Mr. BERGSTEN. As I understand your proposal, it would hardly be a carte blanche authority in that it would be triggered by a congressional approval of continued American arms involvement overseas.

Mr. SOLARZ. Theoretically one might argue it is one thing for the Congress to vote to approve the continued use of American troops in hostilities, and it is another for them to approve a bank holiday or some other action with respect to the banks or the actual seizure of the property of the country in which the hostilities are taking place. Mr. BERGSTEN. Just thinking hypothetically, I think the answer to this point would be that once the Congress had authorized that kind of military involvement that one could not predict how the situation would develop in the future, what its economic ramifications might be, and what action might have to be taken very quickly by a President to carry out the economic side of those hostilities, and, therefore, the time required to seek formal congressional action, particularly during a period when Congress might be out of session, would undercut the ability of the administration, of the President, to carry out his military activity with full effectiveness.

Mr. SOLARZ. I just hope my wise, able, perspicacious, and thoughtful friend who is chairing the committee will give some thoughtful considerations to this proposal because I do think the requirement for the Congress to act affirmatively under the terms of the war powers resolution does, perhaps, give a certain kind of legitimacy to this approach that it would not have in the absence of the War Powers Resolution.

I agree in the Vietnam situation there were a lot of abuses, but the War Powers Resolution was not in effect in those days, and now it is. I really do believe in the future the congressional action under the terms of the war powers resolution is likely to be a de facto substitute for a declaration of war.

Mr. BINGHAM. Mr. Cavanaugh.

Mr. CAVANAUGH. Thank you, Mr. Chairman.

I would like to join the chairman in his commendation of the administration, Mr. Bergsten. As a member of the subcommittee, I have been extremely pleased with the responsiveness and cooperation of the administration in bringing this legislation to fruition.

GRANDFATHERING EXISTING EMBARGOES

I would like to ask a couple of questions in regard to section 101, and the grandfathering compromise that has been arranged here. First of all, Mr. Bergsten, would it be your understanding that section 101 would strictly limit and restrict the grandfathering of powers currently being exercised under 5(b) to those specific uses of the authorities granted in 5(b) being employed as of June 1, 1977.

Mr. BERGSTEN. Yes, sir.

Mr. CAVANAUGH. And it would preclude the expansion by the President of the authorities that might be included in 5(b) but are not being employed as of June 1, 1977.

Mr. BERGSTEN. That is right.

Mr. CAVANAUGH. In addition to that, it would require at the end of the 2-year period from the enactment of the National Emergencies Act that any continuation of current exercises of authority under 5(b)

be extended only upon a determination that the national interest would require such an extended exercise of these powers.

Mr. BERGSTEN. That is right.

Mr. CAVANAUGH. That determination would have to be based upon some factual finding by the President.

Mr. BERGSTEN. Certainly so.

Mr. CAVANAUGH. I have no further questions.

Mr. BINGHAM. Thank you, Mr. Cavanaugh.

I would like to say for the record the ranking minority member of the subcommittee and Mr. Cavanaugh have been particularly helpful in the drafting of this legislation and particularly diligent in attending all of our sessions on the subject.

EXTENSION OF WARTIME POWERS TO HOSTILITIES

I think that we can defer further discussion of the amendment Mr. Solarz has been talking about until we go to markup, which will be tomorrow morning at 10:30.

We do have a vote on the floor. Let me just say to you Mr. Bergsten, my initial reaction, and I hope you will take this into account as you give further thought to that proposed amendment, is that it is unnecessary, for a reason that was suggested by Mr. Solarz himself. If the Congress is going to adopt a statute, in effect approving the hostilities, it is no strain for the Congress to include in that statute such powers, perhaps special powers, as might be considered necessary at the time. My feeling is that we cannot very well anticipate that situation or just how it might arise, and at the present time my preference is to keep the distinction clear between declared war and other emergencies and not extend the powers under the Trading with the Enemy Act to the situation of an undeclared war even though it would be after the point at which the Congress had acted.

I certainly want to look at whatever language Mr. Solarz has to suggest. I thought I would mention that for your benefit.

Again, I want to thank you for your cooperation and your testimony here today.

The committee will meet tomorrow morning at 10:30 for the markup on this legislation, and it is important that there be a quorum present at that time.

The committee stands adjourned.

[Whereupon,_ at 12 noon, the committee adjourned, to reconvene at 10:30 a.m., Friday, June 17, 1977.]

REVISION OF TRADING WITH THE ENEMY ACT

FRIDAY, JUNE 17, 1977

HOUSE OF REPRESENTATIVES,

COMMITTEE ON INTERNATIONAL RELATIONS,

Washington, D.C.

The committee met in open markup session at 10:30 a.m. in room 2172, Rayburn House Office Building, Hon. Clement J. Zablocki (chairman of the committee) presiding.

Chairman ZABLOCKI. The committee will please come to order. The first order of business before the committee is the markup of H.R. 7738, revision with the Trading With the Enemy Act.

Yesterday the committee heard executive branch testimony on the bill from the Honorable C. Fred Bergsten, Assistant Secretary of the Treasury. If there are no further questions or comments from members, we will proceed with the reading of the bill.

[No response.]

Chairman ZABLOCKI. The Chair does not see any hands or hear any questions.

The chief of staff will read the bill.

Mr. BRADY [reading]:

H.R. 7738. A bill, with respect to the powers of the President in time of war or national emergency. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.

Title I, amendments to the Trading With the Enemy Act. Removal of national emergency powers under the Trading With the Enemy Act. Section 101(a), section 5(b)(1) of the Trading With the Enemy Act is amended by strikingMr. BINGHAM. Mr. Chairman.

Chairman ZABLOCKI. The gentlemen from New York.

Mr. BINGHAM. I ask unanimous consent that title I be considered as read.

Chairman ZABLOCKI. Is there objection?

Chairman ZABLOCKI. Page 1, line 8, Mr. Solarz.

Mr. SOLARZ. I am sorry.

Chairman ZABLOCKI. I have a copy of an amendment that has "Mr. Solarz" on the top.

Mr. SOLARZ. I do have an amendment. I thought it was on title II, Mr. Chairman. I am sorry.

Chairman ZABLOCKI. The chief of staff will read the amendment.

Mr. BRADY. Amendment offered by Mr. Solarz, page 1, line 8, strike out "or during any"; and in line 10, immediately before the period insert "and inserting in lieu thereof 'period in which there is in effect a specific statutory

Mr. SOLARZ. I ask unanimous consent the amendment be considered as read.

Chairman Zablocki. Is there objection?

[No response.]

Chairman ZABLOCKI. The Chair hears none. So ordered.

The gentleman from New York is recognized to explain his amendment.

Mr. SOLARZ. Thank you, Mr. Chairman.

I have asked that my chart be distributed, a chart which I think will explain precisely what the amendment does. But I would like an opportunity to say a few words about it.

First let me indicate, I think this is very significant legislation. I think the chairman of the subcommittee and members of the subcommittee have done a real service to the Congress and the country by cleaning up the emergency powers of the President by making a very significant distinction between the emergency powers that the President is entitled to when we are in a state of war, on the one hand, and the emergency powers which the President is entitled to when we are in a national emergency other than a state of war.

And it is based, I think, on the principle that the kind of sweeping powers which the President has had in the past under this emergency authority should be much more carefully controlled by the Congress, and that in the absence of a state of war, the emergency authorities of the President should be somewhat more restricted than they are if we are in a state of war.

POWERS AVAILABLE IN HOSTILITIES SHORT OF A DECLARED WAR

My amendment is based on the proposition that as a result of the adoption of the War Powers Resolution, which the distinguished chairman of this committee was the father of, we now are in a situation where in effect if the United States is ever involved in a war in the future, it is likely to be involved in that war pursuant to the adoption of a concurrent resolution under the War Powers Resolution specifically authorizing the President to continue using American troops in a combat situation than we are to adopt a formal declaration of war.

I strongly suspect that a formal declaration of war, as a result of the adoption of the War Powers Resolution, has been relegated to the museum of American history as a kind of political and constitutional antique.

And to the extent that this bill conveys certain emergency powers on the President, which can only be utilized pursuant to a declaration of war, I think that is based on an assumption which is essentially untenable, which is that if we are involved in hostilities in the future, it will be pursuant to a declaration of war itself.

I think it is incumbent on the committee to recognize that if we are involved in significant hostilities in the future, it is much more likely to be the result of a statutory enactment pursuant to the War Powers Resolution, which as the members of the committee may recall, requires the Congress, if the President introduces American troops into a combat situation or into a situation where combat hostilities

are imminent, to adopt a specific concurrent resolution within 60 days or if it has failed to act within 60 days and the President asks for an additional 30 days, within 90 days, specifically authorizing the President to continue using troops in that situation.

In the absence of affirmative congressional action, the troops necessarily have to be withdrawn.

So as a consequence, my amendment would give the President the same emergency authority which he already has in the bill only if there is a declaration of war on the grounds that there are not going to be any more declaration of wars, but there may be concurrent resolutions under the War Powers Resolution.

And to the extent that this legislation recognizes that the President should have certain emergency authorities in the event there is a declaration of war, I would submit that reality and logic requires us to give the President precisely those powers and authorities if there is a concurrent resolution specifically and affirmatively authorizing the use of American troops of combat pursuant to the War Powers Resolution.

If anybody is interested in finding what precise powers my amendment would give the President, assuming the Congress affirmatively acted under the War Powers Resolution, which the President would not have in the absence of a declaration of war, that is contained in this chart.

The President, for example, would have the right to vest title to foreign property, which means to seize it. And I would submit that if American troops are going to be engaged in combat in a foreign country, presumably destroying the property of that country in the course of combat, we certainly ought to give the President the right to seize the property of that country here in our own Nation.

It would also give the President the right to regulate gold and bullion and it would give the President the right to control banking transactions involving domestic interests.

The reason for the latter power, I think, is that it is conceivable that as a result of a wartime situation, there could be a measure of economic instability in the country, a potential run on the banks at some point in the future and certainly in a wartime situation, I think we want to give the President the authority to control such transactions.

In addition, the President would also have the authority to seize foreign property records.

Let me just say in conclusion, Mr. Chairman, that if we recognize the principle that in a wartime situation the President should have these authorities pursuant to a declaration of war, then I think he ought to have the authority pursuant to a concurrent resolution under the War Powers Resolution.

It has been suggested that if such a resolution were adopted, there is no reason the Congress could not incorporate in it language giving the President the authority to do the things which this amendment would give the President the power to do right now. And I suppose that is true. But the answer to it, I think, is the Congress might not at that time be willing to do it. It might not necessarily foresee the necessity for doing it.

By the same token, it could also adopt language in a declaration of war itself of giving the President the power to do these things.