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The War Powers Resolution: Striking a Balance Between the Executive and Legislative Branches

John Sherman Cooper Lecture
Delivered by Gerald R. Ford
University of Kentucky , Louisville
April 11, 1977

It is an honor and a very special privilege for me to deliver the first John Sherman Cooper Lecture at the University of Kentucky .

To know John Sherman Cooper is to know one of the finest statesmen this country and the Commonwealth of Kentucky have ever produced.

As a serious student of government, and as an able lawyer, Senator Cooper devoted much of his time and thought to the search for a proper balance of powers -- particularly in foreign policy -- between the executive and legislative branches of government.

How should the powers of the executive and legislative branches be coordinated, especially in the field of foreign policy?

I address this question tonight as one who has been honored to serve at both ends of Pennsylvania Avenue over the past thirty years.

In the years just following World War II, there was a remarkable degree of national consensus about the role America should play in the world.

We held the noble conviction that since we alone had emerged virtually unscathed by the destruction of war -- since the war had in fact made us the most formidable military and economic power on earth -- we had a special responsibility to build a new and better world from the ruins of the old.

This national consensus was made possible by such men as Senator Arthur Vandenberg, my own political mentor, who championed bipartisanship in foreign affairs and helped cement with President Truman a common bond of purpose between the legislative and executive branches of government.

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 the Senate 88 to 2, and in the House of Representatives 414 to 0, in 1964. But as that frustrating war went on year after year, our national unity was shattered, and with it the essential foreign policy coordination between President and Congress.

Old assumptions were challenged. Longstanding commitments were called into question. Bipartisanship in foreign affairs gave way to deep divisions within the 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 powers by the President from the Congress was chiefly to blame for our disillusioning involvement in Vietnam .

These concerns found legislative expression in the War Powers Resolution of 1973.

This resolution claimed for the Congress unprecedented power in the conduct of foreign policy, at the same time holding the President in strict account for his own actions in international affairs.

The arrangements which the Constitution makes for the conduct of foreign policy involve a complex interplay between the legislative and executive branches.

Congress is given the power to declare war and to raise an army and navy. The Senate is given the additional power of advice and consent in the ratification of treaties and the appointment of ambassadors and other officials, including the secretaries of state and defense.

The President is made commander-in-chief and head of state. By fundamental definition, the chief executive is also given the power to execute American foreign policy.

It was 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 Congress of the United States .

The War Powers bill 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 that Congress may order the withdrawal of troops within 60 days by a concurrent resolution not subject to presidential veto.

Furthermore, the resolution requires consultation with Congress in military emergencies. No President with common sense would dream of neglecting this aspect of his obligation. But can it be mandated by law? And what does it mean? Finally, there is a 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 the Congress before executive action is taken? What if the President and Congress disagree? Which of these separate but equal powers would prevail in such a confrontation?

These arguments of constitutionality can be more than matched by arguments of workability.

The United States was involved in six military crises during my presidency: the evacuation of U.S. citizens and refugees from DaNang, Phnom Penh , and Saigon in the spring of 1975, the rescue of the Mayaguez in May 1975, and the two evacuation operations in Lebanon in June 1976.

In none of those instances did I believe the War Powers Resolution applied, and many members of Congress also questioned its applicability in cases of protection and evacuation of American citizens.

Furthermore, I did not concede that the resolution itself was legally binding on the President on constitutional grounds.

Nevertheless, in each instance, I took note of its consultation and reporting provisions, and provided certain information on operations and strategies to key members of Congress.

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 makes common sense and certainly strengthens trust between the executive and legislative branches. But it is to be distinguished from the detailed information and time limits imposed by the War Powers Resolution.

Once the consultation process began, the inherent weakness of the War Powers Resolution from a practical standpoint was conclusively demonstrated.

When the evacuation of DaNang was forced upon us during the Congress's Easter recess, not one of the key bipartisan leaders of the Congress was in Washington .

Without mentioning names, here is where we found the leaders of Congress: 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 twelve widely scattered states of the Union .

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 meet. 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 civil war in Lebanon . The Congress was not in recess, but it had adjourned for the day.

As telephone calls were made, 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 did not need to be reached.

We tried so hard to reach a third member of Congress that our resourceful White House operators had the local police leave a note on the congressman's beach cottage door: "Please call the White House."

When a crisis breaks, it is impossible to draw the Congress into the decision-making process in an effective way, for several reasons.

First, they have so many other concerns: legislation in committee and on the floor, constituents to serve, and a thousand other things. It is impractical to ask them to be as well-versed in fast-breaking developments as the President, the National Security Council, the Joint Chiefs of Staff, and others who deal with foreign policy and national security situations every hour of every day.

Second, 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 and when time is the one thing we cannot spare. Again, we should ask what the outcome would be if the leaders consulted do not agree among themselves or disagree collectively with the President on an action he considers essential.

Third, there is the risk of disclosure of sensitive information through insecure means of communication, particularly by telephone. Members of Congress with a great many things on their minds might also confuse what they hear on the radio news in this day of instant communication with what they are told on a highly classified basis by the White House.

Fourth, 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 much worse.

Fifth, there is a question of how consultations with a handful of congressional leaders can bind the entire Congress to support a course of action -- especially when younger members of Congress are becoming increasingly independent.

A survey reported by Congressional Quarterly last November indicated that an overwhelming majority of the Congress believed the legislative branch had an inadequate role in the international crises I have mentioned.

Sixth, the Congress has little to gain and much to lose politically by involving itself deeply in crisis management.

If the crisis is successfully resolved, it is the President who will get credit for the success. If his efforts are not successful, if the objectives are not met or if casualties are too high, the Congress will have seriously compromised its right to criticize the decisions and actions of the President.

Finally, there is absolutely no way American foreign policy can be conducted 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 I loved so much as a congressman.

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 .

There are institutional limitations on the Congress which cannot be legislated away.

Yet since the Mayaguez incident, there has been talk of putting more teeth into the War Powers Resolution, intensifying congressional participation in actual crisis management.

There have also been attempts to introduce the Congress into sensitive negotiations with foreign nations.

The Jackson-Vanik Amendment to the Trade Act of 1972, proposed to liberalize emigration from the Soviet Union by legislative decree, had precisely the opposite effect.

The congressional restrictions on military assistance to Turkey after the latest Cyprus crisis prove 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 powers lie?

It cannot lie in a constant rivalry for power. As Eugene Rostow has written, this "would tend to convert every crisis of foreign policy into a crisis of will, of pride and of precedence between Congress and the President."

The balance must lie, instead, in a frank recognition of the basic strengths and weaknesses of both the executive and legislative branches of government, in the institutional capabilities and limitations imposed by the Constitution and by common sense.

The bitter experiences of Vietnam and the national atmosphere in the last decade have encouraged, I believe, too much tampering with the basic machinery by which the United States government has run successfully for the past two hundred years.

We must not abandon the wisdom of the 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 bases of trust, cooperation and civility between the legislative and executive branches of our government have been eroded.

In their place, there has been an attempt 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.

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 and calm.

We must decide again, as a nation, what is important to us, what goals we will set, what dangers we will risk, what burdens we will bear, in our dealings with the wider world.

The Congress has the responsibility to do now what it does best -- debate these great issues, openly, freely and thoroughly -- and help us find a new path on which we all may travel together.

The new administration -- free of the burden of war, unfettered by 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, beneficent strength that commands respect and invites cooperation.

All this will not be easy. The world is very different now than it was thirty years ago. We are different, and our problems and aspirations more complex.

But we are still Americans who love our country, who cherish peace and freedom in the world.

Let us in the months ahead open a constructive dialogue among the American people, the Congress and the President, leaders past and present, so we can preserve the bulwark of our strength -- the Constitution -- and find the mechanisms and the spirit that have made America what it is today -- free and dedicated to a better world for all peoples.

The text of this speech is from the reprint published by the American Enterprise Institute for Public Policy Research.

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