Gerald R. Ford, Former U.S. President
February 20, 1978
The War Powers Resolution
President Acker, Governor Landon, Governor Bennett, distinguished state officials, my former colleague in the House of Representatives, Keith Sebelius, members of the faculty, student body and guests. It's a great privilege and a very high honor to have the opportunity of being on the Kansas State University campus. I'm especially honored to have the privilege of giving a Landon Lecture on public issues.
I thank Governor Landon, I thank the University, and I thank all of you for this wonderful experience. I was looking over the list of people who have previously given the Landon Lecture and it's a very prestigious group. There was one that struck me because of my longstanding personal friendship with him, a person on the other side of the political aisle, an individual who was sworn into the United States Senate, the same day that Jerry Ford became a member of the House on January 3, 1949. I speak of Hubert Humphrey.
Even though we had many differences and even though we discussed issues from a different point of view, over a long period of time, Hubert Humphrey and Jerry Ford became very close friends as did his wife, Muriel and my wife, Betty. I could tell you many wonderful stories about Hubert, but one comes to mind, because it was the last. I was in the nation's capitol in December of last year, and there was a ceremony honoring Hubert.
He had been the author of certain legislation. I, as president, had approved the legislation, signed it into law, so I was asked to participate in the ceremonies. They were held in the Senate caucus room with foreign dignitaries, members of the House and Senate and the press. I was asked to make a few remarks and I paid tribute to a great senator and statesman of this era, and it came from the heart because of our personal relationship.
Hubert then had the opportunity to make some observations and comments. I was sitting to the right, as Governor Landon is at the present time, and Hubert got up and said he had just seen Betty as a commentator on the Bolshoi ballet, when they were performing the Nutcracker. He said, "My, she's beautiful, my, she's attractive," and then he turned to me and he said, "Yes, and some people always marry above themselves."
But, it's wonderful to be here on your campus. A fine facility for basketball. I understand that you had a certain victory a week or so ago against a team from the Soviet Union. I congratulate you. I hope the United States is as competitive and as successful against the Soviet Union in our wide variety of contacts as the Wildcats were a week or so ago.
It goes without saying that Governor Landon is one of my favorites in public life. You know probably better than I that Alf Landon has always stood for constructive, affirmative action, for those involved in the political arena. He has always worked for the best interests of the United States regardless of partisanship or political philosophy. And all of us are deeply indebted to Governor Landon and wish him the very, very best for a good many more years of good health and good happiness. Alf, it's nice to see you.
Despite my retirement, I've had a rather hectic schedule lately. Last week I was privileged to be a visiting professor on the campus of UCLA in Los Angeles. The weather in southern California, was, how can I say it kindly, a little different than Manhattan.
But it's nice to be here with the students. I enjoyed the one class this morning, and I'll have another this afternoon. I've been to 25 college universities and campuses since leaving office January 20, 1977, and I find regardless of the area that I visited or the college or university campus where I was privileged to be, that the students are bright, optimistic, inquisitive, respectful, and they're deeply concerned as to what is right and what is wrong in our government and our government's policies.
With the thought of those kind of questions, I would like to discuss the quest or the challenge for a proper balance of power, particularly in foreign policy between the executive and legislative branches of the federal government. This fascinating, frustrating search is as old as our Constitution with roots much deeper in the history of governments. It has, at various times, concerned the Roman Senates and Caesars, the English kings and Parliaments. It has concerned others fully as much as it concerns American presidents and the United States Congress at the present time.
The framers of our Constitution, well-schooled in the history of governments, recognized the need for separate powers as checks and balances among the executive, legislative and judicial branches. They gave the Congress the power to coin money, collect taxes, appropriate funds; to regulate commerce; to establish courts; to raise and support an army; raise and support a navy; to declare war; and to make all the laws necessary and proper for executing the powers of government.
The president on the other hand was assigned the powers of commander-in-chief of the Army and Navy; the appointment of ambassadors, the appointment of judges and other public officials; the veto of congressional legislation; and the power to convene the Congress in special session.
With powers thus divided, neither branch was intended to dominate the other. Yet each has established a clear dominance at stages in America's history. In 1885, a young Woodrow Wilson published his doctoral dissertation on the subject of "Congressional Government." He concluded that the Congress was the dominant branch of government and that the president, and I quote, "was nothing but an ineffective figurehead."
He advised and again I quote, "We think less of checks and balances and more of coordinated power," and that we achieve that coordinated power through "the encouragement of presidential leadership." But the question remains, "how should those powers of the executive and legislative branches be coordinated, especially in the field of foreign policy?"
And I address this question today as one who has been honored to serve at both ends of Pennsylvania Avenue over the past 28 years. As a member of Congress, I often wondered if the presidents with whom I served weren't going too fast in making important decisions and commitments for the United States. I wondered if the White House didn't isolate them too much from public opinion and from the free expression of competing views.
Later, like many modern presidents, I occasionally displayed a certain impatience with the painstaking, deliberative process that is the heart and soul of the legislative branch. The pace of this modern age, however, has been so fast, its problems filled with such urgency, that the parliamentary rules and customs so deeply rooted in our tradition often seem antiquated, petty, agonizingly slow when viewed from the Oval Office in the White House.
So the problems of coordination can be troublesome and they are magnified a thousandfold when foreign policy is involved. In the years just following World War II, while a very junior legislator named Ford was just learning his way around Washington, there was a remarkable degree of national consensus about the role America should play throughout the world. Americans held the very noble conviction that since the United States alone had emerged virtually unscathed by the destruction of since the war in fact had made us the most formidable military and economic power on earth, we as Americans had a special responsibility to build a new and better world from the ruins of the old.
We knew, too, that we had been dragged into two world wars we did not want by the collapse of the world political system in 1917 and 1931, and that we could not sit by and let that system collapse again.
This national consensus was made possible by such men as Senator Arthur Vandenburg of Michigan, my own political mentor, who championed bipartisanship in foreign affairs and helped cement, with President Harry Truman, a common bond of purpose in international relations between the legislative and executive branches of government.
Working together, the president and the Congress, it was an easy and rewarding task to guide public opinion and mandate government resources for such monumental efforts as the Marshall Plan, the Point Four Program and NATO. Consensus was also made possible by the recognition of a growing threat from the Soviet Union.
In that early post-war era, the Soviets under Stalin were consolidating their power and authority over the nations of Eastern Europe. They were also probing for footholds in the Middle East, first in Iran and Turkey. Today they are in Africa, especially in Angola and Ethiopia. No one knew how far their aggressive designs might reach, and none denied that if the Soviets in their march were to be stopped, the United States would have to assume the active leadership of the free world.
The nations which had guided European diplomacy for so long no longer had the power to do so, especially before the massive threat of Soviet expansion.
These goals for a new and better world, and these challenges of the cold war, established a foreign policy consensus that endured well into the 1960's.
It is the presidential drama of this period we remember best: Eisenhower pledging to go to Korea; the dramatic summit conferences; Kennedy's courage in the Cuban Missile Crisis.
But underlying every presidential initiative was a broad foundation of support in the United States Congress.
Even in the case of Vietnam, the SEATO treaty was approved by the Senate 82 to 1 in 1955, and the Gulf of Tonkin Resolution was passed in 1964 in the Senate by a vote of 88 to 2, and in the House of Representatives by a vote of 414 to 0.
But as that frustrating war went on year after year after year, our national unity was shattered, and with it the essential foreign policy coordination between the president and Congress. Old assumptions were challenged. Long-standing commitments were called into question. Bipartisanship in foreign policy gave way to deep divisions within the two parties themselves.
Members of Congress who came to oppose the war would also come to oppose the presidents who prosecuted the war. In the end, they would argue that the presidency itself had grown too powerful, that a usurpation of the powers by the president from the Congress was chiefly to blame for our disillusionment and our involvement in Vietnam.
These concerns found legislative expression in the War Powers Resolution of 1973. This resolution claimed for the Congress, in my opinion, unprecedented power in the conduct of foreign policy.
A major and crucial section of the resolution provided any troop commitment must be terminated within 60 days; unless Congress has declared war, specifically authorized the commitment, or has been unable to convene because of an armed attack on the United States. The legislation also specified that, by passage of a concurrent resolution, the Congress can direct the president to remove U.S. forces before the 60-day period expires.
"No more Vietnams" was the theme sounded over and over again in the debate in both the House and Senate on the War Powers Resolution. Senator John Sherman Cooper, a cosponsor of this legislation reminded his colleagues that "The Congress, particularly since World War II, has not only acceded to, but has supported 'executive requests for congressional authority' to use the armed forces of the United States, if necessary, in hostilities."
"These are settled facts of history," Senator Cooper said. "We can change our course but we cannot revise and rewrite American history."
While the debate on the resolution was underway in 1973, a new and distressing chapter in American history was being written across the front pages of our nation's newspapers. Day after day, new allegations of excessive and misused presidential power were being unveiled. It was in this highly charged atmosphere in the boiling passions of Vietnam and Watergate, and in defiance of President Nixon's veto, that the Congress finally passed the War Powers Resolution.
The debate was framed by constitutional issues. As Professor Eugene Rostow of the Yale University Law School has noted and I quote, "The battle cry of 'constitutional usurpation' quickens the blood of every congressman, indeed of every American. We find it easy," he said, "to conclude that whatever we dislike intensely must therefore be unconstitutional, as well."
But as John Sherman Cooper's good friend in the United States Senate, Senator George Aiken of Vermont has written, the War Powers Resolution was "Largely a political effort, an attempt to amend the Constitution by congressional resolution."
The arrangements which the Constitution makes for the conduct of foreign policy involve a complex interplay between the legislative and the executive branches of our federal government. Congress is given the power to declare war and to raise an army and navy. The Senate is given the additional power of advise and consent in the ratification of treaties, the appointment of ambassadors and other officials, including the secretaries of defense and state.
The president, on the other hand, under the Constitution was made commander-in-chief, and head of state. By fundamental definition, certainly by tradition, the chief executive is also given the power to execute American foreign policy. It is not intended that these powers be consolidated in the interest of efficiency, but rather that they be separated in the interest of democracy.
Coordination between the two branches was obviously to be encouraged. The brilliant system of checks and balances which the founding fathers devised was not meant to breed constant, paralyzing confrontation between the president and the Congress of the United States.
But as former undersecretary of state, George Ball, testified in hearings on the War Powers Resolution: the War Powers Resolution "Represents an attempt to do what the founding fathers felt they were not wise enough to do." It seeks by simple legislation to codify the military powers of the president, spelling out exactly what he can and cannot do, and how, and under what circumstances, to defend the United States and its citizens from international danger.
The resolution also grants to the Congress powers which tend to make it superior to the executive branch, as in the provision, for example, that Congress may order the withdrawal of troops within 60 days by a concurrent resolution not subject to presidential veto.
I ask, where are the constitutional checks and balances in such a system? The resolution requires consultation by the president with congressional leaders in military emergencies. Of course, consultation by the president and congressional leaders is a wise and normal feature of our constitutional and political life.
No president with any common sense would dream of neglecting this aspect of his obligation. But can it be mandated by law, and if so, what does it mean as a practical matter? Can the president satisfy the law by having breakfast with three or four or even a dozen if he decides they are the key people? Does the law mean that the leaders of both Houses, both sides of the aisle, key members of relevant committees, can speak for or bind the Congress?
Finally, there is the question of how closely this resolution would involve the Congress in the actual execution, as opposed to the general direction, of foreign policy, particularly in times of crisis.
Does the consultation provision require the approval of Congress before executive action is taken? What if the president and the Congress disagree? Which of these separate but equal powers would prevail in such a confrontation?
These arguments, serious as they are, can be more than matched, I might say, by other arguments of workability. The United States was involved in six military crises during my 30 months as president: the evacuation of US citizens and refugees from Da Nang, Phnom Penh and Saigon in the spring of 1975; the rescue of the Mayaguez in May 1975; and two evacuation operations in Lebanon in June of 1976.
In none of these instances did I believe the War Powers Resolution applied. Many members of Congress also questioned its applicability in cases involving protection and evacuation of American citizens. Furthermore, I did not concede that the resolution itself was equally binding or legally binding on the president on constitutional grounds. Nevertheless, in each instance, I took note of its consultation in reporting provisions and provided certain information on operations and strategies to key members of the House as well as the Senate.
Let me stress in my administration it was customary to communicate with the leaders of Congress when an important executive action was about to be taken, particularly any action involving foreign policy. As a former member of Congress and as the minority leader for over nine years in the House of Representatives, I knew from first-hand experience that congressional understanding and support developed with such communication. It is my view that when the president as commander-in-chief undertakes such military operations he would inevitably take the Congress into his confidence in order to receive its advice, and if possible, insure its support.
This type of consultation, as Keith Sebelius knows, makes common sense and certainly strengthens the trust between the executive and the legislative branches. But it is to be distinguished and I emphasize, "to be distinguished" from the detailed information and time limits imposed by the War Powers Resolution.
The role of the president in these critical situations is clearly defined by the traditions, if not by the laws. As commander-in-chief and chairman of the National Security Council, my job, as any president's job, was to concentrate on resolving the crises as expeditiously and as successfully as possible. As you might expect, it's a full-time job.
When the situation permitted, as in the case of the Mayaguez, I consulted personally with the bipartisan leadership in the House as well as in the Senate. However, the nature of most of these crises situations was such that the consultation process with the legislative branch had to be delegated to others, primarily my Congressional Relations staff at the White House.
In the interest of absolute accuracy, a summary of actions that I proposed to take or had taken was drafted by the National Security Council staff. This summary was reviewed by senior officials at the departments of State and Defense and by me at the White House. This careful attention to detail was absolutely essential. But let me assure you it was also time-consuming for senior officials who were at the same time acting as my advisers in a fast-moving international situation.
The information summary often went through two or three drafts to insure, as nearly as possible, that there would be no mistakes, no confusion of highly sensitive information. Once the consultation process began, an inherent weakness of the War Powers Resolution from a practical standpoint was conclusively demonstrated.
When the evacuation of Da Nang was forced upon us during the congressional Easter recess of 1975, not one of the key bipartisan leaders of Congress was in Washington, D.C. Without mentioning names, here is where we found the leaders of Congress at that time: two were in Mexico, three were in Greece, one was in the Middle East, one was in Europe and two were in the People's Republic of China. The rest we found in 12 widely scattered areas of the United States.
This, one might say, is an unfair example since the Congress was in recess. But it must be remembered that critical world events, especially military operations, seldom wait for the Congress to convene. In fact, most of what goes on in the world happens in the middle of the night Washington time.
On June 18, 1976, we began the first evacuation of American citizens from the tragic civil war in Lebanon. The Congress was not in recess but it had adjourned for the day. As telephone calls were made by my top staff people, we discovered among other things, that one member of Congress had an unlisted number which his press secretary refused to divulge.
After trying and failing to reach another member of Congress, we were told by his assistant that the congressman didn't need to be reached. We tried so hard to reach a third important member of Congress that our resourceful White House telephone operators, and believe me they're the best, had the local police leave a note on the congressman's door, "please call the White House."
When a crisis breaks it is impossible to draw Congress into the decision-making process in an effective way. It's impractical to ask them to be as well-versed in the fast breaking developments as the president, the National Security Council, the Joint Chiefs of Staff, who deal with foreign policy and national security situations every hour of every day.
It is also impossible to wait for a consensus to form among those congressional leaders as to the proper course of action, especially when they are scattered literally around the world when time is one thing that we cannot spare. The potential legal consequences of taking executive action before mandated congressional consultation can be completed may cause a costly delay. The consequences to the president, if he does not wait for congress could be as severe as impeachment. But the consequences to the nation, if he does wait, could be far, far worse.
There is absolutely no way American foreign policy can be made or military operations commanded by 535 members of Congress on Capitol Hill, even if they all happen to be on Capitol Hill when they are needed.
Domestic policy for housing, health, education or energy can and should be advanced in the calm deliberation and spirited debate that I loved so much as a member of the House for 25 plus years. The broad outlines and goals of foreign policy also benefit immensely from this kind of meticulous Congressional consideration. But in times of crisis, decisiveness is everything and the Constitution plainly puts the responsibility for such decisions on the shoulders of the president of the United States.
In other cases, in recent years, there have been attempts to introduce the Congress into sensitive negotiations with foreign nations, and in my opinion, all ill-advised.
And let me cite one or two examples. The Jackson-Vanik amendment to the Trade Act of 1972, in effect sought to liberalize Jewish immigration from the Soviet Union by legislative decree. But the fact is, that amendment had precisely the opposite effect, the Jewish immigration in '75 and '76 from the Soviet Union went down significantly instead of being increased.
The congressional restrictions on military assistance to Turkey after the Cyprus crisis of 1974 proved how determined and how wrong the Congress can be, and how cumbersome diplomacy by rigid legislative dictate can be.
Where then does the balance of power lie in our system of government at the present time? It cannot lie in a constant rivalry for power. As Professor Rostow has written, this "Would tend to convert every crisis of foreign policy into a crisis of will, of pride and of precedence between the president and the Congress." Nor, obviously, does the balance lie in the dominance of one branch of government over the other. The Constitution makes that plain enough and our own history proves that.
Woodrow Wilson refused to involve the Congress in his plans for a League of Nations and saw his noble dream crushed on Capitol Hill. The balance must lie in a frank recognition of the basic strengths and weaknesses of both the executive and legislative branches of our government, in the institutional capabilities as well as limitations imposed by the Constitution and by common sense.
As I said in my last State of the Union Address in January of 1977, "In these times, crises cannot be managed, and war cannot be waged by committee; nor can peace be pursued solely by parlimentary debate. To the ears of the world, the president speaks for the nation. While he is ultimately accountable to the Congress, the courts and to the American people, he and his emissaries must not be handicapped in advance in their relations with foreign governments."
The notion that the president must sometimes use the armed forces of our nation on his own ultimate responsibility comes very, very hard to Americans because we are, and always have been, deeply concerned about democratic control. But this power has been recognized as necessary, even as inescapable, since the earliest days of our Republic. Pirates attacked our ships off the coast of Tripoli, the president must respond. The Soviet Union blockades Berlin, or places missiles in Cuba, we must respond. An American ship is seized off the coast of Cambodia, we must respond. And if the nightmare danger of nuclear attack becomes a reality some dread future day, we must respond.
For such challenges, which vary from year to year, and generation to generation, there is no substitute for presidential leadership. But there is always democratic control in the electoral process and in legislative action.
The bitter experience of Vietnam and the national atmosphere in the last decade have encouraged, in my opinion, too much tampering with basic machinery by which the United States government has run successfully for the past 200 years. We must not abandon the wisdom of ages in the passion of a moment. If we have disagreements of policy let us resolve them as matters of policy rather than escalating them into constitutional confrontations.
Tragically, in recent years, the basis of trust, cooperation and civility between the legislative and executive branches of our government have been eroded. In their place there have been attempts to build new and permanent structures on the shaky ground of mutual suspicion.
This is no way for the government to serve the American people. It is, instead, the sure way to division at home and danger abroad. What we need, as Wilson said, is "More coordinated power."
We need to seek once again, a common ground on which the president, the Congress, and the American people can proudly and firmly stand through crisis as well as calm. We must decide again as a nation what is important to us. What goals will we set, what dangers will we risk, what burdens will we bear in our dealings with a wider and more interdependent world.
The Congress has a responsibility to do what it does best meet these great issues openly, freely, thoroughly and help us find a new path on which we may all travel together. The new administration, free of the burden of war, unfettered by the mistakes of the past, has an historic opportunity to lead America to a new age in foreign policy, an age in which the goals and commitments we hold precious as a nation may be fulfilled through the quiet, beneficient strength that commands respect and invites cooperation.
All this will not be easy, as President Carter has discovered. The world is very different now than it was 30 years ago. We are different. Our problems and aspirations are far more complex, but we are still Americans who love our country, who cherish peace and freedom throughout the world.
Let us in the months ahead open a constructive dialogue among the American people, the Congress and the president, leaders past as well as present, so we can preserve the bulwark of our strength: the Constitution, and find the mechanisms to combine with spirit, a spirit that has made America what it is today, free and dedicated to a better world for all people. Thank you.