that the debacle in our Vietnamese policy has taught us. Because foreign policy had become the province of the Executive, the decisions and the policy of the United States were not made with the active participation of the people. Instead, policy was made exclusively within the executive branch. The Congress, the Senate, and the country were asked to support that policy, which for some time they did, but they were never asked for their con
sent, and they never had a hand in the making of the policy. Regardless of the merits of our decision to wage war in Vietnam, it has become tragically clear that the people will not support forever a policy which is made for them, but without them.
The consequences of this failure to observe the Constitution are all too evident. True, no Supreme Court decision has adjudged the war in Vietnam as unconstitutitnal on the grounds that Congress adopted no formal declaration of war and because the Senate gave no effective advice and consent. Instead, the declaration of unconstitutionality has come from the judgment of the people. We see the decree everywhere. For the first time in our memory, an incumbent President was forced from office. Young men whose fathers and brothers volunteered to serve their country now desert to Canada and Scandinavia rather than bear arms in the country's cause. Thousands march on Washington and picket the White House, the Capitol, and the Pentagon. Now we have riots and violence on our university campuses. ROTC programs are being forced out of schools, and there is dissension and antiwar activity even among those in uniform.
Perhaps not all the anarchy we see today has been caused by the Vietnamese war and the way in which we became involved. No one can say. But no one can say that the war was not the cause, or at least the catalyst. And I cannot shake the feeling that ultimately the reason so many are now disrespectful and unresponsive to authority is because authority was disrespectful and unresponsive to the Constitution in the making of our policy in Vietnam.
Sadly, if we needed proof, we once gain can see the wisdom of the framers' determination that the representative branch of the Government should play a key role in the making of foreign poliiy. Senate Resolution 85 does not fulfill the constitutional responsibility. It merely testifies to an awareness of it that had been lost for far too long. Adequate exercise of the Senate's functions in making policy requires a constant, forceful assertion of that role in all proper circumstances. If the Senate has once again become sensitive to its responsibilities, then proof must be in its actions.
But we must be wary of mistaking opposition pure and simple for the partnership in policymaking that is required between President and Congress. The Senate's responsibility is not fulfilled by obstructionism any more than by abdication of judgment and unthinking acquiescence. The Senate did not exercise its constitutional responsibilities 50 years ago by driving us into isolationism, neutrality, and blind pacifism. The tragedy of World War II should be proof enough that isolation, pacifism, and a blindness to the realities of national security is not the way for the Senate to “advise and consent" in foreign policy.
I commend the Senator from Arkansas for his efforts to bring this resolution to the attention of the Senate, and for his efforts to reawaken a stronger sense of the Senate's constitutional responsibilities.
While we may not always agree on the direction in which the Senate should exercise its responsibilities in foreign affairs, I think we have always been together on the need for a more vigorous Senate role. The Senator has performed a public service of the first importance in causing this debate on the constitutional obligations of the Senate.
(From the Congressional Record, vol. 113, No. 118, July 31, 1967)
Proceedings and Debates of the 90th Congress, First Session
U.S. COMMITMENTS TO FOREIGN POWERS
Mr. FULBRIGIIT. Mr. President, I send to the desk a resolution and ask that it be stated.
The PRESIDING OFFICER (Mr. MCCARTHY in the chair). The resolution (S. Res. 151) will be stated.
The legislative clerk read as follows:
Whereas accurate definition of the term, national commitment, in recent years has become obscured: Therefore be it
Resolved, That it is the sense of the Senate that a national commitment by the United States to a foreign power necessarily and exclusively results from
affirmative action taken by the executive and legislative branches of the U.S. Government through means of a treaty, convention, or other legislative instrumentality specifically intended to give effect to such a commitment.
The resolution (S. Res. 151) was received and referred to the Committee on Foreign Relations.
Mr. FULBRIGHT. Mr. President, I rise to speak on one aspect of the mounting problem created by the gradual erosion of the role of the Congress, and partie ularly of the Senate, in the determination of national security policy. And I intend to suggest to my colleagues a course of action which, although modest in scope, could constitute a first step toward arresting a trend of events injurious to the best interests of our country.
There is no need at this time to rehearse all the evidence in support of the view, held by most if all Members of this body, that the authority of Congress in many respects has been dwindling throughout the years since our entry into the Second World War. The very existence of the Special Subcommittee on Separation of Powers, chaired by the distinguished senior Senator from North Carolina (Mr. ERVIN), currently attests to the concern felt by Senators on this score. In no area is the constitutional imbalance more striking and more alarming than in the field of foreign policy. As a result of the kind invitation of Senator Ervin, on July 19, I gave to his subcommittee a rather lengthy statement, entitled “Congress and Foreign Policy,” which I hope helped define the dimensions of the problem ; I shall ask that the statement appear in the RECORD to follow and give more substance to these remarks.
Because the overall subject of the constitutional role of the Congress in both national and international affairs is now being scrutinized under such distinguished auspices, it would be neither wise nor proper at this time to prejudge the findings and offer recommendations applying to the whole field of inquiry. However, I believe that one facet of the problem in the foreign policy sphere can and should be singled out for prompt attention and action. I refer to the question of what constitutes a “national commitment" and I offer herewith a resolution stating simply that the term “national commitment" is understood to result from nothing less than formal action taken by the legislative and executive branches under established constitutional procedures.
A commitment thus defined engages the honor of the Nation in support of a specific undertaking. Obviously, such a process and such a result should neither be invoked frequently nor arrived at lightly. And yet over the years we have found ourselves confronted with multiplying calls for swift and decisire action to be taken on the basis of alleged "national commitments." Admittedly, many of these cries for action have come from nonofficial sources. But all too often over a long period the executive branch has indeed acted and then sought to justify its intervention by dubious references to equally dubious prior commitments.
These so-called "prior commitments” often turn out to be statements previously made by someone saying that we pledge ourselves to some undertaking.
Much of the difficulty here, I believe, stems from a lack of precise thought and language, rather than from any malign intent or influences. Even so, the possible consequences of involvement in combustible situations abroad in this day and age are too dangerous to permit any use of military power on the cas. ual assumption that the Nation is committed to act. Neither should we allow the honor of this country, which is at stake in its commitments, to be cheapened through constant and careless references to its involvement in specific situations.
We in governmental life frequently err by refusing to define our terms and by falling back on cliches which really have not been examined in years. In the field of foreign policy certain phrases reasonably descriptive of the world situation two decades ago are being used almost ritualistically without reappraisal of their relevance to current conditions. Other phrases have been so affected by constant misuse that their original meaning to the American public has been either twisted or entirely lost. The term “national commitment" clearly seems to have fallen into that latter category. In speaking today I am trying to recover and refurbish its original and true meaning from the cloud of confusion which has been created in large measure over the past two or three decades through the increasing conduct of foreign policy by executive agreement.
This resolution in no way tries to interfere with the day-to-day conduct of our foreign affairs. It does not attempt to restrict the constitutional responsibility and power of the President or to revoke any past decisions. It does not respond to any current crisis situation abroad, and it is not a measure directed against any single administration in this century--or against anyone at all.
In its essence, this resolution represents a conservative position which seeks to recover in some degree the constitutional role of the Senate in the making of foreign policy-a role which the Senate itself has permitted to be obscurred and diminished over the years. Just as we do not blame external forces for that cumulative loss of our traditional authority, I suggest to my colleagues that we will have only ourselves to blame if we do not reaffirm the power and respoisibility given to this body by the framers of our Constitution.
Mr. President, I ask unanimous consent to have printed in the Record my statement of July 19 entitled "Congress and Foreign Policy,” given before the Subcommittee on Separation of Powers of the Judiciary Committee of the Senate.
There being no objection, the statement was ordered to be printed in the RECORD, as follows:
CONGRESS AND FOREIGN POLICY (Statement of Senator J. W. FULBRIGHT before the Subcommittee on Separation of Powers of the Judiciary ('ommittee, July 19, 1967)
In a statement to the Senate Preparedness Subcommittee on August 25, 1966, Secretary of State Rusk said: “No would-be agressor should suppose that the absence of a defense treaty, Congressional declaration or U.S. military presence grants immunity to aggression.” The statement conveys a significant message to any potential aggressor: that under no circumstances could it count on American inaction in the event of an act of aggression. The statement conveys an implicit but no less significant message to the Congress : that, regardless of any action or inaction, approval or disapproval, of any foreign commitment on the part of the Congress, the executive would act as it saw fit in response to any occurrence abroad which it judged to be an act of aggression. It is unlikely that the Secretary consciously intended to assert that Congressional action was irrelevant to American military commitments abroad; it seems more likely that this was merely assumed, taken for granted as a truism of American foreign policy in the 1960's.
I. THE CONSTITUTIONAL IMBALANCE
The authority of Congress in foreign policy has been eroding steadily since 1940, the year of America's emergence as a major and permanent participant in world affairs, and the erosion has created a significant constitutional imbalance. Many if not most of the major decisions of American foreign policy in this era have been executive decisions. Roosevelt's destroyer deal of 1940, for example, under which 50 American ships were given to Great Britain in her hour of peril in exchange for naval bases in the Western Hemisphere, was concluded by executive agreement, ignoring both the treaty power of the Senate and the war power of the Congress, despite the fact that it was a commitment of the greatest importance, an act in violation of the international law of neutrality, an act which, according to Churchill, gave Germany legal cause to declare war on the United States. The major wartime agreements—Quebec, Tehran, Yalta and Potsdam—which, as it turned out, were to form the de facto settlement of World War II, were all reached without the formal consent of the Congress. Since World War II the United States has fought two wars without benefit of Congressional declaration and has engaged in numerous small-scale military activities—in the Middle East, for example, in 1958, and in the Congo on several occasions—without meaningful consultation with the Congress.
New devices have been invented which have the appearance but not the reality of Congressional participation in the making of foreign policy. I shall elaborate on these later in my statement and wish at this point only to identify them. One is the joint resolution; another is the Congressional briefing session. Neither is a satisfactory occasion for deliberation or the rendering of advice; both are designed to win consent without advice. Their principal purpose is put the Congress on record in support of some emergency action at a moment when it would be most difficult to withhold support and, therefore, to spare the executive subsequent controversy or embarrassment.
The cause of the constitutional imbalance is crisis. I do not believe that the executive has willfully usurped the constitutional authority of the Congress; nor do I believe that the Congress has knowingly given away its traditional authority, although some of its members—I among them, I regret to say—have sometimes shown excessive regard for executive freedom of action. In the main, however, it has been circumstance rather than design which has given the executive its great predominance in foreign policy. The circumstance has been crisis, an entire era of crisis in which urgent decisions have been required again and again decisions of a kind that the Congress is ill-equipped to make with what has been thought to be the requisite speed. The President has the means at his disposal for prompt action; the Congress does not. When the security of the country is endangered, or thought to be endangered, there is a powerful premium on prompt action, and that means executive action. (I might add that I think there have been many occasions when the need of im. mediate action has been exaggerated, resulting in mistakes which might have been avoided by greater deliberation.)
The question before us is whether and how the constitutional balance can be restored, whether and how the Senate can discharge its duty of advice and consent under continuing conditions of crisis. It is improbable that we will soon return to a kind of normalcy in the world, and impossible that the United States will return to its pre-1949 isolation. How then can we in the Congress do what the Constitution does not simply ask of us, but positively requires of us, under precisely the conditions which have resulted in the erosion of our authority? It is not likely that the President, beset as he is with crisis and set upon by conflicting pressures and interests, will take the initiative in curtailing his own freedom of action and restoring Congressional prerogative -that would be too much to expect of him. It is up to the Congress, acting on the well-proven axiom that the Lord helps those who help themselves, to reevaluate its role and to re-examine its proper responsibilities.
I have the feeling-only a feeling, not yet a conviction—that constitutional change is in the making. It is too soon to tell, but there are signs in the Con. gress, particularly in the Senate, of a growing awareness of the loss of Congressional power, of growing uneasiness over the extent of executive power, and of a growing willingness to raise questions that a year or so ago might have gone unasked, to challenge decisions that would have gone unchallenged, and to try to distinguish between real emergencies and situations which, for reasons of executive convenience, are only said to be emergencies.
Prior to redefining our responsibilities, it is important for us to distinguish clearly between two kinds of power, that pertaining to the shaping of foreim policy, to its direction and purpose and philosophy, and that pertaining to the day-to-day conduct of foreign policy. The former is the power which the Congress has the duty to discharge, diligently, vigorously and continuously ; the latter, by and large calling for specialized skills, is best left to the executive and its administrative arms. The distinction of course is clearer in concept than in reality, and it is hardly possible to participate in the shaping of polics without influencing the way in which it is conducted. Nonetheless, we in the Congress must keep the distinction in mind, acting, to the best of our ability, with energy in matters of national purpose and with restraint in matters of administrative detail.
Our performance in recent years has, unfortunately, been closer to the reverse. We have tended to snoop and pry in matters of detail, interfering in the handling of specific problems in specific places which we happen to chance upon, and, worse still, harassing individuals in the executive departments, thereby undermining their morale and discouraging the creative initiative which is so essential to a successful foreign policy. At the same time we have resigned from our responsibility in the shaping of policy and the defining of its purposes, submitting too easily to the pressures of crisis, giving away things that are not ours to give; the war power of the Congress, the treaty power of the Senate and the broader advice and consent power.
II. THE LEGISLATIVE FUNCTION
Insofar as the Congressional role in foreign policy is discharged through the formal legislative process, the Congress by and large has been able to meet its responsibilities. Unfortunately, however, the area of foreign policy requiring formal legislative action has diminished greatly in recent decades and now