Dr. McDONALD. I agree with Professor Schlesinger that it hasn't worked. I think I would go a bit farther and say that in the nature of things, it cannot work. The very point about the Persian Gulf policy, which I think is kind of cuckoo-monkey myself, but the fact of the nature of the debate about it illustrates very vividly why the Congress can't do it. Congress is a deliberative body, and it's a bargaining body, and it's a great big unwieldy thing. And it does some things beautifully. Among the things it does not do beautifully is to make quick decisions, to decide upon the appropriate amount of force to be applied to a given situation, to be flexible and so on. It's just not in the nature of the beast. So, I would agree that it ought to be repealed on grounds of ineffectuality.

I would also argue, as I did, that it's unconstitutional.

I agree also that appropriations seems to be the most effective route, but it is not an infallible route for two reasons. One is that the President takes an oath of office to enforce the law. He is the only one who has to take that very complicated oath to "preserve, protect, and defend the Constitution." Part of his obligation in enforcing the law and part of his powers in foreign affairs come from the fact that treaties are laws as well. And the adjudication on this is complex, but treaties by and large take precedence over ordinary legislation. If he is obliged by the law of a treaty to send some troops to Southeast Asia or whatever, he has to do it. He has taken an oath.

Mr. SCHLESINGER. It's true. Most treaties, however, have a provision, as the NATO treaty does, saying that any decision to go to war must be done according to internal constitutional process. So, treaties cannot abolish the need to get consent to war.

Dr. McDONALD. No, but that's the more practical thing. You have to have congressional support and therefore popular support to support any kind of long-term operation.

But there is one other little thing, and that is that Presidents being what they are and having their exalted notion of who they are and what their duties are and things like that, are likely to do it anyway. Remember the very famous story in 1908 when Teddy Roosevelt wanted to send the Great White Fleet, as it was called, around the world to let the Japanese and others of our "little brown brothers" around the world know how many muscles we had. And Congress specifically considered it and refused to vote the funds. Roosevelt gave the orders as Commander in Chief to the admiral and said "Go. If you get in the middle of the Pacific Ocean and you run out of gas, they'll come up with some money."

So, I'm thinking in terms of effectual checks. I am not sure how effectual these checks would be.

The CHAIRMAN. I think you both have concurred in the feeling that the approach is through the appropriations process. But from a political viewpoint-and I remember this at the time of the Vietnam war-it doesn't really work because you can't knock out the appropriations who are men there under fire, and you can't say, "Well, we'll take your guns away from you, your ammunition away from you." It has to be in the authorization process I think that the Congress should exert itself.

Professor Schlesinger.

Mr. SCHLESINGER. That's a very sound point. Even Abraham Lincoln, who as a Congressman from Illinois regarded the Mexican War as unconstitutional, voted supplies for the troops because both for political and humane reasons you can't abandon them.

The thing which seems to me worth exploration by your subcommittee is the question of governing overseas troop or naval deployment in advance. There has been a long argument about this. The more venerable among us can remember the so-called great debate of 1951 when Harry Truman wanted to send four divisions to NATO, and Senator Robert A. Taft said this could not be done constitutionally without congressional consent. Finally a compromise of some sort was worked out. Truman got his divisions, but Congress made some assertion of its power to govern such deployment. We should have had a substantive debate over whether the Navy should have been sent into the Persian Gulf. I'm not arguing that the Congress should lie down and let the Executive do whatever he wants. I'm arguing for a circumstance that will lead Congress to address the merits of a policy rather than to argue about whether a certain mechanism applies to a particular situation.

The CHAIRMAN. Thank you very much. My time has pretty well expired.

Dr. McDONALD. Could I, Mr. Chairman, make a brief suggestion apropos of what Professor Schlesinger just said?

The CHAIRMAN. Certainly.

Dr. McDONALD. It might be worth while to put some legislative assistant to work reviewing-I suppose it was before this committee, but it could have been some other committee-the debates in the early 1950's over the Bricker amendment, just to explore the record. It may be that at that time some suggestions were made that were brought up that might prove extremely valuable in the present context.

The CHAIRMAN. Thank you very much. I look forward to following up on that in my next question.

Senator Pressler.

Senator PRESSLER. Thank you very much.

Let me ask both of our distinguished witnesses a question that is broad in scope. In fact, aren't most of the Presidents who are classified as great by American historians people who have exercised considerable authority with respect to the use of American Armed Forces? Now, Presidents such as Franklin Pierce, James Buchanan, and Calvin Coolidge did not do this and are usually not in those ranks.

Mr. SCHLESINGER. Oh, yes. Go ahead.

Senator PRESSLER. Right or wrong, this is the ranking by the liberal historians. But you can take this and digest it.

Also, I would say to Professor Schlesinger, for whom I have a great admiration-I love to read your books-you were a great biographer and admirer I think of Franklin Roosevelt and an employee of John F. Kennedy, as I recall, unless I'm mistaken. Both of those Presidents were very vigorous Presidents in the use of Presidential authority I believe, or that's the way they come across to me. Whereas Eisenhower took a more, it would seem to me, passive role in some areas, although I think he was one of our great Presidents.

The point I'm trying to reach here is this. Is it not true that those Presidents whom some classify as the greatest in our history have taken the greatest liberty in terms of acting and then letting Congress know later, especially focusing on John F. Kennedy.

Mr. SCHLESINGER. I would say that you have to make a distinction here between what I would call the emergency prerogative doctrine of John Locke and assertions of inherent Presidential authority. Professor McDonald read a quotation from Jefferson in which he argued that in certain circumstances, when the life of the Nation was at stake, a President might well move beyond, transcend, so to speak, or ignore the law.

Yes. Here's the statement of Locke's emergency prerogative.

It is fit that the laws themselves in some cases give way to the executive power rather than to this fundamental law of nature and government. That is the right to self-preservation and self-defense.

Now, this is emergency prerogative. It is not a constitutional power. It's an ultimate resort beyond the Constitution. People like Raoul Berger, for example, a constitutional fundamentalist, would deny that emergency prerogative has any constitutional basis. Still you can find traces of it in the Federalist Papers as an ultimate resort when the life of the Nation was at stake. It was that doctrine which justified what Lincoln did in 1861 and what Roosevelt did in 1941. But they did not regard these things as routine, normal, inherent powers of the Presidency. Emergency prerogative would be a very different thing.

Lincoln in his case did certain things and delayed calling Congress into session. Most of the actions he took were retroactively ratified by Congress.

In 1940, when France was falling, the French asked for American military assistance. Roosevelt sent a message to the French Prime Minister saying "We will continue sending arms and ammunitions, but this does not imply any military commitments. Only Congress can make those commitments."

But in 1941 he did things in the North Atlantic which were not authorized by Congress, doing them presumably in the light of emergency prerogative. He did not claim them as the exercise of normal Presidential powers. Nor did Theodore Roosevelt when he sent troops to the Philippines make any kind of doctrinal justification of it. In fact, the Philippines were an American possession so that the whole problem was very different constitutionally from sending troops into foreign countries.

I think the great change came in 1950 when Senator Taft believed that we could not constitutionally commit troops to Korea without a joint resolution and offered to support such a resolution if Truman would request it. Truman was persuaded by his Secretary of State, a distinguished lawyer, a former law clerk to Justice Brandeis, that the President had the inherent power to send troops into combat and did not need congressional authorization. I think that was the first time that going to war was claimed as an inherent Presidential power.

All this literature about the 200 times in which Presidents did this or that concerned mostly extremely trivial things, rescuing

Americans from pirates or something. It was produced to justify the 1950 decision.

Dr. McDONALD. In the first place, the doctrine of inherent powers is not a new one. You'll find it in the writings of Alexander Hamilton in 1782. You'll find it in the writings of James Wilson in 1785. You'll find it in the writings of Oliver Ellsworth in 1786 and a continuum thereafter.

Mr. SCHLESINGER. In connection with warmaking.

Dr. McDONALD. In connection with the making of war.

Now, as to the question of whether Presidents have depended upon genuine emergencies and so on-and back to your original question-yes, the strong ones have intervened and so have the weak ones. They all have.

As to the question of whether it has got to be of dire national emergency, no. The President has got to defend the United States of America.

Now, who decides what is necessary in defending the United States of America? You don't, as they said in the 17th century, wait until Hannibal and his elephants are at the gates of the city. You go out wherever you perceive a danger, wherever you perceive an interest of the United States.

In 1915 when Woodrow Wilson sent the United States Army to Veracruz and occupied a portion of Mexico for quite some time, what was the nature of the national emergency involved? Here's the nature of the national emergency. The U.S. Navy vessel had sailed into Tampico. Some sailors got drunk ashore, and they went in and they went to an area of town which had been marked by the mayor or governor or whatever as being off limits to sailors. They were arrested, thrown in jail, put back on the ship. The commander of the ship demanded a 21-gun salute in apology. The local officials said, "No, I'll give you 14 maybe, but that's the tops." [Laughter.]

In response to that, Woodrow Wilson ordered the U.S. Army to invade Veracruz, occupied it for the better part of a year, ran it, governed it, and said, "All right, now maybe you fellows will shape up." Woodrow Wilson perceived the danger that way.

What was the provocation when Calvin Coolidge sent the Marines to Nicaragua in the 1920's? About the same.

What was the provocation when Woodrow Wilson sent the United States Army under Black Jack Pershing in 1916 to chase all of over northern Mexico looking for Poncho Villa? About the same. No genuine national emergency.

The President perceives that this is in the interest of the United States; this is not in the interest of the United States. This is dangerous to the United States; this is not. And they exercise their power. They have exercised the power from the beginning, and they're going to exercise it until the end or until we get a parliamentary system of government.

Senator PRESSLER. Mr. Schlesinger, would you deal with the Kennedy administration in terms of fitting in with your theory?

Mr. SCHLESINGER. The Kennedy administration. What we did, mistakenly in my view, was to increase the number of American military advisors in Vietnam from about 700 to 15,000. That was done, of course, at the invitation of the South Vietnamese Govern

ment. No American combat units were sent to Vietnam until 1965. Military assistance programs have been a routine thing. They did not involve, in theory, American participation in war.

Senator PRESSLER. What about the Cuban

Mr. SCHLESINGER. Cuban missile crisis?

Senator PRESSLER [continuing]. Or the invasion or the Bay of Pigs.

Mr. SCHLESINGER. Oh, the Bay of Pigs. The Bay of Pigs, of course, was a CIA operation inherited from a previous administration, and President Kennedy stipulated from the beginning that there should be no involvement of U.S. personnel at all in the actual process of invasion.

But I think covert operations present a particular problem, and I think that's another thing your subcommittee will want to take into account. The capacity of covert operations to get us into military situations which may explode and acquire other dimensions is something to which I hope your committee will address itself.

The CHAIRMAN. Thank you very much, Senator Pressler.

Following up your thought about the Bricker amendment, I can remember the discussions about that at the time. And shortly afterward there was a period when many wise men, Rossiter, Senator Fulbright, Mr. Schlesinger, others, came to believe that the Congress was pretty negative, intrusive, and uninformed and was an obstacle to the conduct of American foreign policy.

Professor Schlesinger, you've changed your mind on that. Professor Fulbright changed his. What caused the change in view? Do you think it's simply if the political party-which one is sympathetic, which in your case and mine is the Democratic Party, is in power, then we are more permissive than when it's out of power? How would you analyze it?

Mr. SCHLESINGER. You're quite right. Senator Taft felt that President Truman needed some congressional authorization to go into Korea. I criticized his view which led Edward S. Corwin, the great Princeton constitutional scholar, to write a letter to the New York Times denouncing Henry Steele Commager and me as high-flying Presidential prerogative men. In retrospect Corwin was right; in retrospect, it seems to me, Taft was right. And I think Henry Commager would also agree in retrospect.

Why did we change our minds? I suppose the Vietnam war. The Vietnam war made us see the hazards of Presidential warmaking and the importance of having some check on unilateral Presidential power to get us into situations like that. Vietnam made us much more sensitive to constitutional standards, a sensitivity the absence of which, as I look back, was inexcusable on the part of an American historian.

The CHAIRMAN. Thank you.

Would you in a more third-person way have any thoughts, Dr. McDonald, along this line?

Dr. McDONALD. Well, it seems to me that if you take the long view again, the reason the Framers vested any kind of checks on the power of the President in these matters was fear of what a standing army, as they called it, would do to domestic liberties. That was their concern.