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UNIVERSITY OF RICHMOND LAW REVIEW

[Vol. 6:1 in any armed conflict under any of the circumstances described in section 2 of this joint resolution for any period exceeding thirty days

after the first day on which such forces were first engaged in such

4 conflict unless the Congress has specifically authorized the use of such

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Armed Forces in such conflict for a longer period.

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SEC. 5. Whenever Armed Forces of the United States are engaged in armed conflict in any foreign country, the President shall, so long

as such forces continue to be so engaged, report to the Congress peri10 odically on the status of the armed conflict as well as on the scope and 11 expected duration of such conflict, but in no event shall he report to 12 the Congress less often than every six months.

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SEC. 6. The provisions of this joint resolution shall not apply to

(1) the armed conflict in the Republic of South Vietnam in which the Armed Forces of the United States were engaged on the date of enactment of this joint resolution, or

(2) military activities carried out against the military forces of North Vietnam, or against forces allied with North Vietnam, in North Vietnam, Laos, Cambodia, or the waters surrounding the Indochina Peninsula, so long as such military activities are directly related to the conflict referred to in paragraph (1) above.

SEC. 7. As used in this joint resolution, the term “armed conflict" includes (1) land, air, and naval actions taken by the Armed Forces of the United States against the military forces or civilians of any foreign 29 country or government, (2) the deployment of the Armed Forces of 30 the United States outside of the United States under circumstances 31 that present a reasonable possibility of the use of arms against the 32 military or civilian forces of a foreign country or government, and (3)

1971]

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CONSTITUTIONAL WAR POWERS

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1 the assignment of members of the Armed Forces of the United States to accompany, command, coordinate, or participate in the movement of regular or irregular military forces of any foreign country or government when such military forces are engaged in any form of combat 5 activity.

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The CHAIRMAN. Thank you, Senator Spong.

Senator JAVITS. Mr. Chairman, I wish to thank Senator Spong. I shall say no more now because I know Senator Stennis is under a great deal of time pressure.

The CHAIRMAN. Senator Stennis, we are very pleased to have you this morning. I don't know why you should be under any pressure. You have the Senate completely under control to do exactly what you want. You can stay here as long as you want and you will still get 95 percent of the votes, so you shouldn't be under any pressure.

STATEMENT OF HON. JOHN STENNIS, A U.S. SENATOR FROM MISSISSIPPI

Senator STENNIS. I can't do anything like that; there are Fulbright, Mansfield, and several more

The CHAIRMAN. Four or five are all you don't control.

Senator STENNIS. Very small, no. I thank you, Mr. Chairman.
May I say just a word off the record?

(Discussion off the record.)

Senator STENNIS. I will be a little briefer than I otherwise would and I will endeavor to answer any questions that might come in, but I will have to ask you to let me do it a little later because Senator Mansfield has already sent for me.

I am most grateful, Mr. Chairman and members of the committee, to come before your committee, especially on this important question of congressional war powers. I will not make a long statement today. My views on this matter have been spelled out in speeches and in the resolution, Senate Joint Resolution 95, which I have proposed.

In the course of reviewing some of the testimony which has been given before this committee and considering the matter further, however, there are several points that I would like to emphasize.

NO WAR WITHOUT MORAL SANCTION OF AMERICAN PEOPLE

First of all, I believe the overriding issue is that we must insure that this country never again go to war without the moral sanction of the American people. This is important both in principle and as practical politics. Vietnam has shown us that by trying to fight a war without the clear-cut prior support of the American people we not only risk military ineffectiveness but we also strain, and can shatter, the very structure of the Republic.

DECISION TO USE FORCE BELONGS TO LEGISLATIVE BRANCH

The President is faced with difficult day-to-day decisions in the executive branch in the field of foreign policy and the temptation is great to rely upon the threat of military force against a particularly troublesome or recalcitrant opponent. But the Constitution has placed the responsibility for deciding whether or not that force is to be used in the hands of the legislative branch. Thus it is not only our right, but our constitutional duty to insist that the President obtain the sanction of the Congress, the people representatives, before he actually involves the Nation in war.

CERTAIN POTENTIAL. CONFLICTS INTENTIONAL IN CONSTITUTION

Witnesses from the executive branch have argued that this may make the execution of foreign policy by the executive more difficult. To some extent we can limit these difficulties by the specific terms of any action which we take. But this difficulty is inherent in the Constitution. Certain potential conflicts, checks and balances, were intentionally written into that document in order to insure that some actions would be taken by the Federal Government only after careful deliberation followed by a clear-cut decision. The decision to go to war is one of these actions.

BALANCE CAN BE RESTORED ONLY WITH SUPPORT OF PEOPLE

I believe we can begin to re-establish t'e balance required by the Constitution in the field of war powers. But I want to point out that more important than legislation is a commitment by the people that they must decide in the future whether or not to go to war. The most important balance to be restored is the balance in the minds of the Nation's citizens, both those who are inclined to surrender their own responsibilities of decision to the executive, as many in the Congress have too often done, and those who believe that no cause is worth fighting for. For, as with most things, the truth lies somewhere between these extremes and the people of the United States must understand that the health of our constitutional system as well as our physical security depends upon their own willingness to help make the difficult choice of peace or war, if and when the question arises for us again. We of the Congress are nothing more than their representatives and without their support no balance can be restored. Thus, although I believe legislation in this field is useful-if it is the right kind of legislationI believe it is of secondary importance.

LEGAL JUSTIFICATION FOR U.S. INVOLVEMENT IN VIETNAM

But, on the other hand, one of the reasons why it may be highly important to clarify the distribution of war powers by legislation is that there has been so much confusion over the legal justification for the war in Vietnam. For example, President Kennedy, in writing to President Diem of South Vietnam on December 14, 1961, based U.S. assistance on the Geneva accords of 1954, although he sometimes offered other rationales as well.

Secretary of State Dean Rusk was particularly given to emphasizing the importance of the SEATO treaty as the primary legal justification for U.S. involvement in Vietnam.

President Johnson would often refer to the Gulf of Tonkin resolution as showing congressional support for the war; but he said on August 18, 1967, "we repeat now, we did not chink the resolution was necessary to do what we did and what we are doing."

Under Secretary of State Nicholas Katzenbach, on the other hand, often pointed to the Gulf of Tonkin resolution as the decisive legal justification. He testified before a subcommittee of the House Foreign Affairs Committee on July 28, 1970, that "in my opinion, the constitutional authority to use our Armed Forces in Vietnam rests squarely on Tonkin and cannot otherwise be constitutionally justified."

President Nixon stated on July 1, 1970, that "the legal justification is the one I have given, and that is the right of the President of the United States under the Constitution to protect the lives of American men." It is constitutionally and politically unsound to allow confusion of this magnitude to persist.

I point out again I am not making any reference to who is to blame for the war-getting into the war or not getting out, or anything any President has said. We want to approach this matter and get something put on the books apart from the war and who might be to blame, so I make that point for emphasis again.

CONGRESSIONAL POWER TO LEGISLATE IN WAR POWERS AREA

I do not believe that it can be questioned that Congress has the power to legislate in this area. In excellent testimony before this committee on July 26 of this year, Alexander M. Bickel, professor of law at Yale University, compared the "bare and summary" provisions of the Constitution relating to the President's power in this area, declaring that he should be Commander in Chief and authorizing him, with the advice and consent of the Senate, to make treaties and appoint ambassadors with the full roster of congressional powers.

POWERS GIVEN CONGRESS BY CONSTITUTION

Congress has the power to declare war, to raise and support armies provided that no appropriation for such use shall be for a longer term than 2 years, to make rules for the government and regulation of armies, and to provide for calling forth the militia and for organizing, arming and disciplining it.

Most importantly, Congress was given the power not only to make all laws which shall be necessary and proper for carrying into execution its own powers but also all laws which shall be necessary and proper for carrying into execution "all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof."

This last provision of the "necessary and proper" clause is particularly significant in the field of foreign affairs. I believe that it unquestionably gives to the Congress the power to give form and shape to the powers of the executive branch, within reasonable limits even in the field of foreign and military policy. This power was pointed out by Mr. Justice Jackson in his famous concurring opinion in Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579 (1952). It was there pointed out that there is "a zone of twilight in which the President and Congress may have concurrent authority," such as in the area which we are discussing. He also said that "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

But precisely because our power in this area is clear, and the substance of any legislatiton would have such an important potential impact upon our national security, I believe it is imperative that we approach the task of legislating with humility and caution.