consultation? The answer is "Yes." Can you improve consultation? The answer is "Yes." Did you have more consultation after the War Powers Act than you had before? I think we can make a good case for "Yes."

The reports that are required is a form of consultation. It was an effort in the War Powers Act to institutionalize the process by which the President and the Congress interact on the decisionmaking power, or the decision that was already taken.

What do we have? So far as I know, on the 18 reports that have been submitted every President denies they were submitted pursuant to the War Powers Act. It is not "pursuant to"-I have forgotten the exact language they use-but they don't invoke the War Powers Act because they don't want the trigger to run. But the report is there. We at least got that far.

We have seen disengagement, a withdrawal of American troops from hostilities within the 60 days obviating the need, therefore, for specific statutory authorization.

We have seen specific statutory authorization where the President and the Congress came together, whether it was pursuant to the War Powers Act, or to avoid the War Powers Act, or just simply to come together because it was the smart thing to do. We did come together. So, you had specific authorization in the Lebanon case, and I dare say you might not have had that if the War Powers Act had not been on the books.

What is the real question? The real question is we are not dealing here in the constitutional vacuum. We are not dealing here in some legalistic abstract discussion about the powers of the Constitution. We have a real constitutional question and scholars will argue forever about the respective powers of the President, implied and expressed, the delegated powers to the Congress, implied and expressed, and the precedents that have grown up over 200 years. All of that is legitimate.

What is the practical effect? The practical effect is that whether the President likes the War Powers Act or not he is always thinking about it. It is right there. I should submit this report. I do not want to do it pursuant to the War Powers Act because that will trigger the safety days, but I better submit the report anyway. Why? Because it is politic, and it also is not a clear violation of my constitutional responsibility to faithfully execute the law because I am going to argue that the law is unconstitutional.

You say well this evasive process proves that the War Powers Act is inconsequential. It is meaningless and, therefore, should be repealed. I take exactly the opposite view. The practical impact of it is that we have forced upon the consciousness of the administration the whole question that the President cannot totally disregard it. He has to pay some political consequence. The issue is not just constitutional. The issue is not simply a question of whether the law is executed. The issue is basically, as our Founding Fathers saw it, is a political issue, and that political issue is that you cannot take this country to war for very long without the full broad base support in the Congress of the United States, and without the full and broad base support of the American people. The War Powers Act gives us the opportunity to raise those issues every time that happens.

We all know from a basic fundamental point, Mr. Chairman, that no law by itself will change the Constitution. We didn't try to do that in the War Powers Act. We were very careful not to do it. The reason I did not support my distinguished colleague's specific enumeration in the original Senate version is because I did not want to foul up what I figured was a broad-based grant of authority under the Constitution, and I did not want to make it specific in some way, even though I go with the proposition you cannot amend the Constitution so it would not have made any difference anyway.

I just thought for esthetics and clarity we ought not to enumerate the specific exceptions, and I still don't think we ought to do that. I think it would be a mistake. Let us fight it out where it belongs to be fought out, right here in the Congress of the United States.

Let us use for the basis of that discussion and that struggle an additional tool which we did not have up until the War Powers Act was enacted and that is the War Powers Act. Give us the additional handle by which we can question the actions of the President. Give us another statute if you will, because the tendency in the past was either simply go along or try to take on one of the major fights that you have to take on in a constitutional confrontation which is to either impeach a President or cut off his money as we did in Vietnam.

The trigger is still there, Mr. Chairman, members of the committee. The incursion into Cambodia was an act of war on another country that wasn't covered under anything, and I am not sure even under any exception could you have included that. It certainly got to me. I said if I am going to be in the Congress, I want the right to exercise my responsibility as a member of this body representing the American people who have a right to discuss and argue and have a vote on the question of whether the United States of America is going to war against any country. And so the War Powers Act came into being and I was delighted to be one of the early sponsors in the House on the War Powers Act.

I think it is wise to look at amendments. Nothing is ever perfect. I think we need to be very careful about what we do and how we do it. I think the one thing we need to do is improve our consultation. We have all fussed and fumed about the fact that we in the Congress, the House and the Senate, ought to have a better opportunity on the policy decisions that lead to the question of whether or not you are going to be in hostilities, war, or whatever we want to call it.

We have had trouble with that. For a long time I have been plugging for the concept that we institutionalized the leadership of the House and the Senate, the ranking and major members of the appropriate committees, Appropriations, Armed Services, Intelligence, Foreign Affairs, Foreign Relations, 18 people at the most, to consult on a regular basis with high administration officialsmaybe NSC, maybe others, it depends-and that we do that not on a crisis basis, but before we ever get to the crises.

We all know for the virtue of our experience here and certainly downtown, you can see the crises almost coming. We know for sure every day when you wake up there is another one someplace else. We can review those on a regular basis. We should do that. We

should talk. We should understand the options. We in the Congress ought to have some input, not that we are going to tell the President what to do but he has the benefit of that advice. There is a lot of counsel in this body over a long period of years that would be useful to a President that goes beyond the NSC, beyond the Cabinet so that we are not confronted with the crash landings, leaving Congress to join in and pick up the pieces. Get in there in advance, have a consultative process that discusses options, potential crises, allow for input, and give the President that advice. He ultimately makes the decision.

I think the country would be far better off. We would have solved one of our major problems and we do not need to do that legislatively. I think maybe that would be a mistake. I think the President, any President, has to reach out his arms to the Congress of the United States and say, "I am working with you, especially in this area, but on all areas, but especially on the question of war and I want a bipartisan foreign policy."

That is the only way it is ever going to be forged, and the secret of that is early, consistent consultation on the problems that confront the country. Not all the wisdom in the world resides in either the executive branch or the Congress.

The Founding Fathers saw it as a partnership and a partnership it still is today, even though it is at arm's length, Mr. Chairman. I welcome the hearings that you are having on the War Powers Act. I think it is extremely useful to review both the history, the application and the future of the War Powers Act, but I am against repealing it. I am against getting too specific with respect to enumeration of powers, for example, to try to legislate the exceptions that have grown up. I am more for leaving it in the political arena and let us debate it and fight it out in an orderly process. Thank you very much, Mr. Chairman.

[Prepared statement of Representative Fascell appears in the appendix.]

The CHAIRMAN [presiding]. Thank you very much indeed, Congressman Fascell. I think the phrase President Reagan used was consistent with the War Powers Act.

Mr. FASCELL. Thank you. I could not think of that word, "consistent," Mr. Chairman. It has eluded me for a few years. [Laughter.]

The CHAIRMAN. I would suggest that we have an 8-minute limit because we are going to have to quit, as I said earlier, a little before 11:45. In addition to that, we want to go into a business session when we get a quorum, 10 bodies. We may not get it, in which case we will go on with this hearing.

I have one basic question. Thus to go back 15 years and ask Congressman Fascell and the Senators why is it that in the conference the House version prevailed?

Senator EAGLETON. I was not a conferee, but I daily talked with Senator Javits. Frequently he said, "I will never give up on this issue." The House at one time had a 120-day unilateral warmaking for the President. The House basically believes in unilateral Presidential warmaking, with all due respect, Chairman Fascell.

Javits said, "I will never give up on this issue." One day he came back from conference and there was no communication from Sena

tor Javits. My staff said this is the first day we have not gotten a phone call from Javits' staff person. I said that was curious.

Later we were informed that Senator Javits had agreed to this 60-plus-30-equals-90 unilateral warmaking gimmick. That is when Senator Javits and I fell out. Why did the Senate cave? Senator Javits of the Senate conferees was the only one genuinely interested in the details of the bill. Ed Muskie on the Democratic side handled it, thought it was an interesting sort of a thing, but it was Javits' game. The details were left to Javits.

It is peculiar that a minority Republican Senator would so dominate such a policy determination, but Senator Javits was a very dominating personality, a brilliant man.

Representatives Zablocki and Fascell would not surrender. They were entrenched, and in order to get a bill called the War Powers Act their will would prevail. Bear in mind this was the only time in history we could have gotten such a bill because we were at the end of that horrible war in Vietnam and because there was in office a beleaguered President that we can clobber.

I went to my friend Gaylord Nelson and I said, "Gaylord, you can't vote for this 90-day unilateral warmaking. It is probably unconstitutional." He said, "Tom, I love the Constitution, but I hate Nixon more." [Laughter.]

We were rolling over Nixon. This was the one time in history the Congress could prevail. But, sadly, what we got under the heading war powers is this fiasco where there has been no consultation with and no participation by the Congress. There only has been notification. Margaret Thatcher knows more about what we are going to do anywhere in the world than Congress does. She knows everything in advance. Congress knows nothing. Congress was notified after the fact that President Reagan had bombed Lybia. You were told when it was all over.

In the Lebanon case, wasn't that beautiful. Congress gave President Reagan 18 months to wage war. Congress didn't want to keep its hands on that. Congress gave him 18 months. It was only a few weeks later that the mad bomber went through the gates and then the President made a political decision to withdraw troops.

Congress did not want to keep close reign on that war. I remember sitting in the cloakroom. A couple of my colleagues said, "Jesus, Reagan's fingerprints are all over it. Let's not get ours all over it."

The CHAIRMAN. My recollection is that an amendment of mine calling for a withdrawal in a 6-month period was passed in the committee.

Senator EAGLETON. Committee, but I don't think it was passed on the floor.

The CHAIRMAN. I'm sorry. I have been corrected. It was defeated. Senator EAGLETON. Ultimately, we got a bill because they were strong and powerful and adamant on the House side and the Senate caved.

Mr. FASCELL. Would the gentleman yield and just add the word "persuasive"?

Senator MATHIAS. It is not precisely_responsive to your question but when the Lebanon case came up I agree with Chairman Fascell. The War Powers Act was important in Lebanon, and it was

important because of the features of the War Powers Act which prevented the enlargement of the commitment and that is where the shoe fell on the Lebanon action. It did prevent the escalation of Lebanon, which I am convinced would have taken place except for the War Powers Act.

Senator ADAMS. I do not want to interrupt you, but there are five of us who are here that voted for that War Powers Resolution at that time, three sitting there, you and me. And I cannot remember what my other colleagues did.

I just want to say, I have had some bad experiences with that Resolution this year, but we have got to have a process that works. The process right now is a choice between pulling people out in the 48 hours as a Commander in Chief or declarations of war that do not happen any more.

The Congress is supposed to decide whether or not this Nation goes to war. But, we listened to Johnson for years and we never called that a war. And when I go on the floor and say that there are hostilities in the Persian Gulf and it is voted down by 35 votes, while combat operations are being conducted.

I have an awful hard time explaining that.
Thank you, Mr. Chairman.

The CHAIRMAN. Your time will come shortly.

I yield 8 minutes to Senator Kassebaum.

Senator KASSEBAUM. And I will yield first to Senator Evans. He was here before I was.

The CHAIRMAN. Senator Evans.

Senator EVANS. First, it is a delight to see the two of you. My temptation is to ask the distinguished Senator, the former Senators from Missouri and Maryland, if there truly is life after the Senate. But it is obvious from looking at both of you that there is indeed a pleasant life after the Senate.

Senator Mathias, I think in your testimony-and unfortunately, we were interrupted, as we so often are, by votes on the floor-you said it was clear that the War Powers Act was constitutional, if I am not mistaken. Would that include the concurrent resolution element of the War Powers Act, which some have suggested clearly falls within the Chadha decision?

Senator MATHIAS. I think you can raise a question about that because of the subsequent decisions of the Supreme Court. But I think the main thrust of the War Powers Act is clearly constitutional.

I think, as Chairman Fascell has very eloquently said, what the Constitution mandates is congressional policymaking. And whether it is the general power to declare war, whether it is a limited war power under the letters of marque provision, or whether it is terrorism under felonies and piracies on the high seas, these are specific delegated powers given to the Congress.

And it simply boggles the mind that people can raise constitutional questions about the power of Congress to legislate in this field.

Now, the details I think obviously are subject to some adjustment, some refinement. But the main thrust I have no doubt about. Senator EVANS. But is that not the key element of the War Powers Act that gives Congress in essence a final say? The rest of