394. Letter From Secretary of State Rogers to the Chairman of House Committee on Foreign Affairs (Morgan)1
I know that the House–Senate conference on the war powers bills will be meeting today and I want to take this opportunity to express to you my views on this important matter.
The House bill passed twice as H.J. Res. 1 and more recently as S. 29562 is fully consistent with our constitutional system of war [Page 853] powers shared between the Congress and the President and could strengthen the cooperation between the two branches in the exercise of these powers.
It would be a mistake, however, for the Congress to go beyond the House bill to accept a concept which seeks to define the President’s war powers or place a time limit on the emergency exercise of those powers. My own view on the Senate bill which embodies these concepts is that it is unconstitutional and unwise. I so expressed myself in testimony before the Senate’s Committee on Foreign Relations on May 17, 1971,3 and subsequent attempts to perfect this legislation have not answered my basic objections.
The Senate bill, for example, provides that the President may not sustain any military action including defense of the territory of the United States itself beyond a period of thirty days unless Congress expressly acts to authorize a continuation beyond that period or in certain other circumstances. Yet there is no doubt that under the Constitution the President has the authority to defend the territory of the United States for whatever period is required. The Senate bill is clearly unconstitutional.
The Senate bill attempts to spell out in detail all of those circumstances in which the President, in the absence of express congressional authorization, would be permitted to use our armed forces. But our system of checks and balances already allocates the war powers between the President and Congress. This allocation of powers is inherent in our constitutional system and has survived the test of time for nearly two centuries. I believe that any legislative attempt to alter our historic constitutional system, particularly in such a critical area, should be cast as an amendment to the Constitution rather than as a simple statute.
I strongly oppose any legislation which goes beyond the House bill.4
- Source: National Archives, RG 59, Central Files 1970–73, DEF 1 US. No classification marking. Drafted by Isabelle Mellenberg (L) and concurred in by Abshire and Stevenson.↩
- On August 14 the House, by a 344–13 roll-call vote, had passed a version of S. 2956 (the Javits–Stennis bill) that, following amendment by the House Foreign Affairs Subcommittee, closely resembled H.J. Res. 1, passed on August 2, 1971, and H.J. Res. 1355, passed on November 16, 1970. For the provisions of the latter, see footnote 3, Document 383.↩
- Presumably a reference to Rogers’ testimony on May 14; see footnote 3, Document 385.↩
- The legislation died in conference.↩