meant that the nation had to associate itself with the forces opposing Nazi Germany. The demands of waging war against Hitler caused Roosevelt, and later Truman, to conduct a diplomatic and military effort that departed utterly from the intention of the framers. The Commander-in-Chief became an autocrat, deploying troops, coordinating efforts with allies and arranging an armistice (at Yalta and Potsdam) that determined the shape of post-war international relations. The sense of crisis that called forth this awesome exercise of executive authority extended virtually unbroken into the post-war period. Several times over Berlin, and most dramatically over Cuba in October, 1962, constitutional processes stood paralyzed while individual human beings-chief executives of nations that commanded the power to invoke Armageddon-tested one another's courage and resourcefulness. There has lately been a tendency to demythologize these episodes to see them, in the manner of certain Civil War historians, as unnecessary figments of the excited, almost adolescent imaginations of the protagonists and their contemporaries. But whether necessary or not, these confrontations were perfectly real, and they presented situations in which a single man on either side could have ended human history by unleasing nuclear power. Those who want to reassert a Congressional role in the normal conduct of foreign relations must be prepared to isolate these episodes and acknowledge their import. During World War II and in such confrontations as those over Berlin and Cuba, the nation was faced with crises that, owing to the need for quick responses and secret negotiations, had to be handled by a unified authority. In such situations the nation's captain must do what he regards as necessary. But necessity, a Milton warned, is the tyrant's plea. The difficulty in granting that dictatorship may occasionally be justified, even in a constitutional regime, is that the habit of invoking the device tends to become inveterate. To oppose this tendency, Congressional skepticism must be cultivated. Was it really necessary to send military "advisers" to Indochina in the absence of a Congressional declaration of war-or even, until 1964, of any "functional equivalent" thereof? Was it necessary for American naval vessels to be in the Gulf of Tonkin in August, 1964? This nation possesses a nuclear arsenal that is beyond the imagination of man in its massive and finely articulated power. Was it necessary for such a nation, if it really intended to withdraw its forces from Indochina, to destroy enemy sanctuaries in Cambodia in order to guarantee the safe withdrawal of those forces? Under present leadership the executive branch apparently does not intend to abandon the intention to serve, in the President's words, as "the policeman of Asia." It is this policy, implemented through the President's self-proclaimed "Guam Doctrine," that determines our actions in Southeast Asia. It is rooted in the determination of Nixon and the four preceding Presidents that the protection and promotion of this country's interests require the containment of "Communism" in its present sphere. Though this has been a Presidential policy, it is reflected as well in a series of treaties negotiated and concluded during the late 1940's and 1950's. To be sure, these treaties, if strictly interpreted, do not entail or justify the actions taken by Presidents Kennedy, Johnson and Nixon in Indochina. The SEATO pact, for instance, calls on signatories to proceed by their own constitutional processes to fulfill the treaty's obligations. If the Constitution requires that the dispatch of troops to foreign soil be preceded by affirmative action by Congress, the the citation of the SEATO treaty to justify our presence in Indochina merely begs the question of constitutional regularity. A mystique has grown up around the making of foreign policy which must be dissipated before Congress can exert real influence in this area. This mystique arises in part from the sense that modern conditions impose unprecedented demands on government. Owing to the quickened pace of change in the world today, it is contended, international relations are more turbulent than ever before. It seems that only men who give full attention to foreign affairs can act responsibly and effectively in such a kaleidoscopic environment. Reinforcing this alleged monopoly of knowledge is the old rule that the Senate cannot force the executive branch to yield its secrets. The Supreme Court has affirmed that Presidential power asserted: that some information is too sensitive for Senatorial eyes, and that the President is the proper judge of what Senators may be allowed to see. There are several factors contributing to the latitude of modern Presidents in this field. One is the sense that we are now dealing with foes of unprecedented malice and cunning. Another is the belief that the range and variety of American involvements increase the demands on policy-makers. When we had just a few embassies abroad and relatively few treaties to observe, it may have been possible for Congress to maintain close superintendence. Now the State Department has over 40,000 employees, threefourths of them abroad. A list of the titles of "treaties in force" as of January, 1970, fills a volume of 374 pages. Finally, it is contended that nuclear power has changed the nature of international relations generally and that the changes in constitutional balance merely reflect these new conditions. These arguments tend rather to overwhelm than to persuade. In the perspective of the founding period, for example, it is clearly not a modern phenomenon that diplomacy often requires secret negotiations and quick decisions, or that the conduct of foreign relations, in the day-to-day dealing with foreign powers, is appropriately an executive function. But the decision to commit armed forces to the defense of foreign soil or foreign governments is unique. It was deliberately given solely to Congress because, as Jefferson put it, those who had to pay were less likely to want unnecessary wars than those who had to spend. Similarly, it is nonsense to assume that we are in a period of unusual hostility between nations, or that our foes are more ruthless than Napoleon's France or Canning's England. In yielding to the view that Communism makes our current foes more implacable and dangerous than earlier enemies, Congress helps to prepare the way for its own dismissal from the policy-making process. The contention that only the President commands the necessary information and expertise to act responsibly is absurd. Recent Presidential declarations have not been notable for their brilliance, nor for the accuracy of their predictions about the effects of policy. Where expertise is needed, non-governmental institutes are readily available to Congress, and more can be created. Recently Congressmen have been establishing new associations, such as the Members of Congress for Peace Through Law, in part to avail themselves of these independent sources of information and analysis. The last two factors-the extent of our involvements abroad and the availability of nuclear armaments-are genuinely new. But to cite them as justifying executive usurpation in the field of foreign relations is preposterous. The primary question for policy is not how our government can best manage the world's international relations, but whether, or to what extent, we ought to assume that responsibility. As for nuclear weapons, it cannot be denied that they raise the stakes in international relations. It is more important than ever before that our policy be relational, temperate and humane. The question is, given these awful stakes, should we continue to entrust foreign policy to Presidents acting virtually on their own authority, or should we try to restore the balances written into the Constitution? We come at last to consider the rationale behind the constitution of American government. It is often pointed out that the process of policymaking is no longer democratic. The implication is that the framers ordained a democratic process in the Constitution, with primary responsibility for raising armies and declaring war lodged with Congress and with the President confined essentially to administrative functions. Now that the President has "usurped" the primary role in policy-making, we have departed from the framers' democratic intent and substituted processes tantamount to autocracy. This analysis is not satisfactory. It ignores a fundamental difference between the Constitution as framed and as it operates today. In the framers' understanding, the President, who was not directly elected by the people, was not really a "popular" official in the sense that Congressmen are. The framers intended that the people whoose Electors whose sole responsibility would be to select the man best qualified to be President. Because of what they regarded as the natural tendency for chief executives to assume monarchial powers, and because the framers were particularly anxious to prevent such a concentration of power in one person, they assigned most policy-making functions to Congress, especially those most likely to be abused by a man ambitious to be emperor. EXECUTIVE AUTHORITY AND THE FRAMER'S INTENT This original design has been altered by a number of factors. In the first place, the party system has overwhelmed the Electoral College and given the President a valid claim to being a democratic leader. It is now an exceedingly subtle question whether Congress or the President is the more democratic instrument. Some analysts stress the distortions of popular will inherent in the Congressional seniority and committee systems and in the gerrymandering of districts, and look to the President, chosen by a nationwide constituency, as the truest representative of the popular will. Others, more impressed by the intimacy of dialogue between Congressmen and their constituents and by the greater responsiveness of Congress to well-articulated pressure, insist that Congress is still the most popular branch of the federal government, despite changes in the character of the Electoral College. This latter viewpoint would have been almost incredible to liberals ten years ago. In light of the recent insulation of the Presidency against certain kinds of influence, it may now seem more plausible. Thus, although both branches contain features that obstruct and distort the dialogue between elected officials and the people, both lay serious claim to being representative of the popular will. Furthermore, the institutions are separated, not by "parchment barriers" (words in the Constitution), but by virtue of the fact that they represent the national constituency in differing ways. This separation was instituted, not because the framers forgot that a simpler government would be more efficient, but precisely to make the process of policy-making slower and more deliberate. The framers were convinced that there was political wisdom in the people. The danger was that this wisdom would not have time to ripen and bear fruit; that passions of the moment would set a course of policy difficult to reverse. Their provision against this danger was to construct a government whose processes were deliberately time-consuming and complicated. In doing so they ran the risk of giving undue advantage to the status quo, inasmuch as it is difficult to pass progressive reforms through the various stages of the legislative process. In fast-moving times, this disadvantage is sometimes galling, as when a popular majority clamors for medicare or federal aid to education. But when the majority is clamoring for laws to curb dissent or strip the gears of criminal justice, those whose views are temporarily unpopular must be grateful for all the delays available to astute men like Emmanuel Cellar and Sam Ervin. In the area of foreign policy, the intention of the framers to thwart adventure seems obvious. The power to raise armies is lodged with those who must provide for their supply. The power to declare war is given to those whose dialogue with soldiers-and their parents, widows and orphans-is liable to be most intimate, and who are therefore likely to want a more concrete, less abstract understanding of the war's justification than can be given over nationwide television. The machinery set forth in the Constitution was intended to work slowly and cumbrously, to restrain the opportunity of those whose remoteness from accountability might encourage the tendency to believe that destiny is calling them to grandeur, or perhaps to the role of universal savior. This is why the Constitution is sometimes called a conservative document. It was made by who saw darkness in human nature and believed that one of the challenges to makers of popular government is to curb and baffle these destructive tendencies. Their arrangements for making foreign policy were meant to serve this understanding. men RESTORING THE BALANCE In recent years the gears of this process have been stripped. When the Senate Foreign Relations Committee repeatedly contends that the executive branch has taken over functions intended to remain with Congress, the Department of State responds that Congress retains manifold opportunities to give effect to its convictions about America's proper role in international relations. In a way, both are correct. In its responsibility for appropriations and for the increase of troop strength, foreign aid and the like, and in the Senate's power to ratify treaties and participate in the appointment of top-level diplomatic personnel, Congress retains abundant opportunity to share in foreign policy-making. On the other hand, these powers have not recently been exercised in an independent, autonomous fashion. Whether owing to a desire to serve penance for the rejection of the Versailles Treaty, or out of deferrence to executive expertise, or because it shared the vision that underlay the policy of the post-World War II period (this latter factor should not be discounted), Congress has served primarily as the accomplice and supplier for policy made by the President and his aides. The most dramatic illustration of the cumulative effect of Congressional abdication is the process by which President Nixon reached his decision to send ground combat troops into Cambodia. An analysis in the New York Times (June 30, 1970) mentioned the name of no Senator or Congressman. In an account published by Look magazine in August, 1970, it was reported that Senator John Stennis, Chairman of the Armed Services Committee, was informed about a week before the incursion took place (he approved of it) and Senator John Williams, fifth-ranking Republican on the Foreign Relations Committee, was told two or three days later (he warned against it). Otherwise, no Senators or Congressmen appear to have been "consulted" at all. What strategy can Congress now follow to restore Constitutional balance? In 1969, a "sense-of-the-Senate" resolution was adopted to the effect that a commitment to use armed forces on foreign territory "necessarily and exclusively results from affirmative action taken by the executive and legislative branches of the United States Government." Both the Johnson and Nixon administrations have responded that such a resolution "could not change the Constitutional powers of the President," to which the Committee has replied that its intention is not to change the Constitution but to signal a return to its intended operation. Such a resolution has primarily symbolic significance. A real return to the processes ordained by the framers can only be achieved by the assertion of Congressional independence through the positive use of its powers of legislation and appropriation. At least while Nixon remains in the White House, the restoration of Constitutional balance will require a dramatic recovery of moral courage by Congress. It will not be easy. The tactics available to the Administration were dramatically illustrated in December, 1970, during the rush for adjournment when it was decided to appropriate money for military aid to Cambodia without waiting for the authorizing legislation to clear the Senate Foreign Relations Committee. At the same time, it was darkly hinted that Fulbright's "uncooperative attitude" on military aid was giving weight within the Administration to a Pentagon drive to draft future aid bills in such a way as to transfer legislative jurisdiction from the Foreign Relations to the Armed Services Committee. Thus, it may be too late. Maybe no amount of courage by individual Senators can propel Congress back into foreign policy-making. Maybe the Constitutional balances have been disturbed beyond restoration by the traumatic challenges of Hitler and the Soviet Union. But if so, we ought not to stumble along as if nothing had happened. If Congress can no longer force the President to share control over foreign policy, and if we still subscribe to the framers' conviction that no single man should be trusted with absolute power, then the time may finally have come to revise the American Constitution. That is the nature of the crisis we face. THE UNIVERSITY OF TEXAS AT AUSTIN, Hon.. SAM J. ERVIN. Jr., Chairman, Subcommittee on Separation of Powers, U.S. Senate, Washington, D.C. DEAR SENATOR ERVIN: In compliance with your letter of June 21, 1971, I submit herewith a statement on S. 1125. Thank you for your courtesy in suggesting that I formulate an opinion on this matter. I hope it is useful to you and to your colleagues. Sincerely yours, STATEMENT ON S. 1125 W. W. ROSTOW. S. 1125, as I understand it, would require the President's personal aides to appear before Congressional committees and to testify on all matters except those where the President personally claimed executive privilege. The terms of S. 1125 would leave presidential aides and the President himself open to considerable public harassment by Congressional committees. It would thus alter the tradition of executive privilege as it has existed since President Washington's time and constitute a substantial weakening of the relative power of the Executive versus the Congressional branch of the government. I assume, from observations made by one of its sponsors, that S. 1125 is aimed, in particular, at the President's role in the formulation and execution of foreign policy. As an historian and someone who has had the privilege of serving in the Executive Branch for intervals spanning the period since 1941, I am opposed to a weakening of the President's powers in foreign affairs. The Founding Fathers gave much attention to this matter, as we all know. The incapacity of the nation to conduct foreign affairs effectively through Congressional committees in the 1780's was, of course, a major reason for the formulation and acceptance of the Constitution. The deep and understandable suspicion of excessive Executive authority nevertheless left in the Constitution very great powers in the hands of Congress in foreign affairs. Although I would certainly suggest no change to diminish Congressional authority in foreign affairs, we should all face the fact that this authority has not always been used with wisdom. In this century, for example, Congressional opposition to two Presidents helped cause the Second World War. First, there was the rejection of the League of Nations, in which the Senate played a crucial role; and then, in the 1930's, resistance through rigid Neutrality Acts to President Roosevelt's efforts to deter the Axis by throwing American weight into the balance. Congressional pressure to pull our forces out of Europe and unilaterally to demobilize our military strength helped encourage Stalin, in 1945-47, making the Cold War inevitable. The conduct of the Korean War was gravely complicated at a critical stage in 1951 by extra-constitutional communications between a general and a senior member of the Congress. The shifting position of the Congress on Southeast Asia, despite the SEATO Treaty and Southeast Asia Resolution of 1964, will, I believe, be judged in history as one major factor in prolonging the war in Vietnam. Why has the collective behavior of the Congress in foreign affairs been quite often less than satisfactory? The answer cannot be in terms of personalities. After all, four of our past five Presidents have been members of the Senate, three also members of the House of Representatives. The answer is, I believe, two-fold. First, the President and the members of Congress have different constituencies. The latter are elected from states and districts which have strong local interests that demand representation in Washington. They may also have narrow particular foreign policy interests. But no member of Congress is elected with a primary duty to weigh the nation's interest as a whole. Second, the people do not look to the Congress to make foreign policy and do not hold its members responsible. They look to the President, knowing that his constituency is national and that he is amply checked by the treatymaking powers of the Senate, the Congressional control over the purse strings, and other restraints on wilfulness or bad judgment. And every four years the people can and do make their own assessment of the President's performance in foreign as in domestic affairs. And if the President does not run, they make the best assessment they can of the policies, character, experience. and judgment of the candidates, knowing one of them will have to act for all of us in a complex and dangerous world. |