1 These and other positions are outlined in a panel on Treaties and Executive Agreements held at the 1977 Annual Meeting of the American Society of International Law, 71 Asil Proc. 235 (1977). See alsoGlennon, Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions,60 Minn. L. Rev. 1 (1975). Contrast: War Powers of the President and the Congress,Digest Of United States Practice In International Law, 1973, at 551 (A. Rovine ed.); Rostow, , Great Cases Make Bad Law: The War Powers Act, 50 texas l. Rev. 833 (1972).Google Scholar

2 Act of Jan. 12, 1971, Pub. L. No. 91-672, §12, 84 Stat. 2053.

3 Notwìthstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos, or Cambodia. The Joint Resolution Continuing Appropriations for Fiscal Year 1974, Pub. L. No. 93-52, §108, 87 Stat. 134 (1973). See alsoAct of July 1, 1973, Pub. L. No. 93-50, §307, 87 Stat. 129.

4 Act of Oct. 17, 1974, Pub. L. No. 93-448, §6, 88 Stat. 1363, as amended by Act of Dec. 31, 1974, Pub. L. No. 93-570, §6, 88 Stat. 1867.

5 Foreign Assistance and Related Programs Appropriations Act, Pub. L. No. 94-330, §109, 90 Stat. 711 (1976); International Security Assistance and Arms Export Control Act of 1976, Pub. L. No. 94-329, §404, 90 Stat. 729 (1976).

6 Resolution to Establish a Standing Committee of the Senate on Intelligence, and for Other Purposes, S.Res. 400, 94th Cong., 2d Sess., 122 cong. rec. 253 (1976).

7 International Security Assistance and Arms Export Control Act of 1976, Pub. L. No. 94-329, 90 Stat. 729 (1976)..

8 1 U.S.C. §112(b) (Supp. V 1975).

9 Foreign Assistance Act of 1961, 22 U.S.C. §2151 (Supp. V 1975). Section 116, 22 U.S.C. §2151n, dealing with congressional supervision over the application of human rights standards, was added by Act of Dec. 20, 1975, Pub. L. No. 94-161, §130, 89 Stat. 849.

10 50 U.S.C. §1541 (Supp. V 1975).

11 A.D. Sofaer, War, Foreign Affairs And Constitutional Power: The Origins 4 (1976);

12 President Washington quickly seized the diplomatic reins. On October 9, 1789, he replied to a letter the King of France had addressed to “the President and Members of the General Congress of the United States” by pointing out that the honor of receiving and answering such communications, by virtue of the new constitutional arrangement, “has devolved upon me.” 30 The Writings Of George Washington 431-32 (J. Fitzpatrick ed., 1931-44).

13 Totally missing was any debate that would have accompanied an understanding of the commander-in-chief clause as creating an undefined reservoir of power to use the military in situations unauthorized by Congress. Sofaer, supranote 11, at 36.

14 1 Farrand, Records Of The Federal Convention Of 1787, at 318-19 (1937).

15 l. henkin, foreign affairs and the constitution 52 (1972).

16 Statement in Congress, the President, and the War Powers: Hearings Before the Subcomm. on National Security Policy and Scientific Developments of the House Comm. on Foreign Affairs,91st Cong., 2d SESS. 135-67, at 137 (1970).

17 Sofaer, supranote 11, at 56. Citedfor this proposition are: J. Maurice, Hostilities Without Declaration Of War (1883); c. Ver steeg, the formative Years, 288-300 (1964); r. Ward, an enquiry into the manner in which the Different wars in europe have commenced (1805).

18 Sofaer, supranote 11, at 116. Much more extensive were the military expeditions against the Wabash Indians undertaken by St. Clair which were authorized by the President, but not by Congress. According to Sofaer: “The offensive actions taken against the Wabash were not expressly authorized by a declaration of war or by legislation.” Id.122. Indeed, the prevailing argument against those who, in Congress, complained that the war had dragged on for three years, squandering millions to no known purpose, was that “it is now too late to inquire whether the war was originally undertaken on the principles of justice or not. We are actually involved in it, and cannot recede, without exposing numbers of innocent persons to be butchered by the enemy.” 3 Annals Of Congress 345 (1792), citedin Sofaer, supra.Also not authorized by Congress was the communication sent in 1794 by Henry Knox, Washington's Secretary of War, instructing General Wayne to use military force if necessary against the British garrison at Fort Miamis. Id.124-27.

19 The Life And Correspondence Of James MchenrY 291-95 (B. Steiner ed. 1907), citedin Sofaer, supranote 11, at 142.

20 Justice Bushrod Washington wrote: “Every contention by force, between two nations, in external matters, under the authority of their respective governments, is not only war but public war.” 4 U.S. (4 Dall.) 37, 39 (1800).

21 Emerson, , War Powers Legislation, 74 W. VA. L. REV. 53, 88-119 (1972).Google Scholar

22 Sofaer, supranote 11, at 57.

23 In Mitchell v. Lairdthe majority of the U.S. Court of Appeals for the District of Columbia held that congressional appropriations, extension of the draft, and other legislation did not constitute assent to the war. 488 F. 2d 611, slip op. at 615 (D.C. 1973).

24 senate comm. on foreign relations, 91st cong., 2d sess., documents relating To the war power of congress, the president's authority as commanderin- Chief and the war in indochina, 13-14. (Comm. Print 1970).

25 Id.14-15.

26 SC. Res. 84, 5 scor, res.&dec. 5 (1950).

27 Eventually, the Organization of American States provided a vestige of legitimation by agreeing to participate in an Inter-American Peace Force. Text in 52 dept. State Bull. 862-63 (1965). This resolution establishing the Inter-American Force was passed by the Tenth Meeting of Consultation of Ministers of Foreign Affairs of the Organization of American States on May 6, 1965, by a vote of 15-5 with one abstention.

28 Pub. L. No. 88-408, 78 Stat. 384 (1964).

29 Note, however, Mitchell v. Laird,wherein the court said: This court cannot be unmindful of what every schoolboy knows: that in voting to appropriate money or to draft men a Congressman is not necessarily approving of the continuation of a war no matter how specifically the appropriation or draft act refers to that war. 488 F.2d 611, slip op. at 615 (D.C. Cir. 1973).

30 S.Res. 85, 91st Cong., 1st Sess., 115 CONG. REC. 17245 (1969).

31 H.R. REP. NO. 547, 93d Cong., 1st Sess. (1973).

32 Subcomm. On International Security And Scientific Affairs Of The House Comm. On International Relations, 94th Cong., 1st Sess., The War Powers Resolution: Relevant Documents, Correspondence, Reports 13 at 14. (Comm. Print 1975) [hereinafter cited as War Powers Res.: Relevant Docs.].

33 Statement of Hon. Clement J. Zablocki (unpublished).

34 T. F. Eagleton, war and presidential power: a chronicle of congressional surrender 220 (1974).

35 Section 3, 50 U.S.C. §1542 (Supp. V 1975).

36 Id.§1543(a) (1) and (2).

37 Id. §1543(a) (A), (B) and (C).

38 war Powers Res.: Relevant Docs., supranote 32, at 40-41; excerpted from Report Dated April 4, 1975, From President Gerald R. Ford to Hon. Carl Albert, Speaker of the House of Representatives, in Compliance With Section 4(a)(2) of the War Powers Resolution.

39 According to the Legal Adviser: . “hostilities” was used to mean a situation in which units of the U.S. Armed Forces are actively engaged in an exchange of fire with opposing units of hostile forces, and “imminent hostilities” was considered to mean a situation in which there is a serious risk from hostile fire to the safety of U.S. forces. War Powers: A Test of Compliance Relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation of Saigon, and the Mayaguez Incident, Hearings Before the Subcomm. on International Security and Scientific Affairs of the House Comm. on International Relations,94th Cong., 1st Sess. 85 (1975) [hereinafter cited Hearings, War Powers: Test of Compliance].

40 Id.3.

41 Id.

42 Id.

43 Id 7.

44 Id. 82.

45 Id.5-6; excerpted from Report Dated April 12, 1975, From President Gerald R. Ford to Hon. Carl Albert, Speaker of the House of Representatives, in Compliance With Section 4(a)(2) of the War Powers Resolution.

46 Id. 6.

47 Report Dated April 30, 1975, From President Gerald R. Ford to Hon. Carl Albert, Speaker of the House of Representatives, in Compliance With Section 4 of War Powers Resolution. Id.7.

48 Id.6.

49 22 U.S.C. §2151 (1970), as amended by Foreign Assistance Act of 1973, Pub. L. No. 93-189, §30, 87 Stat. 714.

50 Department of Defense Appropriations Act for Fiscal Year 1975, Pub. L. No. 93- 437, §839, 88 Stat. 1212 (1974); Department of Defense Appropriations Act for Fiscal Year 1974, Pub. L. No. 93-238, §741, 87 Stat. 1026; Department of Defense Appropriation Authorization Act for Fiscal Year 1974, Pub. L. No. 93-155, §806, 87 Stat. 615 (1973); Department of State Appropriation Authorization Act of 1973, Pub. L. No. 93- 126, §13, 87 Stat. 451; Joint Resolution of July 1, 1973, Pub. L. No. 93-52, §108, 87 Stat. 130; Second Supplemental Appropriations Act, Pub. L. No. 93-52, §307, 87 Stat. 129 (1973).

51 The exchange between Senator Fulbright and Secretary Kissinger is cited in 1973 Digest, supranote 1, at 562-63. Seealso Dept. State Press Release No. 442, Dec. 6, 1973, at 21.

52 N.Y. Times, May 13, 1975, at 1.

53 Id.19.

54 ld.May 16, 1975, at 15.

55 Id.May 17, 1975, at 10.

56 Glennon cites the Congressional Research Service for the figure of forty-one members of the armed forces killed. Glennon, supranote 1, at 21 n.74.

57 Report Dated May 15, 1975, From President Gerald R. Ford to Hon. Carl Albert, Speaker of the House of Representatives, in Compliance With Section 4(a)(1) of the War Powers Resolution. Hearings, War Powers: A Test of Compliance, supranote 39, at 76.

58 N.Y. Times, May 16, 1975, at 15.

59 Id.

60 Id.

61 Id.,May 15, 1975, at 18.

62 Id.

63 Id.1.

64 Id.18.

65 Id.,May 16, 1975, at 15.

66 Id.

67 Hearings, War Powers: A Test of Compliance, supranote 39, at 77-78.

68 Id 81.

69 Ford Scores Limit on War Power,N.Y. Times, April 12, 1977, at 14.

70 S. 1790, 94th Cong., 1st Sess., 121 cong. rec. 8829 (1975). In the House, a similar measure has been sponsored by Representative Seiberling. H.R. 7594, 94th Cong., 1st Sess., 121 cong. rec. 4921 (1975).

71 Sofaer, supranote 11, at 58.

72 Letters to Carl Albert of April 4, April 12, April 30, and May 15, 1975, in Hearings, War Powers: A Test of Compliance, supranote 39, at 4, 5, 7, 76.

73 Section 1544(b) provides that within 60 days after a report is submitted or required to be submitted under §1543(a)(l), the President shall terminate the use of the armed forces unless Congress has declared war or authorized continuation of hostilities or is unable to meet. Section 1544(c) permits Congress to terminate any presidential use of force, in the absence of a declaration of war or legislative authorization, by concurrent resolution (congressional veto).

74 The power of the purse extends congressional jurisdiction to all subjects for which funding is required, regardless of whether the matter is otherwise within congressional or presidential discretion. The Legal Adviser has also conceded that any military action by the President could be terminated by congressional refusal of funds once the previous appropriation had run out. Mr. Leigh, in answer to Congressman Solarz’ question on this point replied: “If he [the President] has used up all the money appropriated and then Congress refuses to provide any more, I think the Congress has effectively stopped the President from continuing the military action.” Hearings, War Powers: A Test of Compliance, supranote 39, at 92. For an elaboration of the distinction between the power of Congress to authorize expenditure of funds and appropriate monies on the one hand, and its power to legislate on the other, see Glennon, supranote 1,espec. 21-23, 32-38.

75 N.Y. Times, May 15, 1975, at 18.

76 Id.May 18, 1975, §4, at 2.

77 Id.May 15, 1975, at 18. In this assertion of executive prerogative, the White House may have been inadvertently supported on the evening of May 14, at the height of Mayaguezfever, by a resolution of the Senate Foreign Relations Committee. Although not voted by the full Senate, the resolution was approved unanimously by the Committee. It said in part: “We support the President in the exercise of his constitutional powers within the framework of the War Powers Resolution to secure the release of the ship and its men.” Id.

78 Act of Dec. 1 7, 1973. Pub. L. No. 93-189, 87 Stat. 714.

79 Hearings, War Powers: A Test of Compliance, supranote 39, at 88.

80 Even more far reaching is the implied assertion that Congress cannot refuse funds for an exercise of inherent presidential power, a proposition for which there is no support whatever in the Constitution or in historical sources. For discussion, see Glennon, supranote 1, at 28-38.

81 Hearings, War Powers: A Test of Compliance, supranote 39, at 90-91.

82 At the same time, at least some of these inherent executive powers have been asserted by Presidents almost from the beginning. Jefferson (who had been elected to implement Republican designs for reduction in presidential power as well as a restoration of congressional and, particularly, states’ rights) authorized extensive offensive military action by the 1801 expedition of Commodore Dale against the Barbary Powers—Algiers, Tunis, and Tripoli—without congressional authorization. The President sent the naval expedition to the Mediterranean armed with Secretary Gallatin's assurance that the President could make war after it had been authorized “either by the decree of Congress or of the other nation… .” The naval expedition was instructed that if it encountered hostilities from the Barbary fleet it was to “chastise their insolence—by sinking, burning or destroying their ships and vessels wherever you shall find them.” Secretary of the Navy Smith justified sending the expedition by citing a congressional law “providing for a Naval Peace Establishment” and by quoting the President to the effect that “one great object of the present squadron is to instruct our young officers… .” Yet Jefferson, in sending the expedition, must have known that it was likely to become engaged in hostilities and that these, in turn, would be used to justify a protracted undeclared war. In support of this and other actions unsupported by congressional fiat, Jefferson evolved “a doctrine of emergency power that relegated the legislature to the exercise of extreme after-the-fact remedies in all national crises.” That doctrine, much embellished, remains very much alive. Sofaer, supranote 11, at 209-10, 227.

83 N.Y. Times, April 12, 1977, at 14.

84 Resolution to Establish a Standing Committee of the Senate on Intelligence and for Other Purposes, supranote 6.

85 N.Y. Times, March 6, 1977, at 33.

86 war powers res.: relevant docs, supranote 32, at 13-14.

87 Hearings, War Powers: A Test of Compliance, supranote 39, at 91. The Legal Adviser, Mr. Leigh, was posed the following hypothetical by Representative Solarz: Suppose U.S. troops in Korea are attacked by North Korea just inside South Korea. Leaving aside any treaty commitments the United States might have with the Republic of Korea, suppose the President sent in reenforcements to defend those U.S. troops and then Congress passed a concurrent resolution under the War Powers Resolution telling the President to take the troops out. Mr. Solarz: [y] our position, if I understand it, would be that since he had sent troops in to protect the troops that were originally fired on and that was done as a result of his implied authority as Commander in Chief, that he could safely disregard this concurrent resolution on the grounds that the Congress cannot take away a power which he has from a constitutional point of view. Mr. Leigh: I hope that I am not going to be asked to rule on this. I believe the answer to that is yes. I am not speaking for the administration.

88 Oliver Ellsworth and George Mason were explicit in wanting to clog war and facilitate peace. “[T]here is a material difference,” Ellsworth said, “between the cases of making warand making peace.It shd. be more easy to get out of war, then into it. War also is a simple and overt declaration. Peace attended with intricate&secret negociations.” 2 Farrand, supranote 14, at 318-19.

89 Norton, congressional review, deferral and disapproval op executive actions: a summary and an inventory of statutory authority 1 (Congressional Research Service, Library of Congress, 1976).

90 id 7.

91 The earliest instance of the incorporation of this device in legislation is to be found in the Legislative Appropriations for Fiscal Year 1933 (Pub. L. No. 72-212, §407, 47 Stat. 414 (1932)) which authorized the President to reorganize executive departments by orders which were to be laid before Congress. Either House, by resolution, could nullify such an order within 60 days. In the field of foreign relations, the first use of the device is in the 1947 authorization of aid to Greece and Turkey (Act of May 22, 1947, Pub. L. No. 80-75, ch. 81, §2153(d), 61 Stat. 103) which permitted assistance to be terminated by concurrent resolution of the two Houses. By a 1958 amendment to the Atomic Energy Act of 1954 (42 U.S.C. (1970), as amended by Act of July 2, 1958, Pub. L. No. 85-479, §4, 72 Stat. 276), certain agreements for cooperation with foreign nations to improve their atomic weapon capability were subject to a concurrent resolution veto during a 60 day lying-in-wait period. By far the broadest assertion of congressional veto power is to be found in 22 U.S.C. §2367 (1970), as amended by the Foreign Assistance Act of 1961, Pub. L. No. 87-195, §617, 75 Stat. 424, which provides: “Assistance under any provision of this Act may, unless sooner terminated by the President, be terminated by concurrent resolution” and must end after an eight-months wind-up period. The most controversial use of the concurrent resolution provision came in the War Powers Resolution, controversial both because it touched on a crucial subject matter and because it raised more complex constitutional issues than hitherto. Thereafter, however, the congressional veto was written into other important foreign relations legislation including the Atomic Energy Act Amendments of 1974, 42 U.S.C. §2074 (Supp. V 1975), as amended by Atomic Energy Act Amendments of 1974, Pub. L. No. 93-377, §2, 88 Stat. 472; also 42 U.S.C. §2153(d) (Supp. V 1975), as amended by Atomic Energy Act Amendments of 1974, Pub. L. No. 93-377, §5, 88 Stat. 475, and Act of Oct. 26, 1974, Pub. L. No. 93-485, §1, 88 Stat. 1460. The 1974 Foreign Assistance Act required the President to lay before both Houses any proposed offer to sell defense articles for $25 million or more and gave Congress 20 days to disapprove the sale by concurrent resolution. That disapproval, however, could be overridden by the President if he certified that an emergency existed which required the sale in the interest of national security (22 U.S.C., 52776(b) (Supp. V 1975), as amended by the Foreign Assistance Act of 1974, Pub. L. No. 93-559, §45(a) (5), 88 Stat. 1795 (1974); Foreign Military Sales Act, 22 U.S.C. §2201 (1970), as amended by Act of Oct. 22, 1968, Pub. L. No. 90-629, 536(b), 82 Stat. 1320). The same law also provided for two-House veto within 30 days after notification to Congress of each obligation or expenditure of authorized and appropriated funds for any country in the Middle East (id.,§42). A one-House veto of base construction on Diego Garcia was included in the Military Construction Authorization for 1975, Pub. L. No. 93-552, §613, 88 Stat. 1745 (1974). Congressional vetoes were also written into the Trade Act of 1974, Pub. L. No. 93-618, tit. II, III, IV, 88 Stat. 1978 (1975) (codified in scattered sections of 19 U.S.C.) and into the Export- Import Bank Act of 1945, §7(b), 12 U.S.C. §635(e) (Supp. V 1975), as amended by Export-Import Bank Amendments of 1974, Pub. L. No. 93-646, §4, 88 Stat. 2333 (1975), which required affirmative action by both Houses to approve loans or financial guarantees exceeding $300 million in connection with exports to the USSR. In a 1976 Authorization Act, the operation of the Foreign Military Sales Act was further altered to remove the discretion left the President in the 1974 Foreign Assistance law. The new version permits Congress, by concurrent resolution, to prevent outright any sale of a defense article or service valued at $25 million or more during a period of 20 days after the President notifies the legislators of an intent to sell (Board of International Broadcasting Authorization for Fiscal Year 1976, Pub. L. No. 94-104, §2(c)(4), 89 Stat. 509 (1975)). The joint resolution by which Congress in 1975 authorized U.S. participation in the Sinai early warning system contains a caveat to the effect that Congress, by concurrent resolution, may withdraw American personnel if it determines that their safety is in jeopardy or that their role has become redundant (Resolution to Implement the United States Proposal for the Early Warning System in Sinai, Pub. L. No. 94-110, §1, 89 Stat. 572 (1975)). In the same year, as part of a mandatory reorientation of the food-for-peace program in favor of the neediest—as distinguished from those most closely allied to the United States—Congress gave itself the power to disallow, by concurrent resolution, allocations in excess of 25 percent of total food aid to countries with a per capita income of more than $300, even after the President certifies that humanitarian needs required otherwise (7 U.S.C. §1711 (Supp. V 1975)), as amended by the International Development and Food Assistance Act of 1975, Pub. L. No. 94- 161, §207, 89 Stat. 853). The same Act also prohibits aid given by way of food, or for development of technology, education, research, health, and population planning, to any country “which engages in a consistent pattern of gross violations of internationally recognized human rights,” unless the Agency for International Development, at the request of the appropriate Committees of Congress, demonstrates that “such assistance will directly benefit the needy people” of such country. If Congress disagrees, aid may nevertheless be terminated by concurrent resolution (Foreign Assistance Act of 1961, 22 U.S.C. §2151n (Supp. V 1975), as amended by International Development and Food Assistance Act, Pub. L. No. 94-161, §310, 89 Stat. 860 (1975)).

92 “Even 200 years cannot make constitutional what the Constitution declares is unconstitutional.” Senator Sam Ervin in the context of a discussion of the Executive's practice of circumventing the Constitution's treaty clause by recourse to the executive agreement. Hearings onS. 3475 before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary,92nd Cong., 2d Sess., 4 (1975).

93 Library of Congress, Congressional Research Service, Memo: “Constitutionality of the Legislative Veto Amendment to the Foreign Military Sales and Assistance Act,” for Hon. Gaylord Nelson, Sept. 4, 1973, at 13.

94 This argument is also made in H.R. REP. NO. 120, 76th Cong., 1st Sess. 4-6 (1939).

95 This distinction appears to have been implied by the Attorney General in 1949, in arguing in favor of the constitutionality of the congressional veto in the Reorganization Acts of 1939 and 1945. The opinion speaks of “consultation” as a required prerequisite for the exercise of authority delegated by Congress but notes that the President” frequently consults also “on matters which may be considered to be strictly within the purview of the Executive, such as those relating to foreign policy.” Memorandum Re: Constitutionality of Provisions in Proposed Reorganization Bills Now Pending in Congress, reprintedin S. Rep. NO. 232, 81st Cong., 1st Sess. 18-20 (1949).

96 Schick, Congress and the “Details” of Administration, 36 public administration rev. 516, 523 (1976)Google Scholar.

97 Id.

98 The concurrent resolutions in respect of the Hawk sale were introduced under the terms of the 1974 Nelson-Bingham amendment to the 1961 Foreign Assistance Act, Pub. L. No. 90-629, §36(b), 82 Stat. 1320.

99 Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263 (codified in scattered sections of 2, 5, 18, 20, 47 U.S.C. (Supp. V 1975)), as amended by Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94- 283, 90 Stat. 475.

100 Buckley v. Valeo, 424 U.S. 1 (1976).

101 Id.at 140, n. 176.

102 No. 76-1825 (D.C. Cir. Jan. 21, 1977) (per curiam).

103 Id.slip op. at 12.

104 Id.slip op. at 15.

105 Id.slip op. at 15, n. 8.

106 Id.citing Buckley v. Valeo, supranote 100, at 284-86.

107 “Be that as it may,” Judge Tamm said of Mr. Justice White's view. Clark v. Valeo, supranote 102, at 15, n. 8.

108 Id.at 17.

109 403 U.S. 713 (1971).

110 Clark v. Valeo, supranote 102, at 3, concurring opinion of Tamm, J., Bazelon, C. J., and Wright, J.

111 United States v. Curtiss-Wright Export Corp, 299 U.S. 304 (1936).

112 Clark v. Valeo supranote 102, at 4, concurring opinion of Leventhal, J.

113 The case also generated one dissent, by MacKinnon, J., which addresses itself specifically to the unconstitutionality of the one-House veto, asserting that it “greatly increases the authority of a small minorityof the entire Congress to achieve a legislative result, when compared with the constitutionally prescribed legislative procedure.” (Id.at 7, dissenting opinion of MacKinnon, J.) Thus a small number of members of Congress, a bare majority of the quorum, can unmake regulations made by the executive branch without recourse to legislative enactment. “That naked intrusion violates the basic three branch constitutional scheme for our Government and the legislative scheme provided by art. I., sections 1, 7 of the Constitution.” (Id.at 9.)

114 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

115 Vance Nomination: Hearings before the Senate Comm. on Foreign Relations,95th Cong., 1st Sess. 38 (1977).

116 N.Y. Times, March 6, 1977, at 33.

117 5U.S.C. §906(a) (1970).

118 Letter from Griffin B. Bell, Attorney General, to President Carter, January 31, 1977.

119 See Pomerance, , American Guarantees to Israel and the Law of American Foreign Relations, Jerusalem Papers On Peace Problems, No. 9, Dec. 1974.Google Scholar

120 63 Stat. 2241, Tias No. 1964, 34 Unts 243.

121 62 Stat. 1681, Tias No. 1838, 21 Unts 77.

122 S. REP. NO. 8, 81st Cong., 1st Sess. 14 (1949).

123 Id.

124 S. Doc. No. 123, 81st Cong., 1st Sess. 1337 (1949).

125 Convention between the United States and Panama for the Construction of a Ship Canal, Nov. 18, 1903, 33 Stat. 2234, TS No. 431.

126 Such “no funding” provisions are to be found in other acts of general application. See22 U.S.C. §2680 (Supp. V 1975), as amended by Act of Oct. 26, 1974, Pub. L. No. 93-475, 511, 88 Stat. 1439. The resolution, if so amended, should stipulate that it should not be deemed to have been repealed by any subsequent authorization or appropriation of funds unless an intention to effect repeal is explicitly stipulated. 22 U.S.C. 52680(a)(3)(A) (Supp. V 1975).

127 Glennon, supranote 1, at 33-35.

128 The model for a statutory determination of justiciability is found in the “Hickenlooper Amendment” to the Foreign Assistance Act of 1961 which requires the courts to apply international law in cases of foreign expropriation of U.S. assets rather than decline to decide on the merits by reference to the act of state doctrine. 22 U.S.C. §2370(e) (2) (1970). The U.S. Court of Appeals has also held that subpoenas for White House tapes sought by the Senate Select Committee in an action against the President of the United States raised justiciable issues after Congress had enacted a specific statute conferring jurisdiction (Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)) even though the District Court had declined so to hold (Senate Select Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973)) before the statute was enacted. (Act of Dec. 18, 1973, Pub. L. No. 93-190, 87 Stat. 736, to be codified as 28 U.S.C. §1364.)

129 The district and circuit courts accepted the standing of the Congressional Committee in Senate Select Committee on Presidential Campaign Activities v. Nixon,366 F. Supp. 51 (D.D.C. 1973), 498 F.2d 725 (D.C. Cir. 1974). Absent such legislative grant of standing, the position is left unclear by the tendency of courts to bypass the issue on their way to a decision based on justiciability. Drinan v. Nixon, 364 F. Supp. 854, 856 (D. Mass. 1973); Harrington v. Schlesinger, 373 F. Supp. 1138 (E.D.N.C. 1974); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973). However, where the legislature has specified standing, courts have tended to accommodate to that determination. The proposition that judicial determination as to standing and justiciability will take into account the determination of Congress expressed in legislation is supported by Trafficante v. Metropolitan Life Ins. Co.,409 U.S. 205 (1972). In a concurring opinion Justice White, joined by Justices Blackmun and Powell, said: Absent the Civil Rights Act of 1968, I would have great difficulty in concluding that petitioners’ complaint in this case presented a case or controversy within the jurisdiction of the District Court under Art. Ill of the Constitution. But with that statute purporting to give all those who are authorized to complain to the agency the right also to sue in court, I would sustain the statute insofar as it extends standing to those in the position of the petitioners in this case.

130 To preclude a “sudden death” injunction by a court against the President as Commander in’ Chief that would preclude an orderly, phased termination of an ultra vires presidential war, the proposal draws upon the language of two former federal laws restraining the granting of district court injunctions against enforcement of state and federal statutes on grounds of their unconstitutionality. 28 U.S.C. §§2281, 2282 (1970). For the general proposition that Congress may make “consent” laws which require the courts to reassess their earlier interpretation of a separation-of-powers provision of the Constitution, see In reRahrer, 140 U.S. 545 (1891), Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946), Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Cf.Edelman v. Jordan, 415 U.S. 651 (1974).

131 The Supreme Court has laid down the test of justiciability in Baker v. Can,369 U.S. 186 at 217 (1962): Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a policy decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. In Drinan v. Nixon,364 F. Supp. 854, 858 (D. Mass. 1973), the court said that: should it be apparent that the political branches themselves are clearly and resolutely in opposition as to the military policy to be followed by the United States, such a conflict could no longer be regarded as a political question, but would rise to the posture of a serious constitutional issue requiring resolution by the judicial branch.