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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Chadha (6 of 9)\nBox: 8\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nWITHDRAWAL SHEET\nRonald Reagan Library\nCollection: ROBERTS, JOHN G.: Files\nArchivist: gcc/beb\nFile Folder: JGR/Chada [6 of 9]\nOA 12658 12359\nDate: 5/26/98\nDOCUMENT\nSUBJECT/TITLE\nDATE\nRESTRICTION\nNO. AND TYPE\n1. memo\nJohn G. Roberts ro Fred F. Fielding re Legislative\n7/12/83\nVeto Meeting, 1p.\nRESTRICTION CODES\nPresidential Records Act [44 U.S.C. 2204(a)]\nFreedom of Information Act [5 U.S.C. 552(b)]\nP-1 National security classified information [(a)(1) of the PRA].\nF-1 National security classified information [(b)(1) of the FOIA].\nP-2 Relating to appointment to Federal office [(a)(2) of the PRA].\nF-2 Release could disclose internal personnel rules and practices of an agency [(b)(2) of the\nP-3 Release would violate a Federal statute [(a)(3) of the PRA].\nFOIA].\nP-4 Release would disclose trade secrets or confidential commercial or financial information\nF-3 Release would violate a Federal statue ((b)(3) of the FOIA].\n[(a)(4) of the PRA].\nF-4 Release would disclose trade secrets or confidential commercial or financial information\nP-5 Release would disclose confidential advice between the President and his advisors, or\n[(b)(4) of the FOIA].\nbetween such advisors [(a)(5) of the PRA].\nF-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the\nP-6 Release would constitute a clearly unwarranted invasion of personal privacy ((a)(6) of\nFOIA].\nthe PRA].\nF-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of\nthe FOIA].\nC. Closed in accordance with restrictions contained in donor's deed of gift.\nF-8 Release would disclose information concerning the regulation of financial institutions\n[(b)(8) of the FOIA].\nF-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of\nthe FOIA].\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nJuly 28, 1983\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\n252\nSUBJECT:\nCorrespondence from Senator Goldwater\non Chadha and War Powers Resolution\nOn July 13 Senator Goldwater wrote Ken Duberstein, enclosing\na copy of his remarks from the Congressional Record of July\n12. Those remarks questioned the constitutionality of the\nWar Powers Resolution in light of the Chadha decision. The\nSenator's remarks did not focus on the legislative veto\nprovision in the War Powers Resolution, but more generally\nsuggested that the entire Resolution was invalid on the\nbasis of the general thrust of Chadha, i.e., that each\nbranch should keep to its own turf.\nIn his letter, Goldwater expressed his hope that his remarks\nwould be directed to the President and to you. Duberstein\nsent Sherrie a copy for appropriate action; Sherrie referred\nit to me. I have drafted a response based primarily on Ken\nDam's testimony concerning the effect of Chadha on the War\nPowers Resolution.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nJuly 28, 1983\nDear Senator Goldwater:\nKen Duberstein has shared your letter of July 13 with me.\nAlong with that letter you provided a copy of your remarks,\npublished in the Congressional Record of July 12, 1983,\nconcerning the War Powers Resolution and the Supreme Court's\ndecision in Immigration and Naturalization Service V.\nChadha.\nNeedless to say, I read your remarks with considerable\ninterest. In the executive branch, an inter-agency working\ngroup has been active since the announcement of the Chadha\ndecision, reviewing the various statutes containing\nlegislative vetoes. As you doubtless know, representatives\nfrom both the Department of State and the Department of\nJustice have already testified before Congress on the impact\nof the Chadha decision. Our main effort, beyond simply\nevaluating the legal effect of the decision, has been to\nassure Congress that we have no intention of \"exploiting\"\nthe decision and will continue to consult closely with\nCongress concerning activities previously subject to the\nthreat of legislative veto.\nMuch of the debate and discussion in the wake of the Chadha\ndecision has, of course, concerned the War Powers Resolution.\nDeputy Secretary of State Kenneth W. Dam has testified\nbefore both the House Committee on Foreign Affairs and the\nSenate Committee on Foreign Relations concerning the effect\nof Chadha on the Resolution. As Mr. Dam testified, the\nlegislative veto provision of the Resolution -- found at\nsection 5 (c) -- is clearly unconstitutional, and severable\nfrom the remainder of the statute.\nMr. Dam testified that section 5 (b), which purports to\nrequire the President to withdraw troops in certain circum-\nstances in the absence of Congressional authorization, does\nnot fall within the scope of the Chadha decision. That\nsection does not contain a legislative veto. As Mr. Dam\nnoted, however, \"the Executive Branch has traditionally had\nquestions about this requirement of Congressional authoriza-\ntion for Presidential disposition of our armed forces, both\nin light of the President's Commander-in-Chief power and on\npractical grounds.\" Your suggestion that the broader\nimplications of the analysis in Chadha -- as opposed to its\nspecific treatment of legislative vetoes -- may have a\nbearing on the War Powers Resolution as a whole is certainly\nworthy of further consideration.\n-2-\nThank you for sharing your views on this important subject\nwith us. They will certainly be helpful as we continue to\nwork with Congress in assessing and responding to the Chadha\ndecision.\nSincerely,\nFred F. Fielding\nCounsel to the President\nThe Honorable Barry Goldwater\nUnited States Senate\nWashington, D.C.\n20510\nFFF:JGR:aw 7/29/83\nCC: FFFielding\nJGRoberts\nSubj.\nChron\nbcc: Ken Duberstein\nTHE WHITE HOUSE\nWASHINGTON\nJuly 28, 1983\nDear Senator Goldwater:\nKen Duberstein has shared your letter of July 13 with me.\nAlong with that letter you provided a copy of your remarks,\npublished in the Congressional Record of July 12, 1983,\nconcerning the War Powers Resolution and the Supreme Court's\ndecision in Immigration and Naturalization Service V.\nChadha.\nNeedless to say, I read your remarks with considerable\ninterest. In the executive branch, an inter-agency working\ngroup has been active since the announcement of the Chadha\ndecision, reviewing the various statutes containing\nlegislative vetoes. As you doubtless know, representatives\nfrom both the Department of State and the Department of\nJustice have already testified before Congress on the impact\nof the Chadha decision. Our main effort, beyond simply\nevaluating the legal effect of the decision, has been to\nassure Congress that we have no intention of \"exploiting\"\nthe decision and will continue to consult closely with\nCongress concerning activities previously subject to the\nthreat of legislative veto.\nMuch of the debate and discussion in the wake of the Chadha\ndecision has, of course, concerned the War Powers Resolution.\nDeputy Secretary of State Kenneth W. Dam has testified\nbefore both the House Committee on Foreign Affairs and the\nSenate Committee on Foreign Relations concerning the effect\nof Chadha on the Resolution. As Mr. Dam testified, the\nlegislative veto provision of the Resolution -- found at\nsection 5 (c) -- is clearly unconstitutional, and severable\nfrom the remainder of the statute.\nMr. Dam testified that section 5 (b), which purports to\nrequire the President to withdraw troops in certain circum-\nstances in the absence of Congressional authorization, does\nnot fall within the scope of the Chadha decision. That\nsection does not contain a legislative veto. As Mr. Dam\nnoted, however, \"the Executive Branch has traditionally had\nquestions about this requirement of Congressional authoriza-\ntion for Presidential disposition of our armed forces, both\nin light of the President's Commander-in-Chief power and on\npractical grounds.\" Your suggestion that the broader\nimplications of the analysis in Chadha -- as opposed to its\nspecific treatment of legislative vetoes -- may have a\nbearing on the War Powers Resolution as a whole is certainly\nworthy of further consideration.\n-2-\nThank you for sharing your views on this important subject\nwith us. They will certainly be helpful as we continue to\nwork with Congress in assessing and responding to the Chadha\ndecision.\nSincerely,\nOrig. signed by FFF\nFred F. Fielding\nCounsel to the President\nThe Honorable Barry Goldwater\nUnited States Senate\nWashington, D.C.\n20510\nFFF:JGR:aw 7/29/83\nCC: FFFielding\nJGRoberts\nSubj.\nChron\nbcc: Ken Duberstein\nJuly 26, 1983\nDear Senator Goldwater:\nThank you for your note enclosing a copy\nof your recent remarks regarding the\nimplications of the legislative veto\ndecision for the War Powers Resolution.\nI appreciate your contacting me to see\nthat your comments are brought to the\nattention or the President and his advisers.\nRest assured that your statement will be\ngiven close attention and review.\nWith best wishes,\nSincerely,\nKenneth M. Duberstein\nAssistant to the President\nThe Honorable Barry Goldwater\nUnited States Senate\nWashington, D.C. 20510\nKMD:CMP:dps\nCC: w/copy of inc, Bob Kimmitt - FYI\nCC: w/copy of inc, Sherrie Cooksey) - for\nappropriate action\nCOMMITTEES:\nBARRY GOLDWATER\nARIZONA\nINTELLIGENCE. CHAIRMAN\nARMED SERVICES\nTACTICAL WARFARE, CHAIRMAN\nUnited States Senate\nPREPAREDNESS\nSTRATEGIC AND THEATRE NUCLEAR FORCES\nCOMMERCE, SCIENCE, AND TRANSPORTAT\nWASHINGTON. D.C. 20510\nCOMMUNICATIONS. CHAIRMAN\nAVIATION\nSCIENCE. TECHNOLOGY, AND SPACE\nINDIAN AFFAIRS\nJuly 13, 1983\nMr. Ken Duberstein\nAssistant to the President\nfor Legislative Affairs\nThe White House\nWashington, D.C. 20500\nDear Ken:\nYesterday I told the Senate that the War Powers Resolution is a\ndead letter under the rule applied by Chief Justice Burger to the\nlegislative veto case. The basic prerogatives of the President are\nat stake in both subjects.\nA copy of my remarks is enclosed and I hope you will bring it to\nthe attention of the President and to the White House Counsel.\nWith best wishes,\nBarry Goldwater\nEnclosure\n9670\nCONGRESSIONAL RECORD\nJuly 12, 1983\nnority leader comports with what I\nquence, if the proponents of these\nThis is an invalid action because\nthink is the sense of our committee on\namendments would agree to that.\nCongress cannot encroach on a respon-\nthis matter. That is that the advanced\nThen we could deal with all amend-\nsibility of the President. Just as the\ntechnology bomber funds be pro-\nments relating, for example, to techni-\nSupreme Court ruled in the legislative\ngramed for these purposes and not for\ncal aircraft procurement or all amend-\nveto case that Congress overstepped\nany other system. This is a priority\nments relative to Army procurement,\nits authority by invading the constitu-\nsystem as far as our committee is con-\namendments relative to strategic sys-\ntional boundaries of the executive\ncerned. Therefore, I think the amend-\ntems, and deal with them on a categor-\nbranch, so it would have to rule that\nment certainly comports with the\nical basis in an orderly way, so that in-\nthe war powers resolution exceeds\nspirit of the bill and the will of the\nterested Senators will know at about\nthose boundaries if the Court decides\ncommittee as I understand it.\nwhat point in time amendments in\nto reach the constitutional question on\nMr. JACKSON. Mr. President, I\nwhich they have an interest will come\nthe merits.\nconcur in the comments of the distin-\nup and areas in which they have an in-\nCongress cannot usurp the powers\nguished chairman of the committee\nterest will be dealt with.\nvested by the Constitution in the\nand the distinguished minority leader.\nI shall not attempt to do that now,\nPresident even if the Chief Executive\nThe 18(b) program is one of our most\nbut I hope that, at some point, we can\nhas assented to the particular piece of\nimportant strategic programs. The dis-\norganize our business in that fashion.\nlegislation which contains a provision\ntinguished minority leader is saying, in\nIn the meantime, if Senators are pre-\ncontrary to the Constitution. This is\neffect, that the funds here should be\npared to offer amendments, I shall be\nthe expressly stated ruling of the\nfenced off from any other use for that\ndelighted to urge or recommend to the\nCourt in the case announced last\npurpose. I strongly support the\nChair that those Senators be recog-\nmonth by Chief Justice Burger, Immi-\namendment and I hope that it will be\nnized.\ngration Service against Chadha.\nunanimously approved. I commend the\nSeeing none at the moment, Mr.\nOf course we know that the Presi-\ndistinguished minority leader.\nPresident, I think we can probably get\nMr. BYRD. Mr. President, I thank\ndent never gave his assent to the war\non the telephone and suggest to some\nthe distinguished manager of the bill\npowers resolution. President Nixon\nSenators that now would be a propi-\n(Mr. TOWER) and the distinguished\nvetoed it and Congress overrode his\ntious time to offer them.\nranking manager (Mr. JACKSON) for\nveto. But this strengthens the argu-\nI suggest the absence of a quorum.\ntheir comments and their support.\nments against that statute. Where the\nThe PRESIDING OFFICER. The\nThe PRESIDING OFFICER. The\nPresident specifically objects to and\nclerk will call the roll.\nquestion is on agreeing to the amend-\ndenies the authority claimed by a\nThe bill clerk proceeded to call the\nment.\npiece of legislation, the validity of the\nroll.\nThe amendment (No. 1458) was\nchallenged statute is on even weaker\nagreed to.\nMr. GOLDWATER. Mr. President, I\nground than it was in the legislative\nMr. TOWER. Mr. President I move\nask unanimous consent that the\nveto case.\nto reconsider the vote by which the\nquorum call be dispensed with.\nThis conclusion becomes evident\namendment was agreed to.\nThe PRESIDING OFFICER. With-\nwhen we examine what Chief Justice\nMr. BYRD. I move to Tax hat\nout objection, it is so ordered.\nBurger wrote about the specific power\nmotion on the table.\nCongress asserted in the legislative\nThe motion to lay on the table THE\nWAR POWERS RESOLUTION\nveto case, which was an effort by Con-\nagreed to.\nVOIDED\ngress to control decisions involving the\nMr. TOWER. Mr. President, we have\na number of amendments Senators\nMr. GOLDWATER. Mr. President, I\ndeportation of certain aliens. In that\nwish to take a moment to comment on\ncase, Congress asserted plenary au-\nhave indicated they intend to offer. I\nthink we have a total now of around\nthe Supreme Court's decision, an-\nthority over aliens under a power\n30. I expect that number to grow. The\nnounced on June 23, which held that\nwhich is specifically granted to it by\nmajority leader has already expressed\nthe so-called legislative veto by con-\narticle I, section 8, clause 4, of the\ngressional resolution is a violation of\nConstitution. Even so, wrote Chief\nhis intention to work late hours, if\nthe separation of powers doctrine of\nJustice Burger, the authority of Con-\nnecessary, and to work through the\nweekend, if necessary, to complete the\nthe U.S. Constitution. In particular, I\ngress over the particular subject \"is\nbill this week. It is, I know, his inten-\nwant to address the Court's decision in\nnot open to question, but what is chal-\ntion to do that if at all possible. It is\nthe context of the war powers resolu-\nlenged here is whether Congress has\ncertainly, I think, the desire of the dis-\ntion which the Congress voted over\nchosen a constitutionally permissible\ntinguished ranking minority leader\nthe President's veto in 1973.\nmeans of implementing that power.\"\n(Mr. JACKSON) and myself to complete\nMr. President, I believe the same\nApplying this same analysis to the\nthis bill with as much dispatch as pos-\nreasoning and same constitutional\nwar powers resolution, we can see that\nsible. I hope that we shall not have to\nanalysis which the Supreme Court ap-\na similar result would follow. It is true\nresort to a weekend session.\nplied to the legislative veto will have\nthat Congress has concurrent authori-\nI understand that there will be a\nthe effect of invalidating the war\nty in the field of military and defense\nprotracted debate on one or two issues.\npowers resolution. That statute itself\nmatters. It is true that Congress must\nI expect that might come later in the\nincludes a legislative veto as the very\nappropriate moneys for the Armed\nproceedings, after we have disposed of\nheart of its purported method of en-\nServices at least every 2 years, that\na number of other matters.\nforcement and the resolution is clearly\nCongress possesses the power to de-\nIn any case, Mr. President, we have\na dead letter to the extent of its reli-\nclare war, and that Congress may es-\nour work cut out for us. I hope Sena-\nance on the now-declared unconstitu-\ntablish a military justice system.\ntors will be forthcoming and come\ntional legislative veto.\nThe flaw in the war powers resolu-\nover and offer their amendments\nBut more than that, Mr. President,\ntion, however, is that the Congress has\nwhen they are asked to do SO.\nthe strong six-Justice majority opinion\nattempted to exercise its power in a\nWe are, of course, running into the\nwritten by Chief Justice Warren\nway which offends other constitution-\nusual problem of having a number of\nBurger indicates that the basic prem-\nal restrictions. In the legislative veto\namendments, but also a number of\nise of the war powers resolution is un-\ncase, the Supreme Court put its basic\nSenators who say they are unprepared\nconstitutional. Congress attempts in\nreliance upon the precise terms of sec-\nto offer them this afternoon. I hope\nthe war powers resolution to assume\ntion 1, article, I, of the Constitution,\nwe can break through that logjam and\nunto itself the ultimate and control-\nwhich provides:\nget those amendments over here and\nling power over the use and deploy-\noffered.\nAll legislative powers herein granted shall\nment of U.S. military forces in defense\nbe vested in a Congress of the United\nIt is my intention to try to offer\nof the lives, freedoms, and rights of\nStates. which shall consist of a Senate and\nthese amendments in a kind of se-\nU.S. citizens and our Nation.\nHouse of Representatives.\nJuly 12, 1983\nCONGRESSIONAL RECORD - SENATE\nS 9671\nIf the Supreme Court should ever\ndeliberately allotted among three sep-\nend of 1975. Another amendment passed re-\nconsider a case involving the war\narate branches.\nquiring a reduction in the numbers of\npowers resolution, the Court would\nThat is the lesson of the Supreme\nUnited States troops in NATO countries. A\nrenewed ban on the use of funds to finance\nsimilarly rely on an equally explicit\nCourt's decision in the legislative veto\nthe involvement of American military forces\nprovision of the Constitution, which is\ncase and I hope that my colleagues in\nin hostilities in or over or from off the\nthe first section of article II. This sec-\nCongress will reflect long and hard on\nshores of North and South Vietnam, Laos,\ntion provides:\nthat meaning of the case so that we\nor Cambodia was accepted without debate.\nThe executive power shall be vested in a\nmay someday reach the point when we\nConferees later deleted the unilateral re-\nPresident of the United States of America.\nwill openly repeal the unwise and un-\nduction of 110,000 troops overseas, but a\nAlso, the Supreme Court would rely\nconstitutional War Powers Resolution.\nprovision requiring the withdrawal of\non the first paragraph of section 2 of\nMr. President, in the event that\nNATO forces proportionate to the balance\narticle II, which declares in precise\nsome of my colleagues, who were not\nof payments deficit caused by stationing our\nterms:\nhere at the time the Congress acted on\ntroops in Europe and a prohibition aganist\nThe President shall be Commander-in-\nthe War Powers Resolution, may be\nUnited States military actions in Indochina\nwere both contained in the law signed by\nChief of the Army and Navy of the United\naware of the conflict between that res-\nPresident Nixon on November 16.\nStates, and of the militia of the several\nolution and the Constitution and his-\nMeanwhile, blunderbuss provisions shut-\nstates, when called into the actual service of\ntory of our country, I ask unanimous\nting off all funds to the Department of\nthe United States.\nconsent that an article discussing the\nState, USIA, and other foreign affairs agen-\nJust as the Court held that the pro-\nsubject, written by J. Terry Emerson,\ncies upon failure to supply information re-\nvisions of article I are integral parts of\nmy staff counsel, may be printed in\nquested by certain Congressional Commit-\nthe constitutional design for the sepa-\nthe RECORD.\ntees were attached by the Senate Foreign\nration of powers, the Court must find\nThere being no objection, the article\nRelations Committee to the USIA, State De-\nin a similar vein that the provisions of\nwas ordered to be printed in the\npartment and foreign economic aid bills.\narticle II are woven into the fabric of\nRECORD, as follows:\nCongress eventually deleted the provision\nfrom the State Department and AID bills\nthe separation of powers concept.\n[From 2 Strategic Review 44, Winter 1974]\nand sustained President Nixon's veto of the\nThe history of the 13 separate states\nIMPERATIVES OF THE PRESIDENT'S WAR\nUSIA bill.\nprior to the Constitutional Convention\nPOWERS\nA Senate attack on executive agreements\nof 1787, the evolution in the early\n(J. Terry Emerson)\nalso failed. Two amendments prohibiting\nState constitutions from weak execu-\n\"In every circle, and truly, at every table,\nthe implementation of the 1971 Azores mili-\ntives to strong executives, the discred-\nthere are people who lead armies into Mac-\ntary base agreement between the United\nited interference by the Continental\nedonia; who know where the camp ought to\nStates and Portugal or any future base\nCongress with military actions of Gen-\nbe placed; what posts ought to be occupied\nagreements with foreign countries, unless\neral Washington during the War of\nby troops, when and through what pass that\nthe agreements were submitted to the\nIndependence, and the entire course of\nterritory should be entered; where maga-\nSenate for its advice and consent, were\nzines should be formed; how provisions\ndropped in conference from the State De-\npractice under the Constitution from\nshould be conveyed by land and sea; and\npartment bill.\nthe administration of President Wash-\nwhen it is proper to engage the enemy,\nTHE WAR POWERS RESOLUTION\nington to the current administration\nwhen to lie quiet\nWhat then is my opin-\nof President Reagan, all combine to\nion? That commanders should be counseled,\nBut the major battle of 1973 dealt with\ndemonstrate beyond any reasonable\nchiefly, by persons of known talent, by\nthe heart of the war powers issue-the cir-\ncumstances in which war or the threat of\ndoubt that the fundamental and ulti-\nthose who have made the art of war their\nmate power to employ the existing\nparticular study, and whose knowledge is\nwar can be used as an instrument of nation-\nforces of the United States in defense\nderived from experience; from those who\nal policy. Here Congress emerged as the\nof citizens and the survival of our\nare present at the scene of action, who see\nclear victor, at least for the moment. For\nthe country, who see the enemy, who see\nthe first time in history, legislative policy\ncountry, in reaction to foreign dan-\nthe advantages that occasions offer, and\nrestrictions governing the waging of war\ngers, rests with the President.\nwho, like people embarked in the same ship,\nbecame part of American law. This was no\nOnce the military forces are estab-\nare sharers of the danger. If, therefore,\nexercise of the power of the purse, tied to\nlished, once an Air Force and a Navy\nanyone thinks himself qualified to give\nan appropriations measure. This proposal.\nand an Army and a Marine Corps are\nadvice respecting the war which I am to\nHouse Joint Resolution 542, the War\nconduct, which may prove*advantageous to\nPowers Resolution, was a clear-cut declara-\ncreated, it is for the President to\ndecide how to deploy and use those\nthe public, let him not refuse his assistance\ntion of Congressional superiority in the sub-\nforces. That is an executive power. It\nto the state, but let him come with me into\nstantive, policy-making realm of the use and\nMacedonia. He shall be furnished with a\ndisposition of the Nation's Armed Forces.\nis within the class of executive au-\nship, a horse, a tent; even his traveling\nOn November 7, Congress put this unprec-\nthorities that the Framers had in\ncharges shall be defrayed. But if he thinks\nedented legislation into law over President\nmind when they drafted section 1 of\nthis too much trouble, and prefers the\nNixon's veto. Cast as an effort \"to fulfill the\narticle II of the Constitution and con-\nrepose of a city life to the toils of war, let\nintent of the framers of the Constitution\nferred upon the President all the ex-\nhim not, on land, assume the office of a\nand insure that the collective judgment of\necutive powers of the United States.\npilot.\"-Lucrus AEMILIUS PAULLUS, Roman\nboth the Congress and the President will\nGeneral. 168 B.C.\napply to the introduction of United States\nAnd, these military defense powers are\nOn May 19, 1973, after nine years of direct\nArmed Forces into hostilities,\" the War\nprecisely what the Framers contem-\nUnited States involvement in Indochina, the\nPowers Resolution actually claims for Con-\nplated when they expressly provided\nHouse of Representatives cast its first vote\ngress a position of dominance over the\nthat the President, not the Congress,\nin favor of ending military activities there.\nentire field of troop commitment and de-\nbut the President, is the Commander-\nThough President Nixon vetoed this bill,\nployment.\nin-Chief of the Armed Forces.\nwhich would have barred use of all funds to\nThe operative sections of the Resolution\nThus, it is a violation of the separa-\nconduct American combat activity in Cam-\nare triggered by the introduction of Ameri-\ntion of powers for Congress to attempt\nbodia and Laos, Congress promptly passed a\ncan forces, without a declaration of war, (1)\nto claim for itself the supreme direc-\nsecond appropriations bill with a broadened\ninto hostilities or imminent hostilities, (2)\ntion of the Armed Forces. Congress\nprohibition applicable to North and South\ninto the territory, airspace or waters of a\nVietnam as well as Cambodia and Laos. This\nforeign nation, while equipped for combat\nhas attempted to do that in the War\nban became effective on August 15.\n(except -for supply, replacement, repair or\nPowers Resolution and the action of\nOn September 20, the Senate began work\ntraining), or (3) in numbers which substan-\nCongress is in direct contradiction to\non the military weapons procurement bill.\ntially enlarge United States forces equipped\nother specific restrictions of the Con-\nWith the United States and the Soviet\nfor combat already located in a foreign\nstitution and of the separation of\nUnion about to resume nuclear strategic\nnation. When military forces are introduced\npowers.\narms talks in SALT II and with an October\nin one of these situations, the President\nCongress cannot invade an executive\n30 date set for beginning negotiations be-\nmust report on it to Congress within forty-\ntween the opposing NATO and Warsaw Pact\neight hours and periodically thereafter.\nfunction. Congress cannot set itself up\nnations on the subject of mutual reduction\nUnless Congress grants specific authority\nas the Executive. Congress cannot con-\nof armed forces in Europe, the Senate ap-\nfor such use of the Armed Forces to contin-\ncentrate unto itself all the powers of\nproved an amendment to unilaterally cut\nue within sixty days after the report is re-\nthe Government which the Framers\noverseas land-based troops by 110,000 by the\nquired, the President shall end the oper-\n9672\nCONGRESSIONAL RECORD - SENATE\nJuly 12, 1983\nation. Only if he certifies that the safety of\nfrost and snow without cloathes or Blan-\ntion when it voted down a proposal giving\nUnited States troops demands their contin-\nkets\"-Letter of George Washington to the\nCongress the power to declare \"peace\"-to\nued use in the course of removal is the\nPresident of Congress, Valley Forge, Decem-\nend a war once started-and with the\nPresident allowed an additional thirty days.\nber 23, 1777.\nremark made at the Convention that the\nBut, at any time during this sixty to ninety\nIn August of 1777, the Continental Con-\nconduct of war \"was an Executive function.\"\nday period, should Congress approve a con-\ngress, then possessed of the joined powers\nFrom the historical setting in which these\ncurrent resolution ordering their withdraw-\nof Legislative and Executive, had discarded\nevents occurred, it is clear the Framers\nal, the President must obey a Congressional\nthe military Commissary General whom\nmeant to leave the basic powers of waging\ndirective to remove the forces.\nWashington had selected and itself assumed\nwar with the President. They were influ-\nAnother major provision of the Resolu-\ncomplete charge of the commissariat. Short-\nenced in this decision by the writings of\ntion prescribes that no authority for the use\nly after this change, the system suffered a\nLocke, Montesquieu and Blackstone, all of\nof troops shall be inferred from any provi-\ntotal breakdown. As we know, the great\nwhom viewed the making of war as a prerog-\nsion of law, including defense appropri-\nwant of clothing, food and blankets grew\native of the Executive. These writers be-\nations, unless the law spells out a specific\ninto tragedy as cold weather came on. A\nlieved it to be among the fundamental laws\nintent to constitute authority within the\nprominent military historian has written:\nof nature and government that the Execu-\nmeaning of the Resolution. Nor is any au-\n\"The amount of harm, caused by the unwise\ntive should posses an unrestricted discretion\nthority for troop commitment to be inferred\nmilitary control usurped by Congress, can\nto act when the safety of society was in-\nfrom any existing or future treaty unless it\nonly be measured in terms- of the appalling\nvolved.\nis implemented by other legislation specifi-\nsufferings of the American soldiers at\nThe danger of legislative deliberation in\ncally conferring this authority.\nValley Forge, which Washington was power-\nmoments of distress is the focus of Madison\nWhat is happening is that Congress is as-\nless to prevent.\"1\nand Hamilton in the Federalist 19. Here the\nserting dominion over a host of unsettled\nBut this is not the only disaster for which\ntwo great architects of the Constitution\nConstitutional issues which until now the\nCongress must be held accountable. Re-\nagree that the Constitutional Convention\nSupreme Court has been reluctant to arbi-\nquired by his commission, \"punctually to\nhad specifically rejected as a political model\ntrate, but which the course of history has\nobserve any such orders and directions\" as\nthe Germanic Empire in which the Diet, or\nresolved generally in favor of the Chief Ex-\nhe should receive from Congress, Washing-\nlegislative body, was possessed of the power\necutive. Overturning a decision by the U.S.\nton was harassed, second-guessed and over-\nSecond Court of Appeals determining that\nruled throughout the War of Independence.\nto make and commence war. \"Military prep-\nmilitary appropriations throughout the war\nIt was the Continental Congress who or-\narations must be preceded by so many te-\ndious discussions\ndered Washington's men, opposed by over\nthey wrote, \"that\nin Southeast Asia did contain an authoriza-\nfour times their strength, to defend Man-\nbefore the Diet can settle the arrangements\ntion for the making of war, Congress itself\nhattan and Long Island to the last, resulting\nthe enemy are in the field.\"\nhas mandated that authority cannot be in-\nferred from war-implementing appropri-\nin the useless surrender of over 3,000 Ameri-\nThus, in creating a government in which\nations. Disregarding the expectation of our\ncan troops in the summer of 1776. It was\nthe Executive power was removed from the\nCongress who passed over Washington's\nCongress and vested in the single person of\nallies, Congress unilaterally has decided at\nthis late time to spell out a hard and fast\nfirst choice as commander for the Southern\nthe Presidency, the Framers well under-\nDepartment, and instead appointed a gener-\nstood the need for unity in the Executive\nrule preventing the Executive Arm from en-\nal who had recently been exposed for plot-\nDepartment and especially in making deci-\nforcing an American commitment under the\nNATO Treaty without further Congression-\nting against Washington and who in his\nsions related to emergencies. As Alexander\nal authorization. Oblivious to the history of\nfirst battle proceeded to lose the entire\nHamilton wrote in the Federalist 73, \"Of all\nAmerican Army in the South. And it is Con-\nthe cares or concerns of government, the di-\nthe Republic in which Presidents have en-\ngress whose orders blocked the reinforce-\nrection of war most peculiarly demands\ngaged United States forces in hostilities\nments which Washington needed in the fall\nthose qualities which distinguish the exer-\nabroad on hundreds of occasions without a\ndeclaration of war, Congress has taken it\nof 1777, making it impossible for him to save\ncise of power by a single hand. The direc-\ntion of war implies the direction of the\nupon itself to suddenly and dramatically\nthe forts along the Delaware that had pre-\nshift the interpretation which 184 years\nvented the British from using the river for\ncommon strength; and the power of direct-\nhave put upon the Constitution. Contrary\nthe supply of their armies.\ning and employing the common strength\nThese and other directives of Congress\nform a usual and essential part in the defin-\nto the brutal realities of warfare, Congress\nvery nearly lost the War of Independence.\niton of executive authority.\" In other words,\nnow instructs any enemy wise enough to\nAnd yet, it is exactly this system of govern-\nthe direction of military affairs is to be\ncount that it may rely upon the inaction of\nment to which the War Powers Resolution\nmanaged by a single Commander in Chief,\nthe legislature to achieve for it within sixty\nwould have us revert.\nnot by 535 different Members of Congress.\nto ninety days the withdrawal of American\nThe Founding Fathers intended to pre-\nAn analysis of history will shed additional\nforces which no opposing foe could compél.\nvent a recurrence of the interference Wash-\nproof that the Founding Fathers arranged\nWho has the war powers? Who has the\nington had experienced. They had witnessed\nthe power to make war with the Executive\npower of initially committing American\nat first hand the inefficiency of the legisla-\nBranch. For example, it is an oft-overlooked\nforces to battle in defense of America's\nture meddling with military operations. Of\nhistorical fact that the declaration of war\npeople-or America's freedoms-or our posi-\nthe fifty-five Framers who attended the\nhad already fallen into disuse in the eigh-\ntion in the world? Once United States units\nConstitutional Convention, no less than\nare involved, who controls day-by-day tac-\nteenth century. In the period from 1700 to\nthirty had performed military duty in the\n1787, the year of the Constitutional Conven-\ntics and overall strategic- planning? With\nRevolution. At least six signers of the Con-\ntion, thirty-eight wars were held in the\nwar underway, who can dictate where and\nstitution (in addition to Washington) were\nWestern World and thirty-seven of them\nwhen to bomb and which borders to cross?\nintimately familiar with Washington's prob-\nbegan without any declaration. This devel-\nIn peace, who determines where American\nlems. Thomas Mifflin had been quartermas-\nopment was remarked upon by Alexander\nforces can be stationed around the globe,\nter general of Washington's army, and Ham-\nHamilton in the Federalist 25.\nand in what numbers? What is the meaning\nilton, McHenry and C.C. Pinckney had\nof the Declaration of War Clause? What au-\nThe idea that the only way nations can go\nserved on Washington's staff. Gouverneur\nthority did the Framers vest in the Com-\nto war is by a declaration was a myth at the\nMorris had defended the Commander in\ntime of the Constitutional Convention.\nmander in Chief? Who enjoys primacy in\nChief in Congress and visited Valley Forge;\nthe making of foreign policy?\nWhy, if the Constitutional Convention in-\nand Robert Morris had financed Washing-\ntended for the nation to go to war only\nFROM THE FOUNDING FATHERS\nton's campaigns. These men knew that Con-\nwhen Congress had declared it, or otherwise\n\"I am now convinced, beyond a doubt that\ngress, clothed with powers of an Executive,\nauthorized it, did the Founders use a\nunless some great and capital change sud-\nhad very nearly caused disaster during the\nmethod to vest this power which was so\ndenly takes place in that line [Commis-\nRevolution. They planned that the new gov-\nlittle used in their own time?\nsary Department], this Army must inevitably\nernment which they formed would have at\nAnother question which must be an-\nbe reduced to one or other of these three\nits head a Commander in Chief who pos-\nswered, if the Framers are supposed to have\nthings. Starve, dissolve or disperse.\nsessed unbridled power over the direction\nvested Congress with primary power over\n\"[B]ut what makes this matter still more\nand management of war.\nthe making of war, is why they chose a word\nextraordinary in my eye is, that these very\nThis conclusion explains why the\n\"declare\" which meant in the custom of the\nGentn. who were well apprized of the na-\nFounders designated the President as Com-\ntime something far different? Samuel John-\nkedness of the troops should think a\nmander in Chief. It explains the decision of\nson's Dictionary of the English Language,\nWinters Campaign and the covering these\nthe Constitutional Convention to reject a\nthe standard dictionary used in America at\nStates from the Invasion of an Enemy so\nclause specifically giving Congress the\nthe time of the Constitutional Convention,\neasy a business. I can assure those Gentle-\npower \"to make war.\" It is consistent with\ndefines \"declare\" as meaning no more than\nmen that it is a much easier and less dis-\nthe position of the Constitutional Conven-\n\"to make known\" or \"to proclaim.\" On the\ntressing thing to draw remonstrances in a\nother hand, \"to make,\" a power removed\ncomfortable room by a good fire side than\n'T. Frothingham, Washington, Commander in\nfrom Congress by the Constitutional Con-\nto occupy a cold bleak hill and sleep under\nChief, Houghton Mifflin Co., Boston, 1930, p. 234.\nvention, was given a definition of substance.\nJuly 12, 1983\nCONGRESSIONAL RECORD-SENAT\nS 9673\n\"Make\" meant \"to create\" or \"to bring\nAmerican States.\" Madison more specifical-\nIt may come as a surprise, but research by\ninto any state or condition.\" Thus, when the\nly indicates in the Federalist 38 that the\nthe author has revealed the occurrence of\nConstitutional Convention struck out \"to\nFramers had intentionally withheld the di-\n199 separate foreign military hostilities\nmake\" from the draft of the Constitution\nrection of war from Congress because it is\ncommenced by Presidents in the absence of\nand substituted \"declare,\" it withheld from\n\"particularly dangerous to give the keys of\na declaration of war. Each of these oper-\nCongress the power to create war or to\nthe Treasury and the command of the army\nations involved actual landings on foreign\nbring this country into the state of war and\ninto the same hands.\" Would the Framers\nsoil or the evacuation of American citizens\nleft with it instead a power to declare, or\nhave made the Executive the mere hand-\nfrom foreign lands, or in a few instances,\nformally make known, that the United\nmaiden of Congress if they thought this?\nmobilizations into crisis areas where the risk\nStates is at war and that the whole forces of\nPRESIDENTIAL PRIMACY IN DEFENSE\nof war was particularly grave, such as the\nthe nation will be employed in carrying on\n\"It was due largely to the erratic, occa-\nCuban Missile Crisis of 1962.3 Over one hun-\nthe war. Accordingly, each of the American\nsionally irresponsible actions of the ancient\ndred of these hostilities took place outside\ndeclarations of war-the War of 1812, the\nGreek assemblies that the city-states' diplo-\nthe Western Hemisphere. Many involved\nMexican War of 1846, the War against\nmacy was ineffective and defensive collabo-\nthe employment of several thousands of\nSpain in 1898, and World Wars I and II-\nration against the Eastern aggressors impos-\ntroops. All involved the serious risk of war\nwere not initiated by Congress, but were\nsible. Despite growing recognition by Con-\nand at least eighty-two incurred actual\ncalled for by Presidents after hostile acts by\ngress and the public of the purposes, meth-\nfighting. Taken together, the incidents,\nforeign countries which had brought us into\nods and needs of an effective diplomacy, as\nlarge and small, amass a consistent practice\nan existing state of war between sovereign\nlong as the consistent pursuit of long-range\nby which American Presidents have re-\npowers.\ninterests and aspirations is periodically sac-\nsponded to foreign threats with whatever\nAlso, the declaration may have been con-\nrificed to passing whims inspired by fleeting\nforce they believed was necessary and tech-\nceived as the method by which the United\nemotions in Washington. the danger persists\nnologically available at the particular\nStates could enter into \"offensive war,\" as\nof a twentieth-century repetition of the\nmoment in history.\ndistinguished from situations where the\nGreek débacleS-CHARLES W. THAYER, Dip-\nWhat is new in this regard is the failure of\nPresident has discretion to use force, on his\nlomat\nPresidents in recent history to bring the de-\nown initiative, to react against dangers to\nThe pertinent eighteenth century materi-\nfensive use of military force to a prompt\nthe nation or its people. In circumstances\nals combine with living history to the end\nand successful conclusion. President John-\nwhere the President does not perceive ag-\nthat the President, as Commander in Chief,\nson acted decisively in the Dominican land-\ngression or a threat to our own security, the\noccupies an entirely independent position,\nings of 1965 and President Nixon's orders\nFounding Fathers may well have intended\nhaving powers of defense that are exclusive-\nfor the mining of ports and increased bomb-\nfor the Executive and Congress jointly to\nly his, subject to no policy restriction or\ning in North Vietnam achieved at least the\ncollaborate by means of & formal declara-\ncontrol by Congress. The President cannot\nreturn of American prisoners of war and a\ntion.\nconduct a war of aggression. He cannot in-\nchance for the South Vietnamese to develop\nThe problem is that the advocates of Con-\ntimidate another nation with military\nthe means of defending themselves; but\ngressional supremacy have confused the\nthreats simply because we do not like its\nPresident Truman in Korea and President\ndeclaration power with a veto power which\ntariff rates or the way it governs its internal\nJohnson in Vietnam entered prolonged and\nwas never given to Congress over situations\naffairs. But the President may, in his discre-\nirresolute hostilities which they showed no\nwhen the President may exercise his inde-\ntion, act in defense of our country, its citi-\ncapacity to terminate. Thus, the failure of\npendent authority for defense. This claim is\nzens and freedoms, whenever and wherever\nthe Commander in Chief to bring his mili-\nbased upon assumptions that have no his-\na danger exists, presently or imminently,\ntary actions to a prompt and successful con-\ntorial foundation. Even the correct premise\nwhich compels a response on our part.\nclusion fostered the emergence of gratu-\nthat the Framers wished to avoid creating a\nThere is a very little case law on point. In\nitous advice respecting the conduct of war\ndespot who might lead them into ruinous\nfact, no decision of the Supreme Court has\nin the legislative chambers and new illusions\nwars of conquest, in the manner of the\never ordered the President to halt an on-\nof legislative competence to wage war.\nprinces of Europe, misses the mark.\ngoing war or any ongoing military activity.\nIn describing the President's authority to\nOf course, the Framers intended to check\nWhen Supreme Court Justice William\nwage war, the Supreme Court has related it\nthe President from engaging them in wars\nDouglas recently ordered a stop to the\nto his assumed duty to win: 4 \"As Command-\nof aggression initiated by an inflamed pas-\nAmerican bombing of Cambodia, the eight\ner in Chief, he is authorized to direct the\nsion for conquest. But they equally knew as\nother members of the Court promptly over-\nmovements of the naval and military forces\na law of society that a nation ought to\nturned his decision.\nplaced by law at his command, and to\nattend to the preservation of its own exist-\nA nearly unbroken chain of history sup-\nence and that there must be some ultimate\nports the theme of Presidential responsibili-\nemploy them in the manner he may deem\nty for the national safety. Since Washing-\nmost effectual to harass and conquer and\nauthority who could and would be able to\nton's Proclamation of Neutrality in 1793, de-\nsubdue the enemy.\"\ndefend the country and its enduring inter-\nspite our Treaty of Alliance with France,\nThe number of historical precedents of\nests. They knew that the only practical\nagency to fulfill this expectation is not the\nthe authority to decide important matters\nexecutive agreements is also impressive. Ex-\nlegislature composed of numerous members\nof foreign relations bearing on questions of\necutive agreements in every consequential\nwar or peace has been established in the Ex-\nrespect equivalent to a treaty have been\nbut the unitary office of the President.\nSpeed of decision, unity of decision, ability\necutive. This is true both of decisions when\nprevalent in every period of our history.\nto terminate fighting or when to commence\nThe first known use of the international ex-\nto execute the decision-all are qualities of\ndefensive measures.\necutive agreement, other than by a treaty,\nthe Executive.\nThe Framers also recognized that a nation\nExamples of Executive handling of mat-\noccurred in 1792. The most recent compila-\nwhich has a right to preserve itself, has, as a\nters of peace include Washington's Neutral-\ntion of executive agreements indicates there\nity Proclamation; the agreement of 1817\nare now 5,590 in effect.\nnecessary consequence, a right to avoid and\nwith Great Britain limiting naval arma-\nThere is nothing improper in this. Con-\nprevent everything which would threaten it\nments on the Great Lakes; the Protocol of\ngress itself has authorized or ratified all but\nwith danger. Thus the President, in order to\n1873 averting a war with Spain over the Vir-\nsixty-four of the current agreements, there-\nprotect the public safety, must necessarily\nginius affair: the Protocol of 1898 suspend-\nby lending its stamp of approval to the by-\nand practically meet foreign threats where\ning hostilities with Spain; the Protocol of\npassing of the Senate's treaty power. As for\nthey arise and not only when they are at\n1901 ending the Boxer uprising in China;\nthe 1 percent of agreements concluded by\nour doorstep.\nthe surrender agreement ending the Philip-\nthe President on his own authority alone,\nAs Jay wrote in the Federalist 3: \"Among\npine insurrection; the armistice conditions\nthe Congress may still determine whether\nthe many objects to which a wise and free\nimposed upon Austria-Hungary and Ger-\nor not it shall appropriate the moneys es-\npeople find it necessary to direct their at-\nmany in 1918; the cease-fire agreements\nsential to implement these agreements. If\ntention, that of providing for their safety\nending hostilities after World War II and\nthe President lacked authority to enter into\nseems to be the first.\" This language hardly\nthe Korean War; and the recent Vietnam\nany foreign agreements at all, without a\nlends itself- to an inference that shackles\npeace agreement; each and every one a\nmay be placed upon the President's ability\npurely Executive agreement.\nof response to foreign threats.\n'T. J. Emerson. \"War Powers Legislation,\" 74\nMoreover, those who would dwell upon\nWest Va. Law Review 53, 1972, p. 367. Though some-\n2 Wilson's Works, Vot. III, Lorenzo Press, Phila.,\nof these 199 incidents may have been initiated by\nthe concern of the Founders with a despot\n1804, p. 292. See also Jefferson's portrayal. quoted\nsubordinate officers on the spot, all appear to have\nwould do well to study the fear of our fore-\nin the Federalist 48, of Congressional government\nbeen undertaken on the President's directions, in\nfathers with an unregulated Congress.\nas the equivalent of \"despotic government.\" What\nimplementation of well-known Presidential policies,\nJames Wilson instructed his law class in\ninfluenced the Framers in the allotment of war\nor subsequently ratified by him.\n1790 \"[t]o control the power and conduct of\npowers was not worry over the powers of Congress\nFleming v. Page, 50 U.S. 603, 615 (1850). See also\nthe legislature by an overruling constitu-\nor the President, but rather an overriding purpose\nUnited States v. Sweeny, 157 U.S. 281, 284 (1895) in\ntion, was an improvement in the science and\nof providing effectively for the public safety. The\nwhich the Court stated that the President is ex-\nPresidency was universally recognized as the office\npected to wage a \"successful war\" once war has\npractice of government reserved to the\nmost capable of attending to the national safety.\nbeen commenced.\n9674\nCONGRESSIONAL RECORD - SENATE\nJuly 12, 1983\ntreaty, it could be disastrous to the national\npass or deny emergency powers bearing on\nthey were answered before I even had\ninterest.\nforeign trade or reject treaties or area reso-\na chance to read them. As I further re-\nAll we have to do is remember American\nlutions with defense implications. Congress\nlated here in this body, he even had a\npreparations prior to our entry into World\ncan, as an ultimate recourse, initiate im-\nwoman spy on a campaign train of\nWar II. In 1941, President Roosevelt occu-\npeachment procedures, impeachment being\npied a number of military bases granted us\nmeant as a viable safeguard against political\nmine, and it was my unpleasant task\non British soil along their possessions in the\noffenses, such as an irresponsible abuse of a\nto ask her to separate herself from my\nwestern Atlantic, and sent United States\nConstitutional discretion. Less severely,\nentourage.\ntroops to Greenland. Iceland and Dutch\nCongress can trust to a free press which is\nWhy is it that the Washington and\nGuiana, all before war was declared and all\nalways at the ready to spread word among\nNew York papers seem to keep on for-\nby executive agreements with the local au-\nthe public of Congressional positions run-\never and ever blasting the Govern-\nthorities. A Congress which in August of\nning counter to the Presidency.\nment of the United States, be it Re-\n1941 had extended the draft by but a single\nWith time, public opinion will work its will\nvote could not have been counted upon to\nupon the President or remove him from\npublican or Democrat; with the em-\napprove these base agreements at the time\noffice. But once Congress has determined\nphasis on the Republicans. Why, when\nthey were crucial.\nhow many troops shall be enlisted, or what\nso many things are going on around\nThough the list of asserted uses of execu-\narms constructed, the President may, so\nthis world of such extreme impor-\ntive privilege is not so long, there are several\nlong as he holds this high office, station\ntance, not just to the United States as\nexamples of documents or testimony being\nthose forces and send those arms to such\na government entity but to the people\nrefused to Congress on this ground. For ex-\nparts of the world as he finds needed in the\nwho live here who love freedom, do we\nample, Secretary Rogers and Dr. Kissinger\nnational defense. The Constitution author-\ndeclined to appear before the Senate For-\nread this sort of thing? Why is it that\nizes the President to protect American\neign Relations Committee on January 2,\nrights and security abroad and no legislative\nthe headlines are seemingly confined\n1973, because of the ongoing negotiations\npower short of that of the people, acting on\nto the eastern seaboard, although I\nwith the North Vietnamese to end the Indo-\na Constitutional Amendment, can change\nhave to admit there are a few on the\nchina War. Without the protection of ex-\nhis authority.\nwest coast that go the same route\necutive privilege, the nation's delicate peace\nWhat was recognized by the Founding Fa-\nwhich occupy themselves with disclos-\ntalks may have been disrupted.\nthers and what has been reflected through-\ning top secret information, berating\nIn fact, without a minimum of independ-\nout history is that war is a state in which\nthe President of the United States,\nence for the Executive Department in with-\nnations are placed not alone_ by their own\nholding certain classes of information, our\nacts, but by the acts of other-nations. As\nwhoever he might be, downgrading\nmilitary security, our relations with other\nThomas Jefferson wrote in 1815, in frank\nour efforts around this world to pre-\ncountries, pending law enforcement mat-\nacknowledgment of his earlier error in\nserve peace and never once thinking\nters, government employee personal secu-\nthinking the United States could live in\nmaybe there is a responsibility written\nrity files, and the confidentiality of internal\npeace whatever the trend of events else-\ninto the Constitution, in that wonder-\ndecision-making processes could be im-\nwhere, \"experience has shown that contin-\nful first amendment, which calls for\npaired. For example, if Congress had en-\nued peace depends not merely on our own\nthe responsibility that should be prac-\nacted the information rider to the State De-\njustice and prudence, but on that of others\npartment Authorizations, any committee of\nticed by everyone connected with the\nalso.\"\nCongress could demand all working docu-\nHowever much the Framers may have\nmedia, including television, radio, and\nments accompanying an ongoing interna-\nwished to live by a policy of avoiding foreign\nnewspapers.\ntional conference. A Congressional Commit-\ntroubles, they knew from personal experi-\nI was flabergasted the other evening\ntee could demand information given to an\nence that the nation cannot be safe unless\nto watch a particularly well known\nAmbassador from foreign embassy sources,\nthere is a single Commander in Chief with\nand successful political talk show, in\nwho may have turned over material having\ndiscretion to resist foreign dangers as they\nsignificant insight into a third country's po-\nwhich the commentators, both\narise. The President does not \"initiate\" war\nsition and who would be highly embarrassed\nin these instances; he reacts to foreign\nconservative and liberal, just couldn't\nif this fact became known.\nthreats. Congress will persist in altering this\nget over the terrible thing that George\nAll the above categories of information\ninsurance system only at grave risk to the\nWill, one of the finest columnists in\nare areas where executive privilege is firmly\npublic safety.\nthis country, had done during the\nrooted in historical precedence and in prin-\ncampaign. As far as I can see, the\nciple. This doctrine is implicit in the cre-\ncrime committed by George Will was\nation of our divided form of government,\nPOTS AND KETTLES-COLOR\nthat he backed the successful candi-\nwith the executive, legislative, and judicial\nBOTH BLACK\nresponsibilities going to three great and sep-\ndate.\narate branches. Congress cannot violate this\nMr. GOLDWATER. Mr. President,\nNow, are all of these columnists who\ndivision by legislating its own boundaries be-\nreturning from the Far West as I did\nsuddenly have become so self right-\ntween the branches.\nlate Sunday evening and then coming\neous that it is difficult to discuss it\nFrom this usage arises an impressive\ndowntown the next day, once again, I\nsaying that a man in the writing pro-\nsource of Constitutional interpretation\nfound out the great difference be-\nwhich has been accepted by the Supreme\nfession has no right to choose a candi-\ntween living in the East and living in\nCourt before as being determinative of simi-\ndate of his choice for President,\nthe West.\nlar confrontations between Congress and\nmayor, Senator, or for anything else?\nthe President. For Congress now, after\nWhile out there, I hardly ever heard\nAre they able to sit there and honestly\nalmost 200 years of acquiescence in the in-\nabout former President Carter. I never\nsay to the people of this country,\nterpretations of the President's foreign af-\nheard anything about President\nnever in my life as a writer, have I\nfairs and war powers, to reverse the con-\nReagan being prompted by staff on\nbacked a particular man for President,\nstruction which has become so settled runs\nthe Carter papers and, if I had, I\nor for any other office? Never in my\ncontrary to the judicial doctrine of usage\nwould have said what I said Monday\nwhich the Supreme Court has on at least\nwriting life, have I discussed an issue\nmorning: \"Where were all these first\ntwo occasions previously invoked as a basis\npublicly in a column? Mr. President,\namendment addicts, the press, when\nfor rejecting Congressional control over the\nyou and I know that that would be\nPresidency.5\nLyndon Johnson was stealing my\nchallenged so fast their heads would\nThough Congress holds great powers over\nheadquarters blind?\"\nfall off.\nmilitary subjects, it cannot vary the exercise\nAs I have said on the floor, he not\nonly knew what I was going to say\nFrankly, this whole uproar over the\nof the President's independent authorities.\nCongress controls the numerical size and\nbefore I said it, but the people repre-\nCarter papers is something that Presi-\nthe strength of the Armed Forces and the\nsenting him around the country also\ndent Reagan summed up very well in\nnature of equipment and arms with which\nknew the contents of the speeches and\nhis first remarks, something to the\nthe military can wage war.8 Congress can\neffect that it does not make much dif-\nference-and it does not. Those who\nbudget which is down 40 percent from 1968 in\n5 United States v. Midwest Oil Co., 236 U.S. 459,\nterms of constant dollars. Human resource spend-\nread this in the CONGRESSIONAL\n472. 473 (1915); Myers v. United States, 272 U.S. 52,\ning (47 per cent) now exceeds defense spending (29\nRECORD have, at some time in their\n175 (1926).\nper cent) as a share of the Federal budget. The\n6 Congress has exercised these powers with alacri-\nlives, tried to find out something that\nfruit of Congress's shift in priority was exposed in\nty in recent years. It has limited U.S. troop\nthe 1973 Mideast crisis when the Soviets moved\nan adversary, an opponent, or a com-\nstrength to only 2.2 million in fiscal 1974. down\nninety-eight ships into the Mediterranean against\npetitor was doing and, if they found it\nfrom 3.6 million in 1968, and appropriated a defense\nonly sixty-five U.S. ships.\nout, they would use it to their advan-\nChadha\n-83\nATE\nThe New York Times\nE4\nPAGE\nAdministration Cautions Against 'Precipitous' Action to Tighten Power\nCongress Digs In After Legislative Veto\nto urge Congress not to be precipitious. In fact,\nBy MARTIN TOLCHIN\nCongress is divided on its options.\n\"My own view, as an advocate for the House of\nWASHINGTON Kenneth W. Dam, Deputy\nRepresentatives, is that we wipe the slate clean,\nSecretary of State, assured Congress last week\nand repeal all delegations (of authority),\" Stanley\nthat the abolition of the so-called legislative veto\nM. Brand, counsel to the House, said recently. \"If\nneed not alter the relationship between the Ad-\nthe Administration wants to sell a single aircraft,\nministration and Capitol Hill. If anything, he said,\nlet them come to Congress for permission.\" That,\nit would lead to greater consultation.\nMr. Brand observed, would be tantamount to a\nLast month's Supreme Court ruling that the\none-House veto of all arms sales. But Representa-\nveto is unconstitutional to the contrary notwith-\ntive Clement J. Zablocki, the Wisconsin Democrat\nstanding, Mr. Dam said,, \"the Department of\nwho is chairman of the Foreign Affairs commit-\nState is committed to continue\" taking Congress's\ntee, declared Mr. Brand's proposal unworkable.\n\"concerns into account in reaching decisions on\nCongress, he said, lacked the resources and time\nissues of policy. I believe (the ruling) will make\nto re-enact all affected legislation.\nthe departments and agencies of the Executive\nAnother option would be to delete the veto provi-\nBranch more, not less, conscious that they are ac-\nsions from laws that include severability clauses,\ncountable for their actions.\"\nwhile preserving the rest of the statute. Most laws\nSkeptics noted that the veto, by which the legis-\ncontain such clauses, because Congress generally\nlators reserved the right to override certain Presi-\nseeks to preserve measures in the event that the\ndential decisions, would not have been devised in\ncourts find sections of them unconstitutional. Mr.\nthe first place if Congress had felt adequately con-\nBrand summed up the objections to this approach.\nsulted. Indeed, Mr. Dam's view was a distinct\n\"It will permit courts to rewrite statutes,\" he\ncontrast to the initial reaction to the decision on\nsaid, \"and because we have, in my view, against\nboth ends of Pennsylvania Avenue.\nour interest but with Pavlovian regularity in-\nAs Mr. Dam pointed out in his testimony, more\nserted severability clauses like legal boilerplate\nthan a dozen foreign affairs and national security\nin contracts, the Congress will be left with nothing\nstatutes dating back a decade or more have been\nor very little, while a wholesale delegation (of au-\naffected, including the War Powers Resolution\nthority) will remain intact.\"\nand arms export, nuclear nonproliferation and\nThe Power of the Purse\ntrade controls. They are among the 207 legislative\nveto provisions in 126 different laws affected by\nA third approach would be that of the House in\nthe High Court's ruling. Many of those laws in-\nthe public service commission bill. It is that the\nvolve the power of regulatory agencies. Mr. Dam\ntwo chambers of Congress adopt a joint resolution\nwas considerably more sanguine than some regu-\nthat must be signed by the President before any\nlators, who believe that their powers may be irre-\nregulation would take effect. Congress also could\ntrievably curtailed.\ndelay new regulations' effective dates until it had\nMichael Pertschuk, a member of the Federal\nthe opportunity to enact legislation that would bar\nTrade Commission and its former chairman, was\nthem. Such a method was also approved in the\njubilant the day the decision was announced. He\nHouse version of the public service bill; a similar\nhad seen Congress veto a rule concerning used\nmeasure has been introduced in the Senate by\ncars, and the threat of a veto had hung over the\nCarl Levin of Michigan and David L. Boren of\npanel's deliberations on other issues. It did not\nOklahoma, both Democrats.\ntake very long, however, for his joy to turn to\nOf course, Congress could always use its power\ngloom. Since Congress, which had given the regu-\nof the purse to prohibit the use of Federal funds to\nlatory agencies broad discretionary authority in\nimplement unwanted regulations or carry out un-\nexchange for the right to veto resulting regula-\nwanted activities, as the House moved to do last\ntions, had lost the ability to second-guess the regu-\nweek in voting to cut off money for covert intelli-\nlators, it was threatening to rescind the authority.\ngence activities in Central America. The final re-\n\"It's the worst of all possible worlds,\" Mr. Pert-\ncourse would be a constitutional amendment\nschuk lamented.\noverturning the Supreme Court decision.\nIn its first expression of Congress's new mood,\nRepresentative Elliot Levitas, Democrat of\nthe House voted overwhelmingly to curtail the\nGeorgia and for years a leading advocate of the\nregulatory powers of the Consumer Product\nlegislative veto, recently sent a letter to President\nSafety Commission, adopting a measure that\nReagan. \"So long as this uncertainty exists,\" he\nwould require Congress to enact legislation before\nwrote, \"I foresee the potential for years of waste-\na proposed rule would take effect. As if in overkill,\nful and bitter confrontation and even chaos in our\nthe House bill also provided that before a new\nGovernment. As one first step, I urge the early\nregulation took effect, Congress would have 90\nconvening of a Conference on Power Sharing to\ndays to enact a law to be signed by the Presi-\naddress this new situation and consider solu-\ndent that would nullify the ruling.\ntions.\" Mr. Levitas has discussed his proposal\nThat House action sent Administration officials\nwith Vice President Bush and David A. Stockman,\nto Capitol Hill among them, Mr. Dam to the\ndirector of the Office of Management and Budget.\nSenate Foreign Relations Committee last week-\nHe has received no response from the President.\nDO1-1983-04\nChadha\nTHE WHITE HOUSE\nWASHINGTON\nJuly 27, 1983\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS SR\nSUBJECT:\nStatement of the Honorable Kenneth W. Dam,\nDeputy Secretary of State, Before the Com-\nmittee on Foreign Relations of the United\nStates Senate, Thursday, July 28, 1983\nOMB has asked for clearance of the above-referenced testimony\non legislative veto by 2:00 p.m. I have reviewed the\ntestimony and, in light of the short deadline and the fact\nthat the testimony generally mimics Dam's previous testimony\nbefore the House Foreign Affairs Committee, I have advised\nOMB that, with one minor exception, we have no objection.\nThe exception concerns the last sentence on page 11, which\nbegins: \"In Section 4 of the [War Powers] Resolution, the\nPresident is required to make a formal report to Congress\n\" Section 4 (a) by its terms requires a formal,\nwritten report concerning the introduction of forces;\nsection 4 (c) simply requires the President to report period-\nically (at least every six months) to Congress concerning\nthe continued involvement of forces. I recommended to Jim\nMurr of OMB that \"Section 4\" be changed \"Section 4(a)\" in\nDam's testimony, to avoid any suggestion that formal reports\nwere required under section 4 (c).\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF MANAGEMENT AND BUDGET\nROUTE SLIP\nTake necessary action\nTO John Cooney\nApproval or signature\nJohn Roberts\nComment\nEd Strait\nPrepare reply\nJim Nix\nDiscuss with me\nFor your information\nBob Kimmitt\nSee remarks below\nFROM Jim KH Muri, x4870\nDATE Jul 27\nREMARKS\nState Testimony - Legislative Veto\nThe attached testimony is scheduled for tomorrow\nmorning, 7/28. It arrived at OMB this morning.\nPlease let me have your comments by 2:00 p.m.\ntoday, 7/27, or sooner. Thanks.\n(Ihave made copies of the testimony available\nto Justice, Defense, Commerce, and Treasury.)\nState may also be preparing some Q&A's for\nthe hearing. If so, I will obtain them for\nclearance as well.\nOMB FORM 4\nRev Jul 82\nAs Prepared for Delivery\nRECEIVED\nSTATEMENT\nOF\nTHE HONORABLE KENNETH W. DAM\nDEPUTY SECRETARY OF STATE\nBEFORE THE\nCOMMITTEE ON FOREIGN RELATIONS\nOF THE\nUNITED STATES SENATE\nTHURSDAY, JULY 28, 1983\nMr. Chairman and members of the Committee,\nI appreciate the opportunity to appear before the Committee\nthis afternoon.\nThe Supreme Court's recent decision in the Chadha case, and\ntwo related decisions, * have declared the legislative veto to\nbe unconstitutional. The Department of State and this\nCommittee both recognize that the Court's historic decision\naffects a considerable body of legislation in the field of\nforeign affairs and national security. My principal theme here\ntoday is that our two branches of government have a common\nproblem and a shared responsibility. We owe the American\npeople constructive and cooperative response to the legal\nproblem we now face.\nThe Department of State is in the process of reviewing all\nthe legislation with which we deal and which is affected by\nChadha -- the language of the statutes, their legislative\nhistory, and the record of executive-legislative relations in\nworking with these statutes.\n* Immigration and Naturalization Service V. Chadha,\nNo. 80-1832 (U.S. June 23, 1983) ; Process Gas Consumers\nGroup Consumers Energy Council of America, Nos. 81-2008\net al. (U.S. July 6, 1983), affirming Consumers Energy\nCouncil of America V. FERC, 673 F. 2d 425 (D.C. Cir.\n1982) Consumers Union, Inc. V. FTC, 691- F. 2d 575\n(D.C. Cir. 1982).\n- 2 =\nWe have reached some tentative conclusions, which I am happy to\nshare with the Committee. Our review is still continuing,\nhowever, and we will keep the Committee informed as we proceed\ntoward firmer judgments.\nIn The Federalist No. 47, James Madison referred to the\nseparation of powers as \"this essential precaution in favor of\nliberty.\" The genius of our constitutional system is that a\nstructure of dispersed powers and checks and balances, designed\nto limit government power and preserve our freedom, has also\nbeen able to produce coherent and effective national policy.\nThis success is a tribute to the Founding Fathers who built the\nstructure; it is also a tribute to the generations of leaders\nand statesmen since then who have put the nation's well-being\nfirst and foremost as they played their constitutional roles in\nthe various branches of government. As Justice White acknow-\nledged in his dissent in Chadha, \"the history of the separation\nof powers doctrine is also a history of accommodation and\npracticality.' \"\nThe Administration is prepared to work with the Congress in\nthis spirit.\nFirst, I would like to review with you the history of the\nlegislative veto -- what it is, how it has worked -- and then\nthe Chadha decision itself and its consequences.\n- 3 =\nFinally, I shall discuss the impact of that decision on some of\nthe statutes that are of particular concern to the Department\nof State and to this Committee.\nThe Legislative Veto\n\"Legislative veto\" is a term describing a variety of\nstatutory devices that were meant to give the Congress legal\ncontrol over actions of executive departments and agencies by\nmeans other than the enactment of laws. Legislative veto\nprovisions have been included in statutes for more than 50\nyears. The procedure was first passed into law in the Act of\nJune 30, 1932, which authorized President Hoover to reorganize\nthe structure of the Federal Government subject to Congres-\nsional review. The device was added to various statutes during\nWorld War II, when the Congress delegated greater authority to\nthe President in the area of foreign affairs and national\nsecurity, subject to the legislative veto procedure. Enactment\nof the procedure became frequent again in the 1960's and\n1970 S, as Congress sought to strengthen its oversight over the\nexpanding practice of rule-making by administrative agencies.\nAdoption of the legislative veto procedure reached its zenith\nin the early 1970s, in connection with some major controversies\nin the area of foreign affairs and national security.\n- 4--\nSome of these statutes provide for Congressional\ndisapproval of proposed administrative regulations. Some\ninvolve review of decisions of individual cases (Chadha, for\nexample, involved the suspension of the deportation of a single\nperson), or review of other executive actions under authority\n-\ngranted by statute. Other legislation, such as the War Powers\nResolution, involves the allocation of broad constitutional\npowers.\nThe legislative vetoes in all these statutes fall into two\ngeneral categories. First, there are those in which the full\nCongress, or one House or one committee, is purportedly given a\nright to \"veto\" an administrative action. A typical statute of\nthis kind requires the President to report an action or rule to\nboth Houses of Congress. The executive action may not be made\nor take effect until after a fixed period (60 days, for\nexample). If Congress does not act during the period, the\nexecutive action can take effect, but if the Congress\ndisapproves (or one House or committee, as the statute may\nprovide), it does not take effect. Second, there are statutory\nschemes by which an administrative action purportedly becomes\nvalid only when approved by Congress. The typical statute of\nthis kind requires the President to report a proposed action\nand then provides for affirmative approval by one or two Houses\nof the Congress. Most legislative vetoes, like the one in\nChadha, fall within the first category.\n- 5--\nThe Chadha Case and Its Implications\nThe case of INS V. Chadha involved a section of the\nImmigration and Nationality Act. That statute permitted the\nAttorney General to allow a deportable alien to remain in the\nUnited States, suspending an otherwise valid deportation\norder. This suspension authority, however, was subject to\ndisapproval by a simple resolution of either House of\nCongress. The Attorney General suspended Chadha's deportation,\nbut the House of Representatives disapproved. Chadha brought\nsuit; the Supreme Court held the Congressional veto to be\nunconstitutional. The rationale of the Court's holding was\nthat legislative actions, to be valid, must follow the course\nprescribed in the Constitution: approval by both Houses and\n\"presentment\" to the President. Thus the Court's decision in\nChadha invalidates not only the \"one-House veto\" but the\n\"two-House veto\" and \"committee veto\" as well, a point\nconfirmed by the Court's subsequent summary decisions of July\n6. Those statutes which provide for Congressional action by\njoint resolution -- passed by both Houses and signed by the\nPresident -- would not seem to be affected by Chadha.\nThe legislative veto has long been controversial, ever\nsince Woodrow Wilson first vetoed a bill incorporating a\nlegislative veto in 1920.\n- 6- -\nSince then, most administrations have not been happy with the\ndevice, while the Congress has tended to favor it as another\nuseful check on executive authority. This specific controversy\nis now settled. Yet paradoxically, the practice of\nexecutive-legislative relations is unlikely to undergo any\nradical change in the wake of Chadha, for several reasons.\nFor one thing, Chadha does not affect other statutory\nprocedures by which the Congress is informed of or involved in\nactions by the Executive Branch. Specifically, Chadha does not\naffect statutory requirements for notifications, certifica-\ntions, findings or reports to Congress, consultations with\nCongress, or waiting periods which give Congress an opportunity\nto act before executive actions take effect. In the foreign\naffairs field, moreover, the Executive Branch and the Congress\nhave generally reconciled or disposed of controversies and\ndifferences without resort to the process of legislative veto.\nTherefore, we see no reason why the Court's decision -need cause\na fundamental change in our relationship.\nThe Administration is prepared to work closely with the\nCongress to resolve any questions or problems that may arise as\na result of the decision. And we hope that Congress will act\nin the same spirit of cooperation.\n- 7-\nPerhaps the key legal question raised by Chadha is that of\n\"severability.\" The problem is an intriguing one: Since the\nlegislative veto provision of a statute is unconstitutional, is\nany of the rest of the law tainted by that defect?\nThe Supreme Court has given us a basis for answering that\nquestion. The general principle is that the provision\ncontaining the legislative veto will be found to be severable,\nand the remainder of the statute will continue unaffected,\nunless it is evident that the Congress would not have enacted\nthe remainder of the law without the legislative veto. That\ntest establishes a strong presumption in favor of severability.\nThe Court has also given us some additional guidelines.\nThere is a further presumption of severability, first of all,\nif the statute contains an express \"severability clause.\" \"\nSeveral of the statutes with which we deal -- including the War\nPowers Resolution and the Atomic Energy Act, for example --\ncontain such severability clauses. Second, the legislative\nveto is also presumed to be severable if the legislative\nprogram in question is \"fully operative as a law\" without the\nveto provision. In the statutes with which we are dealing,\nthis seems generally to be the case.\n- 8. -\nThese statutes often establish a system under which the\nExecutive Branch is empowered to make or implement a decision\n30 or 60 days later unless the Congress chooses to intervene.\nIn foreign affairs cases to date, in the absence of formal\nCongressional action, the executive determination has\nproceeded, although Congressional views have always been taken\nfully into account. This pattern clearly indicates that these\nstatutes are capable of independent operation with no further\nCongressional action.\nSpecific Statutes\nThere are several dozen statutes in the foreign affairs and\nnational security area that are affected by the Chadha\ndecision. I would say that four statutes or groups of statutes\nare of particular importance. These are arms export controls,\nthe War Powers Resolution, nuclear non-proliferation controls,\nand trade controls related to emigration Let me discuss these\nin turn.\nArms Export Control. First, arms export controls. I know\nthis subject is of pressing concern to this Committee. It is\nalso of importance to the Administration, because of the\nimportance of such transactions in contributing to the security\nof friendly countries and to our political relations with\nfriendly countries.\n- 9 -\nWe should be clear about what Chadha does and what Chadha\ndoes not do. It is apparent that under the Chadha decision the\nlegislative vetoes in several sections of the Arms Export\nControl Act are not valid. But that result in no way impairs\nthe elaborate structure of reporting, consultation, and\ncollaboration that the Executive Branch and the Congress have\nworked out over recent years to ensure effective Congressional\noversight. Under the Arms Export Control Act, for example, we\nhave regularly reported to the Congress well in advance on\nprospective sales under the Foreign Military Sales program, as\nwell as on actual proposed FMS sales and licenses of arms\nexports sold through commercial channels. Specifically,\npursuant to the Javits Amendment, we provide an annual Arms\nSales Proposal covering all sales and exports above certain\nthresholds which are considered eligible for approval during\nthe current calendar year. We also provide, under Section 28\nof the Arms Export Control Act, quarterly reports of each\n\"price and availability\" estimate provided to foreign\ngovernments, together with a list of requests received from\nsuch governments for letters of offer to sell defense articles\nand services.\nAs a matter of practice and accommodation with the\nCongress, we have agreed with the Congress to go beyond these\nand other statutory requirements.\n- 10 -\nFor example, we have long engaged in a practice of informal\npre-notification of proposed sales under the FMS program.\nWhile this is not required by law, it has given Congress the\nopportunity to review and comment upon proposed transactions\ninformally and privately before the Executive Branch sends a\nformal public statement.\nCongress has received and will continue to receive annual,\nquarterly, and case-by-case information, formal and informal,\non upcoming potential arms sales. In the last three years we\nhave sent up more than 240 formal reports of intended arms\nsales -- 110 in Fiscal Year 1981, 90 in FY 1982, and 41 in FY\n1983 to date. Three informal notifications are currently\nbefore you. of these 240-odd notifications, 156 are for\nnon-NATO countries. In short you have, and will continue to\nhave, a full plate. While Congress has never disapproved any\nproposed arms sale, the Administration has on occasion modified\nthe terms of a proposal in light of Congressional concerns. We\nhave done so even though the Executive Branch has long\nconsidered the legislative veto to be unconstitutional.\nI think the record speaks for itself. The Executive Branch\ndoes not live in a vacuum, and we are acutely aware of the need\nfor consultation and cooperation in this sensitive area.\n- 11 -\nOur foreign policy and national interest require that a\nPresident, any President, be able to use this important policy\ninstrument effectively, flexibly, and, I might add,\nresponsibly. We recognize the importance of Congressional\noversight. As in any other important area of national policy,\nboth Congress and the Executive have a responsibility to find\nan effective cooperative solution.\nWar Powers Resolution. Next, the War Powers Resolution.\nThe War Powers Resolution contains four major operative parts.\nThe first of these is a consultation requirement. In Section 3\nof the Resolution, the President is required to consult with\nthe Congress \"in every possible instance\" before United States\narmed forces are introduced into hostilities or into situations\nwhere imminent involvement in such hostilities is clearly\nindicated by the circumstances. And the President is to\nconsult regularly while the forces remain in such situations.\nThe second operative part is a reporting requirement. In\nSection 4 of the Resolution, the President is required to make\na formal report to Congress in any case in which United States\narmed forces are introduced--\n\"(1) into hostilities or into situations where\nimminent involvement in hostilities is clearly indicated by\nthe circumstances;\n- 12 -\n(2) into the territory, airspace or waters of a\nforeign nation, while equipped for combat, except for\ndeployments which relate solely to supply, replacement,\nrepair, or training of such forces; or\n\" (3) in numbers which substantially enlarge United\nStates Armed Forces equipped for combat already located in\na foreign nation\n\"\nThe third operative part, Section 5(b), requires the\nPresident to withdraw U.S. troops not later than 60 days after\na report of actual or imminent involvement in hostilities\nunless the Congress has affirmatively authorized their\ncontinued presence.\nThe fourth operative part is a legislative veto. According\nto Section 5(c), the President must withdraw U.S. troops\nintroduced into hostilities even before the end of 60 days if\nthe Congress so directs by concurrent resolution.\nThe first and second provisions of the War Powers\nResolution, on consultation and reporting, are in our view\nunaffected by the Chadha decision. We do not intend to change\nour practice with respect to consultation and reporting.\n- 13 -\n=\nThe fourth provision, which asserted a right of Congress\nby concurrent resolution to order the President to remove\ntroops engaged in hostilities, is clearly unconstitutional\nunder the Supreme Court's holding in Chadha. It must be said,\nhowever, that this holding is unlikely to have a significant\nimpact on the way national security policy is conducted. In\nthe decade since the enactment of the War Powers Resolution, no\nU.S. forces have been committed to long-term hostilities. It\nis doubtful that Presidents have refrained from such\ncommitments simply because of the legislative veto in the War\nPowers Resolution; ,it is equally doubtful that Presidents will\nnow feel freer of restraints because of Chadha. The lesson of\nrecent history is that a President cannot sustain a major\nmilitary involvement without Congressional and public support.\nThe legislative veto provision of the War Powers\nResolution is severable from the others, in our view, according\nto the Supreme Court's test and guidelines. The Resolution\nitself includes a severability clause, and the other operative\nportions of the Resolution need not be affected by the dropping\nof the veto provision.\nThe third operative part of the Resolution, requiring\npositive Congressional authorization after 60 days, does not\nfall within the scope of Chadha.\n- 14 -\nIts constitutionality is neither affirmed, denied, nor even\nconsidered in the Chadha decision. As you know, the Executive\nBranch has traditionally had questions about this requirement\nof Congressional authorization for Presidential disposition of\nour armed forces, both in light of the President's\nCommander-in-Chief power and on practical grounds. Congress,\nof course, has had a different view. I do not believe that any\npurpose would be served by debating these questions here, in\nthe abstract. This provision is unlikely to be tested in the\nnear future. Here, too, I want to reaffirm the\nAdministration's strong commitment to the principles of\nconsultation and reporting, confident that in a spirit of\ncooperation the Executive and the Congress can meet future\nchallenges together in the national interest.\nNuclear Non-Proliferation. Nuclear non-proliferation is\nanother important policy area in which legislative veto\nprovisions have been evident. Various sections of the Atomic\nEnergy Act, for example, have provided for a legislative veto\nof Presidential determinations to permit nuclear exports to\nforeign countries.\nThese statutory arrangements typically involve three\nelements. First, they establish very strict standards limiting\nthe export of nuclear items. Second, they authorize the\nPresident to waive certain restrictions and permit exports if\nhe makes certain findings.\n- 15 -\nThird, the Congress has been -- until Chadha -- empowered to\nveto the Presidential waiver. We consider that those standards\nand that waiver authority, as well as the statutory requirement\nof notification to Congress and the observance of a waiting\nperiod, continue to be valid. We will continue to wait through\nthe period during which the Congress, in the past, deliberated\nover its veto; during that time, the Congress may use its\nconstitutional authority to enact new legislation if it\nchooses. The only provision that is invalid is the third,\nwhich permitted a legislative veto by concurrent resolution.\nThe Administration shares Congress's concern about nuclear\nproliferation. We have been active diplomatically in this\nfield, as this Committee well knows. We vigorously oppose the\ndevelopment of nuclear weapons capabilities by additional\ncountries. Each Executive Branch agency is required to keep\nthe Congress, including this Committee, fully informed of its\nactivities in this field and of significant developments\nabroad. We have done so, and we are proud of our récord of\nclose consultation and collaboration with the Congress. We\nwill continue that practice.\nJackson-Vanik Amendment and Trade-Related Issues. A\nfourth important statutory area involving a legislative veto is\nthe procedure for granting most-favored-nation treatment (MFN)\nto certain non-market countries.\n- 16 -\nUnder the Jackson-Vanik Amendment, nondiscriminatory tariff\ntreatment may be granted to these countries only when they\ncomply with certain conditions for the protection of human\nrights, including the right of emigration. These requirements\nmay be waived on the basis of stated findings and\ndeterminations by the President.\nThe annual report required under that statute--for\ncontinuation of MFN for Hungary, Romania, and China--is now\nbefore the Congress. This report illustrates how we believe\nCongress and the Executive should continue to work together\nconstructively.\nWe presented that report to the Congress before the\nSupreme Court decision was announced, but we would have done\nprecisely the same thing if the Chadha decision had been handed\ndown before the report was filed. We regard the report as\nfully effective to extend the waiver authority and to continue\nthe waivers currently in force. At the same time, legislative\noversight hearings serve the salutary purpose of scrutinizing\nthe implementation of statutory requirements, of airing public\nconcerns, and of making our nation's deep commitment to human\nrights known to other nations.\n- 17 -\nThe spirit with which we expect to work with Congress in\nthe future, in all statutory fields, is illustrated by another\nexample. We are required by the Case-Zablocki Act to report\nexecutive agreements to the Congress, and we do so regularly.\nThat procedure notifies the Congress of agreements already\nsigned. There is also a procedure for enabling this Committee\nand the House Foreign Affairs Committee to consult with us as\nto the form of significant international agreements prior to\ntheir conclusion. This practice was arranged between the\nDepartment of State and the Chairmen of the two Committees in\n1978. It is not required by law, but makes good sense. We\nwill maintain it.\nThe Future\nAs I have emphasized, little of practical significance\nneed in fact change as a result of the Supreme Court decision.\nThe Department of State is committed to continue working\nclosely with the members and committees of Congress and to take\ntheir concerns into account in reaching decisions on issues of\npolicy. If anything, I believe Chadha will make the\ndepartments and agencies of the Executive Branch more, not\nless, conscious that they are accountable for their actions.\n- 18 -\nThere are many basic questions about the separation of\npowers which the Supreme Court will probably never settle. In\nthat realm our constitutional law is determined, in a sense, as\nin Britain--by constitutional practice, by political realities,\nby the fundamental good sense and public conscience of the\nAmerican people and their representatives. This is how we have\nalways settled these questions, and this is how we, the\nExecutive and the Congress, must approach these problems in the\naftermath of Chadha.\nOur Constitution has proved to be a wise and enduring\nblueprint for free government. In this period of our history,\nour nation faces challenges that the drafters. of that document\ncould not have imagined. The federal government has the duty\nto conduct this nation's foreign policy and ensure its security\nin a nuclear age, in an era of instantaneous communications, in\na complex modern world in which international politics has\nbecome truly global. America's responsibility as a world\nleader imposes on us a special obligation of coherence, vision,\nand constancy in the conduct of our foreign relations. For\nthis there must be unity in our national government. The\nPresident and the Congress must work in harmony, or our people\nwill not have the effective, strong, and purposeful foreign\npolicy which they expect and deserve.\n- 19 -\nWe have seen in the last 15 years that when Congress and the\nPresident are at loggerheads, the result can be stalemate and\nsometimes serious harm to our foreign policy.\nWe now have an opportunity, all of us, to put much of that\n1\npast behind us, and to start afresh. We have a chance to shape\na new era of harmony between the branches of our government - an\nera of constructive and fruitful policymaking, of creativity\nand statesmanship. That is President Reagan's goal and the\ngoal of all of us in his Administration.\nThank you.\n#5287L\n- 18 -\nThere are many basic questions about the separation of\npowers which the Supreme Court will probably never settle. In\nthat realm our constitutional law is determined, in a sense, as\nin Britain-- by constitutional practice, by political realities,\nby the fundamental good sense and public conscience of the\nAmerican people and their representatives. This is how we have\nalways settled these questions, and this is how we, the\nExecutive and the Congress, must approach these problems in the\naftermath of Chadha.\nOur Constitution has proved to be a wise and enduring\nblueprint for free government. In this period of our history,\nour nation faces challenges that the drafters of that document\ncould not have imagined. The federal government has the duty\nto conduct this nation's foreign policy and ensure its security\nin a nuclear age, in an era of instantaneous communications, in\na complex modern world in which international politics has\nbecome truly global. America's responsibility as a world\nleader imposes on us a special obligation of coherence, vision,\nand constancy in the conduct of our foreign relations. For\nthis there must be unity in our national government. The\nPresident and the Congress must work in harmony, or our people\nwill not have the effective, strong, and purposeful foreign\npolicy which they expect and deserve.\n- 19 -\nWe have seen in the last 15 years that when Congress and the\nPresident are at loggerheads, the result can be stalemate and\nsometimes serious harm to our foreign policy.\nWe now have an opportunity, all of us, to put much of that\npast behind us, and to start afresh. We have a chance to shape\na new era of harmony between the branches of our government--an\nera of constructive and fruitful policymaking, of creativity\nand statesmanship. That is President Reagan's goal and the\ngoal of all of us in his Administration.\nThank you.\n#5287L\nEXECUTIVE OFFICE OF THE PRESIDENT\nPRESIDENT THE OF THE OFFICE UNITED OFFICE OF STATES\nOFFICE OF MANAGEMENT AND BUDGET\nDATE:\no\nTO: John Roberts\nFROM: John Cooney\nFinal State tastinary\non legislativeretor\nOMB FORM 38\nRev Aug 73\ncompany\nS/S 8322203\nUnited States Department of State\nWashington, D.C. 20520\nJuly 19, 1983\nMEMORANDUM FOR MR. ALTON KEEL\nOFFICE OF BUDGET AND MANAGEMENT\nPer discussions earlier today with Mr. Cooney\nand Mr. Murr, attached is the final version of the\nDeputy Secretary's written testimony on the Legislative\nVeto Process, as it will be presented to the House\nForeign Affairs Committee tomorrow morning.\nCharles Grey Hill\nExecutive Secretary\nAttachment:\nAs stated.\nAs Prepared for Delivery\nSTATEMENT\nOF\nTHE HONORABLE KENNETH W. DAM\nDEPUTY SECRETARY OF STATE\nBEFORE THE\nCOMMITTEE ON FOREIGN AFFAIRS\nOF THE\nHOUSE OF REPRESENTATIVES\nWednesday, July 20, 1983\nEMBARGOED UNTIL DELIVERY, SCHEDULED FOR APPROXIMATELY 10:00\nA.M., EDT, JULY 20, 1983. NOT TO BE PREVIOUSLY CITED, QUOTED\nFROM, OR USED IN ANY WAY\nMr. Chairman and members of the Committee,\nThe Supreme Court's decision of June 23 in INS V. Chadha, *\nas amplified by two summary decisions of July 6, ** has declared\nthe long-standing practice of the legislative veto to be\nunconstitutional. This historic decision touches upon a\nconsiderable body of legislation in the field of foreign\naffairs and national security. I welcome the opportunity to\nappear before this Committee to present the preliminary views\nof the Department of State on some of the important questions\nraised by the Chadha decision.\nAt the outset I must emphasize that the views stated here\nare preliminary. While the Department of State has reached\nsome tentative conclusions, we are still in the process of\nthoroughly reviewing all the legislation with which we deal and\nwhich is affected by Chadha--the language of the statutes,\ntheir legislative history, and the record of\nexecutive-legislative relations in working with these\nstatutes.\n* Immigration and Naturalization Service V. Chadha, No. 80-1832\n(U.S. June 23, 1983)\n** Process Gas Consumers Group V. Consumers Energy Council of\nAmerica, Nos. 81-2008 et al. (U.S. July 6, 1983), affirming\nConsumers Energy Council of America V. FERC, 673 F.2d 425\n(D.C. Cir. 1982), and Consumers Union, Inc. V. FTC, 691\nF.2d 575 (D.C. Cir. 1982).\n- 2 -\nThis review is a task that cannot be accomplished overnight, as\nI am sure the Committee will understand. We will keep the\nCommittee informed as we proceed toward firmer judgments about\nthe legal environment created by the Chadha decision.\nJames Madison in The Federalist No. 47 referred to the\nseparation of powers as \"this essential precaution in favor of\nliberty.\" The genius of our constitutional system is that a\nstructure of dispersed powers and checks and balances, designed\nto preserve our freedom, has also been able to function\neffectively to produce coherent national policy. This success\nis a tribute not only to the Founding Fathers who built the\nstructure, but also to the generations of leaders and statesmen\nsince then who have put the nation's well-being first and\nforemost as they played their constitutional roles in the\nvarious branches of government. As Justice White acknowledged\nin his dissent in Chadha, \"the history of the separation of\npowers doctrine is also a history of accommodation and\npracticality. \"\nThis is the spirit with which this Administration\napproaches the task ahead of us.\n- 3 -\nI should like to examine first the history of the\nlegislative veto--what it is, how it has worked-- and then the\nChadha decision itself and its consequences. Finally, I shall\ndiscuss the impact of that decision on some of the statutes\nthat are of particular concern to the Department of State.\nTHE LEGISLATIVE VETO\n\"Legislative veto\" is a term used to describe a variety of\nlegislative devices ,designed to give Congress legal control\nover actions of executive departments and agencies by means\nother than the enactment of laws. The legislative veto has\nbeen included in statutes for more than 50 years. The\nprocedure was first passed into law in the Act of June 30,\n1932, which authorized President Hoover to reorganize the\nstructure of the Federal Government subject to Congressional\nreview. The device was added to various statutes during the\nSecond World War, when the Congress delegated greater authority\nto the President in the area of foreign affairs and national\nsecurity, subject to the legislative veto procedure. Enactment\nof the procedure, became frequent again in the 1960's and\n1970's, as Congress sought to strengthen its oversight over the\nexpanding practice of rule-making by administrative agencies.\n- 4 -\nAdoption of the legislative veto procedure reached its zenith\nin the early 1970s, as a result or part of some major\ncontroversies in the area of foreign affairs and national\nsecurity.\nThe statutes span a broad range. Many of them provide for\nCongressional disapproval of proposed administrative\nregulations. Some involve review of decisions of individual\ncases (Chadha, for example, involved the suspension of the\ndeportation of a single person), or review of other executive\nactions under authority delegated by statute. Other\nlegislation, such as the War Powers Resolution, involves the\nallocation of broad constitutional powers.\nThe legislative vetoes in all these statutes fall into two\ngeneral categories. First, there are those in which the full\nCongress, or one House or one committee, is purportedly given a\nright to \"veto\" an administrative action. The typical statute\nof this kind requires the President to report an action or rule\nto both Houses of Congress. The executive action may not be\nmade or take effect until after a fixed period (60 days, for\nexample). If Congress does not act during the period, the\nexecutive action can take effect, but if the Congress\ndisapproves (or one House or committee, as the statute may\nprovide), it does not.\n- 5 -\nSecond, there are statutory schemes by which an administrative\naction purportedly becomes valid only when approved by:\nCongress. The typical statute of this kind requires the\nPresident to report a proposed action and then provides for\naffirmative approval by one or two Houses of the Congress.\nMost legislative vetoes, like the one in Chadha, fall within\nthe first category.\nTHE CHADHA CASE AND ITS IMPLICATIONS\nAt issue in INS V. Chadha was a section of the Immigration\nand Nationality Act. That statute permitted the Attorney\nGeneral to allow a deportable alien to remain in the United\nStates, suspending an otherwise valid deportation order. This\nsuspension authority, however, was subject to disapproval by a\nsimple resolution of either House of Congress. The Attorney\nGeneral suspended Chadha's deportation, but the House of\nRepresentatives disapproved. Chadha sued; the Supreme Court\nheld the legislative veto to be unconstitutional. This holding\nwas based on the rationale that legislative actions which do\nnot follow the constitutionally prescribed course of approval\nby both Houses and \"presentment\" to the President cannot have\nlegal effect. Thus the decision invalidates not only the\n\"one-House veto\" but the \"two-House veto\" and \"committee veto\"\nas well, a point confirmed by the Court's subsequent summary\ndecisions of July 6.\n- 6 -\nThose statutes which provide for Congressional action by joint\nresolution--passed by both Houses and signed by the\nPresident would not seem to be affected by Chadha.\nThe Chadha decision is consistent with the position of\nthis Administration, and with the position taken by most\nadministrations going back to that of Woodrow Wilson, who\nvetoed a bill incorporating a legislative veto in 1920.\nCongress's view has always been different. Nevertheless, the\npractice of executive-legislative relations need not undergo\nany immediate or radical change in the wake of the Chadha\ndecision, for several reasons.\nFor one thing, Chadha does not affect other statutory\nprocedures by which Congress is informed of or involved in\nactions by the Executive Branch. Specifically, Chadha does not\naffect statutory requirements for notifications,\ncertifications, findings or reports to Congress, consultations\nwith Congress, or waiting periods which give Congress an\nopportunity to act before executive actions take effect.\nMoreover, in the foreign affairs field, the Executive Branch\nand the Congress have generally reconciled or disposed of\ncontroversies and differences without resort to the process of\nlegislative veto. Therefore, we see no reason why the Court's\ndecision should cause a fundamental change in our relationship.\n- 7 -\na\nWe are prepared to work closely with the Congress to\nresolve any questions or problems that may arise as a result of\nthe decision. And we hope that Congress will act in the same\nspirit of cooperation.\nPerhaps the key legal question raised by Chadha is that of\n\"severability.\" The problem is an intriguing one: Since the\nlegislative veto provision of a statute is unconstitutional, is\nany of the rest of the law tainted by that defect?\nThe Supreme Court has given us a basis for determining the\nanswer to that question. The general principle is that the\nprovision containing the legislative veto will be found to be\nseverable, and the remainder of the statute will continue\nunaffected, unless it is evident that the legislature would not\nhave enacted the remainder of the law without the legislative\nveto. That test establishes a strong presumption in favor of\nseverability.\nThe Supreme Court has also given us some additional\nguidelines. There is a further presumption of severability,\nfirst of all, if the statute contains an express \"severability\nclause.\" Several of the statutes with which we deal--including\nthe War Powers Resolution and the Atomic Energy Act, for\nexample--contain such severability clauses.\n- 8 -\n=\nSecond, the legislative veto is also presumed to be severable\nif the legislative program in question is \"fully operative as a\nlaw\" without the veto provision. In the statutes with which we\nare dealing, this seems generally to be the case. These\nstatutes often establish a system under which the Executive\nBranch is empowered to make or implement a decision 30 or 60\ndays later unless the Congress chooses to intervene. In\nforeign affairs cases to date, given the absence of formal\nCongressional action, the executive determination has\nproceeded, although Congressional views have always been taken\nfully into account. 4 This pattern clearly indicates that these\nstatutes are capable of independent operation with no further\nCongressional action.\nSPECIFIC CASES\nI would like to turn now to some of the most important\nstatutes with which we deal in the foreign affairs area and to\nour probable response in light of the Chadha decision. One of\nthe first that comes to mind is the War Powers Resolution.\nWar Powers Resolution. The War Powers Resolution contains\nfour major operative parts. The first of these is a\nconsultation requirement.\n- 9 -\nIn Section 3 of the Resolution, the President is required to\nconsult with the Congress \"in every possible instance\" before\nUnited States armed forces are introduced into hostilities or\ninto situations where imminent involvement in such hostilities\nis clearly indicated by the circumstances. And the President\nis to consult regularly while the forces remain in such\nsituations.\nThe second operative part is a reporting requirement.\nIn Section 4, the President is required to make a formal report\nto Congress in any case in which United States armed forces are\nintroduced--\n\"(1) into hostilities or into situations where\nimminent involvement in hostilities is clearly indicated\nby the circumstances;\n\"(2) into the territory, airspace or waters of a\nforeign nation, while equipped for combat, except for\ndeployments which relate solely to supply, replacement,\nrepair, or training of such forces; or\n\"(3) in numbers which substantially enlarge United\nStates Armed Forces equipped for combat already located in\na foreign nation 11\n- 10 -\nThe third operative part, Section 5(b), requires the\nPresident to withdraw U.S. troops not later than 60 days after\na report of actual or imminent involvement in hostilities\nunless the Congress has affirmatively authorized their\ncontinued presence.\nThe fourth operative part is a legislative veto.\nAccording to Section 5(c), the President must withdraw U.S.\ntroops introduced into hostilities even before the end of 60\ndays if the Congress SO directs by concurrent resolution.\nThe first and second provisions of the War Powers\nResolution, on consultation and reporting, are in our view\nunaffected by the Chadha decision. We do not intend to change\nour practice under them.\nThe fourth provision, which asserted a right of Congress\nby concurrent resolution to order the President to remove\ntroops engaged in hostilities, is clearly unconstitutional\nunder the Supreme Court's holding in Chadha. It seems to me\nunlikely, however, that this will have a significant impact on\nthe conduct of national security policy. In the decade since\nthe enactment of the War Powers Resolution, no U.S. forces have\nbeen committed to long-term hostilities. It is doubtful that\nPresidents have refrained from such commitments because of the\nlegislative veto in the War Powers Resolution.\n- 11 -\n=\nIt would be equally doubtful that Presidents will now feel\nfreer of restraints because of Chadha. The lesson of recent\nhistory is that a President cannot sustain a major military\ninvolvement without Congressional and public support.\nWe believe the legislative veto provision of the War\nPowers Resolution is severable from the others according to the\nCourt's test and guidelines. The Resolution itself includes a\nseverability clause, and the other operative portions of the\nResolution need not be affected by the dropping of the veto\nprovision.\nThe third operative part of the Resolution, requiring\npositive Congressional authorization after 60 days, does not\nfall within the scope of Chadha. Its constitutionality is\nneither affirmed, denied, nor even considered in the Chadha\ndecision. As you know, the Executive Branch has traditionally\nhad questions about this requirement of Congressional\nauthorization for Presidential disposition of our armed forces,\nboth in light of the President's Commander-in-Chief power and\non practical grounds. Congress, of course, has had a different\nview. I do not believe that any purpose would be served by\ndebating these questions here, in the abstract. This provision\nis unlikely to be tested in the near future.\n- 12 -\nAnd I am authorized here and now to reaffirm the\nAdministration's strong commitment to the principles of\nconsultation and reporting, confident that in a spirit of\ncooperation the Executive and the Congress can meet future\nchallenges together in the national interest.\nArms Export Control. We come next to the field of arms\ntransfers. Under such statutes as the Arms Export Control Act,\nwe have regularly reported to the Congress certain proposed\nforeign military sales. We have also reported the proposed\nlicensing of arms exports to foreign countries sold through\ncommercial channels.\nIndeed, as a matter of practice and accommodation with the\nCongress, we have agreed with the Congress to go far beyond the\nstatutory requirements. In addition to the statutory\nnotification procedures, for example, we have long engaged in a\npractice of informal pre-notification of proposed sales under\nthe Foreign Military Sales program. While this is not required\nby law, it has given Congress the opportunity to review and\ncomment upon proposed transactions informally and privately\nbefore the Executive sends a formal public statement. This\npractice shows how much the Executive Branch has been aware of\nand responsive to the legitimate concerns of the Congress.\n- 13 -\nEven though we have long considered the legislative veto to be\nunconstitutional, we have always taken Congressional concerns\ninto account in formulating and carrying out the arms sales\nproposals.\nWhile it seems clear that the legislative vetoes contained\nin several sections of the Arms Export Control Act are not\nvalid, that result will in no way impair our continued\nreporting to Congress either under the express statutory\nprovisions or under the informal pre-notification and\nconsultation that wę have traditionally maintained. In the\nlast year alone, we have sent up more than 60 reports of\nintended arms sales and more than 30 pre-notifications for\nnon-NATO countries. While Congress has never disapproved any\nproposed arms sale, the Administration has on occasion modified\nthe terms of a proposal in light of Congressional concerns.\nI think that record speaks for itself. The Executive\nBranch does not live in a vacuum, and we are acutely aware of\nthe need for consultation and cooperation in this sensitive\narea. The Chadha decision will make clearer the legal and\npolitical responsibility for these decisions, but it will not\nsignificantly affect the practice.\n- 14 -\n=\nNuclear Non-Proliferation. Another field in which\nstatutes have contained many legislative veto provisions is\nthat of international commerce in nuclear energy. Various\nsections of the Atomic Energy Act, for example, have provided\nfor a legislative veto of Presidential determinations to permit\nnuclear exports to foreign countries.\nThere are three elements in many of the provisions. One\nof them is the establishment of very strict standards limiting\nthe export of nuclear items. The second is an exceptional\nwaiver authority, vested in the President, who may permit\nexports if he makes certain findings. The third is a\nCongressional veto. We consider that those standards and that\nwaiver authority, as well as the statutory requirement of\nnotification to Congress and the observance of a waiting\nperiod, continue to be valid. We will continue to wait through\nthe period during which the Congress, in the past, deliberated\nover its veto; during that time, the Congress may use its\nconstitutional authority to enact new legislation if it\nchooses. The only provision that is invalid is the third,\ncalling for a veto by concurrent resolution.\nThe Administration shares Congress's concern about nuclear\nproliferation. We have been active diplomatically in this\nfield, as this Committee knows.\n- 15 -\nWe vigorously oppose the development of nuclear weapons\ncapabilities by additional countries. Each Executive Branch\nagency is required to keep the Congress, including this\nCommittee, fully informed of its activities in this field and\nof significant developments abroad. We have done so, and we\nare proud of our record of close consultation and collaboration\nwith the Congress. We will continue that practice.\nJackson-Vanik Amendment and Trade-Related Issues. A\nfourth important statutory area involving a legislative veto is\nthe procedure for granting most-favored-nation treatment (MFN)\nto certain non-market countries. Under the Jackson-Vanik\nAmendment, nondiscriminatory tariff treatment may be granted to\nthese countries only when they comply with certain conditions\nfor the protection of human rights, including the right of\nemigration. These requirements may be waived on the basis of\nstated findings and determinations by the President.\nThe annual report required under that statute--for\ncontinuation of MFN for Hungary, Romania, and China--is now\nbefore the Ways and Means Committee. It can serve as an\nillustration of how we believe Congress and the Executive\nshould continue to work together constructively.\nWe presented that report to the Congress before the\nSupreme Court decision was announced.\n- 16 -\nHowever, we would have done precisely the same thing if the\nChadha decision had been handed down before the report was\nfiled. We regard the report as fully effective to extend the\nwaiver authority and to continue the waivers currently in\nforce. At the same time, legislative oversight hearings serve\nthe salutary purpose of scrutinizing the implementation of\nstatutory requirements, of airing public concerns, and of\nmaking our nation's deep commitment to human rights known to\nother nations.\nThe spirit with which we expect to work with Congress in\nthe future, in all statutory fields, is illustrated by another\nexample. We are required by the Case-Zablocki Act to report\nexecutive agreements to the Congress, and we do so regularly.\nThat procedure notifies the Congress of agreements already\nsigned. There is also a procedure for enabling this Committee\nand the Senate Foreign Relations Committee to consult with us\nas to the form of significant international agreements prior to\ntheir conclusion. This practice was arranged between the\nDepartment of State and the Chairmen of the two Committees in\n1978. It is not required by law, but makes good sense. We\nwill maintain it\n- 17 -\nWHERE DO WE GO FROM HERE?\nAs I emphasized at the beginning, little of practical\nsignificance need in fact change as a result of the Supreme\nCourt decision. The Department of State will continue to work\nclosely with the members and committees of Congress and to take\ntheir concerns into account in reaching decisions on issues of\npolicy. If anything, I believe Chadha will make the\ndepartments and agencies of the Executive Branch more, not\nless, conscious that they are accountable for their actions.\nThere are many basic questions about the separation of\npowers, particularly in the foreign affairs and national\nsecurity field, which the Supreme Court will probably never\nsettle. In that realm our constitutional law is determined, in\na sense, as in Britain--by constitutional practice, by\npolitical realities, by the fundamental good sense and public\nconscience of the American people and their representatives.\nThis is how we have always settled these questions, and this is\nhow we, the Executive and the Congress, must approach these\nproblems in the aftermath of Chadha.\nOur Constitution is a wise and enduring blueprint for free\ngovernment. In this period of our history, our nation faces\nchallenges that the drafters of that document could not have\nimagined.\n- 18 -\nOne of the most profound responsibilities of the federal\ngovernment is to conduct this nation's foreign policy and\nensure its security in a nuclear age, in an era of\ninstantaneous communications, in a complex modern world in\nwhich international politics has become truly global.\nAmerica's responsibility as a world leader imposes on us an\nobligation of coherence, vision, and constancy in the conduct\nof our foreign relations. For this there must be unity in our\nnational government. The President and the Congress must work\nin harmony, or our people will not have the effective, strong,\nand purposeful foreign policy which they expect and deserve.\nWe have seen in the last 15 years that when Congress and the\nPresident are at loggerheads, the result can be stalemate and\nsometimes serious harm to our foreign policy.\nWe now have an opportunity, all of us, to put much of that\npast behind us, and to start afresh. Let us shape a new era of\nharmony between the branches of our government--an era of\nconstructive and fruitful policymaking, an -era of creativity\nand statesmanship. That is President Reagan's goal and the\ngoal of all of us in his Administration.\nThank you.\nTHE WHITE HOUSE\nWASHINGTON\nJuly 12, 1983\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nSUBJECT:\nLegislative Veto Meeting\nMr. Meese began the meeting by announcing its purpose, which\nwas to expand the legal analysis of the effect of the\nlegislative veto decision to include broader policy\nconsiderations. The Attorney General then stated his view\nthat legislative veto questions should be addressed on a\ncase-by-case basis as they arose, rather than in any broad\nor general fashion. He also noted that any testimony should\nbe postponed until after the August recess, if possible, to\nlet the situation cool down some more. Ken Duberstein\nopined that he did not think Congress was inclined to act\nprecipitously or in an across-the-board manner, but was\nstill surveying the damage.\nDavid Stockman agreed with the case-by-case approach only\nfor the interim, noting that a vacuum now existed that\nCongress would fill with some other device. In particular\nhe was concerned about a rise in appropriations riders, and\nseemed to be suggesting some accomodation with Congress to\navoid this. The Deputy Attorney General disagreed, noting\nthat Congress could still act as prescribed in the\nConstitution, so no \"vacuum\" existed. Ed Harper seemed to\nagree with Schmults; Mike Horowitz with Stockman.\nMr. Meese concluded the meeting by setting out the following\ncourse of action:\n1. Do not alarm Congress; comply with report and wait\nprovisions.\n2. Address legislative veto issues as they arise on a\ncase-by-case basis.\n3. Begin \"brainstorming\" on long-term effects, through\na working group of the Cabinet Council on Legal Policy.\n4. The activities of this working group will be\ncoordinated with the existing review group which has\nbeen meeting at Justice.\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nJuly 13, 1983\nFOR:\nRICHARD A. HAUSER\nFROM:\nPETER J. RUSTHOVEN\n616\nSUBJECT:\nMemoranda from Ed Harper's\nOffice re: Legislative Vetos\nAs we discussed, attached for your review and signature is a\nrevised memorandum for Ed Harper, with copy to Wendell Gunn,\non the above-referenced issue.\nThe memorandum has been changed to reflect the discussions at\nthe meeting on legislative veto issues earlier this week\nattended by John Roberts. John and I think you should still\nsend the memorandum, notwithstanding Harper's attendance at\nthat meeting, as additional insurance against the possibility\nthat Administration statements or other action on legislative\nveto provisions fail to be coordinated through the Justice\n\"Working Group\" and the Cabinet Council on Legal Policy.\nAttachment\nCC: Fred F. Fielding\nJohn G. Roberts, Jr.\nTHE WHITE HOUSE\nWASHINGTON\nJuly 13, 1983\nMEMORANDUM FOR EDWIN L. HARPER\nASSISTANT TO THE PRESIDENT\nFOR POLICY DEVELOPMENT\nFROM:\nRICHARD A. HAUSER\nDEPUTY COUNSEL TO THE PRESIDENT\nSUBJECT:\nLegislative Veto Provisions\nThis will respond to the question noted on Wendell Gunn's June\n23 memorandum for you about the impact of the Supreme Court's\ndecision in INS. V. Chadha on the legislative veto provision\nof section 203 of the Trade Act of 1974, 19 U.S.C. § 2253,\nwith specific reference to the recent specialty steel case.\nPrior to the President's decision in that case, we were\nadvised by the Office of Legal Counsel at the Department of\nJustice that it had reviewed this issue, and believed that the\nChadha decision invalidated this legislative veto provision.\nOLC was also of the view, however, that the President retained\nhis statutory authority to review United States International\nTrade Commission recommendations, and that he should continue\nto report to the Congress his decisions with respect to such\nrecommendations. Our office reiterated this OLC advice in our\ncomment memorandum on the specialty steel case.\nOur office was copied on your more general memorandum to\nAssistant Directors of the Office of Policy Development,\nasking them to compile lists of statutes with legislative veto\nprovisions involving their respective areas of substantive\nresponsibility. As you know, the Cabinet Council on Legal\nPolicy and the Department of Justice \"Working Group\" are\nconducting an overall survey of legislative veto provisions\nthat may have been affected by the Supreme Court's decision.\nAccordingly, the results of the OPD survey should probably be\nforwarded to the Justice Working Group, which we can handle if\nyou wish.\nLet me know if you have any questions; thank you.\nCC: Wendell W. Gunn\nSTRONG MEMO TO\nHARPER - OLC, ETC.\nCOORDINATING RESPONSE\n(WE TOLD THEM BEFORE)\n+ YES, OF COURSE,\nPREZ SHOULD EXERCISE\nHIS POWER\nLegislative deto\nfate: CHAOHA\nTHE WHITE HOUSE\nWASHINGTON\n7.8.83\nDate\nSuspense Date\nPeter\nMEMORANDUM FOR: John 5\nFROM:\nDIANNA G. HOLLAND\nACTION\nApproved\nPlease handle/review\nX\nFor your information\nFor your recommendation\nFor the files\nPlease see me\nPlease prepare response for\nsignature\nAs we discussed\nReturn to me for filing\nCOMMENT\nTO PR PR\nJUL I 1983\nDOCUMENT NO.\n140627\nPD\nOFFICE OF POLICY DEVELOPMENT\nSTAFFING MEMORANDUM\nDATE: 7/1/83\nACTION/CONCURRENCE/COMMENT DUEBY: July 8, 1983\nSUBJECT: IMPACT OF COURT'S LEGISLATIVE VETO DECISION\nACTION FYI\nACTION\nFYI\nHARPER\nDRUG POLICY\nPORTER\nTURNER\nBARR\nD. LEONARD\nBLEDSOE\nOFFICE OF POLICY INFORMATION\nBOGGS\nHOPKINS\nBRADLEY\nPROPERTY REVIEW BOARD\nCARLESON\nOTHER\nDENEND\nEd Meese\nGALEBACH\nFred Fielding\nGARFINKEL\nGUNN\nB. LEONARD\nLI\nMcALLISTER\nMONTOYA\nROPER\nSMITH\nSWEET\nUHLMANN\nADMINISTRATION\nREMARKS:\nEdwin L. Harper\nPlease return this tracking\nAssistant to the President\nsheet with vour response\nfor Policy Development\nTHE WHITE HOUSE\nWASHINGTON\nJune 30, 1983\nMEMORANDUM FOR ASSISTANT DIRECTORS\nFROM:\nEDWIN L. HARPER 2d\nSUBJECT:\nImpact of Court's Legislative Veto Decision\nAttached is a copy of the article from Newsweek magazine of\nJuly 14th discussing the background of the Court's decision\noverturning the legislative veto.\nWould you please identify the significant applications of the\nlegislative veto concept in your area of responsibility and\ncomment on whether it is likely and/or desireable that the\nPresident's new-found freedom from the threat of legislative veto\nbe exercised.\ncc: Edwin Meese III\nFred Fielding\nAttachment\nNewsweek\nStates Reports.\nJean Louis Atian-Sygm:\nChecks and balances: The legislative branch (House Speaker Tip O'Neill) greets the executive (State of the Union Message, 1982)\nThe Court Vetoes the Veto\nIn a historic ruling, the executive branch regains power at the expense of Congress.\nustice Byron White usually does not say\ndown in one day more federal statutes than\nvenient shortcut,\" wrote Chief Justice\nJ\nmuch on days when the U.S. Supreme\nit has overturned in its history-and\nWarren Burger for the majority. \"But it is\nCourt announces its decisions, but last\nstripped Congress of an extremely power-\ncrystal clear\nthat the framers [of the\nweek he couldn't contain himself. \"I have\nful tool. Although it will be years before all\nConstitution] ranked other values higher\nnot spoken orally in dissent in many years,\"\nthe effects of the ruling are clear, it will\nthan efficiency.\"\nWhite began, \"but this is no ordinary case.\nchange the way Washington does business\nCongress responded with wounded cries.\nIt is probably the most important case that\nand, in the short run, force Congress to\n\"It's a disaster,\" said Rep. Elliott Levitas of\nthe court has handed down in many years.\"\nwrite much stricter laws.\nGeorgia, sponsor of a bill to give Congress a\nThen for five minutes in a silent U.S. Su-\nShortcut: Invented as a simple way to\nveto over every new administrative-agency\npreme Court chamber White sharply criti-\nkeep an eye on the last gasps of Herbert\nregulation. Both the House and Senate for-\ncized his colleagues for, as he put it, \"in one\nHoover's administration, the legislative\neign-policy committees created task forces\nfell swoop\" readjusting the constitutional\nveto has become Congress's desperate-\nto explore the extent of the damage. And\ncalculus between the president and Con-\nand sometimes lazy-way of trying to\nSen. Charles E. Grassley of Iowa pledged to\ngress by striking down a device most Ameri-\ncheck both an imperial presidency and a\nfind new ways to curb presidents. The rul-\ncans never heard of: the legislative veto.\nset of low-profile regulatory agencies with\ning was particularly stinging because it\nIn Washington, at least, White's criti-\na taste for running amok. While it takes\nstruck at the fruits of Congress's post-Wa-\ncism seemed understated. The ruling ap-\nmany forms, the veto typically works like\ntergate, post-Vietnam frenzy. Furious at\npeared to invalidate veto provisions tucked\nthis: Congress authorizes the White House\npresidents who either lied to or ignored\ninto nearly 200 laws-including major leg-\nto do something such as sell arms abroad,\nthem, a reassertive Congress has spent the\nislation giving Congress a measure of con-\nwhile reserving for itself the power to over-\npast decade giving itself authority to,\ntrol over American troops involved in hos-\nrule any sale it doesn't like. By a 7-2 vote,\namong other things, recall U.S. troops from\ntile actions abroad and allowing the House\nthe high court said that if Congress wants\nhostile actions.\nand Senate to make sure the president actu-\nto thwart the president or a federal agency,\nFor the most part, the veto was useful\nally spends money they have appropriated\nit must pass another law. \"The veto\nsimply as a bluff. While Congress approved\n(box, page 18). In so doing, the court struck\ndoubtless has been in many respects a con-\n41 new provisions in 1980 alone, over the\n16\nNEWSWEEK/JULY 4, 1983\nNATIONAL AFFAIRS\nEQUALJUSTICE\nUNDER\nLAW\n©\nDavid Burnett-Contact\nupreme Court Building: 'A fairly monumental change in the way the government does business'\nst five years it actually vetoed only 31\nmost military arms and equipment within\nRai Chadha, an East Indian native of Kenya\nitters-and most of them were minor. In\n30 days after the president announced his\nwho came to the United States as a student,\nactice, the veto's existence helped stimu-\nplans. In fact, Congress never passed an\ncould be deported. Chadha overstayed his\ncompromise between legislative and ex-\narms-deal veto.\nvisa but argued he shouldn't be returned to\nutive branches unwilling to play a game of\nLike many other great cases, last week's\nKenya because of that country's racial tur-\nonstitutional chicken. \"The justices don't\nlandmark began as just another obscure\nmoil. Applying federal law, an immigration\ninderstand what it's like here,\" says Stanley\ndispute. At issue was whether one Jagdish\njudge found that Chadha could stay in this\nrand, counsel to the House of Represent-\ncountry and suspended his deportation.\natives. \"This is a fairly monumental change\nBurger: Striking down nearly 200 laws\nHowever, 18 months later, for still unex-\nin the way the government does business.\"\nplained reasons, the House of Represent-\nBut, insists Brand, Congress may have the\natives invoked its legislative veto power on\nlast laugh; without a veto the lawmakers\nimmigration decisions and ordered Chadha\nmay be less willing to dole out new authority\nand five others to leave. Chadha went to\nto the executive branch: \"Every time the\ncourt, challenging the House action, and, in\npresident wants something he's going to\nthe process, the veto's very existence.\nhave to come up here, hat in hand.\"\n'Presentment': Last week's decision was\nExcesses: A generation of White House\nsurprising only for its great breadth. Ac-\nstaffers say they are willing to take their\ncording to Burger's opinion, the Constitu-\nchances. Virtually every modern president\ntion requires that all valid acts of legislation\nhas opposed the legislative veto; Jimmy\nmust not only pass both houses of Congress,\nCarter even asked his staff to find a test case\nbut also must be \"presented\" to the presi-\nthat would challenge it. Candidate Ronald\ndent for approval. The problem with the\nReagan endorsed it as a way to check the\nlegislative veto, he concluded, was the ab-\nexcesses of the federal bureaucracy, but\nsence of that \"presentment\" procedure.\nonce in the White House he found the\nFor White the court's decision was sim-\nthreat of congressional veto just as annoy-\nply too formalistic. In his view, the veto is\ning as his predecessors had. Indeed, the\nentirely consistent with the separation-of-\nbruising 1981 Senate battle over the sale of\npowers plan created by the Constitution.\nAWACS reconnaissance planes to Saudi\n\"Only within the last half-century has the\nArabia was essentially a fight over the legis-\ncomplexity and size of the federal govern-\nlative veto; under the Arms Control Act of\nment's responsibilities grown so that the\n1976, Congress could block the export of\nCongress must rely on the veto to ensure its\nNEWSWEEK/JULY 4, 1983\n17\nMEMORANDUM\nTHE WHITE HOUSE\nWASHINGTON\nJuly 1, 1983\nMEMORANDUM FOR RICHARD A. HAUSER\nFROM:\nJOHN G. ROBERTS\nSUBJECT:\nINS V. Chadha\nCraig Fuller has asked for our analysis of the legislative\nveto opinion \"as soon as possible.\" We did, of course,\nprovide such an analysis to the Senior Staff the morning\nafter the decision was announced.\nI recommend sending Fuller a copy, with a cover memorandum\nreviewing events subsequent to preparation of the analysis,\nspecifically the convening of the Justice Department working\ngroup and the recommendation of our office that Legislative\nAffairs became involved to calm the fears of Congress.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nJuly 1, 1983\nMEMORANDUM FOR CRAIG L. FULLER\nFROM:\nRICHARD A. HAUSER\nSUBJECT:\nINS V. Chadha\nYou have asked for our analysis of the Supreme Court's\nlegislative veto opinion \"as soon as possible.\" We provided\nsuch an analysis to the Senior Staff the morning after\nannouncement of the decision. A copy of that analysis is\nattached.\nSince that time a working group chaired by Assistant\nAttorney General Olson has been convened to assess the\nimpact of the decision. Our office, OMB, and Legislative\nAffairs are represented on the working group, in addition to\nthe pertinent offices and divisions of the Justice Depart-\nment and several other departments. The group is monitoring\ntransmissions to Congress to ensure consistency with the\nCourt's decision and to provide advance warning of any\npotential disputes concerning the effect of the decision.\nIt was the general consensus of the group that an immediate\neffort should be made to prevent Congressional overreaction\nto the Chadha decision. Our office has recommended that\nLegislative Affairs meet with appropriate legislators and\nperform a calming function, advising them that we would\ncomply with existing \"report\" provisions and would work\nclosely with Congress in assessing the long-term effect of\nChadha. Establishment of such a low-key approach and\ncooperative tone will do much to dissipate Congressional\nfears and prevent Congressional overreaction.\nRAH: JGR:aw 7/1/83\nCC: RAHauser\nJGRoberts\nSubj.\nChron\nImmigration and Naturalization Service V. Chadha\n(U.S. Supreme Court, June 23, 1983)\nThe Supreme Court yesterday issued a historic ruling on the\nrespective powers of the Executive and Legislative branches.\nIn Immigration and Naturalization Service V. Chadha, the\nCourt agreed with the Administration's legal arguments and\nstruck down a \"legislative veto\" provision in terms that\nstrongly suggest that all legislative veto provisions are\nunconstitutional. Under the Immigration and Nationality\nAct, the Attorney General has the authority to suspend\ndeportation of an alien. He did so in Chadha's case, but\nthe House of Representatives, acting pursuant to a\nlegislative veto provision, \"vetoed\" the Attorney General's\ndecision. In an opinion written by the Chief Justice,\njoined by Justices Brennan, Marshall, Blackmun, Stevens, and\nO' Connor, the Court ruled that the exercise of such a veto\npower by the House was unconstitutional.\nThe opinion of the Court stresses that a proper exercise of\nlegislative power under the Constitution requires action by\nboth Houses of Congress and presentment of the question to\nthe President for veto or approval. The opinion contains\nnumerous passages emphasizing the importance placed by the\nFramers on the President having an opportunity to review\nlegislative actions before they could become effective. The\nlegislative veto device is unconstitutional precisely\nbecause it purports to give effect to Congressional action\nwhile totally avoiding presentment of the question to the\nChief Executive. While Chadha involved a one-house legisla-\ntive veto, its reasoning strongly suggests that a two-house\nlegislative veto -- by concurrent resolution -- is also\nunconstitutional. As the Chief Justice's opinion concluded:\n\"To accomplish what has been attempted by one House of\nCongress in this case requires action in conformity with the\nexpress procedures of the Constitution's prescription for\nlegislative action: passage by a majority of both Houses\nand presentment to the President.\"\nJustice Powell concurred separately, not reaching the\nlegislative veto question. He thought the House's action\nunconstitutional as an exercise of judicial power, determin-\ning the specific rights of one individual under the law.\nJustice White dissented. He considered the legislative veto\na useful device for Congress to reserve control over execu-\ntive agency actions. Justice Rehnquist also dissented on a\ntechnical point, with which White agreed. Rehnquist argued\nthat this particular legislative veto provision was not\nseverable from the provision giving the Attorney General\n-2-\nthe power to suspend deportations. Thus, if Congress could\nnot veto the suspension order, the Attorney General lacked\nthe power to order suspension in the first place.\nThis is a historic ruling in favor of the Executive Branch.\nIt means that Congress can no longer interfere with executive\nactions short of passing a bill through both Houses and\npresenting it to the President for his approval. There are\nnearly 200 statutory provisions containing legislative\nvetoes, and the Court's opinion, as noted by Justice Powell,\n\"apparently will invalidate every use of the legislative\nveto.\" Some prominent examples of acts with legislative\nveto provisions include the War Powers Act, the Department\nof Defense Appropriation Authorization Act, and the Federal\nTrade Commission Improvements Act. Provisions in these and\nother acts purporting to allow Congress to disapprove\nexecutive decisions by a one-house veto or concurrent\nresolution are presumably invalid under Chadha.\nSome argue that Congress has lost a valuable tool permitting\nit to police the executive agencies and making the bureaucracy\nmore responsible to the elected representatives of the\npeople. In fact, the Chadha decision will promote better\ngovernment by forcing Congress to draft statutes more\nclearly and narrowly. Congress will not be able to delegate\nvast power to agencies with the assurance that it can step\nin later if it disagrees with what an agency is doing. As\nthe Attorney General stated yesterday, \"[t]he long term\neffect of this decision will be a better and more effective\nCongress as well as a more effective presidency.\"\nSeverability problems may arise in connection with some\nlegislative veto provisions, a concern highlighted by\nJustice Rehnquist's dissent. If a legislative veto\nprovision is not severable -- if a court rules Congress\nwould not have given the executive the authority in question\nif Congress could not \"veto\" its exercise in any particular\ncase -- then the grant of authority to the executive may be\nstruck down, along with the legislative veto. While most\nlegislative veto provisions, like the one in Chadha, should\nbe found to be severable, the question can only be decided\non a case-by-case basis, after examination of each statute\nand its legislative history.\nID # 073455 CU\nWHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\n0 OUTGOING\nH INTERNAL\nI INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\nName of Correspondent:\nCraig h. Faller\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\nSubject:\ndigistative Vito Opinion\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nW Holland\nORIGINATOR 83,06,30\n/ /\nReferral Note:\nCUAT 18\nD 83,06,30\n5 83107105\nReferral Note:\n/ /\n/ /\n-\nReferral Note:\n/ /\n/ /\n-\nReferral Note:\n/ /\n/ /\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA Appropriate Action\ni Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC Comment/Recommendation\nR - Direct Reply w/Copy\nB Non Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments:\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTHE WHITE HOUSE\npay!\nWASHINGTON\n2) Fate\nCABINET AFFAIRS STAFFING MEMORANDUM\n5\nDATE: June 29, 1983 NUMBER:\n073451CA\nDUEBY: 5 pm, July 6\nSUBJECT: Legislative Veto Opinion\nACTION FYI\nACTION FYI\nALL CABINET MEMBERS\nBaker\nDeaver\nVice President\nState\nClark\nTreasury\nDarman (For WH Staffing)\nDefense\nAttorney General\nHarper\nInterior\nJenkins\nAgriculture\nFIELDING\nCommerce\nLabor\nHHS\nHUD\nTransportation\nEnergy\nEducation\nCounsellor\nOMB\nCIA\nUN\nCCCT/Gunn\nUSTR\nCCEA/Porter\nCCFA/Boggs\nCEA\nCCHR/Carleson\nCEQ\nOSTP\nCCLP/Uhlmann\nCCMA/Bledsoe\nCCNRE/Boggs\nREMARKS:\nWe would appreciate receiving your analysis of the Supreme\nCourt's legislative veto opinion as soon as possible. For\nyour information I have attached a paper developed by OMB.\nRETURN TO:\nCraig L. Fuller\nBecky Norton Dunlop\nAssistant to the President\nDirector, Office of\nfor Cabinet Affairs\nCabinet Affairs\n456-2823\n456-2800\nEXECUTIVE OFFICE OF THE PRESIDENT\nOFFICE OF MANAGEMENT AND BUDGET\nWASHINGTON, D.C. 20503\nJune 24, 1983\nMEMORANDUM TO:\nDave Stockman\nJoe Wright\nDon Moran\nFred Khedouri\nAl Keel\nJohn Cogan\nConnie Horner\nChris DeMuth\nHal Steinberg\nPete Modlin\nFROM:\nMike Horowitz\nMH\nSUBJECT:\nUnconstitutionality of Legislative Veto\n1. Introduction\nYesterday, in INS V. Chadha, the Supreme Court in a sweeping\nopinion declared the legislative veto unconstitutional. As\nstated by Justice Powell in his concerning opinion, \"the Court's\ndecision\napparently will invalidate every use of the\nlegislative veto.\"\nChadha involved section 244 (c) (2) of the Immigration and\nNationality Act. The section permits the Attorney General to\nsuspend the deportation of an alien found deportable by an\nimmigration judge. The section also permitted Congress to veto\nthe Attorney General's suspension of deportation if either House\npassed a resolution to that effect. In Chadha, the House of\nRepresentatives passed such a resolution, thereby effectively\nrequiring Chadha's deportation. Chadha sued the INS, and as one\nof his grounds asserted that Congress' exercise of the veto was\nunconstitutional.\nThe Supreme Court's decision dealt with a variety of issues,\nincluding several questions involving standing and jurisdiction.\nThe substantive issues of critical importance, however, were the\nconstitutionality of the legislative veto and the severability of\nthe provision.\n2\n2. Legislative Veto\nThe Court, in extremely sweeping language, found the provision\nunconstitutional on the grounds that it violates both the\nPresentment Clausesl/ and the bicameralism requirement2/ of the\nConstitution. Only Justice White dissented from the holding that\nthe legislative veto was unconstitutional; Justice Powell\nconcurred in the judgment, but on the narrower and novel ground\nthat the particular legislative veto provision was an\nunconstitutional assumption of indicial power.\n3. Severability\nIn real terms, this may be the most critical question, and the\nChadha opinion only suggests the future shape of the law.\nThe Immigration and Nationality Act, at issue in Chadha,\ncontained a standard severability clause. The Court held that\nthat provision gave rise to a clear presumption in favor of\nseverability. The Court, however, also engaged in a lengthy\nreview of the Act's legislative history to determine whether\nCongress really intended the legislative veto provision to be\nseverable. In addition, the Court applied a second test --\nwhether what remains after the severance \"is fully operative as a\nlaw.\" The Supreme Court concluded that both tests -- legislative\nintent and the \"fully operative\" standard -- supported a finding\nof severability.\nIt is possible that the Court will provide more detailed guidance\non severability in the next few weeks in another legislative veto\ncase still pending before the Court involving a FERC rule vetoed\nby Congress. There, the D.C. Circuit held the legislative veto\nunconstitutional, and also found the provision severable from the\nNatural Gas Policy Act even though it did not contain a\n1/ The Presentment Clauses require Congress to present passed\nlegislation to the President for his signature or veto.\n2/ The bicameralism requirement requires that a bill pass both\nHouses before it is presented to the President. Although the\nbicameralism requirement is not an issue for two-House\nlegislative vetos, the Court's decision is not predicated on\nbicameralism, and is applicable to any type of legislative veto.\n3\nseverability clause. The D.C. Circuit analyzed the severability\nissue wholly in the context of legislative intent. It found the\nlegislative veto provision severable because the legislative\nhistory indicated that the provision was not \"essential\" to the\nimplementation of the statutory policy of the Act. If the\nSupreme Court affirms the decision of the D.C. Circuit in the\nFERC case, it will be a strong precedent in favor of the general\nseverability of legislative veto provisions. Because the Supreme\nCourt expressly declined to hold oral argument on the FERC case,\nJustice believes the case will be summarily affirmed.\nWhatever the disposition of the FERC case, however, it is likely\nthat the severability of legislative veto provisions will\ncontinue to be litigated extensively, and a source of\nconsiderable uncertainty, perhaps for a substantial period.\n4. Retroactivity\nA second major issue raised by Chadha is retroactivity. The\nSupreme Court has in the past made some of its constitutional\nholdings prospective in application only. In Chadha, the Court\nwas silent on the retroactivity issue because, in the context of\nthe case, the issue did not arise. (Mr. Chadha's deportation had\nbeen stayed during the pendency of the case.) Thus, it is\nentirely possible that Executive Brach actions vetoed by Congres\nmay now be in force. It is likely that such \"unvetoed\" Executive\nBranch actions will quickly be tied up in litigation as adversely\naffected parties seek judicial resolution of the retroactivity\nissue. We are looking into a variety of areas that may be\naffected if Chadha applies retroactively, including Pay Act\nlegislative vetos and the veto of the FTC's used car regulations.\n5. \"Report and Wait\" Provisions\nThe Supreme Court in Chadha expressly approved the \"report and\nwait\" provisions contained in some statutes. These provisions\nrequire agencies to report regulations to Congress, and not to\nimplement them for a specified period pending Congressional\naction. The Court made clear that such provisions are not\nlegislative vetos, and are appropriate mechanisms to provide\nCongress with time to enact legislation barring the reported\nactions.\n6. Impoundment Control Act\nThe most immediate problem presented by Chadha for OMB is the\nImpoundment Control Act. The rescission authority does not\n4\nappear implicated, in that an affirmative endorsement of both\nHouses is required.\nThe legislative veto contained in the deferral authority,\nhowever, is clearly unconstitutional and was identified in\nJustice White's dissenting opinion as one of the key Executive\nBranch powers affected by the Court's decision. 4/\nJustice believes, as do I, is that the legislative veto provision\nis severable from the deferral authority. A basis for this\nconclusion is that deferrals, unlike rescissions, largely ensure\nthe orderly obligation of funds, so that Congress arguably would\nhave given the President this type of limited power without an\nattached legislative veto.5/ But it is too early to know\ndefinitively whether this reasoning is supported by the\nlegislative history, and whether the courts will hold the\ndeferral authority severable from the one-house veto. Because\nthe Impoundment Control Act does not contain a severability\nprovision, the Supreme Court's disposition of the FERC case may\nbe crucial on this issue.\nThe Impoundment Control Act does not, by its terms, require\nPresidential signature of rescissions. Thus, possible questions\nregarding some rescissions may arise under the Presentment\nClauses rationale discussed at note 1. It is my understanding\nthat most if not all rescissions are packaged in appropriations\nbills, which are of course signed by the President. If this is\nthe case, Chadha may not present problems for the rescission\nauthority. In any event, we may wish to propose or endorse\nImpoundment Control Act amendments expressly requiring\nrescissions to be in the form of regular bills.\nWhite noted that 65 budget deferrals have been vetoed by\nCongress.\n5/ It is not clear whether the Impoundment Control Act creates\nthe deferral authority, or simply regulates its use. It can be\nargued that the deferral authority exists without the Act, in\nwhich case the legislative veto provision would be clearly\nseverable. Although we have not yet researched all of them, it\nappears that the pre-Impoundment Control Act cases -- which were\ndecided adversely to the President -- dealt with attempted\nlapsings of budget authority, i.e. rescissions.\n5\nFor the present, and generally, we will need to exercise care in\nusing deferrals in such a way that they cannot be interpreted as\nrescissions, since one result of Chadha is that the Comptroller\nGeneral probably will be much more aggressive in policing\ndeferrals.\n7. Conclusion\nIt is too early to know the full fall-out of Chadha. There are\nsome immediate issues that will have to be considered, including\nbudget deferrals, offshore leasing, federal pay, acts of the D.C.\ngovernment, sales of public lands, civil service reform, and a\nvariety of regulatory regimes that involve legislative vetos. In\nthis regard, I am attaching an Appendix to Justice White's\ndissenting opinion listing 56 major statutes affected by the\nCourt's decision.\nSome predictions can be made as to what we can expect from\nCongress in the immediate future. For instance, we are likely to\nsee many more of the \"report and wait\" provisions that the Court\napproved in its decision -- dangerous provisions if Congress\nseeks to examine and delay publication of NPRM's or final rules,\nand not merely suspend their effective dates. We also are likely\nto see a sharp increase in the number of appropriation bill\nriders. This is likely to bring with it an increase in the\nshutdown \"brinksmanship\" budget politics we have experienced in\nrecent years.\nAttachment\n6/ The Comptroller General is empowered to sue to ensure that a\ndeferral is not used to achieve a rescission. It is likely that\nthe invalidation of the legislative veto on deferrals will reduce\nthe threshold for such a lawsuit."
}