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we do not have the manpower or financial resources to police the whole world, which we are attempting to do now. We are now engaging in large-scale warfare without a declaration of war. Many people do not know why we are doing it. I receive many letters from constituents who say, "Why don't you do something about all our foreign commitments?" In recent years it is difficult to answer, because the executive department has taken most of the authority of Congress in this field.
I commend the Senator for trying to get back to the Congress some of the powers that rightfully belong to it.
Mr. FULBRIGHT. I thank the Senator for his comments. I hope the hearings will clarify the situation.
Mr. MORTON. Mr. President, will the Senator yield?
Mr. MORTON. I commend the chairman of the Foreign Relations Committee. I think a resolution of this kind, coming from one who has had the experience he has had in this general area and in his position of leadership in the Senate, will be considered in great detail. I was impressed by a comment which the Senator made as follows:
We in government 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
And so forth.
This is a point that I think needs some emphasis. Today, in the technological age in which we find ourselves, with the tremendous revolution in transportation,communication, and everything else that has taken place in a quarter of a century, obviously some statement that some President or Secretary of State mide 25 years ago may not fit the needs of today.
I do not know whether the Congress ever took any action upon the Monroe Doctrine, whose genesis was the fact that the Russians were looking at the west coast of South America and this continent with some degree of interest. Here today we have a situation in one of our Latin American neighbors, Cuiva, in which she is exporting revolution to our friends in Latin America. This brings on an entirely different situation. Yet, are we going to be hidebound and say we are committed to protecting Cuba against any enemy whomsoever? This is one example-extreme, it is true.
The General Assembly of the United Nations had 45 members at its inception just some 22 years ago. Today it has more than doubled. Did the people who drew up the United Nations Charter or Treaty envisage the fact that it would go up by 120 percent in membership; that the whole continent of Africa, then for the most part colonial, would have a multipliticy of free, young governments, with all their problems; that south Asia would no longer be colonial, but would be in the status in which we find it today?
Referring briefly to the Senator's colloquy with his senior collegaue as to what is a commitment, I do not know, but I know that in my short time here I have been importuned by both Democratic and Republican administrations with, “Well, whether you like it or not, we have got to do it. We are committed. We said we are going to do it.” So it comes about after "church is out,” really. What can we do but acquiesce in it, in the way it is presented to us"the honor of the United Sates is involved here"?
I commend the Senator from Arkansas. I know he will have productive hearings on this matter.
I agree with his comment of the great work being done by the senior Senator from North Carolina [Mr. ERVIN], because I think this problem goes beFond the foreign field. The Senator from Arkansas has restricted this resolution to this particular area, the need for which to me is so abundantly clear that we will act on it soon.
Mr. FULBRIGHT. I thank the Senator for his comments.
Mr. MORSE. I rise to commend the Senator from Arkansas and highly pledge my support of the resolution. I also join in the commendation of the Senator from North Carolina (Mr. ERVIN] for the great work he is doing in conducting the hearings on the important issue of constitutional law involving the separation of powers doctrine.
I testified before his committee, as did the Senator from Arkansas. Senator ERVIN told me, a minute or two ago, that he inserted my testimony in the CONGRESSIONAL RECORD today. My testimony was limited for the most part to the major thrust of the objective of the resolution which the Senator from Arkansas has submitted today. To me it means that, at long last, some action is being taken in the Senate of the United States to exercise its constitutional duties and protect its constitutional prerogatives.
The Senator from Arkansas and other Senators have heard me, for many years, deplore what I consider to be the surrender of the constitutional prerogatives and he constitutional duties of the U.S. Senate in this area of separation of powers. In the field of constitutionalism, I have always been ultraconservative, because one cannot be anything else, in my judgment, and carry out the constitutional responsibilities of a Senator.
What we have permitted to happen, by way of de facto action, is for the er. ecutive branch of the Government to amend the Constitution of the United States by violations of its constitutional responsibilities. Nobody is to blame for that but Congress, particularly the Senate. If we want government by men instead of government by constitutional law, the way to get it is to do what the Senate has done for many, many years. To try to get the Senate to stop doing it has been a challenge that has confronted some of us.
When we have voted against a Formosa resolution, when we have voted against a Middle East resolution, when we have voted against a Tonkin Bay resolution, when we have refused to give to a President of the United States unchecked power, the Senate knows what has descended upon our political heads. But all we have been doing is pleading for the following of the check and balance system of the Constitution.
If the Senator from Arkansas will permit me, I should like to read a few paragraphs from one of the greatest constitutional lawyers who has sat in this body since I have been a Member—a constitutitnal lawyer whom I followed, when he was in the Senate, on the major positions he took on constitutional law.
Over the weekend, I read again a little book published by Senator Robert A. Taft in 1951, entitled “A Foreign Policy for Americans,"
He, interestingly enough, throughout his great record in the Senate, took eractly the same position the Senator from Arkansas is taking in this resolution. He took exactly the same position I have argued for here on the floor of the Senate time and time again and which I taught in the law school classroom before I came to the Senate. I would have the RECORD show some of the very sound constitutional law teachings of the late Senator Taft as they relate directly and indirectly to the resolution of the Senator from Arkansas. If the Senator will permit me, I ask the Senate to listen to some of his paragraphs.
Mr. FULBRIGIIT. I am happy to yield for that purpose.
Mr. Morse. I think it is a very fitting supplement to the Senator's argument in support of the resolution. I speak only for myself and make my own interpretation of what Senator Taft wrote. But make your own. Answer, if you can, his statement quoted on page 22 :
"I think it is fair to say that the State Department has adopted an attitude of hostility toward Congress and an unwillingness to submit any matter to Congress if it thinks it can possibly carry it through without such submission. It shows a complete distrust of the opinion of the people, unless carefully nursed by State Department propaganda.”
In that passage Senator Taft was talking about secret diplomacy. He was talking about those "commitments" to which the Senator from Arkansas refers in his resolution. The Senator from Arkansas has sat with me in meetings of the Committee on Foreign Relations when State Department representatives have come before the committee and said, “You can't let us down now. It was so hard to negotiate this commitment, it was so difficult to get them to agree. Now, if you let us down and do not go along with this commitment, you are going to do great injury to American diplomacy."
Let me say I believe great restrictions should be placed on the street diplomacy of the State Department. The secret diplomacy of the State Department violates the cardinal principle of making available to the people the facts that involve their lives in the field of foreign policy. It conceals from them knowi. edge to which the public is entitled. That, in part, I respectfully submit, is what is beind the resolution of the Senator from Arkansas.
Listen to what else the great Senator from Ohio said:
In the long run, the question which the country must decide involves vitally not only the freedom of the people of the United States but the peace of the people of the United States. More and more, as the world grows smaller, we are involved in problems of foreign policy. If in the great field of foreign policy the President has the arbitrary and unlimited powers he now claims, then there is an end to freedom in the United States not only in the foreign field but in the great realm of domestic activity which necessarily follows any foreign commitments. The area of freedom at home becomes very circumscribed indeed."
We see it now vis-a-vis Vietnam, may I say by way of disgression.
“If the President has unlimited power to involve us in war, then I believe that the consensus of opinion is that war is more likely. History shows that when the people have the opportunity to speak they as a rule decide for peace if possible.”
That is why the senior Senator from Oregon, for more than 342 years, has da red to challenge this administration time and time again to send up to the Congress a war message. We all know why they do not. They do not dare to. We do not dare declare war, because the world would leave us.
Mr. FULBRIGHT. They have already left, most of themi.
Mr. Morse. The Senator from Arkansas is completely right in that observation. Senator Taft was quite right when, in this book of his, he pointed out that people can be counted upon to support peace. That is why I have argued against our undeclared war in Vietnam. That is why I have argued it is an unconstitutional war. It violates article I, section 8, of the Constitution which puts the vote power to declare war in the Congress and not in the President.
Taft continues :
It shows that arbitrary rulers are more inclined to favor war than are the people at any time. This question has become of tremendous importance, perhaps greater than any particular problem of troops to Europe or the manner in which the Korean war shall be conducted.
Then on page 24 he states :
Furthermore, a document was submitted to Congress, entitled Powers of the President to send the Armed Forces Outside the United States, dated February 28, 1951, which was printed, though not endorsed, by the Joint Committees on Foreign Relations and Armed Services of the Senate. This document contains the most unbridled claims for the authority of the President that I have ever seen written in cold print. In effect, the document asserts that whenever in his opinion American foreign policy requires he may send troops to any point whatsoever in the world, no matter what the war in which the action may involve us. The document also claims that in sending armed forces to carry out a treaty the President does not require any statutory authority whatever, and it does not recognize the difference between a self-executing treaty and one which requires, even by its own terms, congressional authority. It ends with the most sweeping claims for power:
“As this discussion of the respective powers of the President and the Congress in this field has made clear, constitutional doctrine has been largely molded by practical necessities. Use of the Congressional power to declare war, for example, has fallen into abeyance because wars are no longer declared in advance."
Let me say that the Senate cannot amend the Constitution of the United States by failing to follow its clauses. The Congress cannot amend the Constitution of the United States by nonobservance of its mandates. The requirement stays there as a matter of constitutional right of the American people. The requirement under article I, section 8, is there today even though both the President and the Congress have ignored it. Congress cannot destroy it, may I say, by ignoring it.
Senator Taft, quoting further from the document referred to, goes on to point out:
*The Constitutional power of the Commander in Chief has been exercised more often, because the need for armed international action has grown more acute. The long delays occasioned by the slowness of communications in the eighteenth century have given place to breathtaking rapidity in the tempo. of history. Repelling aggression in Korea or Europe cannot wait upon Congressional debate. However, while the need for speed and the growth in the size and complexity of the armed forces have enlarged the area in which the pow. ers of the Commander in Chief are to be wielded, the magnitude of presentday military operations and international policies requires a degree of Congressional support that was unnecessary in the days of the nineteenth century."
We turn now to Senator Taft's summation of this shocking doctrine. He says:
That seems a very gracious concession to Congress, Congress no longer has any power to act. It is simply given the right to support the President after the President has acted. I was shocked in the very beginning of this controversy by the speed with which blind partisans in the administration rushed to the defense of the proposition that the President can make war and warlike commitments. Senator Connally, the chairman of the Foreign Relations Committee, made the extraordinary assertion on the floor of the Senate:
"The scope of the authority of the President as Commander in Chief to send the Armed Forces to any place required by the security interests of the United States has often been questioned, but never denied by authoritative opinion.”
Of course, the constitutional law books are full of the denial of that author. ity, and rightly so. As Taft says:
That certainly is a complete misrepresentation of the discussion of these constitutional powers which has taken place since the foundation of the nation.
He then states, on page 26 :
Of course, the President has wide powers in foreign policy, but the framers of the Constitution provided expressly that only Congress could do certain things. Those powers are expressed in Section 8 of Article I.
The Senator documents his observation as follows:
"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.
"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years."
That reflects a certain and definite suspicion of a possible desire on the part of some President to set up a great permanent military force. Further powers of Congress as stated in Section 8:
“To provide and maintain a navy.
"To make rules for the government and regulation of the land and nara! forces."
There ar other powers, such as calling forth the militia and disciplining the militia.
The Constitution also provides that the President shall have the power to make treaties, but only by and with the advice and consent of the Senate, pre vided two-thirds of the Senators present concur. The President's relationship to the armed forces is stated only in Section 2 of Article II of the Constitution'
"The President shall be Commander in Chief of the Army and Navy of the United States .
There is no very definite limit-and I think it is admitted by every responsible authority who has discussed the problems on the President's power ta, send troops abroad: he cannot send troops abroad if the sending of such troops amounts to the making of war. I think that has been frequently as serted; and whenever any broad statements have been made as to the President's power as Commander in Chief to send troops anywhere in the world the point has been made that it is always subject to that particular condition.
Perhaps no one has been quoted more on this general subject than has my father, who discussed this question in various lectures, articles, and books. My father has wide experience, as governor general of the Philippines, Secretary of War, and President of the United States. He never served in a legislative body, and, if anything, I think he leaned toward the power of the Executive The clearest statement of the question, I believe, is contained in his article in, the June 6, 1916, number of the Yale Law Journal, from which I quote:
"When we come to the power of the President as Commander in Chief, il seems perfectly clear that Congress could not order battles to be fought on certain plan, and could not direct parts of the Army to be moved from one part of the country to another. The power to declare war is given to Congress ... This is necessarily a limitation of the power of the President to order the
Army and the Navy to commit an act of war. It was charged against Prssident Polk that he had carried on a foreign war against Mexico before Congress had authorized it or declared it, and it is difficult to escape the conclusion that the act of President Wilson in seizing Veracruz was an act of war without congressional authority, at the time it was committed, though a resolution authorizing it was pending, and had passed one House and was passed in a very short time after the act by the other House, constituting a valid ratification.
"It is not always easy to determine what is an act of war. The President has the authority to protect the lives of American citizens and their property with the Army and the Navy. This grows out of his control over our foreign relations and his duty to recognize as a binding law upon him the obligation of the Government to its own citizens. It might, however, be an act of war if committed in a country like England or Germany or France which would be unwilling to admit that it needed the assistance of another government to maintain its laws and protect foreign relations, but would insist that injuries of this sort must be remedied through diplomatic complaints and negotiations. ... Of course, the President may so use the Army and Navy as to involve the country in actual war and force a declaration of war by Congress. Such a use of the Army and Yavy, however, is a usurpation of power on his part. (Italics mine.)"
Some may feel that if the President can do certain things there is no sense in arguing that he has no right to do them. But the division and limitation of powers is the very basis of our constitutional system, and decisions regarding the proper limits of such powers affect the validity of many other actions, such as the right of Congress to pass legislation to restrain the President's authority to send troops abroad in such a way as to involve the country in war. True, the President perhaps cannot be prevented from usurping power, but we can only presume the President will follow constitutional laws passed by the people's representatives.
Most of the cases which have been cited as authority for the President sending troops abroad are cases where the use of our troops was limited to the protection of American citizens or of American property.
The Boxer Rebellion is frequently cited; but in that case troops were sent into (hina because the legations in Peking were beseiged and the legitimate Chinese Government was unable to defend them against the rebellious Boxers. So the various nations sent their troops there, in order to rescue those who were in the legations. That was a clear effort to protect American lives, to protect American diplomatic lives which were threatened contrary to the law of nations; and certainly it was not an act which would necessarily involve us
It is also interesting to note that Senator Taft called attention to Abraham Lincoln's opposition to the warmaking policies that President Polk followed in making war against Mexico. Many American historians and constitutional authorities have been highly critical of the involvement of the United States in a war with Mexico by President Polk.
Senator Taft, in commenting on the excessive use of Presidential power by President Polk, wrote as follows:
The case of the Mexican rebellion is referred to, and it was referred to by my father, who said that President Polk's right was challenged. It was challenged by a very distinguished American, Abraham Lincoin, who on February 15, 148, wrote his law partner with reference to Polk's use of the Army against Mexico:
":1}low the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purposes, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect. If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him 'I see no probability of the British invading us, but he will say to you, "Be silent: I see it, if you don't.'
Lincoln said further:
"The provision of the Constitution giving the war-making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if