safety of the American troops involved had to be taken into account.

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Second, there are circumstances in which the

President is confronted with a rapidly changing situation where the time between the decision to deploy armed forces and the actual deployment may be a day or two or three at most. In such circumstances, the scope of advance consultation must necessarily be very restricted.

Finally, there are those situations where the President has a relatively longer period in which to decide whether or not to deploy U.S. armed forces, in what manner, and in what numbers. I am thinking here of Vietnam, where the introduction of combat forces and the escalation of their involvement was the outcome of very conscious and deliberate action over a long period of time. Clearly, in situations such as this, the President should consult with Congress every step of the way.

B. Who in Congress Should Be Consulted?

The conclusion that congressional consultation is necessary or appropriate raises, of course, the question of who should be consulted. As a general proposition, the shorter the time available and the greater the need for secrecy, the narrower the scope for consultation. minimum, it would include the leadership of both houses and the chairmen of key committees.

At a

If the Congress is kept fully

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informed, in the first instance, through its leadership and through the committees having primary jurisdiction, then it should be possible in due course for the leadership and the administration to agree that the time had come for broader consultation, up to and including hearings and debate.

C. What Constitutes "Consultation"?

The word "consultation" is, I think, an appropriate

term for the process that should take place between the President and the Congress where the involvement of U.S. armed forces in hostilities short of war is concerned. The common meaning of "to consult" is to ask advice or opinion, to deliberate together. It is more than "to notify," which is merely to inform, and less than "to seek advice and consent," which implies the need for approval.

For the reasons discussed earlier, I believe the President has the constitutional authority to decide to deploy U.S. armed forces abroad in situations of hostilities short of a declared war. However, our government does not function well when one political branch stubbornly asserts its own power in defiance of the other. The solution is comity, and comity demands consultation a dialogue in which neither

branch is subservient to the other.

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D.

Must Congress Approve the President's Decision
to Deploy Forces in a Hostile Situation?

I do not believe that Congressional approval is a prerequisite to a Presidential decision to deploy U.S. armed forces abroad. As I have stressed, it is important that the President should, to the extent possible, consult with the Congress in advance. But consultation is not a request for "advice and consent." This is an important distinction since one can envision a circumstance where the President comes away with the sense that Members of the Congress are divided upon the use of force, and the President nevertheless concludes that the deployment of forces is the best alternative for the United States. In such a case, what purpose does consultation serve?

The answer, it seems to me, is that a very important function is served by the process of consultation itself. Before a President consults with Congress on the deployment of armed forces into hostilities, he would have to have a high degree of confidence in the correctness of that decision. Presidents do not lightly undertake the introduction of U.S. forces into hostilities. However, the initial process of consultation certainly exerts a salutary effect on Presidential decisionmaking. At the same time, it can blunt, neutralize, or result in increased support from the Congress.

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Once having consulted Congress and having failed to

win its support, any President would have to be extremely confident in his assessment of the necessity for and benefits of military action if he went ahead anyway with the deployment of U.S. armed forces. The President is the Chief Executive;

But the President

as such, he must make tough decisions. would do so only most advisedly if the Congress disapproved of his action. Indeed, one would think that the President would almost have to believe that his actions would demonstrate the correctness of his decision and persuade Congress to alter its

view.

V. CONCLUSION.

Congress has a major and ultimately decisive role to play with respect to the decisionmaking process of using U.S. armed forces. The successful conduct of U.S. foreign policy, and particularly the use of American armed forces, depends upon close cooperation between the President and the Congress. Our real protection must ultimately depend on the willingness of each branch to respect the responsibilities and prerogatives of the other and that is a spirit which does

-

not lend itself to legislation.

PREPARED STATEMENT OF ABRAM CHAYES

Mr. Chairman, members of the Committee:

It is, as always, an honor as well as a pleasure to appear before you. I have a brief statement, including what I hope is a practical suggestion. I will of course be very glad to answer any questions you may have.

Resolution of 1973 is

I believe the War Powers constitutional, except for Section 5(c), which, as I think everyone agrees, is invalid under the rule of the Chadha case. It is obvious from the text of Articles I and II of the Constitution that the design of the Framers divides the power to use the armed forces of the United States between the President and the Congress. I believe even Executive Branch lawyers would recognize that.

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