The benefits to both branches—and, more importantly, to the Nation—of a genuine bipartisan cooperation in the national security field should be so obvious as to require no elaborate discussion. However, a president who is virtually under siege from a Congress which seems determined to grab all powers of government for itself is hardly in a position to make further concessions to improve the overall relationship. The primary fault for the overall deterioration of legislative-executive relations in the national security field lies with Congress, and it is Congress which must, of necessity, make the first steps if the situation is going to be corrected. Repealing the War Powers Resolution would be an excellent first step. To provide a rough idea of how active Congress has become in trying to micromanage foreign affairs in the post-Vietnam era, in the less than twenty-five years since the Gulf of Tonkin Resolution was enacted into law in August 1964, this committee's compilation of Legislation on Foreign Relations has increased from a single volume of 659 pages to three volumes averaging about 1,500 pages each. The Founding Fathers would be shocked at this development. They placed great value on unity of decision in foreign affairs, and this simply is not possible when we have 536 individuals who want to play Secretary of State. 273 273 The modern effort by Congress to enact the most detailed laws to "protect" the nation against every conceivable form of executive misconduct is reminiscent of a short-lived proposal by Elbridge Gerry, in the Constitutional Convention, to fix the maximum size of the peacetime army in the nation's fundamental law. As described by Harvard Professor Charles Warren: "[Gerry] thought an army in time of peace to be dangerous, and he moved that 'in time of peace the army shall not consist of more than men', suggesting that 2,000 or 3,000 should be sufficient. Luther Martin supported him. At this point in the Convention, as later narrated by General Mercer, General Washington, who was in the Chair and therefore could offer no motion, turned to a delegate who stood near and in a whisper made the satirical suggestion that he move to amend the motion so as to provide that 'no foreign enemy should invade the United States at any time, with more than three thousand troops.' . . . Gerry's motion was unanimously rejected." C. WARREN, THE MAKING OF THE CONSTITUTION 482-83 (1937). Even if the attempt by Congress to limit the President's constitutional power as commander in chief were not in conflict with the Constitution, it has had detrimental consequences for the security of the nation. To mention just one example, early in the Reagan Administration, Ambassador-at-Large Vernon Walters was sent on a secret mission to Havana to put Cuban President Fidel Castro on notice that his efforts to engineer the forcible overthrow of El Salvador and other Latin American States would not be tolerated. After listening quietly, Castro responded: "I understand how your government works, and I know that none of your congresses will allow any of your presidents to do to me what they would like to do to me.' "274 As a result, Castro was not deterred and Cuban efforts to overthrow non-communist governments in Latin America continued. A similar effort in Nicaragua-which as a matter of law275 Congress has found to be guilty of unlawful international aggression against its neighbors to provide incentives for peace has also been undermined by legislative micromanagement. If not ultimately deterred, the United States may soon find itself forced to choose between watching one country after another to our south fall to external aggression or sending in another generation of young men to repurchase our national credibility with their lives. Mr. Chairman, I don't wish to be misunderstood. I am not suggesting that members of Congress who seek to restrict the constitutional authority of the President are evil or that they intend to do other than promote "peace." They are no less honorable than was Prime Minister Chamberlain fifty years ago today, or the isolationists in the Congress of the 1930's who thought that if they could just get handcuffs on the adventurist President Roosevelt America need not fear the expansionist regimes in Germany and Japan. What I am suggesting is that-like similar critics of the past-you are mistaken; and your misguided actions are endangering world peace and freedom. Obviously, I may be wrong. But you invited me to give you the benefit of my thinking, and given the seriousness of the stakes involved—and because of my great respect for this institution and this Committee-I concluded that I would serve you best by being fully candid. 274 I first learned of this conversation in a personal conversation with Ambassador Walters during my service in the Department of State. I include it here because it has now appeared in print. See "Now you understand," Washington Times, July 31, 1985, p. 3A col. 1. 275 Congress has found that Nicaragua "[h]as committed and refuses to cease aggression in the form of armed subversion against its neighbors in violation of the Charter of the United Nations, the Charter of the Organization of American States, the Inter-American Treaty of Reciprocal Assistance, and the 1965 United Nations General Assembly Declaration on Intervention." International Security and Development Cooperation Act of 1985, sec. 722(c)(2)(vi), Pub. L. 99-83, 99 Stat. 149. For a detailed account of Nicaraguan aggression, see R. TURNER, NICARAGUA V. UNITED STATES: A LOOK AT THE FACTS (1987). Let me conclude by returning to the underlying constitutional issues. I have argued that recent legislative initiatives to constrain the President's independent constitutional powers are unlawful and in violation of the oath of office each of you took upon assuming your present station. I have urged that Congress restore the "rule of law" by repealing provisions of law which are in conflict with the Constitution. I am well aware that there are those in both political branches of the Government who say that "what is done, is done," and-regardless of the intent of the Founding Fathers and the text of the Constitution-the President must simply accept the new congressional role and try to reach an accommodation with the Congress under new ground rules. But I would leave you with the thought that for the President to continue to acquiesce to congressional efforts to seize his independent constitutional powers would be a violation of his oath of office to "defend the Constitution," and his constitutional obligation to "take care that the Laws be faithfully executed."276 But here I've used the wrong pronoun. The powers of the presidency are not really "his," at all, if by "his" we mean Ronald Reagan. These are powers of the American people. And if the Presidentany President, whether he be Democrat or Republican, Liberal or Conservative—is to uphold the "rule of law" he must defend his constitutional powers. Let me close with a short quotation from the distinguished Harvard Law School Professor Charles Warren: Under our Constitution, each branch of the Government is In maintaining his rights against a trespassing Congress, the Mr. Chairman, this concludes my prepared remarks. 276 After all, the first "law" mentioned in the supremacy clause is the Constitution itself. 277 Warren, Presidential Declarations of Independence, 10 BOSTON U. L. REV. 1, 35 (1930). Report of the Committee on Federal Legislation of the Association of the Bar of the City of New York SUMMARY The Committee on Federal Legislation of the Association of the Bar of the City of New York has reviewed the mechanisms of the War Powers Resolution in light of separation of powers and justiciability concerns. We have focused in this report on underlying constitutional and legal issues, reserving to a later date our comments as to specific amendatory provisions. For the reasons stated below, we recommend that any proposed legislation to modify the Resolution: (1) amend Section 5 (c) of the Resolution to (2) (3) (4) leave intact as constitutionally appropriate the 60-90 day cutoff provisions of Section 5 (b) of the Resolution; reject the concept of inserting an consider expanded consultation provisions INTRODUCTION The War Powers Resolution1, passed in 1973 over President Nixon's veto, represents an effort by Congress to right by procedural means a perceived imbalance in the exercise of warmaking power between the Congress and the Executive. Proponents of the Resolution have urged that the legislation reflects the intent of the Framers in giving Congress a concurrent role with the President in decisions to commit and sustain U.S. forces in hostilities or imminent 1 2 Pub. L. 93-148, 87 Stat. 55, codified at 50 USC SS1541-58 (1987) (hereinafter "War Powers Resolution" or "Resolution"). See also 119 War Powers Resolution Section 2 (a). ed.) (hereinafter "Foreign Relations Law") at 616 |