Foreign Relations of the United States, 1969–1976, Volume II, Organization and Management of U.S. Foreign Policy, 1969–1972

383. Memorandum From the Assistant Secretary of State for Congressional Relations (Abshire) to the President’s Assistant for Congressional Relations (Timmons)¹

Washington, undated.

SUBJECT

• Zablocki Resolution

The Zablocki Subcommittee of the House Committee on Foreign Affairs, on August 12 approved a resolution concerning the war powers of the Congress and the President.² In view of the extensive support for legislative action related to the war-making powers, we consider it virtually a certainty that this Congress will pass some legislation on this subject. Despite the fact that the Subcommittee has accepted only one of the three suggestions pertaining to the final draft, but forwarded by the Administration, we believe this resolution is the most balanced and moderate that one could anticipate going out of the 91st Congress and that an Administration position in support of this amendment would enhance our opportunities to further improve upon it when it is considered by the Committee.

We had earlier informally made three suggestions on the draft resolution to the Subcommittee:

1. We suggested that a requirement that the President convene Congress—if it were out of session—to receive his report should be deleted. This has been done.

2. We suggested that the resolution be made a concurrent rather than a joint resolution; if this were the case, the President would not be required either to sign or to veto the measure and it would not have the force of law. This suggestion was not adopted. We believe, however, that this should not in itself be considered sufficient reason to oppose the resolution, provided there are no strong objections to its substantive provisions.

3. We suggested that the section 1 enumeration of situations in which the President has authority to act without formal authorization of Congress should include defense of “vital interests” of the United States, as well as defense of “the United States and its citizens.” This suggestion was not adopted. A change was made in section 2, however, which helps ameliorate this difficulty. The earlier draft of section 2 of the resolution stated that the President “should seek appropriate consultation” with Congress “when extraordinary and emergency circumstances exist.” The resolution as reported out by the Subcommittee merely says that the President should seek appropriate consultation with the Congress “whenever feasible.” Thus, the consultation requirement is no longer tied to any definition of the kinds of situations in which the President may act.

Despite this improvement, we think another effort should be made—in the full Committee—to insert in section 1 a “vital interest” provision. If this is not possible, we could endeavor to place in the legislative history the interpretation that section 1 is not exhaustive of situations in which Presidential power to act without formal authorization exists. The present language would not bar such a construction.

In our view, this resolution imposes no unreasonable or burdensome requirements upon the President. Given the broad consensus, in both Parties and in both Houses, that this Congress should and will enact legislation bearing on the war-making powers and the numerous and far-reaching proposals which have been introduced into the Congress, we think it would be to the advantage of the Administration to take a position in favor of this moderate proposal. By supporting this measure the Administration would draw off support from more restrictive legislative proposals which are under consideration. Once the moderate Leadership in Congress is in a position to point out that the Congress has in fact dealt with the issues involved, some votes may be siphoned off of closely contested amendments currently under consideration in the Senate and from some of the controversial amendments scheduled to be introduced in the weeks to come.

Assistant Attorney-General Rehnquist is of the opinion that two further amendments should be sought:

1. Following Paragraph (3) of section 3 the following should be inserted before the words “the President shall submit”: “the President shall promptly report such action to the Speaker of the House of Representatives and to the President of the Senate. In any case in which the President deems the reported action to be of sufficient significance, or in any case in which Congress, by concurrent resolution requests additional information,” …³

2. Section 3(B) should be modified by striking all the words after “such action.”

The Department of State sees more merit in the second than in the first of these suggestions, although we do not believe either change is necessary.⁴

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Subject Files, Box 318, Cooper–Church Amendment. No classification marking. The memorandum was sent to Timmons after August 12, 1970, and before August 22. Written in hand at the top of page 1 is: “Bill T. is sending me the Rehnquist memo. I to call him after I have read.”
2. Prior to approving the resolution, Representative Clement Zablocki’s (D– Wisconsin) Subcommittee on National Security Policy and Scientific Developments held hearings from June 18 to August 5, 1970, on the respective roles of Congress and the President in exercising the war-making powers of the national government. The hearings were printed for use of the House Committee on Foreign Affairs under the title Congress, the President, and the War Powers: Hearings Before the Subcommittee on National Security Policy and Scientific Developments of the Committee on Foreign Affairs, House of Representatives, Ninety-First Congress, Second Session (Washington: U.S. Government Printing Office, 1970). The text of the resolution approved by the subcommittee on August 12 (H.J. Res. 1355) is ibid., p. vi.
3. Ellipses in the source text.
4. On November 16, 1970, the House passed H.J. Res. 1355 by a 288–39 roll-call vote. It stated that whenever feasible the President should seek appropriate consultation with the Congress before involving U.S. armed forces in armed conflict and that such consultation should continue periodically during the conflict. It required the President to report to the Congress in writing whenever, without prior authorization by Congress, he acted to commit U.S. forces to armed conflict or to send combat-equipped troops to another nation or to substantially enlarge forces already in another nation. The Senate took no action on the measure, and it died at the end of the session.