War Powers and the Constitution (1983) | ARCHIVES
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War Powers and the Constitution (1983) | ARCHIVES

August 25, 2019


Gerald Ford: In my judgment from my practical experience
in the Congress of 25 years and my two-and-a-half years in the White House, I firmly believe
that trying to put on paper a precise procedure by which things have to be done in a crisis
is impractical in the first place. And secondly, I believe it’s unconstitutional
as an undercutting of a president’s responsibility as commander-in-chief of our military forces. And thirdly, I would add, and this is probably
the most important point. A President of the United States under any
and all circumstances has to maximize his efforts either to maintain the peace on the
one hand or to achieve peace on the other. I firmly believe as a practical matter that
the War Powers Resolution with all its requirements handicaps a president. Announcer: From the nation’s capital, the
American Enterprise Institute for Public Policy Research presents Public Policy Forums, a
series of programs featuring the nation’s top authorities presenting their differing
views on the vital issues which confronts us. Today’s topic, War Powers and the Constitution. John Charles Daly: This public policy forum part of a series presented by the American Enterprise Institute is concerned with the war powers of the Congress
and the president. The issue is one our founding fathers preferred
after much debate not to spell out precisely in the Constitution but which the Congress
in the last three decades has been determined to interpret and define, our subject, War
Powers and the Constitution. In broad strokes, the Constitution stipulates
that the Congress shall have the power to declare war to raise and support armies and
to provide and maintain a navy. The president says the Constitution shall
be commander-in-chief of the armed forces. Now, interestingly, the Constitutional Convention
hammering out the language on War Powers discussed granting Congress the power to make war. But ultimately, it decided on to declare war. Again, in broad strokes, the War Powers Act
of 1973 requires the president, one, to consult with the Congress “in every possible instance”
before US armed forces enter hostilities, two, to report to the Congress within 48 hours
when forces are so committed, and three, to terminate the engagement within 60 days if
Congress hasn’t declared war or specifically authorized use of the armed forces. Finally, it allows Congress within those 60
days to direct the President to withdraw by resolution passed by both houses which will
not require presidential signature where improved lies the security and best interest of the
United States in the allocation of War Powers. But to chart a course out of this dilemma,
we have a distinguished panel, to my far right, Representative Lee H Hamilton, Democrat of
Indiana, member of the House Foreign Affairs Committee. He also serves on the Permanent Select Committee
on Intelligence, to my immediate right, Senator Charles Mathias Jr., Republican and senior
senator of Maryland. Senator Mathias is a member of the Senate
Foreign Relations Committee and second ranking member of the Judiciary Committee, to my immediate
left Representative Dick Cheney, a Republican of Wyoming. Mr. Cheney served in the Ford administration
as White House Chief of Staff. Congressman Cheney was elected to serve as
chairman of the House Republican Policy Committee, and to my far left Lieutenant General Brent
Scowcroft. Before retiring from military service in the
Air Force, General Scowcroft served in the White House as President Ford’s national security
advisor. More recently, General Scowcroft served as
chairman of President Reagan’s Commission on strategic forces. He was also coordinator of AEI’s 1981 project
on American vital interests in regions of conflict. Now to begin, let us hear first the views
of our 38th president. Gerald Ford: Let me take a particular
or a specific example of what happened under the War Powers Resolution during my administration. I’m sure people recall the seizure of the
merchant vessel of Mayagüez in 1975 when the Cambodians illegally under international
law seized an American merchant vessel off the shores of Cambodia. That precipitated, of course, a challenge
to my administration. How could we get the crew back without any
loss of life? How we could recover the ship itself. Under the War Powers Resolution, we would
have been hamstrung and handicapped in trying to go through all of the procedures which
were required. We had to take action, and we did. And the net result is the crew and the ship
were recovered from the enemy. Now, that doesn’t mean we didn’t sit down
and consult with the Congress. We tried to find them, and we were able to
have an opportunity to have them come to the Cabinet Room. And we did tell them what the facts were. We outlined what we were going to do, which
was successful. Members of Congress have many, many other
duties. Their principal responsibility is not to be
commander-in-chief, therefore, their information as to what’s transpiring on a minute-by-minute
or an hour-by-hour basis is not available to them. A president on the other hand, where the Constitution
gives him the responsibility of being commander-in-chief, he has to know by the hour at least what’s
happening so he can act responsibly. You can’t have 535 commander and chiefs. You can’t have 535 secretaries of state. Their duties under our Constitution are different,
different, important but different from the president. John Charles Daly: And now panel, I would post the same
question to each of you in turn. Has the world changed so radically in 200
years that the Congress should attempt what our founding fathers were not willing to do
in writing the Constitution, to specifically define and catalog the prerogatives and powers
of the Congress and the executive in the exercise of War Powers? Will you start Senator Mathias? Charles Mathias, Jr.: All right, would take the
issue I think with the question as it’s framed. The authors of the Constitution made it very
clear where the power over war and peace would rest. It’s true that they made the president commander-in-chief
of the armed forces, but they vested the decision as to war peace solely in the Congress of
the United States. They gave to the Congress the power to make
rules and regulations for the governance of the Armed Forces. They provided that the Congress should make
rules for captures on land or water. They provided that the Congress should issue
letters of marque, in other words authorizing a warlike acts by private vessels. So there is a panoply of power vested in the
Congress by the constitution, which makes it clear that the founders wanted the Congress
to control the issues of war and peace. And what the War Powers Act does is merely
to implement in a modern framework what I feel to be the very clear constitutional purpose. John Charles Daly: Congressman Cheney. Dick Cheney: I would take strong exception,
John, with the views of my friend and colleague Senator Mathias. I really believe that the notion of a declaration
of war is almost an outmoded concept under virtually any set of circumstances we can
conceive of under which the president would decide to commit troops to combat. I think in many respects, it’s a legacy of
the Vietnam War. It’s a statute that was adopted in an effort
to keep us out of the next war based upon a misperception of how we got into the last
one. It was put on the books I think with the expectation
that had it been on the books in 1964 and ’65, this nation would never have been involved
in Southeast Asia. I simply don’t believe that’s not the case. Congress consistently and continually supported
that adventure. And the War Powers Act hasn’t changed that
at all. I do believe very firmly that the War Powers
Act is an unwise and virtually an unworkable intrusion by the legislative branch into the
powers and prerogatives that a president needs to lead the United States in a very dangerous
and hostile world. John Charles Daly: Congressman Hamilton. Lee Hamilton: John, I support the
War Powers Act. Edwin Corwin, the great constitutional scholar
said that the Constitution is an invitation to the Congress and the President to struggle
for the privilege of conducting American foreign policy. And I think the War Powers Act simply reflects
that struggle. The purpose of the War Powers Act is to guarantee
that the Congress and the president will exercise their collective judgment on the most important
question that government faces, and that is whether or not you go to war. In this day and age with the extreme complexity
of the modern world, the very rapid growth of America’s responsibilities in that world
and the ambiguous nature of so many international conflicts, it seems to me that kind of a world
demands that the Congress and the president should exercise their joint judgment, their
collective judgment on the critical question of whether or not you go to war. It’s not a decision that ought to be made
by one man or woman even if that man or woman is the president of the United States. It ought to be a collective judgment. John Charles Daly: General Scowcroft. Brent Scowcroft: I think it’s not so much
that the world has changed in 200 years. But the United States and its role in the
world has changed substantially. The Constitution did not legislate a government
designed for maximum efficiency. It legislated a government designed to protect
the rights of the individual against an overweening government, and it does that very well. The problem is that the inefficiencies that
that kind of freedom protecting innovation dictates makes it very difficult for a world
power involved in many areas everywhere around the world to discharge its responsibilities. The struggle, as congressman Hamilton indicated,
between the executive and the legislature has swung back and forth over our history
of predominance one way or another. I think that in very practical terms, the
War Powers Act is the reflection of a time when following a series of dynamic and activist
presidents, the presidency was beset both by Vietnam, by Watergate, and the Congress
in effect seized an opportunity to make an inroad and to change the balance that had
prevailed essentially since Roosevelt. I do believe that we must find ways that the
executive and the legislature can cooperate in a discharge of the awesome business of
conflict. But I think the War Powers Act in the way
it does it, in fact, not only ties the hand of the president but in a sense makes conflict
more likely. John Charles Daly: Senator Mathias. Charles Mathias, Jr.: If I may say that I agree
with Dick Cheney that the War Powers Act grew out of the experience of Vietnam. I lived through that as a member of Congress. I voted for the Gulf of Tonkin Resolution. And I think it’s fair to say that most of
us who did vote for it felt in some way find me, as the facts were revealed, that we had
been bamboozled and that there was no mechanism, no process by which the Congress could come
to grips with a situation of that sort once the Act has been done, once the resolution
has been passed. I remember once riding in an automobile with
President Johnson and expressing some doubts about the war. And he said, “Here, you voted for this resolution. Now, if you’ve got the guts to step up and
introduce a resolution to repeal it.” And he reached in his pocket, and he pulled
out a copy at one handy. We were really without a handle in which to
debate these issues. And once troops are committed and casualties
are being sustained in a level of patriotism and the country is up, it’s very hard to grab
hold of. So what the War Powers Act provides is a mechanism
and a process by which the Congress can periodically review our involvement in foreign military
adventures. And I think this is entirely consistent with
what the founders of the Constitution proposed. James Madison who probably knew more about
the Constitution than any man who ever lived once wrote to Thomas Jefferson that the Constitution
supposes what the history of all governments demonstrates, that the executive is the branch
of power most interested in war and most prone to it. It has accorded me with studied care vested
the question of war in the legislature. John Charles Daly: Congressman Cheney. Dick Cheney: I guess I have to take
exception with Mac. I think the War Powers action… Charles Mathias, Jr.: Take exception with me but
you have trouble taking exception with Madison. Dick Cheney: Well, obviously, there
are differences in terms of our interpretation of what the Constitution provides and with
respect to whether the president of the legislative body has prime authority in this area. And I think most members of Congress, even
individuals like myself who have serious problems with the War Powers Act, believe that the
language of the Act that talks about consultation and notification is indeed perfectly appropriate. It’s the notion of Congress being able to
move in in a very short period of time and terminate that commitment that bothers me
a great deal. I look upon the Congress as being all too
often swayed by public opinion of the moment, that there is not a certainty there are or
a conviction, the kind of determination or decision-making that would let them be an
equal partner with the president with all of the resources that he has available to
him in terms of making a broad policy decision that’ll hold for a year or two. For example, of the Grenada situation, where
the Speaker of the House at the outset called it gunboat diplomacy and within a matter of
two weeks had changed his mind and said that, indeed, President Reagan had done exactly
the right thing in sending troops into Grenada. Charles Mathias, Jr.: He was right in the first
time. Dick Cheney: I think that Congress,
unfortunately, is a pretty weak read to lead on in terms of that kind of decision-making. I also would argue, Mac, that if the War Powers
Act had been on the books in 1964 when the Tonkin Gulf Resolution was adopted, that it
would not have altered the outcome at all, that Congress did indeed have the opportunity
year in and year out throughout the history of our involvement in Southeast Asia to reject
the course we were upon and consistently year after year after year appropriated the funds
for that exercise. So I really think it’s a bit of a misreading
of history to suggest that the War Powers Act might have altered the outcome in Southeast
Asia. John Charles Daly: Congressman Hamilton. Lee Hamilton: I think the real question
is whether the war-making power ought to be a decision made by one person or made by the
president and the Congress. That seems to me to be the heart of it. And the War Powers Act simply says that the
Congress is gonna participate in that decision. Why shouldn’t it? It seems to me that the guiding principle
is that a democracy should go to war only with the consent of the people, only with
the consent of the people as expressed by their elected representatives. So I think the War Powers Act is totally consistent
with the Constitution and with the founding fathers. Now, General Scowcroft speaks a moment ago
about tying the hand of the president. Well, quite frankly, that’s one of the things
we want to do, tying the hands of the president. We want to make the president say, to stop,
to think, to listen before he commits us to war. That’s what we want to do. John Charles Daly: Is there time recently when a president
did not consult before committing troops? Dick Cheney: Wow, look what happened
in Grenada. The president called in the speaker and the
majority leader at 8:00 in the evening. He did not consult with him. The Speaker of the House has said that. He said they were informed that the Marines
were landing at 5:30 the next morning. There wasn’t any consultation there. It was just a matter of informing. Informing is not consultation. At 8:00, the Speaker learns about of it. The rest of us learned about it in the newspaper,
and the Marines go in at 5:30. That’s not consultation. When Jimmy Carter, President Carter, sent
the troops into Iran for a rescue mission, he didn’t consult with the Congress. Brent Scowcroft: The Congress already has
adequate resource. It does control the purse strings. It does raise and maintain armies. If it doesn’t like what the executive is doing,
it has all the power it needs if it can get itself together to do it, to work as well. Dick Cheney: That’s a very slow power
though. It takes us a long time to that. The advantage of the War Powers Act is within
the 60-day period or within the 90-day period, the Congress has to act to approve or disapprove. Brent Scowcroft: No, it doesn’t have to
act. That is one of the key problems. If it doesn’t act, by its own inaction, it
makes a decision. Now, that it seems to me is a supine way for
the Congress to work as well. But the real practical effect of the War Powers
Act is, in the real world, the president sometimes has to introduce forces into an area to try
to prevent a conflict, to try to stabilize a region, to try to prevent something from
happening. In terms of demonstrating our resolve, by
telling our potential opponents that all they have to do is wait 60 days and see what happens,
you have undercut his ability to demonstrate that kind of resolve that could prevent a
conflict from occurring. Dick Cheney: No, I disagree with that,
General. What you’ve done is strengthen the decision
to commit the troops. If a president commits troops and he does
not have the support of the Congress and he does not have the support of the American
people, he’s not gonna be able to sustain that commitment and he’s not gonna be able
to keep those troops there. We’ve learned that lesson very, very hard. If you’re going to go into war, then you would
better be very sure that you’ve got the support of the American people. If you don’t have the support of the American
people, you’re not gonna be able to sustain it. How do you get the support of the American
people? One of the ways is to have the support of
the Congress. John Charles Daly: Let me if I may ask, ask that we focus
in on Lebanon. You played a major part in a compromise that
was worked out the terms of which were never specific as I understand it on whether the
War Powers Act was being implemented or not implemented. But it has another peculiar framework to consider,
which is that we were not introducing troops into Lebanon into hostilities. We were a peacekeeping force which we joined
together with other nations. Charles Mathias, Jr.: I think the War Powers Act makes a very
positive contribution to the management of the Lebanese situation. Far from perfect, as you point out, there’s
some ambiguities both in the way the situation came about and how we structured the response. But for example, we made it very clear that
the troops on the beach were to be limited to those who were there who were present on
the day the resolution passed. John Charles Daly: In terms of numbers. Charles Mathias, Jr.: In terms of numbers. There are ambiguities about offshore forces
about the naval forces. But the troops on the beach, there was absolutely
no question about. That was totally specific. If we go beyond the number of Marines who
were originally there, there has to be real congressional consultation more than just
advice. Lee Hamilton: John. John Charles Daly: Yes, Mr. Congressman. Lee Hamilton: John, if I understood you correctly,
you said that the War Powers Act was not implemented in the Lebanon situation. I think it was. John Charles Daly: No, what I said was that there seems
to be some confusion about whether it was applied or not or as accepted as applied by
both part. Lee Hamilton: Now, it’s very clear in the resolution
that was passed that section 4A1 was implemented in the resolution that we passed. President Reagan when he signed it, did so
with the reservations. He obviously had some questions about it,
but he did sign it. And this represents the first full use of
the War Powers Act. As I understand it, that triggered the 60-day
clause, that triggered the 90-day period. And now we have the first president on record
as having implemented the War Powers Act. Brent Scowcroft: He did not accept the war policy. Lee Hamilton: No, the president
when…he accepted it by signing the bill. Now, when he signed the bill, he made a statement
about his reservations about it. But the fact is he signed the bill, and it
is the law of the land. And the law specifically triggers the War
Powers Act. Brent Scowcroft: Mr. Hamilton, that’s like
the veto, single house veto. The president has signed numbers and numbers
of bills, many presidents have with that in it, many times stating that there is a constitutional
problem. That doesn’t mean that he acquiesces
in that. John Charles Daly: Congressman Cheney. Dick Cheney: The fact, John, that two
such obviously intelligent and bright and distinguished gentlemen as General Scowcroft
and Congressman Hamilton can’t even agree on what we did in the case of the Lebanon
Resolution strikes me as pretty hard evidence that it is a very difficult piece of legislation
and probably unworkable. I think from this…and I would certainly
support Brent’s views in terms of what the administration did. Also, I was fascinated by the debate on the
issue when it came to the floor of the house because the debate, if I recall, had nothing
to do with should we be there or shouldn’t we be there. Nobody offered an alternative that said everybody
out now. The alternative was it’s gonna be 60 days
or 90 days or 180 days or 18 months. And oftentimes, the debate over how many days
it should be and whether we ought to add a month or take a month off has very little
to do with the substance of policy. It has a lot to do with a posture to my colleagues
and whether or not you can build a majority for six months instead of nine months. I think it’s a bad way to make policy. I also think, as Mac pointed out, the limitation
on troops on the beach is very unwise. If you’re gonna commit military force to a
potentially hostile situation, one of the key ingredients to having it have any effect
at all is the uncertainty that it creates on the minds of your adversary. And if you have at the outset said, “Yes,
we’re gonna commit troops, but you can’t have any more than 1,600 on the beach under any
foreseeable set of circumstances,” it seems to me you’ve defeated the purpose of having
any troops there in the first place. John Charles Daly: Senator. Charles Mathias, Jr.: Two points, one this time
factor, of course, is not an absolute termination of the operation. The time factor is a period of time after
which the Congress will make a review and after which there will be further consultation. And as Lee Hamilton says, a joint decision
by the Congress and the executive as to whether or not the operation shall be continued and
maintained or whether it should be terminated. Now, it is the point that never came in Vietnam
in a formal structured way. And that’s the thing that was missing in the
Vietnam debate. The executive could simply roll over the Congress. The other point that I wanted to make was
this, that of course, it’s true as Dick says, that if you say we’re gonna get out in a limited
period of time, that that may make your adversary procrastinate and not come to terms with reality. But it also in the Lebanese situation could
make your friends there rest on their arms, not really engage in the hard political process
of bringing about a reconciliation of the conflicting interests within Lebanon, because
the longer they keep us there, the longer they don’t have to come to terms with the
realities of political life in Lebanon. So I think that there are two sides to the
question of the uncertainties that are created by a limited time frame. John Charles Daly: What about the big…at least in my
view, the big constitutional question, Mac, which is the right reserved to the Congress
to direct the president to pull out even in the 60 days and constitute in effect a legislative
veto of his actions with the Supreme Court holding certainly in other circumstances that
the legislative veto was unconstitutional. Does that bother you? Dick Cheney: I would have to say that
I think that the decision that the court did hand down does, in fact, not bode well for
the legislative veto features of the War Powers Act. And that the War Powers Act in terms of the
provision you cite would require the President to take an action by a simple majority vote
of both houses of Congress and that that is indeed a violation of the separation of powers. Lee Hamilton: I basically agree with Dick’s observation
on it. The provision of the War Powers Act which
permits the Congress to pull out the troops with a concurrent resolution is highly suspect
now with the Supreme Court decision. And my guess would be that it’s probably unconstitutional. There is a separability clause in the War
Powers Act. The likelihood I think would be that the balance
of the Act might still stand although that may be in dispute as well. But I think Dick is quite right in saying
that provision may very well be unconstitutional. Charles Mathias, Jr.: Of course, that doesn’t affect a large
part of the of the War Powers Act. The original statutory 60-day limitation on
the use of troops overseas is not affected by the Supreme Court decision. That’s pristine and untouched. The provisions on the growth of forces or
the change of mission or the change of scope of the mission, all of that is untouched by
the Supreme Court decision. Brent Scowcroft: I don’t have any particular comment on
the chartered decision, but it seems to me that’s only one of several areas where the
constitutionality of the Act is, well, at best dubious. John Charles Daly: Mr. Congressman or Senator, would you look kindly upon members of the Congress specifically serving with the National Security Council
and feel that that would give you…? Lee Hamilton: No, I think that causes real constitutional
problems. We are committed to the philosophy of separation
of powers. And I don’t see how you could have that kind
of an overlap. And I think that would cause problems. Consultation, I think…I don’t find as much
trouble with it as you seem to. I think it was entirely proper to call in
the legislative leadership and if the impropriety occurred not in the people that were chosen
in my view but the fact that they didn’t consult. Dick Cheney: John, if it’s appropriate can we pursue
just for a moment the consultation? John Charles Daly: But General Scowcroft wanted… Brent Scowcroft: No, that’s all right. John Charles Daly: You wanna go on? Brent Scowcroft: Go ahead. You gonna talk about consultation. Dick Cheney: Yes, I wanted to follow on with what
Mac said. And the problem part, Mac, is trying to define
what would have been acceptable. Let’s take Grenada for an example. You had a situation in which the president
believed American lives were at stake. How under those circumstances when the whole
train of events only lasted a few days from the time the problem arose until action was
taken what would be an acceptable consultation process? Charles Mathias, Jr.: I’ll tell you exactly. The critical decisions were being made down
there on the Golf Course in Atlanta. And the speaker plays golf. I mean, if you wanted to really have a consultation,
you’ll, “Come down here and play around the golf with me.” And he could join in those conversations that
took place in the clubhouse and on the ninth hole. Dick Cheney: Even with the consultation that the speaker
had, and I was present the morning of the event when the president met with a larger
group and he had bipartisan leadership… Charles Mathias, Jr.: After the fact. Dick Cheney: This was at the time that the invasion
was actually underway already. There wasn’t one single member in the room
of either party, some 30 members of the House and Senate in the room, not one single member
in the room who raised a question about the operation. But three days later, the speaker was out
publicly condemning the president for gunboat diplomacy. And 10 days later once he had all the facts,
once he had sent a delegation down to look at what had happened in Grenada, and I asked
some questions, he came back. He said, “Whoops, I was wrong. It was indeed a good operation.” How do you deal with that kind of situation
if you’re the president and you’re trying to have some kind of reasonable rational decision-making
process? Dick Cheney: Isn’t Grenada a classic
example not of a decision to go to war but rather of a commander-in-chief to take action
to save American lives and, therefore the War Powers Act probably shouldn’t even apply
at all even if we buy your arguments about what the purpose of the Act is. Lee Hamilton: Well, I don’t think so, Dick. After all, we committed combat troops in a
very major way. Those combat troops met resistance. They were fired upon. We sustained casualties. We had people killed in war there in the invasion
or in the rescue operation, whatever you wanna say. Now, the fact that it turns out that the American
people strongly supported the action, and I think the Congress strongly supported the
action, I don’t think is the relevant point here. There was a period of time when the president
was in the process of making the decision should we go into Grenada. The question of consultation, if you have
the right kind of a spirit prevailing here, it seems to me it would be to invite congressional
leadership in. And no member of Congress could complain,
I think, if that leadership or the leadership of the two parties in both houses of the Congress
and restricted only to that group and say, “This is what I’m thinking about doing.” The important point is prior consultation. The order to invade or to go in for the rescue
had already been made. The president had signed that order prior
to the 8:00 meeting. He did not call those leaders in to consult. He had already made up his mind to commit
American troops for combat purposes, and he did not consult with the leaders of Congress. Dick Cheney: If he had consulted, what might have
been the outcome? Lee Hamilton: Well, I don’t know. But you have to have…you have to give the
opportunity it seems to me. These are tough questions. Maybe the question is not as tough in the
Grenada situation as it would be in many, many others. But the principal is it seems to me that the
most important decision that government makes is whether or not to go to war. That is the paramount decision that government
makes. Should that decision be made by one person
or should it be made by that person, the president and the Congress? John Charles Daly: There were people who disagreed strongly with the executives exercise of War Powers Act but who did not want the War Powers Act
of 1973 on the grounds that that gave him powers which were not his under the Constitution. That straight of debate ran continuously. So the suggestion there is really that why
don’t we stay where we are. Charles Mathias, Jr.: I don’t think the War Powers Act alters
the president’s constitutional powers. They are what they are. And the War Powers Act doesn’t change that. Now, that argument is made, I grant you. It’s applied most often I think to the initial
60-day period in which the president has an open license. They say that the Constitution doesn’t give
him any days, 60, 30, 20, 10, any days and, therefore, to say that a president can act
during the 60-day period without congressional authorization that somehow it enhances his
power. I don’t think it does that. That was a device that was built into the
law. I think the War Powers Act doesn’t prevent
the president from making foreign policy decisions. It simply says that they should be coordinated
with the Congress. Brent Scowcroft: I certainly agree that
there should be consultation and with the right spirit, it can be worked out. With the right spirit, you don’t need the
War Powers Act. With the wrong spirit, the War Powers Act
really doesn’t affect the executive. I mean, suppose the president consults as
broadly as you want and the verdict is that he shouldn’t do something. There’s nothing that prevents him from going
ahead and doing it. Man: That’s right. Charles Mathias: For a while. Brent Scowcroft: For a while. John Charles Daly: But that was always there, wasn’t it? In the power of… Brent Scowcroft: But then, for the while,
it seems to me you get into another clear issue of constitutionality. And that is if the role of commander-in-chief
does not include the right to move troops around, then it is an absolute meaningless
term. And the Congress irrigates it to itself by
its inaction to force the President to do something which the Constitution says he doesn’t
have to do. In other words, to pull the troops out by
its own inaction, not even by saying to the president he shouldn’t do that for these or
that or the other reasons but just, because it’s unable to make up its own line, it is
forcing the president not to behave as if you’re a commander-in- chief. Lee Hamilton: The point, Brent,
it seems to me is that the war-making powers are clearly divided in the Constitution. Brent Scowcroft: Clearly. Lee Hamilton: You don’t give all
the power to the president. You don’t give all the power to the Congress. It’s a shared power, and that’s all we’re
trying to say in the War Powers Act. When you make a decision to go to war, let’s
be sure it’s a shared collective judgment. Brent Scowcroft: But Lee, it was shared
before. Take the Cooper Church amendments in Vietnam
that cut off our use of military forces in and over Cambodia and so on and so forth. There are many ways for the Congress to insert
in legislation the kinds of restriction that feels are important. And without an item veto, the president is
stopped. John Charles Daly: Well, I think one thing, we’ve covered
this subject very, very broadly. And I’m sure our audience would like to have
a chance to participate in, so I think it’s time for the question and answer session. May I have the first question please? John R: Yes, my name is John Rom [SP] with
the faculty at Clackamas Community College in Oregon City Oregon. My question’s for Representative Cheney. In the event that the Supreme Court would
declare the War Powers Act of 1973 is unconstitutional due to infringing the president’s power to
commit troops, what legislative alternatives would you propose in this case? Dick Cheney: My own personal view
is that we don’t need the War Powers Act. If the court strikes it down, I would expect
that it would be on the basis of the provision that we discussed up here earlier that is
to say that it constitutes a legislative veto. The president doesn’t have the opportunity
himself to veto that act by the Congress and therefore it violates the separation of powers. I think as Mac, and Lee, and Brent have all
said that the hearts of having the relationship work between the president and the executive
branch and the Congress in this area is basically a requirement for good-faith effort on both
sides. And my own personal view is that Congress
already has adequate restrictions and restraints and powers and authority on the book, on the
books so that they are in a position to be able to intervene. If a president does make a serious mistake,
they do have the power of the purse. They do have the opportunity to hold hearings
and conduct oversight investigations and decide whether or not Congress wants to sustain that
effort after the fact. But that in the 1980s, in the years ahead,
we are very unlikely to find ourselves in a set of circumstances where the kind of conflict
that is envisioned in the War Powers Act is likely to arise and that presidents have to
be trusted to some extent that once they’re elected, we delegate to them enormous authority. Directly and indirectly, we build nuclear
weapon systems and we give them total control over those system without consultation with
the United States Congress whatsoever. And it seems to me, having made that leap
of faith that we are, in fact, gonna trust the President to be commander in chief. Under those circumstances, we can also trust
him in other areas and that there’s no need for a replacement, if you will, for the War
Powers Act should that be struck down. John Charles Daly: Senator Mathias. Charles Mathias, Jr.: I think there is a subjective
value to the War Powers Act that perhaps hasn’t been sufficiently appreciated. During the debate in which it was first adopted,
Senator Javits, used to say that it was like a sign at a railroad crossing, that it was
simply saying stop, look, and listen before you embark on this journey overseas. And I think that that’s the effect that we
hoped it would have on the executive branch. But there is a subjective effect on the legislative
branch, which is not without some importance. And that is that in a non-adversarial way,
it provides a framework in which you can examine an operation. When I introduced the resolution, I think
it was in 1969, to repeal the Gulf of Tonkin Resolution, finally took up Lyndon Johnson’s
challenge. That was, in fact, an adversarial action. But the kind of periodic reviews that are
provided in the War Powers Act don’t have to be adversarial. People will take sides within the debate,
but the existence of the debate itself becomes a matter of procedure and is neutral as to
the event. Charles Mathias, Jr.: I would like to suggest that
that is not the way it is viewed by the executive branch, that it is an irritant to the executive
branch, and considered broadly a congressional attempt to infringe on the prerogatives of
the President. And in fact, it prevents the kind of freewill
cooperative consultation, which I think is the fundamentally real answer to our problem. Dick Cheney: I come back to the basic notion, Mac,
that I don’t think we can find an example in modern times when a president hasn’t done
what the War Powers Act expects him to do anyway to the extent that we talk about consultation
and notification. I don’t know of anybody, who served in the
presidency in the last 30 or 40 or 50 years and probably longer than that if I went back
far enough, who would have made a decision in n high-handed arrogant fashion to commit
troops in a way that ultimately lacked the kind of public support, broad public support
that it requires. Certainly, that wasn’t Lyndon Johnson’s intent
when he got involved in Southeast Asia. Certainly, that wasn’t the congressional intent
when they supported it. In the end, public opinion swung against it. But it took years of developments and gradual
constant escalation of our involvement therein, but there’s nothing in the War Powers Act
had it been in place in 1964 or ’65 that it would change that. I think we do have to rely to some extent
on good faith interpretation of our responsibilities both as legislators and executives. And I think that history would bear out the
statement that in fact that good-faith effort has been there in virtually every case. John Charles Daly: Senator. Charles Mathias, Jr.: One of the premises of which
we are meeting is to discuss constitutionality and therefore I dragged you back to the history
of the Constitution which… John Charles Daly: Thank you. Senator. Charles Mathias, Jr.: …which I think is pertinent. The executive side of this argument is presented
as the need to reposed confidence in the judgment of the president and his advisors. Alexander Hamilton was never thought to be
soft on the executive. He was always viewed as a strong executive
advocate. What he said in writing, the “Federalist Papers”
that the history of human conduct does not warrant that exalted opinion of human virtue,
which would make it wise in a nation to commit interests of so delicate and momentous a kind
as those which concern intercourse with the rest of the world to the sole disposal of
a magistrate created in circumstance as would be a President of the United States. And I think there is a kind of concern expressed
at the very birth of the Republic that reflects the problems that we are discussing here this
evening. Brent Scowcroft: I would agree with that. But I think, you know, to imagine that the
world is different and therefore the framers, in a sense, didn’t know what they were doing
or what have you is wrong. There’s been a recent study that about 10%
of the military engagements between 1780 and 1880 were consequent to a declaration of war
that is around the world. So that the idea that undeclared wars are
a recent phenomenon is certainly not true. Charles Mathias, Jr.: But the degree is different but the circumstances
are pretty standard. Brent Scowcroft: In the process of writing the Constitution
as I think…I can’t remember who said it now, the words to make war were deliberately
changed to declare war. Now, that cannot have been accidental. John Charles Daly: It wasn’t accidental. It was a result of debate. Brent Scowcroft: And it seems to me that that’s a very
important change. One is in a sense recognizing a situation
if you will. The other is initiating. Charles Mathias, Jr.: But Hamilton who was there argues that
the power there was not vested solely in the President and should not have not been. Brent Scowcroft: And it is not. Charles Mathias: And should not have been. Brent Scowcroft: And it is not because the Congress raises
and maintains armies. John Charles Daly: Well, we have to get another question. There’s somebody…You’re next, are you sir? Yes, sir. Robert: I’m Robert Goldwyn, director of constitutional
studies of American Enterprise Institute. Senator Mathias, that passage from Alexander
Hamilton you just quoted was in reference, not to making war or declaring war, but in
reference to the power of the constitutional advice and consent on treaties. And I think that raises an interesting question
related to what Congressman Hamilton was saying about bringing Congress into the decision-making. Do you mean some kind of consenting role in
the same sense as advise and consent with regard to treaties, that is would you really
try to restrict the power of the President to the extent that, if when he did consult
with members of Congress and they gave him opposing advice or conflicting advice as congressmen
and senators want to do, that is they disagree among themselves, then what does the president
do? Do you really mean that the congressman should
have some role in the decision-making power, because that then puts in real question the
whole principle of separation of powers? Charles Mathias, Jr.: I think we made that clear
in reference to General Scowcroft’s question about whether members of the legislative branch
should serve on the National Security Council. I think that clearly would be a violation
of separation of powers. And under the American Constitution as we
know it today, it wouldn’t be proper. And I’m not suggesting that. I think what Hamilton was looking at was foreign
policy, and war is, of course, the ultimate extension of foreign policy, the ultimate
act of foreign policy. And so, I think it’s clearly comprehended
within his thinking. It seems to me that what we’re saying is that
there must be a coordinate decision made now. I don’t see how we can ever embody in a statute
precisely how this will occur. Lee Hamilton has one kind of personality. Dick Cheney has a kind of personality. There will be presidents with which one of
them will be simpatico and presidents which the other one will not. And these human factors get into the act. General Scowcroft and Dick Cheney both having
served in the highest positions in the White House know how personalities have become important
elements of policymaking and decision execution. But I think that’s one reason that it’s impossible
to create an absolutely rigid hidebound system of consultation, that from administration
to administration, it’s gonna change a little bit. But I think the factor is that the president
be exposed to all the considerations before the decision is made. Lee Hamilton: You ask should the Congress consent. Why shouldn’t the Congress consent? What’s wrong in a democracy by making a judgment
in a democratic manner? That’s all we’re asking. Brent Scowcroft: Are you saying that consent should be
mandatory on the president, should be binding on the president? Lee Hamilton: No, the question was, should the Congress
consent to the decision. And I see nothing wrong with the Congress
consenting. Dick Cheney: Again, Lee, we come back to the proposition
that most of the times when military force has been used in recent years simply haven’t
been circumstances which let themselves to that kind of process. Lee Hamilton: What kind of a war can the president
of the United States carry out if the Congress of the United States doesn’t consent? Dick Cheney: But in many respects, again, we’ve already
given prior approval in a sense. We have appropriated the funds, and raised
the army, and purchased the equipment, and built the missiles and the bombers, and said,
“Okay, here now you have the authority to make decisions about how we’re gonna use certain
elements of that.” That suggests that you can go to the Congress
and involve the Congress as deeply as I think you would like to in the decision in advance
of the actual commitment of troops just strikes me is not very practical. Charles Mathais, Jr.: I simply have to raise the caveat that
the existence of the defense establishment is, in some way, an authorization to the President
to start out on foreign adventures. I don’t believe that. Dick Cheney: It’s a recognition that we live in a
dangerous and hostile world. And from time to time, we may have to defend
ourselves and defend of our interest and that the individual we look to make those decisions,
especially those that take on the nature of a decision of a commander-in-chief rather
than a legislative body, we entrust to the president. Charles Mathias, Jr.: But I think, as Brent Scowcroft had said,
we entrust that final decision to the president. But we have confidence that Secretary of State
will have his say, that the Secretary of Defense will have some comment, that the Joint Chiefs
of Staff will talk about the military feasibility, that the Central Intelligence Agency will
provide basic information, that the whole operatives of government will be brought to
bear. Now, at some point in that decision-making
process, and I certainly would not have meant to imply, that I thought that this is something
the president decides in the shower bath on his own, that somewhere in this process, there
is room and time to register the congressional point of view. Lee Hamilton: I think you have to draw a distinction
between two situations. One is the emergency situation. Dick, you refer to that awful frequently. And I think you’re probably correct in that. There are gonna be times when a president
has to act. Arguably, that was Grenada. The American citizens had to be rescued right
now. And the president really didn’t have time. I can see how you can make a case for the
president moving very quickly on that. But that’s not the only time a president is
or the only manner in which a president is going to be confronted with the decision to
commit troops. Should we invade Nicaragua today? That’s a possible question on the agenda of
the country. If I were a president reflecting on that question
today, I’d like to call Mac Mathias and talk with him about it, and talk with some others
about it too. And that’s what we’re saying. And it seems to me that kind of a situation
is very different from the emergency situation. Brent Scowcroft: I think we need to be clear about another
thing. And that is War Powers Act does not say the
president will not attack this or that or the other. It really says the president may not move
troops. That’s what it’s talking about, may not introduce
troops in certain areas. It seems to me that is fundamental. Charles Mathias, Jr.: In certain circumstances in which hostilities
are imminent. Brent Scowcroft: That’s right. But it’s back to Dick’s point about having
raised armies, what can the president do with them? And it seems to me that if the commander-in-chief
cannot deploy and move his forces around, then the term commander-in-chief is absolutely
meaningless. We’re not talking about specifically going
to war here. There is nothing about that in the War Powers
Act. Charles Mathias, Jr.: We’re talking about hostilities, and
that is in the War Powers Act. Brent Scowcroft: Where it is possible. We’re not talking about the president using
forces offensively deliberately to attack. John Charles Daly: All right. Next question please. Who has the microphone? All right. We get to microphone. Terry: I’m Terry Emerson, counsel to Senator
Barry Goldwater who voted against the War Powers Resolution. I make a quick comment on Alexander Hamilton
because I’ve read his works in a famous set of written debates with James Madison. Hamilton did make a clear distinction between
offensive war and defensive war. He said the Congress can commence offensive
war through the declaration power, but the president possesses the defensive power to
initiate defensive actions on behalf of the United States. My question to the panel would be to any member
who would wish to make a test of the War Powers Resolution against the history immediately
preceding World War II. Take the actions of President Franklin Roosevelt
in 1941. In 1940, Congress had barely renewed the military
draft by a single vote. Yet in 1941, President Roosevelt, before any
declaration of war, sent American Marines equipped for combat to both Greenland and
Iceland. He gave them orders to cooperate fully with
British armed forces who were already there defending the islands against Nazi Germany. Franklin Roosevelt also ordered the American
Navy to escort British shipping in the North Atlantic and to shoot on sight against German
U-boats, all this before any declaration of war. Under the War Powers Resolution, Congress
would have been faced with having to vote within 60 days on whether to extend President
Roosevelt’s powers. I asked whether testing the War Powers Resolution
in this situation would not have led to a total disaster for the democracies of the
world through an isolationist Congress refusing to ratify President Roosevelt’s wise actions. John Charles Daly: Who would like to start? Dick Cheney: I’ll simply say that the gentlemen I
think stated the case eloquently and he’s absolutely right. John Charles Daly: Sir. Charles Mathias, Jr.: Well, I think it’s only a hypothetical
judgment is what might have happened if the War Powers Act had been in effect. It is so difficult to project. It it’s true just by way of example how unpredictable
history is. It’s true that Senator Goldwater voted against
the War Powers Resolution, but thereafter, he called for the immediate withdrawal of
the Marines from Lebanon. I don’t know what real conclusions you can
draw. John Charles Daly: This concludes another public policy
forum presented by the American Enterprise Institute for Public Policy Research. On behalf of AEI, our hearty thanks to the
distinguished and expert panelists, Representative Lee H. Hamilton, Senator Charles Mathias Jr.,
Representative Richard Cheney, Lieutenant General Brent Scowcroft and also our thanks
to our guests and experts in the audience for their participation. Goodbye from Washington. Announcer: It is the aim of AEI to clarify
issues of the day by presenting many viewpoints in the hope that by doing so those who wish
to learn about the decision-making process will benefit from such a free exchange of
informed and enlightened opinion. This public policy forum series is created
and supplied to this station as a public service by the American Enterprise Institute Washington,
DC. AEI is a nonprofit nonpartisan publicly supported
research and education organization. For a transcript of this program, send $3.75
to the American Enterprise Institute 1150 17th Street Northwest Washington, DC 20036.

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  1. To think that John Charles Daly ran one of the best panel shows called What’s My Line for 17 long years and then stayed lost in obscurity for two decades after that, doing stuff like moderating policy decisions at AEI…perhaps he wanted to be taken seriously and therefore did not venture back into mainstream populist TV programs..

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