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

385. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) and the President’s Counsel (Dean) to President Nixon¹

Washington, June 2, 1971.

SUBJECT

• 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.

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.

Recommendations⁵

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.

Tab B

Washington, undated.

OPTIONS FOR ADMINISTRATION RESPONSE TO ATTEMPT OF
CONGRESS TO DEFINE PRESIDENTIAL WAR POWERS

I. Presidential Statement. The President could send to Congress a message outlining his views on the nature of the war powers and the respective role of Congress and the President in their exercise. Such a statement could indicate the manner in which the President intends to respond to international situations involving the use or possible use of American armed forces.

A. Advantages.

1. Would enable the President to capture the initiative on the issue and strike a positive posture.

2. Would afford a highly publicized opportunity to restate the problem in realistic terms and draw attention to the vast complexity of the problems involved in seeking to define the war powers without reference to specific factual situations.

3. Would buy time during which efforts could be made to convince a Senate majority that legislation is unnecessary and/or inappropriate given the President’s statement.

B. Disadvantages.

1. Would run the risk of locking the President in a position from which it would be embarrassing to extricate himself should it subsequently be necessary to do so.

2. The opposition could attempt to use the statement as a basis for drafting legislation freezing in law the “understanding” of the President regarding his own powers. Such a move would be difficult to thwart without creating the appearance of saying, “This is what I intend to do, but don’t force me to do it.”

3. The great difficulty with the war powers is that they are virtually incapable of definition and an attempt by Congress or the President to do so could generate unforeseen constitutional and practical problems of great magnitude.

II. National Commission on the Transition to Peace. The President could ask Congress to establish a national commission charged with studying the multitude of problems involved in readjusting to a peacetime situation including an examination of the procedures by which the United States should honor its national commitments in the future and a study of the existing emergency measures that can be repealed without jeopardizing national security. The commission could be modeled on the Marihuana Commission established by Congress. (A variation is found in the Beall proposal at Tab A.)

A. Advantages

1. Would convey Presidential interest in a serious study of these problems and suggest a posture of reasonableness.

2. Would buy time (at least a year) during which period the situation in Vietnam could improve to the point where pressure for Congressional action on the war powers would evaporate.

B. Disadvantages.

1. May be inadequate to stem the pressure for immediate action by Congress.

2. Would involve the risk of a report unfavorable to the position of the Administration. This would largely depend upon the type of individuals appointed to the Commission and their attitude toward the issues involved.

III. Presidential Commission. In order to expedite the process and to maximize Administration leverage, the President could establish by Executive Order a commission with duties identical to those outlined above.

A. Advantages.

1. Same as 2A above.

2. Greater control and speedier response.

B. Disadvantages.

1. Same as 2B above.

2. Appearance of whitewashing the problem and stalling action by Congress.

IV. Open Battle. The Administration could seek to line up sufficient votes in the House to defeat any war powers measure that may pass the Senate.

A. Advantages.

1. Would avoid the necessity for making any substantive concessions on the merits of the issue.

2. Could keep the issue in a political and/or partisan context if linked to an attempt on the part of the Democrats to embarrass the President and the doves to undermine the President’s Vietnam policies.

B. Disadvantages.

1. Would run the risk that the issue might come to a vote prior to the demonstrated success of our Vietnam policy, a time not particularly opportune for the Administration.

2. Possibility of defeat in the House.

V. Compromise. The Administration could attempt to work out terms for a compromise resolution that defines the respective war powers in a manner that does not seriously jeopardize the ability of the Executive Branch to respond to threats to our national security.

A. Advantages.

1. Would defuse the issue and avoid a nasty struggle between Congress and the President.

2. A successful precedent exists in the Zablocki Resolution passed by the House last year.

B. Disadvantages.

1. Would pose a difficult task of definition.

2. Would run the risk of freezing Presidential powers in a contemporary context without regard to the constantly changing world situation.

3. Would raise a serious constitutional problem relating to the power of Congress to define by legislation powers of the President granted by the Constitution and not legitimately subject to restriction by Congress.

4. Recent attempts to elicit interest in the Senate for the Zablocki formula were unsuccessful.

1. 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.
2. 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.
3. For text of Rogers’ testimony, see ibid., pp. 485–547.
4. Tab A is attached but not printed.
5. The President approved both recommendations.