385. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) and the President’s Counsel (Dean) to President Nixon 1
- War Powers Legislation
As you know there are numerous bills pending in the Committees of House and Senate on the War Powers issue (Javits, Eagleton and Stennis, etc.).2 Last year we were able to defuse the issue by aiding the Zablocki bill which did pass the House. This year all of the active bills go far in restricting Presidential powers and are all unacceptable.
The Neustadts, MacGregor Burns’ and Steele Commagers who glorified the Presidency and its inalienable and admirable right to primacy from 1932 through 1968 are found today infesting the Capitol halls testifying that shackles must be forged.
The Indochina situation has infused wide support for these measures especially in the Senate. Preliminary soundings indicate the Javits or Stennis bills could pass in the Senate. Preliminary inquiries also indicate that there does not seem to be a basis for acceptable compromise on any of the Senate bills.
Secretary Rogers testified on May 14th opposing the bills and making an appeal to defer action beyond the passions of Vietnam.3 Stennis has also made this suggestion.[Page 838]
We now face potential defeat on this issue which could have immediate unpleasant results, as well as forcing a fundamental shift in Constitutional power toward the Legislative Branch.
If we decide to battle, it could be long and bitter, and the results are uncertain.
An alternative strategy, however, may be available in the bill proposed by Senator Beall (Tab A)4 which would establish a bipartisan commission composed of Senators, House Members, Executive Branch officials, and private members appointed by the President, the Speaker, and the President of the Senate. It would investigate, study, and issue a report and recommendations “not later than January 1973.” This approach would give our allies in the Senate something positive to champion, and if successful, it would defer the issue at least until the 1972 elections are over.
If this proposal is supported by the Administration, it is essential that extreme care be taken in selection of commission members and the commission staff.
List of options at Tab B.
That the Administration support the Beall proposal and to that end Henry Kissinger, John Dean and Clark MacGregor be authorized to work with Beall to refine the draft bill.
That responsibility for selecting a list of nominees for your consideration for appointment to the commission and to the commission staff be given to Henry Kissinger, John Dean and Clark MacGregor.
- Source: National Archives, Nixon Presidential Materials, NSC Files, Subject Files, Box 315, Congressional, Vol. 3. No classification marking. Sent for action. A notation on the memorandum indicates the President saw it.↩
- On March 8, the Senate Foreign Relations Committee began hearings on S. 731 (later reintroduced as S. 2956), Senate Joint Resolution 18, and Senate Joint Resolution 59, concerning the division of war powers between Congress and the President. The hearings continued on March 9, 24, and 25, April 23 and 26, May 14, July 26 and 27, and October 6. During the course of the hearings the following legislation was introduced and referred to the Committee: S. 1880, introduced by Senator Bentson; Senate Joint Resolution 95, introduced by Senator Stennis; and House Joint Resolution 1, introduced by Representative Zablocki on January 22 and passed by the House by a voice vote on August 2. The hearings were printed for the use of the Foreign Relations Committee under the title War Powers Legislation: Hearings Before the Committee on Foreign Relations, United States Senate, Ninety-Second Congress, First Session, on S. 731, S.J. Res. 18 and S.J. Res. 59 (Washington: U.S. Government Printing Office, 1972). Included was the text of each piece of proposed legislation referred to the committee.↩
- For text of Rogers’ testimony, see ibid., pp. 485–547.↩
- Tab A is attached but not printed.↩
- The President approved both recommendations.↩