26. Memorandum From the Counselor of the Department of State (Sonnenfeldt) to Secretary of State Kissinger1


  • Apparent Deadlock with Jackson on Waiver of Title IV Provisions

As I informed you in my preliminary memo of August 22, Jackson has sent us an amendment to his amendment of Title IV of the Trade Bill which would require annual affirmative action by Congress to renew the waiver.2 The language of this Jackson text is extremely complex and convoluted, using the War Powers Resolution3 as a model.

It seems to me that there has to be another high-level discussion with the Senators because we are simply not on the same wavelength on this matter. The only move on our part that I can see at this point is to modify our own waiver language such that the President’s action could be vetoed by only one House rather than both.

As I mentioned in my earlier memo, Jackson’s reading of the President’s position was that the only concern related to the possibility of filibusters or time gaps which would permit the waiver to lapse for a period of time. This problem appears to have been taken care of in the elaborate provisions and safeguards written into the Jackson text. Jackson does not acknowledge that the President rejects the entire concept of affirmative Congressional action after the first waiver.

Following is a more detailed analysis of the Jackson text which I have done with the assistance of Phil Trimble of L. If, by some off chance there were a disposition to go along with Jackson’s concept there would have to be a detailed negotiation of his provisions by qualified legislative experts.

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(Text at Tab A)4

The Substantive Difference

The principal difference between our draft (Tab B) and the Jackson draft is that, in substance, under our draft the waiver would be effective unless Congress acted to override it, whereas under the Jackson draft the waiver would not become effective unless and until Congress acted to make it effective. Thus, in the event of Congressional inaction, the waiver would go into effect under our draft but not under Jackson’s proposal. The Jackson draft contains elaborate provisions, modeled on the War Powers Resolution (where troops must be withdrawn after 60 days unless Congress affirmatively acts), to assure that Congress will in fact act on the issue and not simply ignore it. Although these provisions would, if followed, result in expeditious Congressional consideration of the issue, they do not provide any firm assurance of Congressional consideration on which we can rely because they can be changed without executive participation and, second, they can be ignored (in which case the waiver would not go into effect and there would be no legal recourse for the executive branch).

Explanation of Jackson Draft

Each waiver would be based on a determination that it will substantially promote the objectives of the section (the same as in our draft). Unlike our draft, each waiver must be accompanied by a detailed report of the reasons for the waiver. Perle says they will agree not to require a report with the first waiver so that, for the first year following enactment of the Trade Bill, a waiver could become effective simply on the basis of a Presidential determination, without detailed reports and without Congressional action.

After the expiration of the one year period following enactment of the Trade Bill, a waiver can be made only if a joint resolution has been adopted permitting a waiver for the particular country involved. The joint resolution contemplated must be readopted each year. In effect the joint resolution will specify a one-year period during which a waiver is authorized for all affected countries except those named. Once the authority lapses for a particular country, apparently it cannot be reinstituted. However, the President may extend the effectiveness of a waiver for 60 days beyond the standard one-year period if, at the end of the one-year period, either House of Congress is considering a joint resolution to extend the authority.

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Procedurally, a proposed joint resolution must be reported out of Committee, either favorably or unfavorably, at least 30 calendar days before the start of the one-year period involved (there is no provision for the situation where the resolution is not referred to the Committee more than 30 days prior to the one-year period, as, for example, where a joint resolution is passed by one House in that 30 day period and only then referred to the other House). The 30 day requirement can also be changed by roll call vote. There is also no provision for what happens if the Committee simply fails to report the resolution as required (which could happen, for example, if the Committee were deadlocked).

After the joint resolution is reported out of Committee the House involved is required to vote on it within three days, although, again, that requirement can be changed by roll call vote. If one House passes a joint resolution, the other House is required to vote on it (and not its own version), although there are no mechanical provisions dealing with Committee referral and voting in this situation (unlike the War Powers Resolution—this may simply be a drafting oversight). In the case of a disagreement on a joint resolution passed by both Houses, conferees are required to be “promptly” appointed, a report must be filed within six days after that appointment (not counting weekends and holidays), one House has to vote on it within three days after it is filed (not counting days when that House is not in session), and the other House must vote on it within three days (not counting days when that House is not in session) after that vote.

Possible Compromise

One compromise between the Jackson draft and our draft (although rather favorable to us) would be to permit either the Senate or the House to veto continuation of a waiver (our draft would require both Houses to veto it). This would have the advantages of permitting the Senate to act alone, and is the procedure already embodied in the Trade Bill for trade agreements on nontariff barriers, certain proclamations of quotas and orderly marketing agreements.5

  1. Source: National Archives, RG 59, Lot File 81D286, Records of the Office of the Counselor, Box 9, Trade Bill, August 1974. Eyes Only.
  2. In his August 22 memorandum, Sonnenfeldt briefed Kissinger on his talks with the Senator’s staff, including possible revisions to the amendment and to the related exchange of letters. (Ibid.)
  3. Congress passed the War Powers Resolution, or War Powers Act of 1973 (Public Law 93–148), on November 7, 1973, over President Nixon’s veto. Under Section 5 (b) of the Act, the President was required to remove U.S. armed forces from hostilities within 60 days, unless the Congress passed either a formal declaration of war or a resolution authorizing the use of force. The President could extend the period of deployment up to 30 days, however, by formally notifying Congress of an “unavoidable military necessity.”
  4. Tabs A and B are attached but not printed.
  5. In a subsequent memorandum to Kissinger on August 23, Sonnenfeldt reported: “Perle telephoned at 2:45 p.m. and said that the President and Jackson had agreed on the phone that we were deadlocked on (1) the waiver issue and (2) the public use of the exchange of correspondence, and that there would therefore be a hiatus while Jackson is out of town for the recess. Perle said they hoped there would be nothing said publicly. I said we had always been completely buttoned up on this subject and would remain so. I take it this is an accurate version of the phone call between the President and Jackson and that nothing further should be done at this time.” (National Archives, RG 59, Lot File 81D286, Records of the Office of the Counselor, Box 9, Trade Bill, August 1974) No record of the telephone conversation between Ford and Jackson has been found.