391. Memorandum From Secretary of State Rogers to President Nixon1
SUBJECT
- War Powers Legislation
A conference committee soon will consider two very different war powers bills:
- (1)
- The Zablocki bill, a moderate sense of the Congress resolution which you have previously approved and which has passed the House twice, in 1970 by a vote of 288 to 39 and in 1971 by unanimous voice vote; and
- (2)
- The Javits–Stennis bill, which recently passed the Senate 69 to 16 and which we have strongly opposed as being both unconstitutional and unwise.
The position of Congressman Zablocki is critical to the outcome of the conference and the further course of the legislation, since he has been its very ardent principal supporter in the House and is accorded deference on this issue by Chairman Morgan. Congressman Zablocki has indicated to us that he will fight for his own bill in the conference, but he believes that since the two bills are so far apart there is no hope that his bill will prevail. While Congressman Zablocki is proud of his particular bill, his fundamental interest is in seeing war powers legislation enacted. From discussions with him it seems apparent that in the absence of some indication of Administration willingness to accept something other than his bill he may well lead the House conferees to acceptance of a compromise version of the Javits–Stennis bill, including a legal definition of the President’s war powers which would not be acceptable. If this were to occur, it is possible that the combined support of Senator Stennis and Congressmen Morgan and Zablocki for the conference report could generate enough votes in the House to override a veto (a vote to override would be a foregone conclusion in the Senate). Our best estimate is that this would come in September.
In order to avoid the possibility of such a significant adverse development, I strongly urge that we propose to Congressman Zablocki, strictly as a final fallback position, that the Administration could accept a resolution which expresses the sense of Congress, and therefore is not legally binding, and which incorporates some but not all of the [Page 849] language of the Javits–Stennis bill. After reviewing this possibility in detail with the Legal Adviser, I am satisfied that a resolution can be devised along these lines which should be acceptable, particularly as it would be only a sense of the Congress resolution.
It is far from certain, of course, that the Senate conferees will accept such a compromise. If they do not, however, the result would be a deadlocked conference and no war powers legislation, with the Administration in a very strong position with respect to this issue.
I believe it unlikely that Congressman Zablocki would be willing to extend himself as much as would be required to achieve the proposed compromise without an understanding that the resolution, if passed, would be accepted by the Administration. I therefore request your approval for this approach.
- Source: National Archives, Nixon Presidential Materials, NSC Files, Subject Files, Box 316, Congressional, Vol. 6. No classification marking. A notation on the memorandum indicates the President saw it.↩