quest for this Congress only that the question of privileged status of the measure, once decided by the parliamentarian as privileged upon its introduction under the War Powers Resolution, shall be submitted directly to the Senate. The point of order put ot the Senate is, "the measure is not privileged under the War Powers Act." It shall be decided by the yeas and nays after 4 hours of debate, equally divided and controlled by the majority and minority leaders or their designees. The point of order shall not be considered to establish a precedent for determination of future cases. That is how we finally got to the floor on the simple question, Mr. Chairman, of whether or not there were hostilities in the Persian Gulf. We got voted down. But I have been a legislator a long time. I accept when the Senate or the House votes we are in or we are out. But I do not want to see us give up and have a shift to the Executive, of the power to declare war, the power to make rules for Government and regulation of the land and naval forces, which says to me that we could say whether or not a captain shot or did not shoot, in the gulf; or to provide for calling forth the militia; or to provide for organizing, arming, and disciplining the militia; or to make the laws of the Union. We tend to ignore the words of the Constitution until they are brought to our attention. It is just like when we had the impeachment matter. Nobody knew what a high crime and misdemeanor was, because it was written-you do not have to look at a lot of cases, you read the law. And the power to declare war or not to declare war is in the Congress. And all I want the Congress to do is to follow its oath under the Constitution and under the law. And you are all here to help us decide if amending this Resolution will help achieve that goal. I have certain questions from a practical and a theoretical viewpoint. I would like to see the nonvetoable Resolution go to the Supreme Court. I do not think Chadha applies, but I am prepared to have it go to the Supreme Court. Chadha does not apply because we are referring to a constitutional power. It is not a bill. I would like to see us act on it. Our problem is once you are into a major engagement and you try to use money alone, everybody says you are cutting off the money for our boys in the field. I think the Act has some flaws in it, but I don't want to see us give up the right to say that the power is automatically cut off in 60 days. I want to ask you whether this kind of a proposition is potential? One, that there be a required vote within 48 hours. The only reason that I say 48 hours-you may want a different period-is that this is the takeoff, as you referred to, Senator Eagleton. We usually never hear up here about what is going on until we read it in the newspaper or somebody comes up to the Hill and says what you have already read in the front page of the paper and confirms it. I am willing to say at the beginning that 48 hours would handle the problem of an invasion, an explosion, a going in and getting people. Automatic vote at 48 hours. Then what is the enforcement mechanism? You either have to use the courts, or you've got to use money, or there is something else. I don't want to give up this act and the law because, as Senator Mathias said, it is the only means we have at this point. I have been in the administration. I have served as a Cabinet officer. If you don't have a process for getting at the administration, you can't use the constitutional power, and I would say that to Chairman Fascell. I agree with you but if you don't have a process up here, you can't get to a vote and you can't get to court, or you can't get to money. Now tell me if I am wrong and tell me how else you would do it. I would want the 48 hour vote so you are still on the issue. Second, an enforcement mechanism, either cut off of money or immediate appeal or whatever you say. Senator EAGLETON. First, who triggers the 48 hours? Senator ADAMS. It has to be triggered by the Congress. In other words, the leadership must do it or a person goes on the floor. Senator EAGLETON. Leadership starts the clock running. Second, required vote on what? Let's use the Persian Gulf as an example. Does it require a vote that the President may engage in such operations as he sees fit all over the Persian Gulf for such time as he sees fit? What is the issue that is going to be voted on? Senator ADAMS. Drafted by the leadership of the two bodies to present to him. Senator EAGLETON. So, it could be narrowed in geography and in time, with a time limit? Senator ADAMS. Yes. Senator EAGLETON. Six months, 9 months? Senator ADAMS. No Gulf of Tonkin. Senator EAGLETON. That is sensible to me. If I may, because I think it is an important issue, let me disagree with one part of your opening statement. You said Congress can determine whether the captain shoots or doesn't shoot. This is more than a minuscule matter. I disagree with you very strongly on that. Senator ADAMS. What about the provision that says that in the Constitution that-this is the Congress, article 1, section 8-you make the rules for the Government and the regulation of the land and naval forces. Senator EAGLETON. I juxtapose that to the Commander in Chief clause, and in that area the Commander in Chief sets the tactics. Congress can set the time, the scope. Congress can put countries can limit the miles. Congress could say stay out of Cambodia. Congress can say a year. But the Commander in Chief sets the rules of engagement. That is the way I read it. Mr. FASCELL. I quite agree with you, Senator. I would not want to see us be a rubberstamp for the Executive on the question of going to war or being dragged into hostilities because we cannot define the hostility. Therefore, we come back to the same questions. Do you have the votes? We saw in the Vietnam war cutting off the money for all the reasons you cited as well as many others, it took a long time in a country divided with all kinds of difficulties in order to ultimately get to the point where the money could be cut off and the war brought to an end. So, we are fundamentally stuck with the political process. There is no way to get around that. The Founding Fathers saw that, they understood it. I agree with you they did it purposefully, obviously. The record is clear from the very beginning of- Senator ADAMS. Chairman Fascell, you can get a resolution up on the floor with leadership in the Rules Committee in the House; can't you? Mr. FASCELL. We can get a resolution up on the floor, yes. There is a way of doing that besides discharge petition. Senator ADAMS. But here if you have a determined minority, and it doesn't have to be large, we never get the issue to the floor. Mr. FASCELL. I understand what you are saying. I have enough trouble without trying to change the rules of the Senate. There are a lot of other rules that you gentlemen, ladies have to operate under that I have some difficulty with. Requiring a vote by the Congress is to require us to do what we are suppose to be doing. Why do you have to pass a law to require us to do what we are suppose to be doing? You pass a law because you are trying to get the Executive to do something that he ought to be doing, not us. We make that decision one way or another. We either act or we don't act. Now if we support the President tacitly, that is support, period. We want to hide behind that. Can we devise a process, which is what you are thinking of, that automatically forces the Congress to vote on the issue? The answer is anytime you think you've got the votes you can take it up. If you haven't, you can't get it done. There is no way that I can think of. You might be able to legislate the process where you can expedite the consideration of a resolution pursuant to a certain statute that says within a certain time and give yourself the expedited right to do that. That might be something that you want to think about. Otherwise, we can act now, anytime we get ready. There is nothing to stop us. The CHAIRMAN. I would like to interrupt to say in 5 minutes we are supposed to be receiving Governor Dukakis. Senator MATHIAS. Mr. Chairman, can I add one word? I think Senator Adams has made a very strong point about the veto. The declaration of war is not subject to veto. The declaration of war is complete when the Congress acts. The President doesn't sign the declaration of war. I was present in the House of Representatives on December 8, 1941, when the Congress voted to declare war. I was not on the floor. I was in the gallery at the time. But that was the complete act when that occurred, and that really bears on the Chadha question I think very strongly. I would disagree, however, that it is a good idea to force a vote in 48 hours. I also was here when the Gulf of Tonkin Resolution was passed, and if we had voted on that-we did vote on that in 48 hours. We did it on the basis of false information. We did it with the surge of emotion and patriotism. Talk about supporting the boys in the field. That was one of those occasions. Mr. FASCELL. And it was 48 hours, I might say. Senator MATHIAS. And it was too soon. If it had been a week, it might have been a much more questioning kind of procedure. I would raise the question about 48 hours and mandate the time period on purely practical grounds. Senator ADAMS. Mr. Chairman, I ask unanimous consent that my full statement, opening statement, may appear in the record. The CHAIRMAN. Without objection, it will be done. [Prepared statement of Senator Adams appears in the appendix.] The CHAIRMAN. I thank the witnesses very, very much indeed for their courtesy and being with us. We are adjourned. [Whereupon, at 11:43 a.m., the subcommittee was adjourned, to reconvene at 2:05 p.m., July 14, 1988.] THE WAR POWER AFTER 200 YEARS: THURSDAY, JULY 14, 1988 U.S. SENATE, SPECIAL SUBCOMMITTEE ON WAR POWERS Washington, DC. The special subcommittee met at 2:05 p.m., in room 419, Dirksen Senate Office Building, Hon. Claiborne Pell (chairman of the special subcommittee) presiding. Present: Senators Pell, Pressler, and Sarbanes. The CHAIRMAN. The Committee on Foreign Relations will come to order. The Special Subcommittee on War Powers resumes its hearings this afternoon with testimony from one of America's most distinguished professors of history, Arthur Schlesinger. Professor Schlesinger is the author of many learned works, several of which bear directly on this issue of interest to our subcommittee. Among these are the "Imperial Presidency," the publication of which perhaps not entirely coincidentally was just about simultaneous with the enactment of the War Powers Resolution of 1973. Following Dr. Schlesinger's testimony, the subcommittee will hear from Prof. Forrest McDonald, professor of history at the University of Alabama, and also the author of a number of works bearing on the subcommittee's topic of concern, and also an old acquaintance of mine when he moderated a debate the first time I ran for office in 1960 at Brown University for which I thank you again for taking the time to do. It seems like yesterday, but it was 30 years ago almost. So, we are pleased to have two such scholars here today. The CHAIRMAN. Senator Pressler. OPENING STATEMENT OF SENATOR PRESSLER Senator PRESSLER. Mr. Chairman, I too join in the welcoming of these two distinguished historians. Their numerous publications and their wideranging scholarship bear witness to the vitality and relevance of the history profession. It is especially fitting that on this day, so rich in historical symbolism and meaning, that we turn our attention to history, to the history of the Constitution and the history of our Republic and the |