213. Letter From Senator Henry M. Jackson to President Ford 1

Dear Mr. President:

I am enclosing a draft of legislative language2 which, together with the language passed by the House and contained in Title IV of the Trade Reform Act, should satisfy your concern that trade benefits granted to the Soviet Union (or other non-market economies) could, if justified, be extended beyond one year in a timely and expeditious manner and without fear of procedural impediments or delay. At the same time, the President could, of course, decide not to recommend an extension beyond one year; or he could terminate any benefits at any time.

Under this proposed formulation the President would be in a position to extend most-favored-nation treatment to the Soviet Union or other non-market economies by waiving subsections (a) and (b) of Title IV in cases where he determines and reports that “the exercise of such waiver will substantially promote the objectives” of free emigration as defined in Title IV. The assurances that have been conveyed in our draft exchange of correspondence constitute an agreed basis upon which to make and report that determination. According to the enclosed formulation, the President could propose annual extensions of the authority to waive subsections (a) and (b). Congressional action on any such Presidential request would proceed according to carefully drawn procedures which, I am confident you will agree, assure timely and expeditious action.

This formulation will enable a first waiver to be extended without a detailed report. Subsequent requests by the President to have the waiver authority extended for an additional year by joint resolution would have to be reported by the appropriate Congressional committee at least 30 days prior to the date of expiration of the previous one year waiver authority and would become the pending business of the house to which reported. Time for action on the floor would be limited to three days; and, in the event of differences between the houses, a conference report would have to be filed within six days and acted upon within three days after the filing. If for any reason there should be a delay, the President would be enabled to extend by Executive Order for up to 60 days the period of the then existing waiver authority.

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In developing this proposed formulation, which effectively rules out legislative delay, we have sought to safeguard your interest in assuring that there would be no unintended interruption in the authority to continue trade benefits. At the same time I believe that the Congress, within which the effort to associate a free flow of people with a free flow of commercial goods originated, should continue to share responsibility for determining that its legislated purpose will be carried out.

The issue before us is this: should the authority to waive the provisions of the “Jackson amendment” continue indefinitely unless rescinded or should it expire after one year (and annually thereafter) unless renewed by safeguarded, affirmative Congressional action?

In my judgment it would be most unwise for the President alone, without further Congressional action, to assume the burden of deciding each year whether an extension of the waiver is merited. It would inevitably weave the issue of compliance with the humanitarian provisions of Title IV into the whole fabric of bilateral international relations covering a great variety of issues and concerns on which the Administration, unlike the Congress, is involved in ongoing negotiations. It would subject the Administration to great pressure to assess the implementation of the understanding on emigration in terms of unrelated issues.

In my judgment the incentives to live up to the agreement would be greatly enhanced by requiring affirmative Congressional action. At the same time, the temptation of a country to fall short in implementing the assurances would be significantly increased if the country in question had to convince only the Administration that it merited a continuation of trade benefits. The role of the Congress would be relegated to an essentially negative one. The requirement of affirmative action to renew the Presidential authority will strengthen the Administration’s hand in securing continuing compliance from the countries in question.

While I am confident that the enclosed formulation guarantees uninterrupted annual re-enactment in cases where the assurances are lived up to, I feel strongly that it is not in the national interest—and certainly not in the humanitarian interest we have sought to secure—to require the Congress, as its only option, to withdraw existing waiver authority from the President in the event of non-compliance. In terms of its impact on our foreign relations there is a great difference between the Congress failing to renew authority, on the one hand, and moving to withdraw it on the other. I hope you will agree that, in the event of non-compliance with the terms of our understanding, it would be far better for Congress to allow the authority to expire than to require that the Congress be forced to the divisive act of removing continuing authority.

Sincerely yours,

Henry M. Jackson
  1. Source: Ford Library, National Security Adviser, KissingerScowcroft West Wing Office Files, Box 18, Jackson/Vanik Trade Bill. No classification marking.
  2. Attached but not printed.