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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Chadha (6 of 9)
Box: 8
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WITHDRAWAL SHEET
Ronald Reagan Library
Collection: ROBERTS, JOHN G.: Files
Archivist: gcc/beb
File Folder: JGR/Chada [6 of 9]
OA 12658 12359
Date: 5/26/98
DOCUMENT
SUBJECT/TITLE
DATE
RESTRICTION
NO. AND TYPE
1. memo
John G. Roberts ro Fred F. Fielding re Legislative
7/12/83
Veto Meeting, 1p.
RESTRICTION CODES
Presidential Records Act [44 U.S.C. 2204(a)]
Freedom of Information Act [5 U.S.C. 552(b)]
P-1 National security classified information [(a)(1) of the PRA].
F-1 National security classified information [(b)(1) of the FOIA].
P-2 Relating to appointment to Federal office [(a)(2) of the PRA].
F-2 Release could disclose internal personnel rules and practices of an agency [(b)(2) of the
P-3 Release would violate a Federal statute [(a)(3) of the PRA].
FOIA].
P-4 Release would disclose trade secrets or confidential commercial or financial information
F-3 Release would violate a Federal statue ((b)(3) of the FOIA].
[(a)(4) of the PRA].
F-4 Release would disclose trade secrets or confidential commercial or financial information
P-5 Release would disclose confidential advice between the President and his advisors, or
[(b)(4) of the FOIA].
between such advisors [(a)(5) of the PRA].
F-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the
P-6 Release would constitute a clearly unwarranted invasion of personal privacy ((a)(6) of
FOIA].
the PRA].
F-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of
the FOIA].
C. Closed in accordance with restrictions contained in donor's deed of gift.
F-8 Release would disclose information concerning the regulation of financial institutions
[(b)(8) of the FOIA].
F-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of
the FOIA].
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 28, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
252
SUBJECT:
Correspondence from Senator Goldwater
on Chadha and War Powers Resolution
On July 13 Senator Goldwater wrote Ken Duberstein, enclosing
a copy of his remarks from the Congressional Record of July
12. Those remarks questioned the constitutionality of the
War Powers Resolution in light of the Chadha decision. The
Senator's remarks did not focus on the legislative veto
provision in the War Powers Resolution, but more generally
suggested that the entire Resolution was invalid on the
basis of the general thrust of Chadha, i.e., that each
branch should keep to its own turf.
In his letter, Goldwater expressed his hope that his remarks
would be directed to the President and to you. Duberstein
sent Sherrie a copy for appropriate action; Sherrie referred
it to me. I have drafted a response based primarily on Ken
Dam's testimony concerning the effect of Chadha on the War
Powers Resolution.
Attachment
THE WHITE HOUSE
WASHINGTON
July 28, 1983
Dear Senator Goldwater:
Ken Duberstein has shared your letter of July 13 with me.
Along with that letter you provided a copy of your remarks,
published in the Congressional Record of July 12, 1983,
concerning the War Powers Resolution and the Supreme Court's
decision in Immigration and Naturalization Service V.
Chadha.
Needless to say, I read your remarks with considerable
interest. In the executive branch, an inter-agency working
group has been active since the announcement of the Chadha
decision, reviewing the various statutes containing
legislative vetoes. As you doubtless know, representatives
from both the Department of State and the Department of
Justice have already testified before Congress on the impact
of the Chadha decision. Our main effort, beyond simply
evaluating the legal effect of the decision, has been to
assure Congress that we have no intention of "exploiting"
the decision and will continue to consult closely with
Congress concerning activities previously subject to the
threat of legislative veto.
Much of the debate and discussion in the wake of the Chadha
decision has, of course, concerned the War Powers Resolution.
Deputy Secretary of State Kenneth W. Dam has testified
before both the House Committee on Foreign Affairs and the
Senate Committee on Foreign Relations concerning the effect
of Chadha on the Resolution. As Mr. Dam testified, the
legislative veto provision of the Resolution -- found at
section 5 (c) -- is clearly unconstitutional, and severable
from the remainder of the statute.
Mr. Dam testified that section 5 (b), which purports to
require the President to withdraw troops in certain circum-
stances in the absence of Congressional authorization, does
not fall within the scope of the Chadha decision. That
section does not contain a legislative veto. As Mr. Dam
noted, however, "the Executive Branch has traditionally had
questions about this requirement of Congressional authoriza-
tion for Presidential disposition of our armed forces, both
in light of the President's Commander-in-Chief power and on
practical grounds." Your suggestion that the broader
implications of the analysis in Chadha -- as opposed to its
specific treatment of legislative vetoes -- may have a
bearing on the War Powers Resolution as a whole is certainly
worthy of further consideration.
-2-
Thank you for sharing your views on this important subject
with us. They will certainly be helpful as we continue to
work with Congress in assessing and responding to the Chadha
decision.
Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable Barry Goldwater
United States Senate
Washington, D.C.
20510
FFF:JGR:aw 7/29/83
CC: FFFielding
JGRoberts
Subj.
Chron
bcc: Ken Duberstein
THE WHITE HOUSE
WASHINGTON
July 28, 1983
Dear Senator Goldwater:
Ken Duberstein has shared your letter of July 13 with me.
Along with that letter you provided a copy of your remarks,
published in the Congressional Record of July 12, 1983,
concerning the War Powers Resolution and the Supreme Court's
decision in Immigration and Naturalization Service V.
Chadha.
Needless to say, I read your remarks with considerable
interest. In the executive branch, an inter-agency working
group has been active since the announcement of the Chadha
decision, reviewing the various statutes containing
legislative vetoes. As you doubtless know, representatives
from both the Department of State and the Department of
Justice have already testified before Congress on the impact
of the Chadha decision. Our main effort, beyond simply
evaluating the legal effect of the decision, has been to
assure Congress that we have no intention of "exploiting"
the decision and will continue to consult closely with
Congress concerning activities previously subject to the
threat of legislative veto.
Much of the debate and discussion in the wake of the Chadha
decision has, of course, concerned the War Powers Resolution.
Deputy Secretary of State Kenneth W. Dam has testified
before both the House Committee on Foreign Affairs and the
Senate Committee on Foreign Relations concerning the effect
of Chadha on the Resolution. As Mr. Dam testified, the
legislative veto provision of the Resolution -- found at
section 5 (c) -- is clearly unconstitutional, and severable
from the remainder of the statute.
Mr. Dam testified that section 5 (b), which purports to
require the President to withdraw troops in certain circum-
stances in the absence of Congressional authorization, does
not fall within the scope of the Chadha decision. That
section does not contain a legislative veto. As Mr. Dam
noted, however, "the Executive Branch has traditionally had
questions about this requirement of Congressional authoriza-
tion for Presidential disposition of our armed forces, both
in light of the President's Commander-in-Chief power and on
practical grounds." Your suggestion that the broader
implications of the analysis in Chadha -- as opposed to its
specific treatment of legislative vetoes -- may have a
bearing on the War Powers Resolution as a whole is certainly
worthy of further consideration.
-2-
Thank you for sharing your views on this important subject
with us. They will certainly be helpful as we continue to
work with Congress in assessing and responding to the Chadha
decision.
Sincerely,
Orig. signed by FFF
Fred F. Fielding
Counsel to the President
The Honorable Barry Goldwater
United States Senate
Washington, D.C.
20510
FFF:JGR:aw 7/29/83
CC: FFFielding
JGRoberts
Subj.
Chron
bcc: Ken Duberstein
July 26, 1983
Dear Senator Goldwater:
Thank you for your note enclosing a copy
of your recent remarks regarding the
implications of the legislative veto
decision for the War Powers Resolution.
I appreciate your contacting me to see
that your comments are brought to the
attention or the President and his advisers.
Rest assured that your statement will be
given close attention and review.
With best wishes,
Sincerely,
Kenneth M. Duberstein
Assistant to the President
The Honorable Barry Goldwater
United States Senate
Washington, D.C. 20510
KMD:CMP:dps
CC: w/copy of inc, Bob Kimmitt - FYI
CC: w/copy of inc, Sherrie Cooksey) - for
appropriate action
COMMITTEES:
BARRY GOLDWATER
ARIZONA
INTELLIGENCE. CHAIRMAN
ARMED SERVICES
TACTICAL WARFARE, CHAIRMAN
United States Senate
PREPAREDNESS
STRATEGIC AND THEATRE NUCLEAR FORCES
COMMERCE, SCIENCE, AND TRANSPORTAT
WASHINGTON. D.C. 20510
COMMUNICATIONS. CHAIRMAN
AVIATION
SCIENCE. TECHNOLOGY, AND SPACE
INDIAN AFFAIRS
July 13, 1983
Mr. Ken Duberstein
Assistant to the President
for Legislative Affairs
The White House
Washington, D.C. 20500
Dear Ken:
Yesterday I told the Senate that the War Powers Resolution is a
dead letter under the rule applied by Chief Justice Burger to the
legislative veto case. The basic prerogatives of the President are
at stake in both subjects.
A copy of my remarks is enclosed and I hope you will bring it to
the attention of the President and to the White House Counsel.
With best wishes,
Barry Goldwater
Enclosure
9670
CONGRESSIONAL RECORD
July 12, 1983
nority leader comports with what I
quence, if the proponents of these
This is an invalid action because
think is the sense of our committee on
amendments would agree to that.
Congress cannot encroach on a respon-
this matter. That is that the advanced
Then we could deal with all amend-
sibility of the President. Just as the
technology bomber funds be pro-
ments relating, for example, to techni-
Supreme Court ruled in the legislative
gramed for these purposes and not for
cal aircraft procurement or all amend-
veto case that Congress overstepped
any other system. This is a priority
ments relative to Army procurement,
its authority by invading the constitu-
system as far as our committee is con-
amendments relative to strategic sys-
tional boundaries of the executive
cerned. Therefore, I think the amend-
tems, and deal with them on a categor-
branch, so it would have to rule that
ment certainly comports with the
ical basis in an orderly way, so that in-
the war powers resolution exceeds
spirit of the bill and the will of the
terested Senators will know at about
those boundaries if the Court decides
committee as I understand it.
what point in time amendments in
to reach the constitutional question on
Mr. JACKSON. Mr. President, I
which they have an interest will come
the merits.
concur in the comments of the distin-
up and areas in which they have an in-
Congress cannot usurp the powers
guished chairman of the committee
terest will be dealt with.
vested by the Constitution in the
and the distinguished minority leader.
I shall not attempt to do that now,
President even if the Chief Executive
The 18(b) program is one of our most
but I hope that, at some point, we can
has assented to the particular piece of
important strategic programs. The dis-
organize our business in that fashion.
legislation which contains a provision
tinguished minority leader is saying, in
In the meantime, if Senators are pre-
contrary to the Constitution. This is
effect, that the funds here should be
pared to offer amendments, I shall be
the expressly stated ruling of the
fenced off from any other use for that
delighted to urge or recommend to the
Court in the case announced last
purpose. I strongly support the
Chair that those Senators be recog-
month by Chief Justice Burger, Immi-
amendment and I hope that it will be
nized.
gration Service against Chadha.
unanimously approved. I commend the
Seeing none at the moment, Mr.
Of course we know that the Presi-
distinguished minority leader.
President, I think we can probably get
Mr. BYRD. Mr. President, I thank
dent never gave his assent to the war
on the telephone and suggest to some
the distinguished manager of the bill
powers resolution. President Nixon
Senators that now would be a propi-
(Mr. TOWER) and the distinguished
vetoed it and Congress overrode his
tious time to offer them.
ranking manager (Mr. JACKSON) for
veto. But this strengthens the argu-
I suggest the absence of a quorum.
their comments and their support.
ments against that statute. Where the
The PRESIDING OFFICER. The
The PRESIDING OFFICER. The
President specifically objects to and
clerk will call the roll.
question is on agreeing to the amend-
denies the authority claimed by a
The bill clerk proceeded to call the
ment.
piece of legislation, the validity of the
roll.
The amendment (No. 1458) was
challenged statute is on even weaker
agreed to.
Mr. GOLDWATER. Mr. President, I
ground than it was in the legislative
Mr. TOWER. Mr. President I move
ask unanimous consent that the
veto case.
to reconsider the vote by which the
quorum call be dispensed with.
This conclusion becomes evident
amendment was agreed to.
The PRESIDING OFFICER. With-
when we examine what Chief Justice
Mr. BYRD. I move to Tax hat
out objection, it is so ordered.
Burger wrote about the specific power
motion on the table.
Congress asserted in the legislative
The motion to lay on the table THE
WAR POWERS RESOLUTION
veto case, which was an effort by Con-
agreed to.
VOIDED
gress to control decisions involving the
Mr. TOWER. Mr. President, we have
a number of amendments Senators
Mr. GOLDWATER. Mr. President, I
deportation of certain aliens. In that
wish to take a moment to comment on
case, Congress asserted plenary au-
have indicated they intend to offer. I
think we have a total now of around
the Supreme Court's decision, an-
thority over aliens under a power
30. I expect that number to grow. The
nounced on June 23, which held that
which is specifically granted to it by
majority leader has already expressed
the so-called legislative veto by con-
article I, section 8, clause 4, of the
gressional resolution is a violation of
Constitution. Even so, wrote Chief
his intention to work late hours, if
the separation of powers doctrine of
Justice Burger, the authority of Con-
necessary, and to work through the
weekend, if necessary, to complete the
the U.S. Constitution. In particular, I
gress over the particular subject "is
bill this week. It is, I know, his inten-
want to address the Court's decision in
not open to question, but what is chal-
tion to do that if at all possible. It is
the context of the war powers resolu-
lenged here is whether Congress has
certainly, I think, the desire of the dis-
tion which the Congress voted over
chosen a constitutionally permissible
tinguished ranking minority leader
the President's veto in 1973.
means of implementing that power."
(Mr. JACKSON) and myself to complete
Mr. President, I believe the same
Applying this same analysis to the
this bill with as much dispatch as pos-
reasoning and same constitutional
war powers resolution, we can see that
sible. I hope that we shall not have to
analysis which the Supreme Court ap-
a similar result would follow. It is true
resort to a weekend session.
plied to the legislative veto will have
that Congress has concurrent authori-
I understand that there will be a
the effect of invalidating the war
ty in the field of military and defense
protracted debate on one or two issues.
powers resolution. That statute itself
matters. It is true that Congress must
I expect that might come later in the
includes a legislative veto as the very
appropriate moneys for the Armed
proceedings, after we have disposed of
heart of its purported method of en-
Services at least every 2 years, that
a number of other matters.
forcement and the resolution is clearly
Congress possesses the power to de-
In any case, Mr. President, we have
a dead letter to the extent of its reli-
clare war, and that Congress may es-
our work cut out for us. I hope Sena-
ance on the now-declared unconstitu-
tablish a military justice system.
tors will be forthcoming and come
tional legislative veto.
The flaw in the war powers resolu-
over and offer their amendments
But more than that, Mr. President,
tion, however, is that the Congress has
when they are asked to do SO.
the strong six-Justice majority opinion
attempted to exercise its power in a
We are, of course, running into the
written by Chief Justice Warren
way which offends other constitution-
usual problem of having a number of
Burger indicates that the basic prem-
al restrictions. In the legislative veto
amendments, but also a number of
ise of the war powers resolution is un-
case, the Supreme Court put its basic
Senators who say they are unprepared
constitutional. Congress attempts in
reliance upon the precise terms of sec-
to offer them this afternoon. I hope
the war powers resolution to assume
tion 1, article, I, of the Constitution,
we can break through that logjam and
unto itself the ultimate and control-
which provides:
get those amendments over here and
ling power over the use and deploy-
offered.
All legislative powers herein granted shall
ment of U.S. military forces in defense
be vested in a Congress of the United
It is my intention to try to offer
of the lives, freedoms, and rights of
States. which shall consist of a Senate and
these amendments in a kind of se-
U.S. citizens and our Nation.
House of Representatives.
July 12, 1983
CONGRESSIONAL RECORD - SENATE
S 9671
If the Supreme Court should ever
deliberately allotted among three sep-
end of 1975. Another amendment passed re-
consider a case involving the war
arate branches.
quiring a reduction in the numbers of
powers resolution, the Court would
That is the lesson of the Supreme
United States troops in NATO countries. A
renewed ban on the use of funds to finance
similarly rely on an equally explicit
Court's decision in the legislative veto
the involvement of American military forces
provision of the Constitution, which is
case and I hope that my colleagues in
in hostilities in or over or from off the
the first section of article II. This sec-
Congress will reflect long and hard on
shores of North and South Vietnam, Laos,
tion provides:
that meaning of the case so that we
or Cambodia was accepted without debate.
The executive power shall be vested in a
may someday reach the point when we
Conferees later deleted the unilateral re-
President of the United States of America.
will openly repeal the unwise and un-
duction of 110,000 troops overseas, but a
Also, the Supreme Court would rely
constitutional War Powers Resolution.
provision requiring the withdrawal of
on the first paragraph of section 2 of
Mr. President, in the event that
NATO forces proportionate to the balance
article II, which declares in precise
some of my colleagues, who were not
of payments deficit caused by stationing our
terms:
here at the time the Congress acted on
troops in Europe and a prohibition aganist
The President shall be Commander-in-
the War Powers Resolution, may be
United States military actions in Indochina
were both contained in the law signed by
Chief of the Army and Navy of the United
aware of the conflict between that res-
President Nixon on November 16.
States, and of the militia of the several
olution and the Constitution and his-
Meanwhile, blunderbuss provisions shut-
states, when called into the actual service of
tory of our country, I ask unanimous
ting off all funds to the Department of
the United States.
consent that an article discussing the
State, USIA, and other foreign affairs agen-
Just as the Court held that the pro-
subject, written by J. Terry Emerson,
cies upon failure to supply information re-
visions of article I are integral parts of
my staff counsel, may be printed in
quested by certain Congressional Commit-
the constitutional design for the sepa-
the RECORD.
tees were attached by the Senate Foreign
ration of powers, the Court must find
There being no objection, the article
Relations Committee to the USIA, State De-
in a similar vein that the provisions of
was ordered to be printed in the
partment and foreign economic aid bills.
article II are woven into the fabric of
RECORD, as follows:
Congress eventually deleted the provision
from the State Department and AID bills
the separation of powers concept.
[From 2 Strategic Review 44, Winter 1974]
and sustained President Nixon's veto of the
The history of the 13 separate states
IMPERATIVES OF THE PRESIDENT'S WAR
USIA bill.
prior to the Constitutional Convention
POWERS
A Senate attack on executive agreements
of 1787, the evolution in the early
(J. Terry Emerson)
also failed. Two amendments prohibiting
State constitutions from weak execu-
"In every circle, and truly, at every table,
the implementation of the 1971 Azores mili-
tives to strong executives, the discred-
there are people who lead armies into Mac-
tary base agreement between the United
ited interference by the Continental
edonia; who know where the camp ought to
States and Portugal or any future base
Congress with military actions of Gen-
be placed; what posts ought to be occupied
agreements with foreign countries, unless
eral Washington during the War of
by troops, when and through what pass that
the agreements were submitted to the
Independence, and the entire course of
territory should be entered; where maga-
Senate for its advice and consent, were
zines should be formed; how provisions
dropped in conference from the State De-
practice under the Constitution from
should be conveyed by land and sea; and
partment bill.
the administration of President Wash-
when it is proper to engage the enemy,
THE WAR POWERS RESOLUTION
ington to the current administration
when to lie quiet
What then is my opin-
of President Reagan, all combine to
ion? That commanders should be counseled,
But the major battle of 1973 dealt with
demonstrate beyond any reasonable
chiefly, by persons of known talent, by
the heart of the war powers issue-the cir-
cumstances in which war or the threat of
doubt that the fundamental and ulti-
those who have made the art of war their
mate power to employ the existing
particular study, and whose knowledge is
war can be used as an instrument of nation-
forces of the United States in defense
derived from experience; from those who
al policy. Here Congress emerged as the
of citizens and the survival of our
are present at the scene of action, who see
clear victor, at least for the moment. For
the country, who see the enemy, who see
the first time in history, legislative policy
country, in reaction to foreign dan-
the advantages that occasions offer, and
restrictions governing the waging of war
gers, rests with the President.
who, like people embarked in the same ship,
became part of American law. This was no
Once the military forces are estab-
are sharers of the danger. If, therefore,
exercise of the power of the purse, tied to
lished, once an Air Force and a Navy
anyone thinks himself qualified to give
an appropriations measure. This proposal.
and an Army and a Marine Corps are
advice respecting the war which I am to
House Joint Resolution 542, the War
conduct, which may prove*advantageous to
Powers Resolution, was a clear-cut declara-
created, it is for the President to
decide how to deploy and use those
the public, let him not refuse his assistance
tion of Congressional superiority in the sub-
forces. That is an executive power. It
to the state, but let him come with me into
stantive, policy-making realm of the use and
Macedonia. He shall be furnished with a
disposition of the Nation's Armed Forces.
is within the class of executive au-
ship, a horse, a tent; even his traveling
On November 7, Congress put this unprec-
thorities that the Framers had in
charges shall be defrayed. But if he thinks
edented legislation into law over President
mind when they drafted section 1 of
this too much trouble, and prefers the
Nixon's veto. Cast as an effort "to fulfill the
article II of the Constitution and con-
repose of a city life to the toils of war, let
intent of the framers of the Constitution
ferred upon the President all the ex-
him not, on land, assume the office of a
and insure that the collective judgment of
ecutive powers of the United States.
pilot."-Lucrus AEMILIUS PAULLUS, Roman
both the Congress and the President will
General. 168 B.C.
apply to the introduction of United States
And, these military defense powers are
On May 19, 1973, after nine years of direct
Armed Forces into hostilities," the War
precisely what the Framers contem-
United States involvement in Indochina, the
Powers Resolution actually claims for Con-
plated when they expressly provided
House of Representatives cast its first vote
gress a position of dominance over the
that the President, not the Congress,
in favor of ending military activities there.
entire field of troop commitment and de-
but the President, is the Commander-
Though President Nixon vetoed this bill,
ployment.
in-Chief of the Armed Forces.
which would have barred use of all funds to
The operative sections of the Resolution
Thus, it is a violation of the separa-
conduct American combat activity in Cam-
are triggered by the introduction of Ameri-
tion of powers for Congress to attempt
bodia and Laos, Congress promptly passed a
can forces, without a declaration of war, (1)
to claim for itself the supreme direc-
second appropriations bill with a broadened
into hostilities or imminent hostilities, (2)
tion of the Armed Forces. Congress
prohibition applicable to North and South
into the territory, airspace or waters of a
Vietnam as well as Cambodia and Laos. This
foreign nation, while equipped for combat
has attempted to do that in the War
ban became effective on August 15.
(except -for supply, replacement, repair or
Powers Resolution and the action of
On September 20, the Senate began work
training), or (3) in numbers which substan-
Congress is in direct contradiction to
on the military weapons procurement bill.
tially enlarge United States forces equipped
other specific restrictions of the Con-
With the United States and the Soviet
for combat already located in a foreign
stitution and of the separation of
Union about to resume nuclear strategic
nation. When military forces are introduced
powers.
arms talks in SALT II and with an October
in one of these situations, the President
Congress cannot invade an executive
30 date set for beginning negotiations be-
must report on it to Congress within forty-
tween the opposing NATO and Warsaw Pact
eight hours and periodically thereafter.
function. Congress cannot set itself up
nations on the subject of mutual reduction
Unless Congress grants specific authority
as the Executive. Congress cannot con-
of armed forces in Europe, the Senate ap-
for such use of the Armed Forces to contin-
centrate unto itself all the powers of
proved an amendment to unilaterally cut
ue within sixty days after the report is re-
the Government which the Framers
overseas land-based troops by 110,000 by the
quired, the President shall end the oper-
9672
CONGRESSIONAL RECORD - SENATE
July 12, 1983
ation. Only if he certifies that the safety of
frost and snow without cloathes or Blan-
tion when it voted down a proposal giving
United States troops demands their contin-
kets"-Letter of George Washington to the
Congress the power to declare "peace"-to
ued use in the course of removal is the
President of Congress, Valley Forge, Decem-
end a war once started-and with the
President allowed an additional thirty days.
ber 23, 1777.
remark made at the Convention that the
But, at any time during this sixty to ninety
In August of 1777, the Continental Con-
conduct of war "was an Executive function."
day period, should Congress approve a con-
gress, then possessed of the joined powers
From the historical setting in which these
current resolution ordering their withdraw-
of Legislative and Executive, had discarded
events occurred, it is clear the Framers
al, the President must obey a Congressional
the military Commissary General whom
meant to leave the basic powers of waging
directive to remove the forces.
Washington had selected and itself assumed
war with the President. They were influ-
Another major provision of the Resolu-
complete charge of the commissariat. Short-
enced in this decision by the writings of
tion prescribes that no authority for the use
ly after this change, the system suffered a
Locke, Montesquieu and Blackstone, all of
of troops shall be inferred from any provi-
total breakdown. As we know, the great
whom viewed the making of war as a prerog-
sion of law, including defense appropri-
want of clothing, food and blankets grew
ative of the Executive. These writers be-
ations, unless the law spells out a specific
into tragedy as cold weather came on. A
lieved it to be among the fundamental laws
intent to constitute authority within the
prominent military historian has written:
of nature and government that the Execu-
meaning of the Resolution. Nor is any au-
"The amount of harm, caused by the unwise
tive should posses an unrestricted discretion
thority for troop commitment to be inferred
military control usurped by Congress, can
to act when the safety of society was in-
from any existing or future treaty unless it
only be measured in terms- of the appalling
volved.
is implemented by other legislation specifi-
sufferings of the American soldiers at
The danger of legislative deliberation in
cally conferring this authority.
Valley Forge, which Washington was power-
moments of distress is the focus of Madison
What is happening is that Congress is as-
less to prevent."1
and Hamilton in the Federalist 19. Here the
serting dominion over a host of unsettled
But this is not the only disaster for which
two great architects of the Constitution
Constitutional issues which until now the
Congress must be held accountable. Re-
agree that the Constitutional Convention
Supreme Court has been reluctant to arbi-
quired by his commission, "punctually to
had specifically rejected as a political model
trate, but which the course of history has
observe any such orders and directions" as
the Germanic Empire in which the Diet, or
resolved generally in favor of the Chief Ex-
he should receive from Congress, Washing-
legislative body, was possessed of the power
ecutive. Overturning a decision by the U.S.
ton was harassed, second-guessed and over-
Second Court of Appeals determining that
ruled throughout the War of Independence.
to make and commence war. "Military prep-
military appropriations throughout the war
It was the Continental Congress who or-
arations must be preceded by so many te-
dious discussions
dered Washington's men, opposed by over
they wrote, "that
in Southeast Asia did contain an authoriza-
four times their strength, to defend Man-
before the Diet can settle the arrangements
tion for the making of war, Congress itself
hattan and Long Island to the last, resulting
the enemy are in the field."
has mandated that authority cannot be in-
ferred from war-implementing appropri-
in the useless surrender of over 3,000 Ameri-
Thus, in creating a government in which
ations. Disregarding the expectation of our
can troops in the summer of 1776. It was
the Executive power was removed from the
Congress who passed over Washington's
Congress and vested in the single person of
allies, Congress unilaterally has decided at
this late time to spell out a hard and fast
first choice as commander for the Southern
the Presidency, the Framers well under-
Department, and instead appointed a gener-
stood the need for unity in the Executive
rule preventing the Executive Arm from en-
al who had recently been exposed for plot-
Department and especially in making deci-
forcing an American commitment under the
NATO Treaty without further Congression-
ting against Washington and who in his
sions related to emergencies. As Alexander
al authorization. Oblivious to the history of
first battle proceeded to lose the entire
Hamilton wrote in the Federalist 73, "Of all
American Army in the South. And it is Con-
the cares or concerns of government, the di-
the Republic in which Presidents have en-
gress whose orders blocked the reinforce-
rection of war most peculiarly demands
gaged United States forces in hostilities
ments which Washington needed in the fall
those qualities which distinguish the exer-
abroad on hundreds of occasions without a
declaration of war, Congress has taken it
of 1777, making it impossible for him to save
cise of power by a single hand. The direc-
tion of war implies the direction of the
upon itself to suddenly and dramatically
the forts along the Delaware that had pre-
shift the interpretation which 184 years
vented the British from using the river for
common strength; and the power of direct-
have put upon the Constitution. Contrary
the supply of their armies.
ing and employing the common strength
These and other directives of Congress
form a usual and essential part in the defin-
to the brutal realities of warfare, Congress
very nearly lost the War of Independence.
iton of executive authority." In other words,
now instructs any enemy wise enough to
And yet, it is exactly this system of govern-
the direction of military affairs is to be
count that it may rely upon the inaction of
ment to which the War Powers Resolution
managed by a single Commander in Chief,
the legislature to achieve for it within sixty
would have us revert.
not by 535 different Members of Congress.
to ninety days the withdrawal of American
The Founding Fathers intended to pre-
An analysis of history will shed additional
forces which no opposing foe could compél.
vent a recurrence of the interference Wash-
proof that the Founding Fathers arranged
Who has the war powers? Who has the
ington had experienced. They had witnessed
the power to make war with the Executive
power of initially committing American
at first hand the inefficiency of the legisla-
Branch. For example, it is an oft-overlooked
forces to battle in defense of America's
ture meddling with military operations. Of
historical fact that the declaration of war
people-or America's freedoms-or our posi-
the fifty-five Framers who attended the
had already fallen into disuse in the eigh-
tion in the world? Once United States units
Constitutional Convention, no less than
are involved, who controls day-by-day tac-
teenth century. In the period from 1700 to
thirty had performed military duty in the
1787, the year of the Constitutional Conven-
tics and overall strategic- planning? With
Revolution. At least six signers of the Con-
tion, thirty-eight wars were held in the
war underway, who can dictate where and
stitution (in addition to Washington) were
Western World and thirty-seven of them
when to bomb and which borders to cross?
intimately familiar with Washington's prob-
began without any declaration. This devel-
In peace, who determines where American
lems. Thomas Mifflin had been quartermas-
opment was remarked upon by Alexander
forces can be stationed around the globe,
ter general of Washington's army, and Ham-
Hamilton in the Federalist 25.
and in what numbers? What is the meaning
ilton, McHenry and C.C. Pinckney had
of the Declaration of War Clause? What au-
The idea that the only way nations can go
served on Washington's staff. Gouverneur
thority did the Framers vest in the Com-
to war is by a declaration was a myth at the
Morris had defended the Commander in
time of the Constitutional Convention.
mander in Chief? Who enjoys primacy in
Chief in Congress and visited Valley Forge;
the making of foreign policy?
Why, if the Constitutional Convention in-
and Robert Morris had financed Washing-
tended for the nation to go to war only
FROM THE FOUNDING FATHERS
ton's campaigns. These men knew that Con-
when Congress had declared it, or otherwise
"I am now convinced, beyond a doubt that
gress, clothed with powers of an Executive,
authorized it, did the Founders use a
unless some great and capital change sud-
had very nearly caused disaster during the
method to vest this power which was so
denly takes place in that line [Commis-
Revolution. They planned that the new gov-
little used in their own time?
sary Department], this Army must inevitably
ernment which they formed would have at
Another question which must be an-
be reduced to one or other of these three
its head a Commander in Chief who pos-
swered, if the Framers are supposed to have
things. Starve, dissolve or disperse.
sessed unbridled power over the direction
vested Congress with primary power over
"[B]ut what makes this matter still more
and management of war.
the making of war, is why they chose a word
extraordinary in my eye is, that these very
This conclusion explains why the
"declare" which meant in the custom of the
Gentn. who were well apprized of the na-
Founders designated the President as Com-
time something far different? Samuel John-
kedness of the troops should think a
mander in Chief. It explains the decision of
son's Dictionary of the English Language,
Winters Campaign and the covering these
the Constitutional Convention to reject a
the standard dictionary used in America at
States from the Invasion of an Enemy so
clause specifically giving Congress the
the time of the Constitutional Convention,
easy a business. I can assure those Gentle-
power "to make war." It is consistent with
defines "declare" as meaning no more than
men that it is a much easier and less dis-
the position of the Constitutional Conven-
"to make known" or "to proclaim." On the
tressing thing to draw remonstrances in a
other hand, "to make," a power removed
comfortable room by a good fire side than
'T. Frothingham, Washington, Commander in
from Congress by the Constitutional Con-
to occupy a cold bleak hill and sleep under
Chief, Houghton Mifflin Co., Boston, 1930, p. 234.
vention, was given a definition of substance.
July 12, 1983
CONGRESSIONAL RECORD-SENAT
S 9673
"Make" meant "to create" or "to bring
American States." Madison more specifical-
It may come as a surprise, but research by
into any state or condition." Thus, when the
ly indicates in the Federalist 38 that the
the author has revealed the occurrence of
Constitutional Convention struck out "to
Framers had intentionally withheld the di-
199 separate foreign military hostilities
make" from the draft of the Constitution
rection of war from Congress because it is
commenced by Presidents in the absence of
and substituted "declare," it withheld from
"particularly dangerous to give the keys of
a declaration of war. Each of these oper-
Congress the power to create war or to
the Treasury and the command of the army
ations involved actual landings on foreign
bring this country into the state of war and
into the same hands." Would the Framers
soil or the evacuation of American citizens
left with it instead a power to declare, or
have made the Executive the mere hand-
from foreign lands, or in a few instances,
formally make known, that the United
maiden of Congress if they thought this?
mobilizations into crisis areas where the risk
States is at war and that the whole forces of
PRESIDENTIAL PRIMACY IN DEFENSE
of war was particularly grave, such as the
the nation will be employed in carrying on
"It was due largely to the erratic, occa-
Cuban Missile Crisis of 1962.3 Over one hun-
the war. Accordingly, each of the American
sionally irresponsible actions of the ancient
dred of these hostilities took place outside
declarations of war-the War of 1812, the
Greek assemblies that the city-states' diplo-
the Western Hemisphere. Many involved
Mexican War of 1846, the War against
macy was ineffective and defensive collabo-
the employment of several thousands of
Spain in 1898, and World Wars I and II-
ration against the Eastern aggressors impos-
troops. All involved the serious risk of war
were not initiated by Congress, but were
sible. Despite growing recognition by Con-
and at least eighty-two incurred actual
called for by Presidents after hostile acts by
gress and the public of the purposes, meth-
fighting. Taken together, the incidents,
foreign countries which had brought us into
ods and needs of an effective diplomacy, as
large and small, amass a consistent practice
an existing state of war between sovereign
long as the consistent pursuit of long-range
by which American Presidents have re-
powers.
interests and aspirations is periodically sac-
sponded to foreign threats with whatever
Also, the declaration may have been con-
rificed to passing whims inspired by fleeting
force they believed was necessary and tech-
ceived as the method by which the United
emotions in Washington. the danger persists
nologically available at the particular
States could enter into "offensive war," as
of a twentieth-century repetition of the
moment in history.
distinguished from situations where the
Greek débacleS-CHARLES W. THAYER, Dip-
What is new in this regard is the failure of
President has discretion to use force, on his
lomat
Presidents in recent history to bring the de-
own initiative, to react against dangers to
The pertinent eighteenth century materi-
fensive use of military force to a prompt
the nation or its people. In circumstances
als combine with living history to the end
and successful conclusion. President John-
where the President does not perceive ag-
that the President, as Commander in Chief,
son acted decisively in the Dominican land-
gression or a threat to our own security, the
occupies an entirely independent position,
ings of 1965 and President Nixon's orders
Founding Fathers may well have intended
having powers of defense that are exclusive-
for the mining of ports and increased bomb-
for the Executive and Congress jointly to
ly his, subject to no policy restriction or
ing in North Vietnam achieved at least the
collaborate by means of & formal declara-
control by Congress. The President cannot
return of American prisoners of war and a
tion.
conduct a war of aggression. He cannot in-
chance for the South Vietnamese to develop
The problem is that the advocates of Con-
timidate another nation with military
the means of defending themselves; but
gressional supremacy have confused the
threats simply because we do not like its
President Truman in Korea and President
declaration power with a veto power which
tariff rates or the way it governs its internal
Johnson in Vietnam entered prolonged and
was never given to Congress over situations
affairs. But the President may, in his discre-
irresolute hostilities which they showed no
when the President may exercise his inde-
tion, act in defense of our country, its citi-
capacity to terminate. Thus, the failure of
pendent authority for defense. This claim is
zens and freedoms, whenever and wherever
the Commander in Chief to bring his mili-
based upon assumptions that have no his-
a danger exists, presently or imminently,
tary actions to a prompt and successful con-
torial foundation. Even the correct premise
which compels a response on our part.
clusion fostered the emergence of gratu-
that the Framers wished to avoid creating a
There is a very little case law on point. In
itous advice respecting the conduct of war
despot who might lead them into ruinous
fact, no decision of the Supreme Court has
in the legislative chambers and new illusions
wars of conquest, in the manner of the
ever ordered the President to halt an on-
of legislative competence to wage war.
princes of Europe, misses the mark.
going war or any ongoing military activity.
In describing the President's authority to
Of course, the Framers intended to check
When Supreme Court Justice William
wage war, the Supreme Court has related it
the President from engaging them in wars
Douglas recently ordered a stop to the
to his assumed duty to win: 4 "As Command-
of aggression initiated by an inflamed pas-
American bombing of Cambodia, the eight
er in Chief, he is authorized to direct the
sion for conquest. But they equally knew as
other members of the Court promptly over-
movements of the naval and military forces
a law of society that a nation ought to
turned his decision.
placed by law at his command, and to
attend to the preservation of its own exist-
A nearly unbroken chain of history sup-
ence and that there must be some ultimate
ports the theme of Presidential responsibili-
employ them in the manner he may deem
ty for the national safety. Since Washing-
most effectual to harass and conquer and
authority who could and would be able to
ton's Proclamation of Neutrality in 1793, de-
subdue the enemy."
defend the country and its enduring inter-
spite our Treaty of Alliance with France,
The number of historical precedents of
ests. They knew that the only practical
agency to fulfill this expectation is not the
the authority to decide important matters
executive agreements is also impressive. Ex-
legislature composed of numerous members
of foreign relations bearing on questions of
ecutive agreements in every consequential
war or peace has been established in the Ex-
respect equivalent to a treaty have been
but the unitary office of the President.
Speed of decision, unity of decision, ability
ecutive. This is true both of decisions when
prevalent in every period of our history.
to terminate fighting or when to commence
The first known use of the international ex-
to execute the decision-all are qualities of
defensive measures.
ecutive agreement, other than by a treaty,
the Executive.
The Framers also recognized that a nation
Examples of Executive handling of mat-
occurred in 1792. The most recent compila-
which has a right to preserve itself, has, as a
ters of peace include Washington's Neutral-
tion of executive agreements indicates there
ity Proclamation; the agreement of 1817
are now 5,590 in effect.
necessary consequence, a right to avoid and
with Great Britain limiting naval arma-
There is nothing improper in this. Con-
prevent everything which would threaten it
ments on the Great Lakes; the Protocol of
gress itself has authorized or ratified all but
with danger. Thus the President, in order to
1873 averting a war with Spain over the Vir-
sixty-four of the current agreements, there-
protect the public safety, must necessarily
ginius affair: the Protocol of 1898 suspend-
by lending its stamp of approval to the by-
and practically meet foreign threats where
ing hostilities with Spain; the Protocol of
passing of the Senate's treaty power. As for
they arise and not only when they are at
1901 ending the Boxer uprising in China;
the 1 percent of agreements concluded by
our doorstep.
the surrender agreement ending the Philip-
the President on his own authority alone,
As Jay wrote in the Federalist 3: "Among
pine insurrection; the armistice conditions
the Congress may still determine whether
the many objects to which a wise and free
imposed upon Austria-Hungary and Ger-
or not it shall appropriate the moneys es-
people find it necessary to direct their at-
many in 1918; the cease-fire agreements
sential to implement these agreements. If
tention, that of providing for their safety
ending hostilities after World War II and
the President lacked authority to enter into
seems to be the first." This language hardly
the Korean War; and the recent Vietnam
any foreign agreements at all, without a
lends itself- to an inference that shackles
peace agreement; each and every one a
may be placed upon the President's ability
purely Executive agreement.
of response to foreign threats.
'T. J. Emerson. "War Powers Legislation," 74
Moreover, those who would dwell upon
West Va. Law Review 53, 1972, p. 367. Though some-
2 Wilson's Works, Vot. III, Lorenzo Press, Phila.,
of these 199 incidents may have been initiated by
the concern of the Founders with a despot
1804, p. 292. See also Jefferson's portrayal. quoted
subordinate officers on the spot, all appear to have
would do well to study the fear of our fore-
in the Federalist 48, of Congressional government
been undertaken on the President's directions, in
fathers with an unregulated Congress.
as the equivalent of "despotic government." What
implementation of well-known Presidential policies,
James Wilson instructed his law class in
influenced the Framers in the allotment of war
or subsequently ratified by him.
1790 "[t]o control the power and conduct of
powers was not worry over the powers of Congress
Fleming v. Page, 50 U.S. 603, 615 (1850). See also
the legislature by an overruling constitu-
or the President, but rather an overriding purpose
United States v. Sweeny, 157 U.S. 281, 284 (1895) in
tion, was an improvement in the science and
of providing effectively for the public safety. The
which the Court stated that the President is ex-
Presidency was universally recognized as the office
pected to wage a "successful war" once war has
practice of government reserved to the
most capable of attending to the national safety.
been commenced.
9674
CONGRESSIONAL RECORD - SENATE
July 12, 1983
treaty, it could be disastrous to the national
pass or deny emergency powers bearing on
they were answered before I even had
interest.
foreign trade or reject treaties or area reso-
a chance to read them. As I further re-
All we have to do is remember American
lutions with defense implications. Congress
lated here in this body, he even had a
preparations prior to our entry into World
can, as an ultimate recourse, initiate im-
woman spy on a campaign train of
War II. In 1941, President Roosevelt occu-
peachment procedures, impeachment being
pied a number of military bases granted us
meant as a viable safeguard against political
mine, and it was my unpleasant task
on British soil along their possessions in the
offenses, such as an irresponsible abuse of a
to ask her to separate herself from my
western Atlantic, and sent United States
Constitutional discretion. Less severely,
entourage.
troops to Greenland. Iceland and Dutch
Congress can trust to a free press which is
Why is it that the Washington and
Guiana, all before war was declared and all
always at the ready to spread word among
New York papers seem to keep on for-
by executive agreements with the local au-
the public of Congressional positions run-
ever and ever blasting the Govern-
thorities. A Congress which in August of
ning counter to the Presidency.
ment of the United States, be it Re-
1941 had extended the draft by but a single
With time, public opinion will work its will
vote could not have been counted upon to
upon the President or remove him from
publican or Democrat; with the em-
approve these base agreements at the time
office. But once Congress has determined
phasis on the Republicans. Why, when
they were crucial.
how many troops shall be enlisted, or what
so many things are going on around
Though the list of asserted uses of execu-
arms constructed, the President may, so
this world of such extreme impor-
tive privilege is not so long, there are several
long as he holds this high office, station
tance, not just to the United States as
examples of documents or testimony being
those forces and send those arms to such
a government entity but to the people
refused to Congress on this ground. For ex-
parts of the world as he finds needed in the
who live here who love freedom, do we
ample, Secretary Rogers and Dr. Kissinger
national defense. The Constitution author-
declined to appear before the Senate For-
read this sort of thing? Why is it that
izes the President to protect American
eign Relations Committee on January 2,
rights and security abroad and no legislative
the headlines are seemingly confined
1973, because of the ongoing negotiations
power short of that of the people, acting on
to the eastern seaboard, although I
with the North Vietnamese to end the Indo-
a Constitutional Amendment, can change
have to admit there are a few on the
china War. Without the protection of ex-
his authority.
west coast that go the same route
ecutive privilege, the nation's delicate peace
What was recognized by the Founding Fa-
which occupy themselves with disclos-
talks may have been disrupted.
thers and what has been reflected through-
ing top secret information, berating
In fact, without a minimum of independ-
out history is that war is a state in which
the President of the United States,
ence for the Executive Department in with-
nations are placed not alone_ by their own
holding certain classes of information, our
acts, but by the acts of other-nations. As
whoever he might be, downgrading
military security, our relations with other
Thomas Jefferson wrote in 1815, in frank
our efforts around this world to pre-
countries, pending law enforcement mat-
acknowledgment of his earlier error in
serve peace and never once thinking
ters, government employee personal secu-
thinking the United States could live in
maybe there is a responsibility written
rity files, and the confidentiality of internal
peace whatever the trend of events else-
into the Constitution, in that wonder-
decision-making processes could be im-
where, "experience has shown that contin-
ful first amendment, which calls for
paired. For example, if Congress had en-
ued peace depends not merely on our own
the responsibility that should be prac-
acted the information rider to the State De-
justice and prudence, but on that of others
partment Authorizations, any committee of
ticed by everyone connected with the
also."
Congress could demand all working docu-
However much the Framers may have
media, including television, radio, and
ments accompanying an ongoing interna-
wished to live by a policy of avoiding foreign
newspapers.
tional conference. A Congressional Commit-
troubles, they knew from personal experi-
I was flabergasted the other evening
tee could demand information given to an
ence that the nation cannot be safe unless
to watch a particularly well known
Ambassador from foreign embassy sources,
there is a single Commander in Chief with
and successful political talk show, in
who may have turned over material having
discretion to resist foreign dangers as they
significant insight into a third country's po-
which the commentators, both
arise. The President does not "initiate" war
sition and who would be highly embarrassed
in these instances; he reacts to foreign
conservative and liberal, just couldn't
if this fact became known.
threats. Congress will persist in altering this
get over the terrible thing that George
All the above categories of information
insurance system only at grave risk to the
Will, one of the finest columnists in
are areas where executive privilege is firmly
public safety.
this country, had done during the
rooted in historical precedence and in prin-
campaign. As far as I can see, the
ciple. This doctrine is implicit in the cre-
crime committed by George Will was
ation of our divided form of government,
POTS AND KETTLES-COLOR
that he backed the successful candi-
with the executive, legislative, and judicial
BOTH BLACK
responsibilities going to three great and sep-
date.
arate branches. Congress cannot violate this
Mr. GOLDWATER. Mr. President,
Now, are all of these columnists who
division by legislating its own boundaries be-
returning from the Far West as I did
suddenly have become so self right-
tween the branches.
late Sunday evening and then coming
eous that it is difficult to discuss it
From this usage arises an impressive
downtown the next day, once again, I
saying that a man in the writing pro-
source of Constitutional interpretation
found out the great difference be-
which has been accepted by the Supreme
fession has no right to choose a candi-
tween living in the East and living in
Court before as being determinative of simi-
date of his choice for President,
the West.
lar confrontations between Congress and
mayor, Senator, or for anything else?
the President. For Congress now, after
While out there, I hardly ever heard
Are they able to sit there and honestly
almost 200 years of acquiescence in the in-
about former President Carter. I never
say to the people of this country,
terpretations of the President's foreign af-
heard anything about President
never in my life as a writer, have I
fairs and war powers, to reverse the con-
Reagan being prompted by staff on
backed a particular man for President,
struction which has become so settled runs
the Carter papers and, if I had, I
or for any other office? Never in my
contrary to the judicial doctrine of usage
would have said what I said Monday
which the Supreme Court has on at least
writing life, have I discussed an issue
morning: "Where were all these first
two occasions previously invoked as a basis
publicly in a column? Mr. President,
amendment addicts, the press, when
for rejecting Congressional control over the
you and I know that that would be
Presidency.5
Lyndon Johnson was stealing my
challenged so fast their heads would
Though Congress holds great powers over
headquarters blind?"
fall off.
military subjects, it cannot vary the exercise
As I have said on the floor, he not
only knew what I was going to say
Frankly, this whole uproar over the
of the President's independent authorities.
Congress controls the numerical size and
before I said it, but the people repre-
Carter papers is something that Presi-
the strength of the Armed Forces and the
senting him around the country also
dent Reagan summed up very well in
nature of equipment and arms with which
knew the contents of the speeches and
his first remarks, something to the
the military can wage war.8 Congress can
effect that it does not make much dif-
ference-and it does not. Those who
budget which is down 40 percent from 1968 in
5 United States v. Midwest Oil Co., 236 U.S. 459,
terms of constant dollars. Human resource spend-
read this in the CONGRESSIONAL
472. 473 (1915); Myers v. United States, 272 U.S. 52,
ing (47 per cent) now exceeds defense spending (29
RECORD have, at some time in their
175 (1926).
per cent) as a share of the Federal budget. The
6 Congress has exercised these powers with alacri-
lives, tried to find out something that
fruit of Congress's shift in priority was exposed in
ty in recent years. It has limited U.S. troop
the 1973 Mideast crisis when the Soviets moved
an adversary, an opponent, or a com-
strength to only 2.2 million in fiscal 1974. down
ninety-eight ships into the Mediterranean against
petitor was doing and, if they found it
from 3.6 million in 1968, and appropriated a defense
only sixty-five U.S. ships.
out, they would use it to their advan-
Chadha
-83
ATE
The New York Times
E4
PAGE
Administration Cautions Against 'Precipitous' Action to Tighten Power
Congress Digs In After Legislative Veto
to urge Congress not to be precipitious. In fact,
By MARTIN TOLCHIN
Congress is divided on its options.
"My own view, as an advocate for the House of
WASHINGTON Kenneth W. Dam, Deputy
Representatives, is that we wipe the slate clean,
Secretary of State, assured Congress last week
and repeal all delegations (of authority)," Stanley
that the abolition of the so-called legislative veto
M. Brand, counsel to the House, said recently. "If
need not alter the relationship between the Ad-
the Administration wants to sell a single aircraft,
ministration and Capitol Hill. If anything, he said,
let them come to Congress for permission." That,
it would lead to greater consultation.
Mr. Brand observed, would be tantamount to a
Last month's Supreme Court ruling that the
one-House veto of all arms sales. But Representa-
veto is unconstitutional to the contrary notwith-
tive Clement J. Zablocki, the Wisconsin Democrat
standing, Mr. Dam said,, "the Department of
who is chairman of the Foreign Affairs commit-
State is committed to continue" taking Congress's
tee, declared Mr. Brand's proposal unworkable.
"concerns into account in reaching decisions on
Congress, he said, lacked the resources and time
issues of policy. I believe (the ruling) will make
to re-enact all affected legislation.
the departments and agencies of the Executive
Another option would be to delete the veto provi-
Branch more, not less, conscious that they are ac-
sions from laws that include severability clauses,
countable for their actions."
while preserving the rest of the statute. Most laws
Skeptics noted that the veto, by which the legis-
contain such clauses, because Congress generally
lators reserved the right to override certain Presi-
seeks to preserve measures in the event that the
dential decisions, would not have been devised in
courts find sections of them unconstitutional. Mr.
the first place if Congress had felt adequately con-
Brand summed up the objections to this approach.
sulted. Indeed, Mr. Dam's view was a distinct
"It will permit courts to rewrite statutes," he
contrast to the initial reaction to the decision on
said, "and because we have, in my view, against
both ends of Pennsylvania Avenue.
our interest but with Pavlovian regularity in-
As Mr. Dam pointed out in his testimony, more
serted severability clauses like legal boilerplate
than a dozen foreign affairs and national security
in contracts, the Congress will be left with nothing
statutes dating back a decade or more have been
or very little, while a wholesale delegation (of au-
affected, including the War Powers Resolution
thority) will remain intact."
and arms export, nuclear nonproliferation and
The Power of the Purse
trade controls. They are among the 207 legislative
veto provisions in 126 different laws affected by
A third approach would be that of the House in
the High Court's ruling. Many of those laws in-
the public service commission bill. It is that the
volve the power of regulatory agencies. Mr. Dam
two chambers of Congress adopt a joint resolution
was considerably more sanguine than some regu-
that must be signed by the President before any
lators, who believe that their powers may be irre-
regulation would take effect. Congress also could
trievably curtailed.
delay new regulations' effective dates until it had
Michael Pertschuk, a member of the Federal
the opportunity to enact legislation that would bar
Trade Commission and its former chairman, was
them. Such a method was also approved in the
jubilant the day the decision was announced. He
House version of the public service bill; a similar
had seen Congress veto a rule concerning used
measure has been introduced in the Senate by
cars, and the threat of a veto had hung over the
Carl Levin of Michigan and David L. Boren of
panel's deliberations on other issues. It did not
Oklahoma, both Democrats.
take very long, however, for his joy to turn to
Of course, Congress could always use its power
gloom. Since Congress, which had given the regu-
of the purse to prohibit the use of Federal funds to
latory agencies broad discretionary authority in
implement unwanted regulations or carry out un-
exchange for the right to veto resulting regula-
wanted activities, as the House moved to do last
tions, had lost the ability to second-guess the regu-
week in voting to cut off money for covert intelli-
lators, it was threatening to rescind the authority.
gence activities in Central America. The final re-
"It's the worst of all possible worlds," Mr. Pert-
course would be a constitutional amendment
schuk lamented.
overturning the Supreme Court decision.
In its first expression of Congress's new mood,
Representative Elliot Levitas, Democrat of
the House voted overwhelmingly to curtail the
Georgia and for years a leading advocate of the
regulatory powers of the Consumer Product
legislative veto, recently sent a letter to President
Safety Commission, adopting a measure that
Reagan. "So long as this uncertainty exists," he
would require Congress to enact legislation before
wrote, "I foresee the potential for years of waste-
a proposed rule would take effect. As if in overkill,
ful and bitter confrontation and even chaos in our
the House bill also provided that before a new
Government. As one first step, I urge the early
regulation took effect, Congress would have 90
convening of a Conference on Power Sharing to
days to enact a law to be signed by the Presi-
address this new situation and consider solu-
dent that would nullify the ruling.
tions." Mr. Levitas has discussed his proposal
That House action sent Administration officials
with Vice President Bush and David A. Stockman,
to Capitol Hill among them, Mr. Dam to the
director of the Office of Management and Budget.
Senate Foreign Relations Committee last week-
He has received no response from the President.
DO1-1983-04
Chadha
THE WHITE HOUSE
WASHINGTON
July 27, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS SR
SUBJECT:
Statement of the Honorable Kenneth W. Dam,
Deputy Secretary of State, Before the Com-
mittee on Foreign Relations of the United
States Senate, Thursday, July 28, 1983
OMB has asked for clearance of the above-referenced testimony
on legislative veto by 2:00 p.m. I have reviewed the
testimony and, in light of the short deadline and the fact
that the testimony generally mimics Dam's previous testimony
before the House Foreign Affairs Committee, I have advised
OMB that, with one minor exception, we have no objection.
The exception concerns the last sentence on page 11, which
begins: "In Section 4 of the [War Powers] Resolution, the
President is required to make a formal report to Congress
" Section 4 (a) by its terms requires a formal,
written report concerning the introduction of forces;
section 4 (c) simply requires the President to report period-
ically (at least every six months) to Congress concerning
the continued involvement of forces. I recommended to Jim
Murr of OMB that "Section 4" be changed "Section 4(a)" in
Dam's testimony, to avoid any suggestion that formal reports
were required under section 4 (c).
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Take necessary action
TO John Cooney
Approval or signature
John Roberts
Comment
Ed Strait
Prepare reply
Jim Nix
Discuss with me
For your information
Bob Kimmitt
See remarks below
FROM Jim KH Muri, x4870
DATE Jul 27
REMARKS
State Testimony - Legislative Veto
The attached testimony is scheduled for tomorrow
morning, 7/28. It arrived at OMB this morning.
Please let me have your comments by 2:00 p.m.
today, 7/27, or sooner. Thanks.
(Ihave made copies of the testimony available
to Justice, Defense, Commerce, and Treasury.)
State may also be preparing some Q&A's for
the hearing. If so, I will obtain them for
clearance as well.
OMB FORM 4
Rev Jul 82
As Prepared for Delivery
RECEIVED
STATEMENT
OF
THE HONORABLE KENNETH W. DAM
DEPUTY SECRETARY OF STATE
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
OF THE
UNITED STATES SENATE
THURSDAY, JULY 28, 1983
Mr. Chairman and members of the Committee,
I appreciate the opportunity to appear before the Committee
this afternoon.
The Supreme Court's recent decision in the Chadha case, and
two related decisions, * have declared the legislative veto to
be unconstitutional. The Department of State and this
Committee both recognize that the Court's historic decision
affects a considerable body of legislation in the field of
foreign affairs and national security. My principal theme here
today is that our two branches of government have a common
problem and a shared responsibility. We owe the American
people constructive and cooperative response to the legal
problem we now face.
The Department of State is in the process of reviewing all
the legislation with which we deal and which is affected by
Chadha -- the language of the statutes, their legislative
history, and the record of executive-legislative relations in
working with these statutes.
* Immigration and Naturalization Service V. Chadha,
No. 80-1832 (U.S. June 23, 1983) ; Process Gas Consumers
Group Consumers Energy Council of America, Nos. 81-2008
et al. (U.S. July 6, 1983), affirming Consumers Energy
Council of America V. FERC, 673 F. 2d 425 (D.C. Cir.
1982) Consumers Union, Inc. V. FTC, 691- F. 2d 575
(D.C. Cir. 1982).
- 2 =
We have reached some tentative conclusions, which I am happy to
share with the Committee. Our review is still continuing,
however, and we will keep the Committee informed as we proceed
toward firmer judgments.
In The Federalist No. 47, James Madison referred to the
separation of powers as "this essential precaution in favor of
liberty." The genius of our constitutional system is that a
structure of dispersed powers and checks and balances, designed
to limit government power and preserve our freedom, has also
been able to produce coherent and effective national policy.
This success is a tribute to the Founding Fathers who built the
structure; it is also a tribute to the generations of leaders
and statesmen since then who have put the nation's well-being
first and foremost as they played their constitutional roles in
the various branches of government. As Justice White acknow-
ledged in his dissent in Chadha, "the history of the separation
of powers doctrine is also a history of accommodation and
practicality.' "
The Administration is prepared to work with the Congress in
this spirit.
First, I would like to review with you the history of the
legislative veto -- what it is, how it has worked -- and then
the Chadha decision itself and its consequences.
- 3 =
Finally, I shall discuss the impact of that decision on some of
the statutes that are of particular concern to the Department
of State and to this Committee.
The Legislative Veto
"Legislative veto" is a term describing a variety of
statutory devices that were meant to give the Congress legal
control over actions of executive departments and agencies by
means other than the enactment of laws. Legislative veto
provisions have been included in statutes for more than 50
years. The procedure was first passed into law in the Act of
June 30, 1932, which authorized President Hoover to reorganize
the structure of the Federal Government subject to Congres-
sional review. The device was added to various statutes during
World War II, when the Congress delegated greater authority to
the President in the area of foreign affairs and national
security, subject to the legislative veto procedure. Enactment
of the procedure became frequent again in the 1960's and
1970 S, as Congress sought to strengthen its oversight over the
expanding practice of rule-making by administrative agencies.
Adoption of the legislative veto procedure reached its zenith
in the early 1970s, in connection with some major controversies
in the area of foreign affairs and national security.
- 4--
Some of these statutes provide for Congressional
disapproval of proposed administrative regulations. Some
involve review of decisions of individual cases (Chadha, for
example, involved the suspension of the deportation of a single
person), or review of other executive actions under authority
-
granted by statute. Other legislation, such as the War Powers
Resolution, involves the allocation of broad constitutional
powers.
The legislative vetoes in all these statutes fall into two
general categories. First, there are those in which the full
Congress, or one House or one committee, is purportedly given a
right to "veto" an administrative action. A typical statute of
this kind requires the President to report an action or rule to
both Houses of Congress. The executive action may not be made
or take effect until after a fixed period (60 days, for
example). If Congress does not act during the period, the
executive action can take effect, but if the Congress
disapproves (or one House or committee, as the statute may
provide), it does not take effect. Second, there are statutory
schemes by which an administrative action purportedly becomes
valid only when approved by Congress. The typical statute of
this kind requires the President to report a proposed action
and then provides for affirmative approval by one or two Houses
of the Congress. Most legislative vetoes, like the one in
Chadha, fall within the first category.
- 5--
The Chadha Case and Its Implications
The case of INS V. Chadha involved a section of the
Immigration and Nationality Act. That statute permitted the
Attorney General to allow a deportable alien to remain in the
United States, suspending an otherwise valid deportation
order. This suspension authority, however, was subject to
disapproval by a simple resolution of either House of
Congress. The Attorney General suspended Chadha's deportation,
but the House of Representatives disapproved. Chadha brought
suit; the Supreme Court held the Congressional veto to be
unconstitutional. The rationale of the Court's holding was
that legislative actions, to be valid, must follow the course
prescribed in the Constitution: approval by both Houses and
"presentment" to the President. Thus the Court's decision in
Chadha invalidates not only the "one-House veto" but the
"two-House veto" and "committee veto" as well, a point
confirmed by the Court's subsequent summary decisions of July
6. Those statutes which provide for Congressional action by
joint resolution -- passed by both Houses and signed by the
President -- would not seem to be affected by Chadha.
The legislative veto has long been controversial, ever
since Woodrow Wilson first vetoed a bill incorporating a
legislative veto in 1920.
- 6- -
Since then, most administrations have not been happy with the
device, while the Congress has tended to favor it as another
useful check on executive authority. This specific controversy
is now settled. Yet paradoxically, the practice of
executive-legislative relations is unlikely to undergo any
radical change in the wake of Chadha, for several reasons.
For one thing, Chadha does not affect other statutory
procedures by which the Congress is informed of or involved in
actions by the Executive Branch. Specifically, Chadha does not
affect statutory requirements for notifications, certifica-
tions, findings or reports to Congress, consultations with
Congress, or waiting periods which give Congress an opportunity
to act before executive actions take effect. In the foreign
affairs field, moreover, the Executive Branch and the Congress
have generally reconciled or disposed of controversies and
differences without resort to the process of legislative veto.
Therefore, we see no reason why the Court's decision -need cause
a fundamental change in our relationship.
The Administration is prepared to work closely with the
Congress to resolve any questions or problems that may arise as
a result of the decision. And we hope that Congress will act
in the same spirit of cooperation.
- 7-
Perhaps the key legal question raised by Chadha is that of
"severability." The problem is an intriguing one: Since the
legislative veto provision of a statute is unconstitutional, is
any of the rest of the law tainted by that defect?
The Supreme Court has given us a basis for answering that
question. The general principle is that the provision
containing the legislative veto will be found to be severable,
and the remainder of the statute will continue unaffected,
unless it is evident that the Congress would not have enacted
the remainder of the law without the legislative veto. That
test establishes a strong presumption in favor of severability.
The Court has also given us some additional guidelines.
There is a further presumption of severability, first of all,
if the statute contains an express "severability clause." "
Several of the statutes with which we deal -- including the War
Powers Resolution and the Atomic Energy Act, for example --
contain such severability clauses. Second, the legislative
veto is also presumed to be severable if the legislative
program in question is "fully operative as a law" without the
veto provision. In the statutes with which we are dealing,
this seems generally to be the case.
- 8. -
These statutes often establish a system under which the
Executive Branch is empowered to make or implement a decision
30 or 60 days later unless the Congress chooses to intervene.
In foreign affairs cases to date, in the absence of formal
Congressional action, the executive determination has
proceeded, although Congressional views have always been taken
fully into account. This pattern clearly indicates that these
statutes are capable of independent operation with no further
Congressional action.
Specific Statutes
There are several dozen statutes in the foreign affairs and
national security area that are affected by the Chadha
decision. I would say that four statutes or groups of statutes
are of particular importance. These are arms export controls,
the War Powers Resolution, nuclear non-proliferation controls,
and trade controls related to emigration Let me discuss these
in turn.
Arms Export Control. First, arms export controls. I know
this subject is of pressing concern to this Committee. It is
also of importance to the Administration, because of the
importance of such transactions in contributing to the security
of friendly countries and to our political relations with
friendly countries.
- 9 -
We should be clear about what Chadha does and what Chadha
does not do. It is apparent that under the Chadha decision the
legislative vetoes in several sections of the Arms Export
Control Act are not valid. But that result in no way impairs
the elaborate structure of reporting, consultation, and
collaboration that the Executive Branch and the Congress have
worked out over recent years to ensure effective Congressional
oversight. Under the Arms Export Control Act, for example, we
have regularly reported to the Congress well in advance on
prospective sales under the Foreign Military Sales program, as
well as on actual proposed FMS sales and licenses of arms
exports sold through commercial channels. Specifically,
pursuant to the Javits Amendment, we provide an annual Arms
Sales Proposal covering all sales and exports above certain
thresholds which are considered eligible for approval during
the current calendar year. We also provide, under Section 28
of the Arms Export Control Act, quarterly reports of each
"price and availability" estimate provided to foreign
governments, together with a list of requests received from
such governments for letters of offer to sell defense articles
and services.
As a matter of practice and accommodation with the
Congress, we have agreed with the Congress to go beyond these
and other statutory requirements.
- 10 -
For example, we have long engaged in a practice of informal
pre-notification of proposed sales under the FMS program.
While this is not required by law, it has given Congress the
opportunity to review and comment upon proposed transactions
informally and privately before the Executive Branch sends a
formal public statement.
Congress has received and will continue to receive annual,
quarterly, and case-by-case information, formal and informal,
on upcoming potential arms sales. In the last three years we
have sent up more than 240 formal reports of intended arms
sales -- 110 in Fiscal Year 1981, 90 in FY 1982, and 41 in FY
1983 to date. Three informal notifications are currently
before you. of these 240-odd notifications, 156 are for
non-NATO countries. In short you have, and will continue to
have, a full plate. While Congress has never disapproved any
proposed arms sale, the Administration has on occasion modified
the terms of a proposal in light of Congressional concerns. We
have done so even though the Executive Branch has long
considered the legislative veto to be unconstitutional.
I think the record speaks for itself. The Executive Branch
does not live in a vacuum, and we are acutely aware of the need
for consultation and cooperation in this sensitive area.
- 11 -
Our foreign policy and national interest require that a
President, any President, be able to use this important policy
instrument effectively, flexibly, and, I might add,
responsibly. We recognize the importance of Congressional
oversight. As in any other important area of national policy,
both Congress and the Executive have a responsibility to find
an effective cooperative solution.
War Powers Resolution. Next, the War Powers Resolution.
The War Powers Resolution contains four major operative parts.
The first of these is a consultation requirement. In Section 3
of the Resolution, the President is required to consult with
the Congress "in every possible instance" before United States
armed forces are introduced into hostilities or into situations
where imminent involvement in such hostilities is clearly
indicated by the circumstances. And the President is to
consult regularly while the forces remain in such situations.
The second operative part is a reporting requirement. In
Section 4 of the Resolution, the President is required to make
a formal report to Congress in any case in which United States
armed forces are introduced--
"(1) into hostilities or into situations where
imminent involvement in hostilities is clearly indicated by
the circumstances;
- 12 -
(2) into the territory, airspace or waters of a
foreign nation, while equipped for combat, except for
deployments which relate solely to supply, replacement,
repair, or training of such forces; or
" (3) in numbers which substantially enlarge United
States Armed Forces equipped for combat already located in
a foreign nation
"
The third operative part, Section 5(b), requires the
President to withdraw U.S. troops not later than 60 days after
a report of actual or imminent involvement in hostilities
unless the Congress has affirmatively authorized their
continued presence.
The fourth operative part is a legislative veto. According
to Section 5(c), the President must withdraw U.S. troops
introduced into hostilities even before the end of 60 days if
the Congress so directs by concurrent resolution.
The first and second provisions of the War Powers
Resolution, on consultation and reporting, are in our view
unaffected by the Chadha decision. We do not intend to change
our practice with respect to consultation and reporting.
- 13 -
=
The fourth provision, which asserted a right of Congress
by concurrent resolution to order the President to remove
troops engaged in hostilities, is clearly unconstitutional
under the Supreme Court's holding in Chadha. It must be said,
however, that this holding is unlikely to have a significant
impact on the way national security policy is conducted. In
the decade since the enactment of the War Powers Resolution, no
U.S. forces have been committed to long-term hostilities. It
is doubtful that Presidents have refrained from such
commitments simply because of the legislative veto in the War
Powers Resolution; ,it is equally doubtful that Presidents will
now feel freer of restraints because of Chadha. The lesson of
recent history is that a President cannot sustain a major
military involvement without Congressional and public support.
The legislative veto provision of the War Powers
Resolution is severable from the others, in our view, according
to the Supreme Court's test and guidelines. The Resolution
itself includes a severability clause, and the other operative
portions of the Resolution need not be affected by the dropping
of the veto provision.
The third operative part of the Resolution, requiring
positive Congressional authorization after 60 days, does not
fall within the scope of Chadha.
- 14 -
Its constitutionality is neither affirmed, denied, nor even
considered in the Chadha decision. As you know, the Executive
Branch has traditionally had questions about this requirement
of Congressional authorization for Presidential disposition of
our armed forces, both in light of the President's
Commander-in-Chief power and on practical grounds. Congress,
of course, has had a different view. I do not believe that any
purpose would be served by debating these questions here, in
the abstract. This provision is unlikely to be tested in the
near future. Here, too, I want to reaffirm the
Administration's strong commitment to the principles of
consultation and reporting, confident that in a spirit of
cooperation the Executive and the Congress can meet future
challenges together in the national interest.
Nuclear Non-Proliferation. Nuclear non-proliferation is
another important policy area in which legislative veto
provisions have been evident. Various sections of the Atomic
Energy Act, for example, have provided for a legislative veto
of Presidential determinations to permit nuclear exports to
foreign countries.
These statutory arrangements typically involve three
elements. First, they establish very strict standards limiting
the export of nuclear items. Second, they authorize the
President to waive certain restrictions and permit exports if
he makes certain findings.
- 15 -
Third, the Congress has been -- until Chadha -- empowered to
veto the Presidential waiver. We consider that those standards
and that waiver authority, as well as the statutory requirement
of notification to Congress and the observance of a waiting
period, continue to be valid. We will continue to wait through
the period during which the Congress, in the past, deliberated
over its veto; during that time, the Congress may use its
constitutional authority to enact new legislation if it
chooses. The only provision that is invalid is the third,
which permitted a legislative veto by concurrent resolution.
The Administration shares Congress's concern about nuclear
proliferation. We have been active diplomatically in this
field, as this Committee well knows. We vigorously oppose the
development of nuclear weapons capabilities by additional
countries. Each Executive Branch agency is required to keep
the Congress, including this Committee, fully informed of its
activities in this field and of significant developments
abroad. We have done so, and we are proud of our récord of
close consultation and collaboration with the Congress. We
will continue that practice.
Jackson-Vanik Amendment and Trade-Related Issues. A
fourth important statutory area involving a legislative veto is
the procedure for granting most-favored-nation treatment (MFN)
to certain non-market countries.
- 16 -
Under the Jackson-Vanik Amendment, nondiscriminatory tariff
treatment may be granted to these countries only when they
comply with certain conditions for the protection of human
rights, including the right of emigration. These requirements
may be waived on the basis of stated findings and
determinations by the President.
The annual report required under that statute--for
continuation of MFN for Hungary, Romania, and China--is now
before the Congress. This report illustrates how we believe
Congress and the Executive should continue to work together
constructively.
We presented that report to the Congress before the
Supreme Court decision was announced, but we would have done
precisely the same thing if the Chadha decision had been handed
down before the report was filed. We regard the report as
fully effective to extend the waiver authority and to continue
the waivers currently in force. At the same time, legislative
oversight hearings serve the salutary purpose of scrutinizing
the implementation of statutory requirements, of airing public
concerns, and of making our nation's deep commitment to human
rights known to other nations.
- 17 -
The spirit with which we expect to work with Congress in
the future, in all statutory fields, is illustrated by another
example. We are required by the Case-Zablocki Act to report
executive agreements to the Congress, and we do so regularly.
That procedure notifies the Congress of agreements already
signed. There is also a procedure for enabling this Committee
and the House Foreign Affairs Committee to consult with us as
to the form of significant international agreements prior to
their conclusion. This practice was arranged between the
Department of State and the Chairmen of the two Committees in
1978. It is not required by law, but makes good sense. We
will maintain it.
The Future
As I have emphasized, little of practical significance
need in fact change as a result of the Supreme Court decision.
The Department of State is committed to continue working
closely with the members and committees of Congress and to take
their concerns into account in reaching decisions on issues of
policy. If anything, I believe Chadha will make the
departments and agencies of the Executive Branch more, not
less, conscious that they are accountable for their actions.
- 18 -
There are many basic questions about the separation of
powers which the Supreme Court will probably never settle. In
that realm our constitutional law is determined, in a sense, as
in Britain--by constitutional practice, by political realities,
by the fundamental good sense and public conscience of the
American people and their representatives. This is how we have
always settled these questions, and this is how we, the
Executive and the Congress, must approach these problems in the
aftermath of Chadha.
Our Constitution has proved to be a wise and enduring
blueprint for free government. In this period of our history,
our nation faces challenges that the drafters. of that document
could not have imagined. The federal government has the duty
to conduct this nation's foreign policy and ensure its security
in a nuclear age, in an era of instantaneous communications, in
a complex modern world in which international politics has
become truly global. America's responsibility as a world
leader imposes on us a special obligation of coherence, vision,
and constancy in the conduct of our foreign relations. For
this there must be unity in our national government. The
President and the Congress must work in harmony, or our people
will not have the effective, strong, and purposeful foreign
policy which they expect and deserve.
- 19 -
We have seen in the last 15 years that when Congress and the
President are at loggerheads, the result can be stalemate and
sometimes serious harm to our foreign policy.
We now have an opportunity, all of us, to put much of that
1
past behind us, and to start afresh. We have a chance to shape
a new era of harmony between the branches of our government - an
era of constructive and fruitful policymaking, of creativity
and statesmanship. That is President Reagan's goal and the
goal of all of us in his Administration.
Thank you.
#5287L
- 18 -
There are many basic questions about the separation of
powers which the Supreme Court will probably never settle. In
that realm our constitutional law is determined, in a sense, as
in Britain-- by constitutional practice, by political realities,
by the fundamental good sense and public conscience of the
American people and their representatives. This is how we have
always settled these questions, and this is how we, the
Executive and the Congress, must approach these problems in the
aftermath of Chadha.
Our Constitution has proved to be a wise and enduring
blueprint for free government. In this period of our history,
our nation faces challenges that the drafters of that document
could not have imagined. The federal government has the duty
to conduct this nation's foreign policy and ensure its security
in a nuclear age, in an era of instantaneous communications, in
a complex modern world in which international politics has
become truly global. America's responsibility as a world
leader imposes on us a special obligation of coherence, vision,
and constancy in the conduct of our foreign relations. For
this there must be unity in our national government. The
President and the Congress must work in harmony, or our people
will not have the effective, strong, and purposeful foreign
policy which they expect and deserve.
- 19 -
We have seen in the last 15 years that when Congress and the
President are at loggerheads, the result can be stalemate and
sometimes serious harm to our foreign policy.
We now have an opportunity, all of us, to put much of that
past behind us, and to start afresh. We have a chance to shape
a new era of harmony between the branches of our government--an
era of constructive and fruitful policymaking, of creativity
and statesmanship. That is President Reagan's goal and the
goal of all of us in his Administration.
Thank you.
#5287L
EXECUTIVE OFFICE OF THE PRESIDENT
PRESIDENT THE OF THE OFFICE UNITED OFFICE OF STATES
OFFICE OF MANAGEMENT AND BUDGET
DATE:
o
TO: John Roberts
FROM: John Cooney
Final State tastinary
on legislativeretor
OMB FORM 38
Rev Aug 73
company
S/S 8322203
United States Department of State
Washington, D.C. 20520
July 19, 1983
MEMORANDUM FOR MR. ALTON KEEL
OFFICE OF BUDGET AND MANAGEMENT
Per discussions earlier today with Mr. Cooney
and Mr. Murr, attached is the final version of the
Deputy Secretary's written testimony on the Legislative
Veto Process, as it will be presented to the House
Foreign Affairs Committee tomorrow morning.
Charles Grey Hill
Executive Secretary
Attachment:
As stated.
As Prepared for Delivery
STATEMENT
OF
THE HONORABLE KENNETH W. DAM
DEPUTY SECRETARY OF STATE
BEFORE THE
COMMITTEE ON FOREIGN AFFAIRS
OF THE
HOUSE OF REPRESENTATIVES
Wednesday, July 20, 1983
EMBARGOED UNTIL DELIVERY, SCHEDULED FOR APPROXIMATELY 10:00
A.M., EDT, JULY 20, 1983. NOT TO BE PREVIOUSLY CITED, QUOTED
FROM, OR USED IN ANY WAY
Mr. Chairman and members of the Committee,
The Supreme Court's decision of June 23 in INS V. Chadha, *
as amplified by two summary decisions of July 6, ** has declared
the long-standing practice of the legislative veto to be
unconstitutional. This historic decision touches upon a
considerable body of legislation in the field of foreign
affairs and national security. I welcome the opportunity to
appear before this Committee to present the preliminary views
of the Department of State on some of the important questions
raised by the Chadha decision.
At the outset I must emphasize that the views stated here
are preliminary. While the Department of State has reached
some tentative conclusions, we are still in the process of
thoroughly reviewing all the legislation with which we deal and
which is affected by Chadha--the language of the statutes,
their legislative history, and the record of
executive-legislative relations in working with these
statutes.
* Immigration and Naturalization Service V. Chadha, No. 80-1832
(U.S. June 23, 1983)
** Process Gas Consumers Group V. Consumers Energy Council of
America, Nos. 81-2008 et al. (U.S. July 6, 1983), affirming
Consumers Energy Council of America V. FERC, 673 F.2d 425
(D.C. Cir. 1982), and Consumers Union, Inc. V. FTC, 691
F.2d 575 (D.C. Cir. 1982).
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This review is a task that cannot be accomplished overnight, as
I am sure the Committee will understand. We will keep the
Committee informed as we proceed toward firmer judgments about
the legal environment created by the Chadha decision.
James Madison in The Federalist No. 47 referred to the
separation of powers as "this essential precaution in favor of
liberty." The genius of our constitutional system is that a
structure of dispersed powers and checks and balances, designed
to preserve our freedom, has also been able to function
effectively to produce coherent national policy. This success
is a tribute not only to the Founding Fathers who built the
structure, but also to the generations of leaders and statesmen
since then who have put the nation's well-being first and
foremost as they played their constitutional roles in the
various branches of government. As Justice White acknowledged
in his dissent in Chadha, "the history of the separation of
powers doctrine is also a history of accommodation and
practicality. "
This is the spirit with which this Administration
approaches the task ahead of us.
- 3 -
I should like to examine first the history of the
legislative veto--what it is, how it has worked-- and then the
Chadha decision itself and its consequences. Finally, I shall
discuss the impact of that decision on some of the statutes
that are of particular concern to the Department of State.
THE LEGISLATIVE VETO
"Legislative veto" is a term used to describe a variety of
legislative devices ,designed to give Congress legal control
over actions of executive departments and agencies by means
other than the enactment of laws. The legislative veto has
been included in statutes for more than 50 years. The
procedure was first passed into law in the Act of June 30,
1932, which authorized President Hoover to reorganize the
structure of the Federal Government subject to Congressional
review. The device was added to various statutes during the
Second World War, when the Congress delegated greater authority
to the President in the area of foreign affairs and national
security, subject to the legislative veto procedure. Enactment
of the procedure, became frequent again in the 1960's and
1970's, as Congress sought to strengthen its oversight over the
expanding practice of rule-making by administrative agencies.
- 4 -
Adoption of the legislative veto procedure reached its zenith
in the early 1970s, as a result or part of some major
controversies in the area of foreign affairs and national
security.
The statutes span a broad range. Many of them provide for
Congressional disapproval of proposed administrative
regulations. Some involve review of decisions of individual
cases (Chadha, for example, involved the suspension of the
deportation of a single person), or review of other executive
actions under authority delegated by statute. Other
legislation, such as the War Powers Resolution, involves the
allocation of broad constitutional powers.
The legislative vetoes in all these statutes fall into two
general categories. First, there are those in which the full
Congress, or one House or one committee, is purportedly given a
right to "veto" an administrative action. The typical statute
of this kind requires the President to report an action or rule
to both Houses of Congress. The executive action may not be
made or take effect until after a fixed period (60 days, for
example). If Congress does not act during the period, the
executive action can take effect, but if the Congress
disapproves (or one House or committee, as the statute may
provide), it does not.
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Second, there are statutory schemes by which an administrative
action purportedly becomes valid only when approved by:
Congress. The typical statute of this kind requires the
President to report a proposed action and then provides for
affirmative approval by one or two Houses of the Congress.
Most legislative vetoes, like the one in Chadha, fall within
the first category.
THE CHADHA CASE AND ITS IMPLICATIONS
At issue in INS V. Chadha was a section of the Immigration
and Nationality Act. That statute permitted the Attorney
General to allow a deportable alien to remain in the United
States, suspending an otherwise valid deportation order. This
suspension authority, however, was subject to disapproval by a
simple resolution of either House of Congress. The Attorney
General suspended Chadha's deportation, but the House of
Representatives disapproved. Chadha sued; the Supreme Court
held the legislative veto to be unconstitutional. This holding
was based on the rationale that legislative actions which do
not follow the constitutionally prescribed course of approval
by both Houses and "presentment" to the President cannot have
legal effect. Thus the decision invalidates not only the
"one-House veto" but the "two-House veto" and "committee veto"
as well, a point confirmed by the Court's subsequent summary
decisions of July 6.
- 6 -
Those statutes which provide for Congressional action by joint
resolution--passed by both Houses and signed by the
President would not seem to be affected by Chadha.
The Chadha decision is consistent with the position of
this Administration, and with the position taken by most
administrations going back to that of Woodrow Wilson, who
vetoed a bill incorporating a legislative veto in 1920.
Congress's view has always been different. Nevertheless, the
practice of executive-legislative relations need not undergo
any immediate or radical change in the wake of the Chadha
decision, for several reasons.
For one thing, Chadha does not affect other statutory
procedures by which Congress is informed of or involved in
actions by the Executive Branch. Specifically, Chadha does not
affect statutory requirements for notifications,
certifications, findings or reports to Congress, consultations
with Congress, or waiting periods which give Congress an
opportunity to act before executive actions take effect.
Moreover, in the foreign affairs field, the Executive Branch
and the Congress have generally reconciled or disposed of
controversies and differences without resort to the process of
legislative veto. Therefore, we see no reason why the Court's
decision should cause a fundamental change in our relationship.
- 7 -
a
We are prepared to work closely with the Congress to
resolve any questions or problems that may arise as a result of
the decision. And we hope that Congress will act in the same
spirit of cooperation.
Perhaps the key legal question raised by Chadha is that of
"severability." The problem is an intriguing one: Since the
legislative veto provision of a statute is unconstitutional, is
any of the rest of the law tainted by that defect?
The Supreme Court has given us a basis for determining the
answer to that question. The general principle is that the
provision containing the legislative veto will be found to be
severable, and the remainder of the statute will continue
unaffected, unless it is evident that the legislature would not
have enacted the remainder of the law without the legislative
veto. That test establishes a strong presumption in favor of
severability.
The Supreme Court has also given us some additional
guidelines. There is a further presumption of severability,
first of all, if the statute contains an express "severability
clause." Several of the statutes with which we deal--including
the War Powers Resolution and the Atomic Energy Act, for
example--contain such severability clauses.
- 8 -
=
Second, the legislative veto is also presumed to be severable
if the legislative program in question is "fully operative as a
law" without the veto provision. In the statutes with which we
are dealing, this seems generally to be the case. These
statutes often establish a system under which the Executive
Branch is empowered to make or implement a decision 30 or 60
days later unless the Congress chooses to intervene. In
foreign affairs cases to date, given the absence of formal
Congressional action, the executive determination has
proceeded, although Congressional views have always been taken
fully into account. 4 This pattern clearly indicates that these
statutes are capable of independent operation with no further
Congressional action.
SPECIFIC CASES
I would like to turn now to some of the most important
statutes with which we deal in the foreign affairs area and to
our probable response in light of the Chadha decision. One of
the first that comes to mind is the War Powers Resolution.
War Powers Resolution. The War Powers Resolution contains
four major operative parts. The first of these is a
consultation requirement.
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In Section 3 of the Resolution, the President is required to
consult with the Congress "in every possible instance" before
United States armed forces are introduced into hostilities or
into situations where imminent involvement in such hostilities
is clearly indicated by the circumstances. And the President
is to consult regularly while the forces remain in such
situations.
The second operative part is a reporting requirement.
In Section 4, the President is required to make a formal report
to Congress in any case in which United States armed forces are
introduced--
"(1) into hostilities or into situations where
imminent involvement in hostilities is clearly indicated
by the circumstances;
"(2) into the territory, airspace or waters of a
foreign nation, while equipped for combat, except for
deployments which relate solely to supply, replacement,
repair, or training of such forces; or
"(3) in numbers which substantially enlarge United
States Armed Forces equipped for combat already located in
a foreign nation 11
- 10 -
The third operative part, Section 5(b), requires the
President to withdraw U.S. troops not later than 60 days after
a report of actual or imminent involvement in hostilities
unless the Congress has affirmatively authorized their
continued presence.
The fourth operative part is a legislative veto.
According to Section 5(c), the President must withdraw U.S.
troops introduced into hostilities even before the end of 60
days if the Congress SO directs by concurrent resolution.
The first and second provisions of the War Powers
Resolution, on consultation and reporting, are in our view
unaffected by the Chadha decision. We do not intend to change
our practice under them.
The fourth provision, which asserted a right of Congress
by concurrent resolution to order the President to remove
troops engaged in hostilities, is clearly unconstitutional
under the Supreme Court's holding in Chadha. It seems to me
unlikely, however, that this will have a significant impact on
the conduct of national security policy. In the decade since
the enactment of the War Powers Resolution, no U.S. forces have
been committed to long-term hostilities. It is doubtful that
Presidents have refrained from such commitments because of the
legislative veto in the War Powers Resolution.
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=
It would be equally doubtful that Presidents will now feel
freer of restraints because of Chadha. The lesson of recent
history is that a President cannot sustain a major military
involvement without Congressional and public support.
We believe the legislative veto provision of the War
Powers Resolution is severable from the others according to the
Court's test and guidelines. The Resolution itself includes a
severability clause, and the other operative portions of the
Resolution need not be affected by the dropping of the veto
provision.
The third operative part of the Resolution, requiring
positive Congressional authorization after 60 days, does not
fall within the scope of Chadha. Its constitutionality is
neither affirmed, denied, nor even considered in the Chadha
decision. As you know, the Executive Branch has traditionally
had questions about this requirement of Congressional
authorization for Presidential disposition of our armed forces,
both in light of the President's Commander-in-Chief power and
on practical grounds. Congress, of course, has had a different
view. I do not believe that any purpose would be served by
debating these questions here, in the abstract. This provision
is unlikely to be tested in the near future.
- 12 -
And I am authorized here and now to reaffirm the
Administration's strong commitment to the principles of
consultation and reporting, confident that in a spirit of
cooperation the Executive and the Congress can meet future
challenges together in the national interest.
Arms Export Control. We come next to the field of arms
transfers. Under such statutes as the Arms Export Control Act,
we have regularly reported to the Congress certain proposed
foreign military sales. We have also reported the proposed
licensing of arms exports to foreign countries sold through
commercial channels.
Indeed, as a matter of practice and accommodation with the
Congress, we have agreed with the Congress to go far beyond the
statutory requirements. In addition to the statutory
notification procedures, for example, we have long engaged in a
practice of informal pre-notification of proposed sales under
the Foreign Military Sales program. While this is not required
by law, it has given Congress the opportunity to review and
comment upon proposed transactions informally and privately
before the Executive sends a formal public statement. This
practice shows how much the Executive Branch has been aware of
and responsive to the legitimate concerns of the Congress.
- 13 -
Even though we have long considered the legislative veto to be
unconstitutional, we have always taken Congressional concerns
into account in formulating and carrying out the arms sales
proposals.
While it seems clear that the legislative vetoes contained
in several sections of the Arms Export Control Act are not
valid, that result will in no way impair our continued
reporting to Congress either under the express statutory
provisions or under the informal pre-notification and
consultation that wę have traditionally maintained. In the
last year alone, we have sent up more than 60 reports of
intended arms sales and more than 30 pre-notifications for
non-NATO countries. While Congress has never disapproved any
proposed arms sale, the Administration has on occasion modified
the terms of a proposal in light of Congressional concerns.
I think that record speaks for itself. The Executive
Branch does not live in a vacuum, and we are acutely aware of
the need for consultation and cooperation in this sensitive
area. The Chadha decision will make clearer the legal and
political responsibility for these decisions, but it will not
significantly affect the practice.
- 14 -
=
Nuclear Non-Proliferation. Another field in which
statutes have contained many legislative veto provisions is
that of international commerce in nuclear energy. Various
sections of the Atomic Energy Act, for example, have provided
for a legislative veto of Presidential determinations to permit
nuclear exports to foreign countries.
There are three elements in many of the provisions. One
of them is the establishment of very strict standards limiting
the export of nuclear items. The second is an exceptional
waiver authority, vested in the President, who may permit
exports if he makes certain findings. The third is a
Congressional veto. We consider that those standards and that
waiver authority, as well as the statutory requirement of
notification to Congress and the observance of a waiting
period, continue to be valid. We will continue to wait through
the period during which the Congress, in the past, deliberated
over its veto; during that time, the Congress may use its
constitutional authority to enact new legislation if it
chooses. The only provision that is invalid is the third,
calling for a veto by concurrent resolution.
The Administration shares Congress's concern about nuclear
proliferation. We have been active diplomatically in this
field, as this Committee knows.
- 15 -
We vigorously oppose the development of nuclear weapons
capabilities by additional countries. Each Executive Branch
agency is required to keep the Congress, including this
Committee, fully informed of its activities in this field and
of significant developments abroad. We have done so, and we
are proud of our record of close consultation and collaboration
with the Congress. We will continue that practice.
Jackson-Vanik Amendment and Trade-Related Issues. A
fourth important statutory area involving a legislative veto is
the procedure for granting most-favored-nation treatment (MFN)
to certain non-market countries. Under the Jackson-Vanik
Amendment, nondiscriminatory tariff treatment may be granted to
these countries only when they comply with certain conditions
for the protection of human rights, including the right of
emigration. These requirements may be waived on the basis of
stated findings and determinations by the President.
The annual report required under that statute--for
continuation of MFN for Hungary, Romania, and China--is now
before the Ways and Means Committee. It can serve as an
illustration of how we believe Congress and the Executive
should continue to work together constructively.
We presented that report to the Congress before the
Supreme Court decision was announced.
- 16 -
However, we would have done precisely the same thing if the
Chadha decision had been handed down before the report was
filed. We regard the report as fully effective to extend the
waiver authority and to continue the waivers currently in
force. At the same time, legislative oversight hearings serve
the salutary purpose of scrutinizing the implementation of
statutory requirements, of airing public concerns, and of
making our nation's deep commitment to human rights known to
other nations.
The spirit with which we expect to work with Congress in
the future, in all statutory fields, is illustrated by another
example. We are required by the Case-Zablocki Act to report
executive agreements to the Congress, and we do so regularly.
That procedure notifies the Congress of agreements already
signed. There is also a procedure for enabling this Committee
and the Senate Foreign Relations Committee to consult with us
as to the form of significant international agreements prior to
their conclusion. This practice was arranged between the
Department of State and the Chairmen of the two Committees in
1978. It is not required by law, but makes good sense. We
will maintain it
- 17 -
WHERE DO WE GO FROM HERE?
As I emphasized at the beginning, little of practical
significance need in fact change as a result of the Supreme
Court decision. The Department of State will continue to work
closely with the members and committees of Congress and to take
their concerns into account in reaching decisions on issues of
policy. If anything, I believe Chadha will make the
departments and agencies of the Executive Branch more, not
less, conscious that they are accountable for their actions.
There are many basic questions about the separation of
powers, particularly in the foreign affairs and national
security field, which the Supreme Court will probably never
settle. In that realm our constitutional law is determined, in
a sense, as in Britain--by constitutional practice, by
political realities, by the fundamental good sense and public
conscience of the American people and their representatives.
This is how we have always settled these questions, and this is
how we, the Executive and the Congress, must approach these
problems in the aftermath of Chadha.
Our Constitution is a wise and enduring blueprint for free
government. In this period of our history, our nation faces
challenges that the drafters of that document could not have
imagined.
- 18 -
One of the most profound responsibilities of the federal
government is to conduct this nation's foreign policy and
ensure its security in a nuclear age, in an era of
instantaneous communications, in a complex modern world in
which international politics has become truly global.
America's responsibility as a world leader imposes on us an
obligation of coherence, vision, and constancy in the conduct
of our foreign relations. For this there must be unity in our
national government. The President and the Congress must work
in harmony, or our people will not have the effective, strong,
and purposeful foreign policy which they expect and deserve.
We have seen in the last 15 years that when Congress and the
President are at loggerheads, the result can be stalemate and
sometimes serious harm to our foreign policy.
We now have an opportunity, all of us, to put much of that
past behind us, and to start afresh. Let us shape a new era of
harmony between the branches of our government--an era of
constructive and fruitful policymaking, an -era of creativity
and statesmanship. That is President Reagan's goal and the
goal of all of us in his Administration.
Thank you.
THE WHITE HOUSE
WASHINGTON
July 12, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Legislative Veto Meeting
Mr. Meese began the meeting by announcing its purpose, which
was to expand the legal analysis of the effect of the
legislative veto decision to include broader policy
considerations. The Attorney General then stated his view
that legislative veto questions should be addressed on a
case-by-case basis as they arose, rather than in any broad
or general fashion. He also noted that any testimony should
be postponed until after the August recess, if possible, to
let the situation cool down some more. Ken Duberstein
opined that he did not think Congress was inclined to act
precipitously or in an across-the-board manner, but was
still surveying the damage.
David Stockman agreed with the case-by-case approach only
for the interim, noting that a vacuum now existed that
Congress would fill with some other device. In particular
he was concerned about a rise in appropriations riders, and
seemed to be suggesting some accomodation with Congress to
avoid this. The Deputy Attorney General disagreed, noting
that Congress could still act as prescribed in the
Constitution, so no "vacuum" existed. Ed Harper seemed to
agree with Schmults; Mike Horowitz with Stockman.
Mr. Meese concluded the meeting by setting out the following
course of action:
1. Do not alarm Congress; comply with report and wait
provisions.
2. Address legislative veto issues as they arise on a
case-by-case basis.
3. Begin "brainstorming" on long-term effects, through
a working group of the Cabinet Council on Legal Policy.
4. The activities of this working group will be
coordinated with the existing review group which has
been meeting at Justice.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 13, 1983
FOR:
RICHARD A. HAUSER
FROM:
PETER J. RUSTHOVEN
616
SUBJECT:
Memoranda from Ed Harper's
Office re: Legislative Vetos
As we discussed, attached for your review and signature is a
revised memorandum for Ed Harper, with copy to Wendell Gunn,
on the above-referenced issue.
The memorandum has been changed to reflect the discussions at
the meeting on legislative veto issues earlier this week
attended by John Roberts. John and I think you should still
send the memorandum, notwithstanding Harper's attendance at
that meeting, as additional insurance against the possibility
that Administration statements or other action on legislative
veto provisions fail to be coordinated through the Justice
"Working Group" and the Cabinet Council on Legal Policy.
Attachment
CC: Fred F. Fielding
John G. Roberts, Jr.
THE WHITE HOUSE
WASHINGTON
July 13, 1983
MEMORANDUM FOR EDWIN L. HARPER
ASSISTANT TO THE PRESIDENT
FOR POLICY DEVELOPMENT
FROM:
RICHARD A. HAUSER
DEPUTY COUNSEL TO THE PRESIDENT
SUBJECT:
Legislative Veto Provisions
This will respond to the question noted on Wendell Gunn's June
23 memorandum for you about the impact of the Supreme Court's
decision in INS. V. Chadha on the legislative veto provision
of section 203 of the Trade Act of 1974, 19 U.S.C. § 2253,
with specific reference to the recent specialty steel case.
Prior to the President's decision in that case, we were
advised by the Office of Legal Counsel at the Department of
Justice that it had reviewed this issue, and believed that the
Chadha decision invalidated this legislative veto provision.
OLC was also of the view, however, that the President retained
his statutory authority to review United States International
Trade Commission recommendations, and that he should continue
to report to the Congress his decisions with respect to such
recommendations. Our office reiterated this OLC advice in our
comment memorandum on the specialty steel case.
Our office was copied on your more general memorandum to
Assistant Directors of the Office of Policy Development,
asking them to compile lists of statutes with legislative veto
provisions involving their respective areas of substantive
responsibility. As you know, the Cabinet Council on Legal
Policy and the Department of Justice "Working Group" are
conducting an overall survey of legislative veto provisions
that may have been affected by the Supreme Court's decision.
Accordingly, the results of the OPD survey should probably be
forwarded to the Justice Working Group, which we can handle if
you wish.
Let me know if you have any questions; thank you.
CC: Wendell W. Gunn
STRONG MEMO TO
HARPER - OLC, ETC.
COORDINATING RESPONSE
(WE TOLD THEM BEFORE)
+ YES, OF COURSE,
PREZ SHOULD EXERCISE
HIS POWER
Legislative deto
fate: CHAOHA
THE WHITE HOUSE
WASHINGTON
7.8.83
Date
Suspense Date
Peter
MEMORANDUM FOR: John 5
FROM:
DIANNA G. HOLLAND
ACTION
Approved
Please handle/review
X
For your information
For your recommendation
For the files
Please see me
Please prepare response for
signature
As we discussed
Return to me for filing
COMMENT
TO PR PR
JUL I 1983
DOCUMENT NO.
140627
PD
OFFICE OF POLICY DEVELOPMENT
STAFFING MEMORANDUM
DATE: 7/1/83
ACTION/CONCURRENCE/COMMENT DUEBY: July 8, 1983
SUBJECT: IMPACT OF COURT'S LEGISLATIVE VETO DECISION
ACTION FYI
ACTION
FYI
HARPER
DRUG POLICY
PORTER
TURNER
BARR
D. LEONARD
BLEDSOE
OFFICE OF POLICY INFORMATION
BOGGS
HOPKINS
BRADLEY
PROPERTY REVIEW BOARD
CARLESON
OTHER
DENEND
Ed Meese
GALEBACH
Fred Fielding
GARFINKEL
GUNN
B. LEONARD
LI
McALLISTER
MONTOYA
ROPER
SMITH
SWEET
UHLMANN
ADMINISTRATION
REMARKS:
Edwin L. Harper
Please return this tracking
Assistant to the President
sheet with vour response
for Policy Development
THE WHITE HOUSE
WASHINGTON
June 30, 1983
MEMORANDUM FOR ASSISTANT DIRECTORS
FROM:
EDWIN L. HARPER 2d
SUBJECT:
Impact of Court's Legislative Veto Decision
Attached is a copy of the article from Newsweek magazine of
July 14th discussing the background of the Court's decision
overturning the legislative veto.
Would you please identify the significant applications of the
legislative veto concept in your area of responsibility and
comment on whether it is likely and/or desireable that the
President's new-found freedom from the threat of legislative veto
be exercised.
cc: Edwin Meese III
Fred Fielding
Attachment
Newsweek
States Reports.
Jean Louis Atian-Sygm:
Checks and balances: The legislative branch (House Speaker Tip O'Neill) greets the executive (State of the Union Message, 1982)
The Court Vetoes the Veto
In a historic ruling, the executive branch regains power at the expense of Congress.
ustice Byron White usually does not say
down in one day more federal statutes than
venient shortcut," wrote Chief Justice
J
much on days when the U.S. Supreme
it has overturned in its history-and
Warren Burger for the majority. "But it is
Court announces its decisions, but last
stripped Congress of an extremely power-
crystal clear
that the framers [of the
week he couldn't contain himself. "I have
ful tool. Although it will be years before all
Constitution] ranked other values higher
not spoken orally in dissent in many years,"
the effects of the ruling are clear, it will
than efficiency."
White began, "but this is no ordinary case.
change the way Washington does business
Congress responded with wounded cries.
It is probably the most important case that
and, in the short run, force Congress to
"It's a disaster," said Rep. Elliott Levitas of
the court has handed down in many years."
write much stricter laws.
Georgia, sponsor of a bill to give Congress a
Then for five minutes in a silent U.S. Su-
Shortcut: Invented as a simple way to
veto over every new administrative-agency
preme Court chamber White sharply criti-
keep an eye on the last gasps of Herbert
regulation. Both the House and Senate for-
cized his colleagues for, as he put it, "in one
Hoover's administration, the legislative
eign-policy committees created task forces
fell swoop" readjusting the constitutional
veto has become Congress's desperate-
to explore the extent of the damage. And
calculus between the president and Con-
and sometimes lazy-way of trying to
Sen. Charles E. Grassley of Iowa pledged to
gress by striking down a device most Ameri-
check both an imperial presidency and a
find new ways to curb presidents. The rul-
cans never heard of: the legislative veto.
set of low-profile regulatory agencies with
ing was particularly stinging because it
In Washington, at least, White's criti-
a taste for running amok. While it takes
struck at the fruits of Congress's post-Wa-
cism seemed understated. The ruling ap-
many forms, the veto typically works like
tergate, post-Vietnam frenzy. Furious at
peared to invalidate veto provisions tucked
this: Congress authorizes the White House
presidents who either lied to or ignored
into nearly 200 laws-including major leg-
to do something such as sell arms abroad,
them, a reassertive Congress has spent the
islation giving Congress a measure of con-
while reserving for itself the power to over-
past decade giving itself authority to,
trol over American troops involved in hos-
rule any sale it doesn't like. By a 7-2 vote,
among other things, recall U.S. troops from
tile actions abroad and allowing the House
the high court said that if Congress wants
hostile actions.
and Senate to make sure the president actu-
to thwart the president or a federal agency,
For the most part, the veto was useful
ally spends money they have appropriated
it must pass another law. "The veto
simply as a bluff. While Congress approved
(box, page 18). In so doing, the court struck
doubtless has been in many respects a con-
41 new provisions in 1980 alone, over the
16
NEWSWEEK/JULY 4, 1983
NATIONAL AFFAIRS
EQUALJUSTICE
UNDER
LAW
©
David Burnett-Contact
upreme Court Building: 'A fairly monumental change in the way the government does business'
st five years it actually vetoed only 31
most military arms and equipment within
Rai Chadha, an East Indian native of Kenya
itters-and most of them were minor. In
30 days after the president announced his
who came to the United States as a student,
actice, the veto's existence helped stimu-
plans. In fact, Congress never passed an
could be deported. Chadha overstayed his
compromise between legislative and ex-
arms-deal veto.
visa but argued he shouldn't be returned to
utive branches unwilling to play a game of
Like many other great cases, last week's
Kenya because of that country's racial tur-
onstitutional chicken. "The justices don't
landmark began as just another obscure
moil. Applying federal law, an immigration
inderstand what it's like here," says Stanley
dispute. At issue was whether one Jagdish
judge found that Chadha could stay in this
rand, counsel to the House of Represent-
country and suspended his deportation.
atives. "This is a fairly monumental change
Burger: Striking down nearly 200 laws
However, 18 months later, for still unex-
in the way the government does business."
plained reasons, the House of Represent-
But, insists Brand, Congress may have the
atives invoked its legislative veto power on
last laugh; without a veto the lawmakers
immigration decisions and ordered Chadha
may be less willing to dole out new authority
and five others to leave. Chadha went to
to the executive branch: "Every time the
court, challenging the House action, and, in
president wants something he's going to
the process, the veto's very existence.
have to come up here, hat in hand."
'Presentment': Last week's decision was
Excesses: A generation of White House
surprising only for its great breadth. Ac-
staffers say they are willing to take their
cording to Burger's opinion, the Constitu-
chances. Virtually every modern president
tion requires that all valid acts of legislation
has opposed the legislative veto; Jimmy
must not only pass both houses of Congress,
Carter even asked his staff to find a test case
but also must be "presented" to the presi-
that would challenge it. Candidate Ronald
dent for approval. The problem with the
Reagan endorsed it as a way to check the
legislative veto, he concluded, was the ab-
excesses of the federal bureaucracy, but
sence of that "presentment" procedure.
once in the White House he found the
For White the court's decision was sim-
threat of congressional veto just as annoy-
ply too formalistic. In his view, the veto is
ing as his predecessors had. Indeed, the
entirely consistent with the separation-of-
bruising 1981 Senate battle over the sale of
powers plan created by the Constitution.
AWACS reconnaissance planes to Saudi
"Only within the last half-century has the
Arabia was essentially a fight over the legis-
complexity and size of the federal govern-
lative veto; under the Arms Control Act of
ment's responsibilities grown so that the
1976, Congress could block the export of
Congress must rely on the veto to ensure its
NEWSWEEK/JULY 4, 1983
17
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 1, 1983
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS
SUBJECT:
INS V. Chadha
Craig Fuller has asked for our analysis of the legislative
veto opinion "as soon as possible." We did, of course,
provide such an analysis to the Senior Staff the morning
after the decision was announced.
I recommend sending Fuller a copy, with a cover memorandum
reviewing events subsequent to preparation of the analysis,
specifically the convening of the Justice Department working
group and the recommendation of our office that Legislative
Affairs became involved to calm the fears of Congress.
Attachment
THE WHITE HOUSE
WASHINGTON
July 1, 1983
MEMORANDUM FOR CRAIG L. FULLER
FROM:
RICHARD A. HAUSER
SUBJECT:
INS V. Chadha
You have asked for our analysis of the Supreme Court's
legislative veto opinion "as soon as possible." We provided
such an analysis to the Senior Staff the morning after
announcement of the decision. A copy of that analysis is
attached.
Since that time a working group chaired by Assistant
Attorney General Olson has been convened to assess the
impact of the decision. Our office, OMB, and Legislative
Affairs are represented on the working group, in addition to
the pertinent offices and divisions of the Justice Depart-
ment and several other departments. The group is monitoring
transmissions to Congress to ensure consistency with the
Court's decision and to provide advance warning of any
potential disputes concerning the effect of the decision.
It was the general consensus of the group that an immediate
effort should be made to prevent Congressional overreaction
to the Chadha decision. Our office has recommended that
Legislative Affairs meet with appropriate legislators and
perform a calming function, advising them that we would
comply with existing "report" provisions and would work
closely with Congress in assessing the long-term effect of
Chadha. Establishment of such a low-key approach and
cooperative tone will do much to dissipate Congressional
fears and prevent Congressional overreaction.
RAH: JGR:aw 7/1/83
CC: RAHauser
JGRoberts
Subj.
Chron
Immigration and Naturalization Service V. Chadha
(U.S. Supreme Court, June 23, 1983)
The Supreme Court yesterday issued a historic ruling on the
respective powers of the Executive and Legislative branches.
In Immigration and Naturalization Service V. Chadha, the
Court agreed with the Administration's legal arguments and
struck down a "legislative veto" provision in terms that
strongly suggest that all legislative veto provisions are
unconstitutional. Under the Immigration and Nationality
Act, the Attorney General has the authority to suspend
deportation of an alien. He did so in Chadha's case, but
the House of Representatives, acting pursuant to a
legislative veto provision, "vetoed" the Attorney General's
decision. In an opinion written by the Chief Justice,
joined by Justices Brennan, Marshall, Blackmun, Stevens, and
O' Connor, the Court ruled that the exercise of such a veto
power by the House was unconstitutional.
The opinion of the Court stresses that a proper exercise of
legislative power under the Constitution requires action by
both Houses of Congress and presentment of the question to
the President for veto or approval. The opinion contains
numerous passages emphasizing the importance placed by the
Framers on the President having an opportunity to review
legislative actions before they could become effective. The
legislative veto device is unconstitutional precisely
because it purports to give effect to Congressional action
while totally avoiding presentment of the question to the
Chief Executive. While Chadha involved a one-house legisla-
tive veto, its reasoning strongly suggests that a two-house
legislative veto -- by concurrent resolution -- is also
unconstitutional. As the Chief Justice's opinion concluded:
"To accomplish what has been attempted by one House of
Congress in this case requires action in conformity with the
express procedures of the Constitution's prescription for
legislative action: passage by a majority of both Houses
and presentment to the President."
Justice Powell concurred separately, not reaching the
legislative veto question. He thought the House's action
unconstitutional as an exercise of judicial power, determin-
ing the specific rights of one individual under the law.
Justice White dissented. He considered the legislative veto
a useful device for Congress to reserve control over execu-
tive agency actions. Justice Rehnquist also dissented on a
technical point, with which White agreed. Rehnquist argued
that this particular legislative veto provision was not
severable from the provision giving the Attorney General
-2-
the power to suspend deportations. Thus, if Congress could
not veto the suspension order, the Attorney General lacked
the power to order suspension in the first place.
This is a historic ruling in favor of the Executive Branch.
It means that Congress can no longer interfere with executive
actions short of passing a bill through both Houses and
presenting it to the President for his approval. There are
nearly 200 statutory provisions containing legislative
vetoes, and the Court's opinion, as noted by Justice Powell,
"apparently will invalidate every use of the legislative
veto." Some prominent examples of acts with legislative
veto provisions include the War Powers Act, the Department
of Defense Appropriation Authorization Act, and the Federal
Trade Commission Improvements Act. Provisions in these and
other acts purporting to allow Congress to disapprove
executive decisions by a one-house veto or concurrent
resolution are presumably invalid under Chadha.
Some argue that Congress has lost a valuable tool permitting
it to police the executive agencies and making the bureaucracy
more responsible to the elected representatives of the
people. In fact, the Chadha decision will promote better
government by forcing Congress to draft statutes more
clearly and narrowly. Congress will not be able to delegate
vast power to agencies with the assurance that it can step
in later if it disagrees with what an agency is doing. As
the Attorney General stated yesterday, "[t]he long term
effect of this decision will be a better and more effective
Congress as well as a more effective presidency."
Severability problems may arise in connection with some
legislative veto provisions, a concern highlighted by
Justice Rehnquist's dissent. If a legislative veto
provision is not severable -- if a court rules Congress
would not have given the executive the authority in question
if Congress could not "veto" its exercise in any particular
case -- then the grant of authority to the executive may be
struck down, along with the legislative veto. While most
legislative veto provisions, like the one in Chadha, should
be found to be severable, the question can only be decided
on a case-by-case basis, after examination of each statute
and its legislative history.
ID # 073455 CU
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THE WHITE HOUSE
pay!
WASHINGTON
2) Fate
CABINET AFFAIRS STAFFING MEMORANDUM
5
DATE: June 29, 1983 NUMBER:
073451CA
DUEBY: 5 pm, July 6
SUBJECT: Legislative Veto Opinion
ACTION FYI
ACTION FYI
ALL CABINET MEMBERS
Baker
Deaver
Vice President
State
Clark
Treasury
Darman (For WH Staffing)
Defense
Attorney General
Harper
Interior
Jenkins
Agriculture
FIELDING
Commerce
Labor
HHS
HUD
Transportation
Energy
Education
Counsellor
OMB
CIA
UN
CCCT/Gunn
USTR
CCEA/Porter
CCFA/Boggs
CEA
CCHR/Carleson
CEQ
OSTP
CCLP/Uhlmann
CCMA/Bledsoe
CCNRE/Boggs
REMARKS:
We would appreciate receiving your analysis of the Supreme
Court's legislative veto opinion as soon as possible. For
your information I have attached a paper developed by OMB.
RETURN TO:
Craig L. Fuller
Becky Norton Dunlop
Assistant to the President
Director, Office of
for Cabinet Affairs
Cabinet Affairs
456-2823
456-2800
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
June 24, 1983
MEMORANDUM TO:
Dave Stockman
Joe Wright
Don Moran
Fred Khedouri
Al Keel
John Cogan
Connie Horner
Chris DeMuth
Hal Steinberg
Pete Modlin
FROM:
Mike Horowitz
MH
SUBJECT:
Unconstitutionality of Legislative Veto
1. Introduction
Yesterday, in INS V. Chadha, the Supreme Court in a sweeping
opinion declared the legislative veto unconstitutional. As
stated by Justice Powell in his concerning opinion, "the Court's
decision
apparently will invalidate every use of the
legislative veto."
Chadha involved section 244 (c) (2) of the Immigration and
Nationality Act. The section permits the Attorney General to
suspend the deportation of an alien found deportable by an
immigration judge. The section also permitted Congress to veto
the Attorney General's suspension of deportation if either House
passed a resolution to that effect. In Chadha, the House of
Representatives passed such a resolution, thereby effectively
requiring Chadha's deportation. Chadha sued the INS, and as one
of his grounds asserted that Congress' exercise of the veto was
unconstitutional.
The Supreme Court's decision dealt with a variety of issues,
including several questions involving standing and jurisdiction.
The substantive issues of critical importance, however, were the
constitutionality of the legislative veto and the severability of
the provision.
2
2. Legislative Veto
The Court, in extremely sweeping language, found the provision
unconstitutional on the grounds that it violates both the
Presentment Clausesl/ and the bicameralism requirement2/ of the
Constitution. Only Justice White dissented from the holding that
the legislative veto was unconstitutional; Justice Powell
concurred in the judgment, but on the narrower and novel ground
that the particular legislative veto provision was an
unconstitutional assumption of indicial power.
3. Severability
In real terms, this may be the most critical question, and the
Chadha opinion only suggests the future shape of the law.
The Immigration and Nationality Act, at issue in Chadha,
contained a standard severability clause. The Court held that
that provision gave rise to a clear presumption in favor of
severability. The Court, however, also engaged in a lengthy
review of the Act's legislative history to determine whether
Congress really intended the legislative veto provision to be
severable. In addition, the Court applied a second test --
whether what remains after the severance "is fully operative as a
law." The Supreme Court concluded that both tests -- legislative
intent and the "fully operative" standard -- supported a finding
of severability.
It is possible that the Court will provide more detailed guidance
on severability in the next few weeks in another legislative veto
case still pending before the Court involving a FERC rule vetoed
by Congress. There, the D.C. Circuit held the legislative veto
unconstitutional, and also found the provision severable from the
Natural Gas Policy Act even though it did not contain a
1/ The Presentment Clauses require Congress to present passed
legislation to the President for his signature or veto.
2/ The bicameralism requirement requires that a bill pass both
Houses before it is presented to the President. Although the
bicameralism requirement is not an issue for two-House
legislative vetos, the Court's decision is not predicated on
bicameralism, and is applicable to any type of legislative veto.
3
severability clause. The D.C. Circuit analyzed the severability
issue wholly in the context of legislative intent. It found the
legislative veto provision severable because the legislative
history indicated that the provision was not "essential" to the
implementation of the statutory policy of the Act. If the
Supreme Court affirms the decision of the D.C. Circuit in the
FERC case, it will be a strong precedent in favor of the general
severability of legislative veto provisions. Because the Supreme
Court expressly declined to hold oral argument on the FERC case,
Justice believes the case will be summarily affirmed.
Whatever the disposition of the FERC case, however, it is likely
that the severability of legislative veto provisions will
continue to be litigated extensively, and a source of
considerable uncertainty, perhaps for a substantial period.
4. Retroactivity
A second major issue raised by Chadha is retroactivity. The
Supreme Court has in the past made some of its constitutional
holdings prospective in application only. In Chadha, the Court
was silent on the retroactivity issue because, in the context of
the case, the issue did not arise. (Mr. Chadha's deportation had
been stayed during the pendency of the case.) Thus, it is
entirely possible that Executive Brach actions vetoed by Congres
may now be in force. It is likely that such "unvetoed" Executive
Branch actions will quickly be tied up in litigation as adversely
affected parties seek judicial resolution of the retroactivity
issue. We are looking into a variety of areas that may be
affected if Chadha applies retroactively, including Pay Act
legislative vetos and the veto of the FTC's used car regulations.
5. "Report and Wait" Provisions
The Supreme Court in Chadha expressly approved the "report and
wait" provisions contained in some statutes. These provisions
require agencies to report regulations to Congress, and not to
implement them for a specified period pending Congressional
action. The Court made clear that such provisions are not
legislative vetos, and are appropriate mechanisms to provide
Congress with time to enact legislation barring the reported
actions.
6. Impoundment Control Act
The most immediate problem presented by Chadha for OMB is the
Impoundment Control Act. The rescission authority does not
4
appear implicated, in that an affirmative endorsement of both
Houses is required.
The legislative veto contained in the deferral authority,
however, is clearly unconstitutional and was identified in
Justice White's dissenting opinion as one of the key Executive
Branch powers affected by the Court's decision. 4/
Justice believes, as do I, is that the legislative veto provision
is severable from the deferral authority. A basis for this
conclusion is that deferrals, unlike rescissions, largely ensure
the orderly obligation of funds, so that Congress arguably would
have given the President this type of limited power without an
attached legislative veto.5/ But it is too early to know
definitively whether this reasoning is supported by the
legislative history, and whether the courts will hold the
deferral authority severable from the one-house veto. Because
the Impoundment Control Act does not contain a severability
provision, the Supreme Court's disposition of the FERC case may
be crucial on this issue.
The Impoundment Control Act does not, by its terms, require
Presidential signature of rescissions. Thus, possible questions
regarding some rescissions may arise under the Presentment
Clauses rationale discussed at note 1. It is my understanding
that most if not all rescissions are packaged in appropriations
bills, which are of course signed by the President. If this is
the case, Chadha may not present problems for the rescission
authority. In any event, we may wish to propose or endorse
Impoundment Control Act amendments expressly requiring
rescissions to be in the form of regular bills.
White noted that 65 budget deferrals have been vetoed by
Congress.
5/ It is not clear whether the Impoundment Control Act creates
the deferral authority, or simply regulates its use. It can be
argued that the deferral authority exists without the Act, in
which case the legislative veto provision would be clearly
severable. Although we have not yet researched all of them, it
appears that the pre-Impoundment Control Act cases -- which were
decided adversely to the President -- dealt with attempted
lapsings of budget authority, i.e. rescissions.
5
For the present, and generally, we will need to exercise care in
using deferrals in such a way that they cannot be interpreted as
rescissions, since one result of Chadha is that the Comptroller
General probably will be much more aggressive in policing
deferrals.
7. Conclusion
It is too early to know the full fall-out of Chadha. There are
some immediate issues that will have to be considered, including
budget deferrals, offshore leasing, federal pay, acts of the D.C.
government, sales of public lands, civil service reform, and a
variety of regulatory regimes that involve legislative vetos. In
this regard, I am attaching an Appendix to Justice White's
dissenting opinion listing 56 major statutes affected by the
Court's decision.
Some predictions can be made as to what we can expect from
Congress in the immediate future. For instance, we are likely to
see many more of the "report and wait" provisions that the Court
approved in its decision -- dangerous provisions if Congress
seeks to examine and delay publication of NPRM's or final rules,
and not merely suspend their effective dates. We also are likely
to see a sharp increase in the number of appropriation bill
riders. This is likely to bring with it an increase in the
shutdown "brinksmanship" budget politics we have experienced in
recent years.
Attachment
6/ The Comptroller General is empowered to sue to ensure that a
deferral is not used to achieve a rescission. It is likely that
the invalidation of the legislative veto on deferrals will reduce
the threshold for such a lawsuit.