18 opportunity to reassert itself in the foreign affairs policymaking process that it has not had since 1974. At that time, Congress exploited its opportunity by legislating a broader ongoing role for itself across the realms of foreign policy, a role which the executive branch has since sought systematically to undercut. Since the Iran-Contra Affair, Congress has squandered its new opportunity to draft and pass a new national security charter. If Congress wishes to preserve its role in national security policymaking, the time could not be more ripe for it to seize the legislative initiative. To those who say that only a professor could think it politically possible to draft and enact such wide-ranging legislation, let me note that legislative proposals exist, the only need is for congressional interest. Even as we speak, Senator Cohen's bill to amend the Intelligence Oversight Act has passed the Senate with sufficient votes to override a presidential veto and Congressman Stokes' companion bill has been reported out of the House Intelligence Committee. 29 Senators Byrd, Nunn, Warner and Mitchell have recently offered a promising bill to amend the War Powers Resolution. 30 Senator Biden and Congressman Levine have proposed 29 See H.R. 3822, 100th Cong., 2d Sess., 133 Cong. Rec. H11866 (daily ed. Dec. 18, 1987) (introduced by Congressman Stokes); S. 1721, 100th Cong., 2d Sess., 133 Cong. Rec. S12852 (daily ed. Sept. 25, 1987) (introduced by Senator Cohen). At this writing, the Senate bill has passed the Senate by a vote of 71-19. See N.Y. Times, Mar. 16, 1988, at A8, col. 4. The House bill has been marked up and reported out of the House intelligence committee, and is awaiting action by the House Foreign Affairs Committee, to which it has been jointly referred. See Iran-Contra' Bill Moves Closer to Passage," First Principles, May 1988, at 9. 30See S.J. Res. 232, 100th Cong., 2d Sess., 133 Cong. Rec. S6239 (May 19, 1988) (requiring the President, before using force, to consult with "Gang of Six" consisting of the majority 19 31 legislation to amend the Arms Export Control Act. And Senator Specter has proposed several bills that would create a politically appointed director of national intelligence, reform the congressional intelligence committees, and install an independent inspector general at the CIA. 32 What Members of Congress must recognize is that all of these proposals should be integrated because they address different facets of the same problem: the need to restore the constitutional and institutional balance in foreign affairs. Even if only partially successful, a congressional attempt to consider omnibus legislation along these lines would at least focus national attention on the right precedent, problem, and prescription. In the same way as the Gramm-Rudman-Hollings Budget-Balancing Act and the War Powers Resolution constituted first cuts at constitutional line-drawing in their respective fields, so too would new omnibus national security legislation redefine the way we think about national security law. In my judgment, such a legislative effort could take place any time during the early years of the next Administration. A Republican President eager to engage in such an exercise could use the concept of a national security charter as a way of putting the Iran-Contra Affair behind him; a Democratic President could use it as a means of declaring his seriousness and minority leaders of both Houses, the Speaker of the House and 31s. 419, 100th Cong., 1st Sess. (1987); H.R. 898, 100th Cong., 1st Sess. (1987). 32 See S. 1818, 100th Cong., 1st Sess. (1987); S. 1820, 100th Cong., 1st Sess. (1987). 98-455 89 - 3 20 about foreign policy reform. But even if the impetus for national security reform does not come from the presidential candidates, there seems no reason why it should not come from Congress itself. Congress has recently led many recent broadscale legislative reform efforts: for example, the Tax Reform Act of 1986, the deregulation movement of late 1970's, and the environmental reform movement of late 1960's. The problem of national security reform is at least as important as any of these. Many notable foreign affairs reforms, including the 1986 South African sanctions bill, the Trade Act of 1974, and the War Powers Resolution, passed into law without significant presidential leadership or over presidential opposition. Even without strong presidential leadership, a Congress committed to bipartisan national security reform could pass a legislative charter that would redefine the allocation of national security responsibility between the branches for the next forty years. Let me The release of the Iran-Contra Committees' report last fall should have marked the beginning, not the end, of Congress' efforts to deal with the national security crisis exposed by the Iran-Contra Affair. close by quoting Justice Jackson's concurring opinion in Steel Seizure Case, which I think admirably summarizes our present situation: "A crisis that challenges the President equally, or perhaps primarily, challenges Congress. We may say that power to legislate belongs in the hands of Congress, but only Congress itself can prevent power from slipping -33 through its fingers." Thank you very much for your attention. 33 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (Jackson, J., concurring). Why the President (Almost) Always Wins Copyright 1988, Harold Hongju Koh. ↑ Associate Professor, Yale Law School. From 1983-85, the author served as an Attorney-Adviser Portions of this article were first presented at the April 1987 Annual Meeting of the American I am grateful to the many friends who challenged and supported me through earlier drafts of this 1255 |