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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Chronological Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Chron File (10/25/1985-10/31/1985)
Box: 66
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
October 25, 1985
MEMORANDUM FOR MAX FRIEDERSDORF
FROM:
FRED F. FIELDING
SUBJECT:
Request for the President to Serve as the
Honorary National Chairman of the Campaign
for Norman Rockwell
Silvio Conte has asked the President to serve as Honorary
Chairman of a fundraising campaign to raise funds to expand
a Norman Rockwell museum located in Conte's district.
Attached is a letter I propose to send to Conte, denying the
request, unless you have different views. Please advise.
Attachment
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THE WHITE HOUSE
MAE NGTON
October 23, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Use of Photos in Upcoming Book on the
President's Early Davs in Dixon
Norman Wymbs of the Ronald Reagan Home Preservation Foundation
has now written you to request permission to use a photograph
of the President flipping through the manuscript of Wymbs's
book in the book or on the dust jacket. You will recall
that we discussed this earlier, in response to an inquiry
from the Photo Office. You determined that the photo should
not be used, not only because of the usual concern about
implying endorsement of the book, but also because the book
apparently contains numerous errors. The attached draft
reply to Wvmbs advises as tactfully as possible that the
photo may not be used, despite the fact that all proceeds
from the book will go to the Foundation.
Attachment
THE WHITE HOUSE
MAE- NOTO:
October 23, 1985
Dear Mr. Wvmbs:
Thank VOU for your letter of October 15, concerning the use
cf White House photographs 11. your upcoming book or the
President's early years 1I. Dixon.
LE VOL know. you are free to use the photographs provided to
VOL DV Katny Osborne, with the one exception of the photo-
craph of the President reviewing an earlier draft of your
manuscript. : an afraid that WE must decline tc approve any
use of this photograph. White House policy generally
precludes use c : photocraphs c f the President II. an: manner
that suggests endorsement c : barticular ventures C: Ir:-
custs, including books. Certainly the photocraph II. cuestion
would convey the impression c é Presidential endorsement.
: understand that all proceeds from your book WILL benefit
the Ronald Readar Home Preservation Foundation. and :
course this particular 5001 2 E something :: ¿ special case.
Nonetheless, : DODE you will appreciate that maxino a:
expection == this instance would oper US I: charges :
and make :: difficult to entorce our polici
11. other. Less appealing cases
Thank NOL LT advance : : : understandino the Disition WE must
DENE. all Dest Wisher
Suncerel:
Fred F. Fielding
Counse. : the President
N. Normar E. WATTERS
391 SE Stanish Trail
Boba Raton. FL 33431
FFF:JGR:aea 10/23/83
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THE HOUSE
n 4 E
October 28, 1985
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS 820
SUBJECT:
Revisions to the Reagan Record
David Chew has asked that comments on the attached
comprehensive review of the Reagan record be sent directly
to Tom Gibson by Thursday, October 31. I have reviewed the
proposed 'record, and have identified a few changes that
should be made, 1n the attached draft reply for your signature.
Attachment
THE WHITE HOUSE
WASHINGTON
October 28, 1985
MEMORANDUM FOR TOM GIBSON
SPECIAL ASSISTANT TO THE PRESIDENT
DIRECTOR, PUBLIC AFFAIRS
FROM:
RICHARD A. HAUSER
DEPUTY COUNSEL TO THE PRESIDENT
SUBJECT:
Revisions to the Reagan Record
Counsel's Office has reviewed the proposed Reagan record,
and recommends the following:
1. In the third bullet item or. page 25, delete "and
most Members of Congress.' I am not aware that any member
disagrees with "equal pay for equal work," and as written
the sentence suggests that some ac. In the fourth bullet
item on the same page, I would substitute "nurse" for
"teacher" in the hypothetical, simply to avoid confusing the
issue with merit pay and other concerns about compensation
of teachers.
1. In the seventh bullet item on page 42, it 15
misleading to state that the President "created" the National
Commission on Space, since the Commission was established by
statute. I would substitute "appointed" for "created."
3. With respect to the sixth bullet item on page 49,
only the European Community export subsidies of wheat
involved direct action under GATT; the other cases involved
action under Section 301 of the Trade Act of 1974. Actions
under Section 301 often do but need not concern matters that
are illegal under GATT. The item could be rephrased as
follows:
"For example, the President has directed the
United States Trade Representative to initiate
or accelerate unfair trade proceedings under
Section 301 of the Trade Act of 1974 against
canned fruit export subsidies offered by the
European Community; Japanese leather and
tobacco import restrictions; Korean insurance
policy barriers; and Brazil's import restrictions
on micro-electronic products. He has also directed
- 2 -
the filing of a proceeding under the General Agree-
ment on Tariffs and Trade (GATT) against wheat
export subsidies offered by the European Community. "
CC: David L. Chew
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THE WHITE HOUSE
WASHINGTON
October 29, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
$200
SUBJECT:
Bicentennial Certificates
I should have mentioned in my previous memorandum that I
checked with the Civil Division attorney handling the case
(Tom Millet), who said he had no objection to these certifi-
cates. The litigation approach is to argue that the Commission
is a governmental agency with operational responsibilities,
and it is not necessary to decide if it is in the executive,
judicial, or legislative branch, or a combination of the
three. As a governmental agency with operational responsi-
bilities, the Commission is (1) subject to FOIA (the Commission
has conceded this point), and (2) not subject to FACA (since
it IS operational, and not purely advisory).
A possible response may be that the Commission cannot have
operational responsibilities, because the service of the
Congressional members would then be unconstitutional.
Justice and the Commission are prepared to state, if this
issue 1S raised, that the Congressional members serve only
in an advisory and ceremonial role. Millet stated that
sending different certificates of appointment to the Congres-
sional members would, if anything, strengthen this surrebuttal.
THE WHITE HOUSE
WASHINGTON
October 29, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Certificates for Legislative and Judicial
Branch Appointees to the Commission on the
Bicentennial of the U.S. Constitution
The statute establishing the Commission on the Bicentennial
of the U.S. Constitution provided that certain appointments
to the Commission be made by the President from lists
submitted by the Chief Justice and the Hill leadership.
This process resulted in the appointment of members of
Congress and sitting judges to this executive branch entity.
Separation of powers and incompatibility clause concerns
generally preclude issuing commissions of appointment as
executive officers to those serving in the other branches.
Accordingly, while other members of this Commission received
commissions of appointment from the President, the represen-
tatives of the judiciary and the legislative branch --
Circuit Judges Cornelius Kennedy and Charles Wiggins,
Senators Stevens and Kennedy, and Congressman Crane -- did
not.
The Chief Justice, who is Chairman of the Commission, has
requested that some certificate of appointment be issued to
these five. We have prepared an appropriate certificate,
modeled on those issued to appointees to quasi-governmental
entities. These certificates satisfy the Chief Justice's
request without unduly compromising our position that
executive commissions generally not be issued to those
serving in the other branches.
When signed, these certificates should be returned to me for
presentation to the Chief Justice.
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THE WHITE HOUSE
WAEHINGTON
October 29, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Request for the President and the First Lady
to Autograph Pictures which Appeared on the
Cover of TV Guide for the Southern California
Chapter of American Women in Radio/TV Auction
This is the item that prompted my inquiry at this morning's
staff meeting. You will notice that these facts are a bit
different than my hypothetical, since the request is that
the President and First Lady autograph portraits that
appeared on the cover of TV Guide. The attached draft for
your signature advises Crispen that the request should be
denied (although I readily concede that this is a borderline
call).
Attachment
THE WHITE HOUSE
October 29, 1985
MEMORANDUM FOR ELAINE CRISPEN
PRESS SECRETARY TO THE FIRST LADY
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Request for the President and the First Lady
to Autograph Pictures which Appeared on the
Cover of TV Guide for the Southern California
Chapter of American Women in Radio TV Auotion
You have asked for my views on a request from the Southern
California Chapter of American Women in Radio and Television
that the President and First Lady autograph TV Guide cover
portiaits. The autographed portraits would then DE auctioned
off = benefit a children's hospital and a scholarship fund.
As a matter of policy w = do not permit official memorabilia
- : be donated = DE austioned off CC benefit charity. Such
activity 18, 17. essenue, a marketing of the Office, and, 11.
my view, diminishes the prestige of the Office. The President
and Mrs. Peadar are free, of they choose to da so, to donate
personal items, as opposed tc official memorabilia, to be
austioned off to benefit charity, = would not encourage
this practice, since it will inevitably precipitate a flood
of requests from other charities for similar treatment.
:- 18 not easy to determine into which category a request
for an autograph or an Item falls. The signature is at once
official ard personal. Since providing a White House
photograph signed by the President would fall into the
category of official memorabilia, it 15 my view that we
should consider requests for autocraphs or submitted por-
traits 1n the same light. Accordingly, this request should
be declined.
FrF:JGR:ada 10/29 85
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THE WHITE HOUSE
WASHINGTON
October 30, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DR
SUBJECT:
Portal-to-Portal
You have asked for my comments on Chris Hicks's memorandum
to Mr. Regan, analyzing the portal-to-portal bill that
Chairman Brooks is prepared to introduce. I have no quarrel
with Hicks's analysis, nor with the recommendation of Hicks
and Horowitz that we support the bill. I have attached a
copy of the bill itself for your information (the marginalia
are not mine).
The main problem with the Brooks bill from our point of view
is not the scope of coverage -- which will work out to about
the same as our bill -- but the manner in which the service
is authorized. The Brooks bill has precisely what we tried
to avoid -- discretion in the President to choose who does
and does not receive portal-to-portal. The President may
choose six officials in the EOP and ten others in executive
agencies, with no salary level limitation.
Aside from these chosen sixteen, the Brooks bill authorizes
portal-to-portal for the Cabinet Secretaries and the United
States Trade Representative, one principal deputy for each
of these if authorized by the Secretary, ambassadors abroad
and the ambassador to the United Nations, the Deputy Secre-
tary of Defense and Under Secretaries of Defense, as well as
the Secretaries of the Air Force, Army, and Navy, and the
Joint Chiefs and the Commandant of the Coast Guard. The
Director of the CIA and FBI, and the Chairman of the Fed,
are also covered. There is also authority for temporary
emergency portal-to-portal, and for those receiving Secret
Service protection.
I think we should support the bill, faute de mieux. If we
do not support this bill we will end up with no bill, and I
think the current confusion is intolerable. The exercise of
the President's discretion will doubtless become a major
controversy, but at this point I think that is unavoidable.
Latest development: Congressman Bob Walker (R-PA) has told
Brooks he will offer amendments to the bill restricting
Congressional portal-to-portal. Walker apparently views
this as an opportunity to embarrass the Democratic leader-
ship on the Hill. Unless we get Walker to back off, Brooks
will not proceed with the bill.
THE WHITE HOUSE
WASH NGTON
October 30, 1985
MEMORANDUM FOR THE ATTORNEY GENERAL
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Threat to Deliberative Privilege
Posed by the Presidential Records Act
This is the first Administration to be subject to the
Presidential Records Act of 1978, 44 U.S.C. SS 2201-2207.
That Act provides, among other things, that internal White
House memoranda and notes are the property of the United
States, and pass under the control of the Archivist of the
United States upon the conclusion of President Reagan's
second term. Pursuant to 44 U.S.C. $ 2204, a President,
prior tc leaving office, may specify durations, not to
exceed 12 years, for which access to certain types of
Presidentia_ records shall be restricted. One type of
document for which access may be restricted, but for no more
than 12 years, 1S "confidential communications requesting or
submitting advice, between the President and his advisers,
or between such advisers." 44 U.S.C. §§ 2204 (a) (5).
President Reagan and Vice President Bush have exercised this
option tc the fullest extent possible by law.
After expiration of the specified period of restricted
access (the year 2001 at the latest), all Presidential
records -- even the most sensitive, confidential communi-
cations -- will be administered in accord with the Freedom
of Information Act (FOIA). Pursuant to 44 U.S.C. § 2205 (c) (1),
however, exemption (b) (5) of FOIA -- the provision most
frequently used tc block disclosure of confidential deliber-
ative documents -- is explicitly not available to withhold
Presidential records from disclosure. In other words, the
most sensitive White House document from this Administration
will be fully open to the public by the year 2001. (I
should also note that Vice Presidential records are subject
to the foregoing in the same manner as Presidential records,
44 U.S.C. $ 2207.)
Twelve years IS a brief time in history and public life.
Many of the personalities candidly discussed in sensitive
White House memoranda, and certainly many of the authors of
the memoranda, will be active twelve years from now. My
concern is not SO much the embarrassment that might result
in the year 2001 when comments made untier different
- 2 -
circumstances become public, but the danger that the
prospect of disclosure after such a brief period might
inhibit the free flow of candid advice and recommendations
within the White House. That flow is protected by the
constitutionally based doctrine of executive privilege, and
a strong argument can be mounted that the statutory 12-year
ceiling on restricting access is unconstitutional, at least
as applied to the most sensitive White House communications.
This argument was in fact raised by the Carter Department of
Justice when the Presidential Records Act was being con-
sidered by Congress. A representative of the Department's
Office of Legal Counsel testified as follows:
The Supreme Court has clearly recognized that a
constitutional privilege rooted in the doctrine
of separation of powers extends to confidential
communications between the President and his advisers
and among those advisers. Although the justifications
supporting the privilege may become iess critical with
the passage of time, there 15 no indication that it
can be said to dissipate altogether after the passage
of any particular period of years. An effective
declaration that the privilege can be asserted for 10,
13, or 15 years but no longer must consequently be seen
as of doubtful constitutionality. Statement of Deputy
Assistant Attorney General Larry A. Hammond, Hearing
Before the Senate Committee on Governmental Affairs on
S. 3494, 95th Cong., 2d Sess. 14 (1978).
The Act contains a statement that "Nothing in this Act shall
be construed to confirm, limit, or expand any constitutionally-
based privilege which may be available to an incumbent or
former President," 44 U.S.C. S 2205 (c) (2), but that statement
merely frames the dispute.
As noted, this is the first Administration subject to the
Act. Prior Presidents were considered to have control over
the records of their Administration, and when these records
were donated to the Archives the former Presidents typically
reserved to themselves or aides chosen by them the right to
restrict access to sensitive communications, for periods
considerably longer than the 12-year period permitted under
the Act. President Nixon's case was an exception, and the
authority of the Government to seize the Nixon papers and
open them to public access 1S still being contested. In any
event, the validity of the present Act is very much in
doubt.
The difficulty is that no court challenge to the 12-year
ceiling on restricting access can be mounted until the case
is legally "ripe," which will not be until the year 2001,
3 -
when the Archivist actually proposes to release Reagan
Administration documents ar.d someone with legal standing
sues to block disclosure. At that point any executive
privilege claim would hinge to a large extent on the views
of the incumbent President, who may or may not be in a
position to place the long-term interests of the institution
above short-term political interests that may be served by
disclosure of Reagan Administration documents. In any
event, the existence of the statute, however vulnerable to
later challenge, still serves to chill the full and robust
exchange of views the President requires IC discharge the
office.
For these reasons, steps should be taken before the end of
the Administration to cure the infirrities of the Act. The
most obvious possibility is legislative aberoment. Other
bossibiluties include Archives regulations explicitly
recognizing the validity of possible executive privilege
claims to block disclosure after the expiration of the
statutory Mayear period. = welcome your views on these
CURSTIONS and any suggestions you might have or how IC
provided.
DU: Donald T. From:
M. F.
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THE WHITE HOUSE
WAEHINGTON
October 30, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 876
SUBJECT:
Estate and Gift Tax Treaty Regarding
Estate of Lady Alice Sherfield
William McChesney Martin is the U.S. executor of an estate
with assets in both the U.S. and Great Britain. He wrote
Mr. Regan to obtain assistance in arranging a meeting with
Treasury officials, to obtain a determination under the
U.S.-U.K. Estate and Gift Tax Treaty with respect to which
country should be deemed to have primary jurisdiction for
estate tax purposes.
I telephoned Bob Kimmitt for guidance on how to proceed.
His office advised that Martin had also written directly to
Secretary Baker, and that his inquiry had been routed tc Ron
Pearlman, Assistant Secretary for Tax Policy, for action.
Treasury, in short, is already on the case, and there is no
need for White House action.
The attached draft reply for your signature simply advises
Martin that you assume the matter is well in hand.
Attachment
THE WHITE HOUSE
A < E - NGTQN
October 30, 1985
Dear Mr. Martin:
Thank you for your letter of October 28 to Chief of Staff
Don Regan, which has been referred to me. In that letter
you requested assistance in arranging a meeting with the
appropriate officials at the Department of the Treasury, to
obtain a determination under the United States-United
Kingdom Estate and Gift Tax Treaty with respect tc which
country should exercise primary jurisdiction over the estate
of the late Lady Alice Sherfield.
- - an advised that this matter has already been referred tc
Ron Pearlman, the Assistant Secretary of the Treasury for
Tax Policy, for appropriate action. You should be hearing
from his office, if you have not already, in the near
future.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. William McChesney Martin, Jr.
Suite 904
888 17th Street, N.W.
Washington, D.C. 20006
bcc: Robert Kimmitt
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THE WHITE HOUSE
WASHINGTON
October 30, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 872
SUBJECT:
Presidential Message Request from Pen James
Congratulating Pan Am on the 50th Anniversary
of the China Clipper
November 22, 1985, will mark the fiftieth anniversary of the
historic first flight of Pan Am's China Clipper from San
Francisco to Honolulu, Midway, Wake, Guam, and Manila. The
flight, which initiated commercial air service across the
Pacific (it was, like all of Pan Am's groundbreaking inter-
national aviation flights, a mail run for the U.S. Government),
will be re-enacted by Pan Am, using a modern 747. Tickets
will be sold for the special anniversary flight. Pen James
has asked for a congratulatory message from the President,
noting that President Roosevelt sent a message to launch the
first flight fifty years ago.
Of course, we have a firm policy against Presidential
messages for commercial anniversaries. As you know, we have
insisted upon adherence to this policy in the case of other
golden anniversaries, and even in the case of centenaries
and beyond. The fact that Pan Am is selling tickets for the
special anniversary flight is another reason the President
should not send a message. A third reason -- if one is
needed -- is the pending controversy over Pan Am's proposed
sale of most of its Pacific routes to another carrier.
Competitors argue that those routes are not an asset that
Pan Am can sell, but must be re-awarded by the Department of
Transportation (successor to the Civil Aeronautics Board) in
a proceeding open to all. Any comments by the President
concerning Pan Am's historic role in opening up the Pacific
to commercial aviation could conceivably be seen as inter-
fering with the resolution of this issue.
On the other hand, the first flight of the China Clipper was
not simply a purely commercial event but also an historic
one with dramatic ramifications for the United States. This
aspect of the event is well-documented in the contemporary
accounts included by Pen James as an attachment. (If you
have any interest in the history of the period or of aviation,
you will want to peruse these attachments.) Largely through
the skills of Pan Am founder Juan Trippe's young New York
lawyer, Henry J. Friendly, Pan Am acquired monopolies on
transporting both U.S. and foreign mail, and exclusive
- 2 -
routes and landing rights in foreign countries. The suc-
cesses of Pan Am in opening new countries to commercial air
travel were viewed at the time as matters of national pride.
A good analogy may be the driving of the golden spike in
Utah, joining the Union Pacific and the Central Pacific in
the first transcontinental railroad. A commercial event, to
be sure, but one we would probably approve the President
commemorating. Finally, this is not the typical commercial
anniversary -- it is not the fiftieth anniversary of Pan
Am's founding.
A close call, but on balance I think we should decline. The
key problem for me is that while this is a very historic
commercial anniversary, the commemoration is being sponsored
by the commercial entity. Indeed, Pan Am is selling tickets
for the anniversary flight. In addition, a "historic"
anniversary exception to the commercial anniversary prohi-
bition might soon swallow the prohibition, as almost any
significant commercial anniversary can be portrayed as an
historic event.
I am sufficiently uncertain of this case to present alternative
drafts for your review. Sign whichever reads better.
THE WHITE HOUSE
WAEHINGTON
October 30, 1985
MEMORANDUM FOR ANNE HIGGINS
SPECIAL ASSISTANT TO THE PRESIDENT
DIRECTOR OF CORRESPONDENCE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Message Request from Pen James
Congratulating Pan Am on the 50th Anniversary
of the China Clipper
You have asked for my views on a request for a Presidential
message commemorating the fiftieth anniversary of the first
flight of Pan Am's China Clipper, which opened the Pacific
to commercial aviation. I have no objection to the President
sending such a message.
As you know, WE adhere firmly to the policy of not sending
Presidential messages for commercial anniversaries. This,
however, is not a request for a message on the fiftieth
anniversary of Pan Am's founding, but rather for a message
commemorating an historic event with ramifications far
beyond the particular company involved. The opening of the
Pacific to commercial aviation, like the driving of the
golden spike to create the first transcontinental railroad,
can properly be viewed less as a commercial anniversary and
more as a national milestone, suitable for Presidential
commemoration.
Having said this, I am concerned that Pan Am is selling
tickets for the anniversary flight, and could not approve
any message if it were to be used in promoting Pan Am's
commercial activities. Pen James's letter to Chris Hicks
requesting the message contains a guarantee that the message
will not be used in any commercial promotion whatsoever, and
my approval is conditioned on strict observance of this
commitment.
Finally, the text proposed by Pan Am is unacceptable. The
President's message should not so much praise Pan Am as
focus on the historic significance of the opening of the
Pacific to commercial aviation. This office should review
whatever alternative draft your office develops.
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THE WHITE HOUSE
WASHINGTON
October 30, 1985
MEMORANDUM FOR ANNE HIGGINS
SPECIAL ASSISTANT TO THE PRESIDENT
DIRECTOR OF CORRESPONDENCE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Message Request from Pen James
Congratulating Pan Am on the 50th Anniversary
of the China Clipper
You have asked for my views on a request for a Presidential
message commemorating the fiftieth anniversary of the first
flight of Pan Am's China Clipper, which opened the Pacific
to commercial aviation. Pursuant to our general policy of
not providing Presidential messages for commercial anniver-
saries, the request should be declined.
It is true that the anniversary is not only a commercially
significant one for Pan Am, but an historically significant
one for the Nation as well. Nonetheless, Pan Am is sponsoring
the commemoration to promote its commercial activities.
Indeed, Pan Am is selling tickets for a special anniversary
flight. Furthermore, Pan Am is currently involved in a very
sensitive proceeding, seeking to sell off most of its
Pacific routes. Since this matter may be presented to the
President for decision, I think he should avoid saying
anything about Pan Am, particularly about Pan Am in the
Pacific.
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THE WHITE HOUSE
WAEHINGTON
October 31, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS, JR.
SUBJECT:
Radio Talk: Gramm-Rudman-Hollings
David Chew has asked that comments on the attached proposed radio
talk be sent directly to Ben Elliott by 2:00 p.m. today. The draft
assumes passage of a debt ceiling bill with the Gramm-Rudman-
Hollings amendment, and raises the question of what, if anything,
we are going to do about the constitutional infirmities in that
amendment.
In his remarks the President refers, in the third paragraph on page
two, to the requirement that the President submit a budget within
certain limits. Justice objects to any requirement that the
President submit a particular type of budget. I think this concern
can be easily finessed not only in the remarks but as a general
matter (surely there can be no sanction if the President, in the
future, were to submit a budget that did not comply with the
requirements of Gramm-Rudman-Hollings, just as there could be no
sanction if Congress passed a budget that failed to comply, and
explicitly overrode Gramm-Rudman-Hollings). In the present case, I
would just change "The President must submit
=
to "The President
is to submit
The more difficult issue concerns the references in the remarks to
the automatic spending reductions if deficit reduction targets are
not met. Justice's major concern -- the role of the Congressional
Budget Office -- is probably sufficiently removed from the general
statements in the President's remarks that the remarks are toler-
able. The President refers to what happens if targets are not met.
The objectionable CBO role is in assessing whether targets are or
are not met by the budget, a role the CBO would share with OMB.
OMB and CBO would each calculate how much a proposed budget reduces
the deficit, and if their calculations differ by more than a set
margin, the average would be used. If the final figure is not
within the Gramm-Rudman-Hollings target, the automatic reductions
are triggered. This gives CBO -- not an executive agency -- the
power to have significant legal impact.
The President's remarks, however, do not refer to how the calcula-
tions are arrived at, only to what happens if the targets are not
met. Accordingly, I think we can live with them, particularly
since we are hardly writing on a clean slate. Some on the Hill
argue that the automatic reductions are themselves an
2
unconstitutional delegation of legislative power to the Executive,
but I do not see this argument: in passing Gramm-Rudman-Hollings,
Congress is making the reductions, and no discretion is given to
the President to choose where to cut.
The attached memorandum for Elliott and Chew approves the remarks,
but notes they gloss over potentially serious problems.
Attachment
THE WHITE HOUSE
WASHINGTON
October 31, 1985
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT AND
DIRECTOR OF SPEECHWRITING
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Radio Talk: Gramm-Rudman-Hollings
I have reviewed the proposed radio talk, which assumes passage of a
debt ceiling bill with the Gramm-Rudman-Hollings amendment. That
amendment raises serious constitutional concerns, but has, of
course, already been endorsed by the President. The remarks avoid
specific discussion of the most troubling aspect of the current
version of Gramm-Rudman-Hollings, the role it accords the Congres-
sional Budget Office. Of lesser concern is the constitutional
objection to Congress requiring the President to submit a budget
within certain constraints. I believe that concern can be
adequately papered over for present purposes by changing "must" in
line 14 on page 2 to "is to."
CC: David L. Chew
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THE WHITE HOUSE
WASHINGTON
October 31, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS Dob
SUBJECT:
Radio Talk: Budget -- Version #2
Attached is an alternate version of the radio talk, based on
the assumption that a debt ceiling extension with Gramm-Rudman-
Hollings does not pass. The President in this version
reiterates his support for Gramm-Rudman-Hollings, so the
constitutional concerns noted in my memorandum on the
previous version of the radio talk are similarly implicated.
For the same reasons discussed in that memorandum, I would
delete "be required to" in line 18 on page 2. As in the
other draft, the President's remarks do not touch upon the
role of the Congressional Budget Office, and do not mire us
any deeper in the constitutional quagmire we are in already.
I have a number of non-legal concerns. The President, in
the second paragraph on page 3, indicates he may be forced
to disinvest Social Security trust funds. I doubt many
listeners will know what this means (I am not certain
myself), and the remark could be widely misinterpreted as
meaning the President will use Social Security funds to meet
other Government obligations.
The first sentence of the third paragraph on page 3 is
inaccurate. We will not be forced to balance the budget
overnight; we simply will not be able to incur additional
debt. Balancing the budget overnight would entail paying
off all past debt.
I should also note that the remarks are very ominous and
dramatic, urging everyone to reach out to those who will
need food and shelter. I assume this is the result of a
conscious decision, but I think the President will sound
ludicrous if he tries to paint this financial crisis as
America's darkest hour.
Attachment
THE WHITE HOUSE
WASHINGTON
October 31, 1985
MEMORANDUM FOR BEN ELLIOTT
DEPUTY ASSISTANT TO THE PRESIDENT
DIRECTOR, PRESIDENTIAL SPEECHWRITING
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Radio Talk: Budget -- Version #2
I have reviewed version two of the proposed radio talk.
For the same reasons stated in my memorandum on the first
version, I recommend deleting "be required to" in line 18
on page 2.
I also question whether it is wise to mention disinvestment
of Social Security trust funds in the second paragraph on
page 3. Few listeners will know what this means, and the
remark could be widely misinterpreted as a threat to use
Social Security funds to meet other Government obligations.
The first sentence of the third paragraph on page 3 is
inaccurate. We will not be forced to balance the budget
overnight; we simply will not be able to incur additional
debt. Balancing the budget overnight would entail paying
off all past debt.
Finally, I think the fourth paragraph on page 3 paints too
dire a picture. I do not mean to minimize the seriousness
of this deadlock, but the public has been through the "shut
down the Government" drill before, and I do not know how
credible the President will be if he tries to portray this
as America's darkest hour.
CC: David L. Chew
FFF: JGR:aea 10/31/85
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