passing a "law" or by the President sending over the Marines to compel such a meeting—is to belittle the constitutional authority of a co-equal branch and is incompatible with our doctrine of separation of powers. As Judge Sofaer has observed,258 even if Congress had the power to compel the President to consult, the provision permitting this power to be exercised by majority vote of the proposed permanent consultative group would conflict with article I, section 7, of the Constitution as interpreted by the 1983 Chadha decision. Section 5 Section five of Senate Joint Resolution 323 seeks to give Congress control over the President's Commander-in-Chief powers by use of the "power of the purse." This power-and the article I, section 8, power to "raise and support armies"—gives Congress the power to deny the President any "army" to command, and thus effectively to destroy the Commander in Chief power. And should you choose to deny the President an Army (or Navy) to command, that would be within your constitutional power. But it does not follow that you may place "conditions" on the use of appropriated funds which have the purpose or effect of seizing control of the exercise of the Commander in Chief power. Such an effort would be a violation of the principles of separation of powers set forth in article I, section 1, and article II, section 2, of the Constitution. It seems clear from the language of the proposed addition to the War Powers Resolution that its authors thought the "power of the purse" would give them some "higher authority" than a simple statute in their effort to constrain the President's Commander in Chief power. The provision reads in part: SEC. 6 (a) No funds appropriated or otherwise made available (1) any provision of law enacted pursuant to ... [this 258 Testimony of Abraham D. Sofaer, State Department Legal Adviser, September 15, 1988, p. 11. 93-280-89 - 28 A recent study259 by Raymond J. Celada of the Congressional Research Service of the Library of Congress quotes a variety of inferior court opinions—in situations not at all on point with the current situation-as concluding that the "power of the purse" is essentially unlimited. An 1880 U.S. Court of Claims case asserted that "The absolute control of the moneys of the United States is in Congress, and Congress is responsible for its exercise of this great power only to the people." "260 More recently, a federal district court asserted in 1945 that "The purpose of the appropriations, the terms and conditions under which said appropriations were made, is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch of the government to comply with the same."261 However, none of these cases involved an effort by Congress to use its "power of the purse" to take control of a power vested elsewhere in the government by the Constitution. The "great principle" that "what cannot be done directly because of constitutional restrictions cannot be accomplished indirectly by legislation which accomplishes the same result"262 has been affirmed time and again by the Supreme Court.263 For example, when Congress sought to use its legitimate control over the jurisdiction of the Court of Claims-which is admittedly exclusive and complete—to deprive the President of his pardon power by saying that the court could not accept cases brought by pardoned former southern sympathizers seeking to reclaim their property, the Court held that Congress had "inadvertently" violated the separation of powers doctrine. The Court explained: It is the intention of the Constitution that each of the 259 Raymond J. Celada, "The War Powers Resolution (WPR): Some Implications of S.J. Res. 323, 'War Powers Resolution Amendments of 1988," Congressional Research Service, Library of Congress, Report 88-464 A, p. CRS-11. 260 Hart's Case, 16 Ct. Cl. 459, 484 (1880), which Celada notes was "quoted approvingly in Harrington v. Bush, 553 F.2d 190, 194 note 7" by the D.C. Circuit Court of Appeals. 261 Spaulding v. Douglas Aircraft Co., 60 F.Supp. 985, 988 (S.D. Calif. 1945), aff'd, 154 F.2d 419 (9th Cir. 1946). 262 Fairfax v. United States, 181 U.S. 283, 294 (1901). 263 See Turner, "The Power of the Purse: Controlling National Security Policy by Conditional Appropriations," The Atlantic Community Quarterly, Spring 1988, p. 79, and sources cited therein. 264 United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872). When in past years Congress has sought to abuse its "power of the purse" to accomplish unconstitutional ends, the Court has not hesitated to strike the measure down. During World War II, when Congress enacted a statute seeking to use what it claimed to be its "plenary" power over appropriations to deny funds to pay the salary of three named alleged "communists" in the Executive branch, the Supreme Court in United States v. Lovett struck down the measure as an unconstitutional Bill of Attainder,265 The "power of the purse" is important, but it is not a tool through which Congress may properly seize control of all powers of government. Like all other powers of the Government, it may not be used in violation of any specific constitutional prohibitions. Implicit in the language designating the President "commander in chief" is the prohibition against Congress acting in that capacity. Much confusion results from trying to compare the constitutional separation of powers in domestic affairs with that in foreign affairs. They are different. In domestic affairs, where Congress "delegates" authority to the President, it has a wide range of flexibility to direct by conditional appropriations or otherwise-the manner in which those powers are to be exercised. The cases relied upon by Mr. Celada were of this character. But in foreign affairs, with respect to powers vested directly and exclusively in the President by the American people through the Constitution-Congress may not seize control of those powers by placing "conditions" on appropriations. If the use of conditional appropriations measures allowed Congress to direct the manner in which the President exercised his discretionary responsibilities under the Constitution, the same vehicle could be used to deprive the third branch of its independent powers as well. The same logic which would permit Congress to deny funds (either directly or for payment of staff salaries) to the President to control the deployment of American military forces other than as dictated by the legislative branch could be turned on the Supreme Court with equal ease to shut down its operations if any measure (any statute on a lengthy list of new legislation) were held to be unconstitutional. Article III, section 1, of the Constitution protects judges from having their "Compensation . . . diminished during their Continuance in Office," but it does not expressly guarantee them sufficient funds to hire clerks, pay their rent, publish their opinions, or provide for numerous other essentials without which their effectiveness would cease. To argue that the "power of the purse" permits Congress to seize either Executive powers or Judicial Review is to argue 265 United States v. Lovett, 328 U.S. 303 (1946). that the Founding Fathers did not establish three co-equal, independent branches of government, but ultimately vested all powers of government in the legislature. Such a view is both wrong and dangerous.266 The issue is not all that different from the situation addressed by Jefferson in 1790, with respect to the power of the Senate to control the destination or grade of diplomatic nominations. Jefferson wrote: It may be objected that the Senate may by continual negatives on the person, do what amounts to a negative on the grade, and so, indirectly, defeat this right of the President. But this would be a breach of trust; an abuse of power confided to the Senate, of which that body cannot be supposed capable. So the President has a power to convoke the Legislature, and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking. Yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the Constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not let it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another.2 267 V Conclusion and Policy Recommendations Mr. Chairman, I began my testimony by noting that we meet here this morning on the fiftieth anniversary of the infamous Munich Conference of 1938, and by quoting from some of the statements by some of your Senate and House predecessors half-a-century ago about the importance of tying the President's hands in the field of foreign policy as a means of preserving peace and keeping America out of World War II. In so doing, I realize that some of you may find the analogy a bit strained. Lest I be accused of appropriating someone else's work, full disclosure is in order. The analogy is not mine. Among the other sources from which I borrowed it was a highly respected gentleman who spent more than thirty years on the staff of this distinguished Committee-ending his service as your Chief of Staff. I am speaking, of course, of Pat Holt an expert on the War Powers Resolution and the author of several books and I 266 I am currently engaged in researching a book on this subject. For some preliminary views, see supra, note 263 and sources cited therein. 267 3 THE WRITINGS OF THOMAS JEFFERSON 17-18 (Mem. ed. 1903) (emphasis added). monographs dealing with the subject—who in his book Invitation to Struggle (coauthored by Professor Cecil Crabb) wrote: The problem that the War Powers Resolution addressed was in many respects analogous to the situation confronting the United States during the 1930s, when Congress sought to keep the nation out of World War II by passing the neutrality legislation. In the end, that effort failed, primarily because legal efforts to keep America out of hostilities were inadequate to protect the security of the United States in an increasingly dangerous external environment. Supported by public opinion, Franklin D. Roosevelt frequently circumvented and, in some instances, ignored legal constraints upon his diplomatic freedom of action — and in the process placed the blame on Congress for the nation's lack of preparedness after the Japanese attack upon Pearl Harbor in 1941! As in the preWorld War II period, perhaps the only effective constraints upon the president's reliance upon the armed forces for national security and diplomatic ends is the creation of external conditions that make such reliance unnecessary.268 I have stressed on more than one occasion that I do not doubt the sincerity of most of the isolationist legislators who sought to "legislate peace" in the 1930's. Many of them learned an important lesson during that period, and in the years immediately following the War people like Arthur Vandenberg-a distinguished chairman of this Committee-helped forge a successful bipartisan foreign policy which served the nation and the cause of international peace very well. In the mid-1950's, internationalists like Senator John F. Kennedy, Senator Mike Mansfield, Senator Hubert Humphrey, and Senator J. William Fulbright took up the cause of South Vietnam and pressured the Eisenhower Administration to help the people of that small country resist communist aggression. The Senate overwhelmingly consented to the ratification of the SEATO Treaty, which embodied that commitment. As the level of North Vietnamese aggression increased, the entire Congress voted by a margin of more than 500 to 2 to authorize the President to use American military force in Indochina. In so doing, Congress fulfilled its proper constitutional role in authorizing "war." Sadly, as the war became less popular members of Congress sought to avoid accountability for their decisions—and the War Powers Resolution was enacted to deceive the American people into believing that Congress was not responsible for Vietnam. Over the years, Congress has demonstrated time and again that it is far more concerned with 268 C. Crabb & P. Holt, Invitation to Struggle - - Congress, the President, and Foreign Policy 54-55 (1984). I am also indebted to Professor Whittle Johnston of the Woodrow Wilson Department of Government and Foreign Affairs at the University of Virginia for the metaphor. |