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ly, passage of such an amendment would resolve the existing uncertain situation.

For the text of the legal memorandum, see Cong. Rec., Vol. 122, No. 149-Part II, Sept. 29, 1976, pp. 17145–17149 (daily ed.). For an account of the Mayaguez incident, see the 1975 Digest, pp. 13, 397, 423, 766, 777-783, 879-886.

Legislative Regulation

Section 738 of the Department of Defense Appropriation Act, 1976 (P.L. 94-212), approved February 9, 1976, contains the following prohibition on the use of funds for combat activities in Indochina:

None of the funds herein appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Viet-Nam, South Viet-Nam, Laos, or Cambodia.

National Emergencies Act

On September 14, 1976, President Ford signed into law the National Emergencies Act, "To terminate certain authorities with respect to national emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies" (P.L. 94-412; 90 Stat. 1255; 50 U.S.C. 1601 note).

Title I of the Act terminates all existing powers and authorities based on any general declaration of national emergency in effect on the date of enactment. Exempted from the general termination provision are (1) any action taken or proceeding pending not finally concluded or determined on such date; (2) any action or proceeding based on any act committed prior to such date; or (3) any rights or duties that matured or penalties that were incurred prior to such date. The Senate committee report (S. Rept. 94-1168) points out that Title I does not affect laws, such as the Defense Production Act (50 U.S.C. App. 2061), which are not dependent upon a Presidential declaration of emergency-even though such laws may be referred to in a general sense as "emergency" statutes.

Title II concerns the declaration and termination of future national emergencies and, according to the Senate report, is designed to insure congressional oversight of Presidential actions pursuant to declarations of a national emergency authorized by an act of Congress. The Senate report specifies that the procedures, while patterned on those in the War Powers Resolution (P.L. 93-148; 87 Stat. 555), are not intended to conflict with, supersede, or alter any part of the War Powers Resolution, nor are they meant to supersede existing provisions of law which authorize declarations of emergency by the Congress.

Section 201 provides that, with respect to Acts of Congress authorizing the exercise, during the period of a national emergency,

of any special or extraordinary power, the President is authorized to declare such national emergency. Emergency authorities will come into effect only if the President complies with the provisions of the Act. Any Presidential declaration of an emergency is required to be transmitted to Congress and published in the Federal Register.

Section 202 provides for the termination of Presidentially declared emergencies by either a concurrent resolution of the Congress or a proclamation by the President. Not later than 6 months after a national emergency is declared and not later than the end of each sixmonth period thereafter that such emergency continues, each House of Congress must meet to consider a vote on a concurrent resolution to determine whether that emergency should be terminated. Specific procedures to be followed in considering the concurrent resolution are provided as an exercise of the rulemaking power of the House and Senate. See infra for statement by President Ford regarding the concurrent resolution provision.

Title III states:

Sec. 301. When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

Previously a Presidential emergency declaration automatically activated emergency provisions throughout the U.S. Code. regardless of the relevance of the statute to the emergency at hand. The new procedure was intended to permit the Executive to invoke only the emergency provisions he needs and to insure that the Congress and the public know what statutes are brought into force. Title IV specifies the accountability and reporting requirements applicable when the President declares a national emergency or Congress declares war. It requires the President to maintain a file of significant orders, and executive agencies to keep a record of rules and regulations issued pursuant to a declaration of emergency or war. This information is to be promptly transmitted to Congress. In addition, the President is required to report emergency expenditures every six months.

Title V deals with the repeal and continuation of certain emergency powers and statutes. It exempts from the force of the legislation certain provisions of law, including section 5(b) of the Act of October 6, 1917, the Trading with the Enemy Act (12 U.S.C. 95a and 50 U.S.C. App. 5(b)). At hearings, administration spokesmen had cited the continuing importance of section 5(b) which provides for the

administration and regulation of both transactions in foreign exchange of gold and silver and property transfers in which any foreign country or national thereof has an interest. See testimony by Mark B. Feldman, Deputy Legal Adviser of the Department of State, the 1975 Digest, p. 642.

See also H. Rept. 94-238; S. Rept. 94-1168.

Upon signing the National Emergencies Act, President Ford issued the following statement:

I support the purposes of the enrolled bill [H.R. 3884]. One of its provisions, however, would purport to permit the Congress to terminate a national emergency by a concurrent resolution. This feature of the bill is unconstitutional.

[P]rovisions for disapproval of regulations and other action by concurrent resolution, or by resolutions of one House, are clearly unconstitutional. Such provisions are contrary to the general constitutional principle of separation of powers whereby Congress enacts laws but the President and the agencies of government execute them. In addition, they violate article I, section 7 of the United States Constitution which requires that resolutions having the force of law be sent to the President for his signature or veto.

In recent years, the Congress has increasingly given consideration to these kinds of legislative encroachment measures. Accordingly, the Attorney General, at my direction, has become a party plaintiff in a lawsuit challenging the constitutionality of a comparable provision in the Federal Election Campaign Act. In the event that the court strikes down all legislative encroachmenttype provisions now in law, I consider section 202(a)(1) of H.R. 3884 as separable from the rest of the bill, and would therefore expect the other provisions relating to emergency powers to remain in force.

Weekly Compilation of Presidential Documents, Vol. 12, No. 38, Sept. 20, 1976, p. 1340. The Subcommittee on International Trade and Commerce of the House Committee on International Relations published in Nov. 1976 a Committee print entitled "Trading with the Enemy-Legislative and Executive Documents Concerning Regulation of International Transactions in Time of Declared Emergency." It contains the legislative history of sec. 5(b) of the Trading with the Enemy Act in part I, its executive history in part II, and regulations governing financial transactions issued under the authority of sec. 5(b) (31 CFR) in part III.

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Angola

Military Assistance and Sales
Assistance and Sales

Title IV of the Department of Defense Appropriation Act, 1976 (P.L. 94-212), approved February 9, 1976, prohibited the use of any

funds appropriated therein “for any activities involving Angola other than intelligence gathering." On signing the bill into law, President Ford said that the provision "would severely limit our effectiveness in international affairs." He added: "I am deeply disappointed that the Congress has acted in this bill to deprive the people of Angola of the assistance needed to resist Soviet and Cuban military intervention in their country. I believe this provision is an extremely undesirable precedent that could limit severely our ability to play a positive and effective role in international affairs.

See Weekly Compilation of Presidential Documents, Vol. 12, No. 7, Feb. 16, 1976, p. 172.

The Foreign Assistance and Related Programs Appropriations Act, 1976 (P.L. 94-330; 90 Stat. 771), approved June 30, 1976, provides in section 109 that none of the funds appropriated or made available pursuant to the Act "shall be obligated or expended to finance directly or indirectly any type of military assistance to Angola."

Section 404 of the International Security Assistance and Arms Export Control Act of 1976 (P.L. 94-329; 90 Stat. 757; 22 U.S.C. 2293 note), approved June 30, 1976, sets forth limitations on assistance to and activities in Angola. The relevant provision follows:

SEC. 404. (a) Notwithstanding any other provision of law, no assistance of any kind may be provided for the purpose, or which would have the effect, of promoting or augmenting, directly or indirectly, the capacity of any nation, group, organization. movement, or individual to conduct military or paramilitary operations in Angola unless and until the Congress expressly authorizes such assistance by law enacted after the date of enactment of this section.

(b) If the President determines that assistance prohibited by subsection (a) should be furnished in the national security interests of the United States, he shall submit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate a report containing

(1) a description of the amounts and categories of assistance which he recommends to be authorized and the identity of the proposed recipients of such assistance; and (2) a certification that he has determined that the furnishing of such assistance is important to the national security interests of the United States and a detailed statement, in unclassified form, of the reasons supporting such determination. (c) The prohibition contained in subsection (a) does not apply with respect to assistance which is furnished solely for humanitarian purposes.

(d) The provisions of this section may not be waived under any other provision of law.

Canada

In connection with the purchase by Canada on July 21, 1976, of 18 Long-Range Patrol Aircraft (LRPA) from the Lockheed Corporation, the United States Government furnished an aide-memoire of April 29, 1976, stating its judgment on the continuing viability of the

Lockheed Corporation and containing certain assurances as to U.S. facilitation of the purchase. Included also were assurances regarding U.S. efforts to see that, in the event of Lockheed insolvency, Canada would receive advantages and considerations no less favorable than those which might be obtained by the United States. The aidememoire provides as well the U.S. view regarding the mutual security interests involved in Canadian acquisition of a modern longrange patrol aircraft capability. An exchange of letters on July 6 and 7, 1976, confirmed that the aide-memoire continued to apply (TIAS 8388; 27 UST).

The text of the U.S. aide-memoire reads, in part, as follows:

With respect to Lockheed's overall financial viability, its ability to continue as a corporation and to fulfill the terms of its proposed contract with the Canadian Government, the United States Emergency Loan Guarantee Board (ELGB) and the United States Department of Defense have recently reviewed Lockheed's financial position and have expressed confidence in Lockheed's prospects. The following factors are relevant:

1. Lockheed's financial projections appear to be realistic; 2. It appears that Lockheed will be able to pay back its $195,000,000 guaranteed loan before the ELGB's statutory authority expires at the end of 1978;

3. Lockheed appears to be financially healthier than six months or one year ago;

4. While recent publicity regarding payments to foreign officials may have delayed the signing of new contracts by certain foreign governments, the United States Government is unaware of any contracts having been cancelled as a result of such publicity.

5. Approximately 60 percent of Lockheed's sales are to the United States Department of Defense. No significant reduction is anticipated in the volume of this procurement or the cash flow resulting from it.

6. L-1011 airline customers are beginning to report improved traffic and operating results after having experienced a very severe industry-wide recession.

All things considered, it is the present judgment of the United States Government that the prospects are favorable for Lockheed to continue as a viable corporation.

The United States Government shares with the Canadian Government a strong interest in the successful completion of the proposed Canadian procurement of eighteen Lockheed LRPA aircraft. In the view of the United States Government, the acquisition of these aircraft will substantially enhance Canada's ASW patrol capability, improve North American defense arrangements, contribute to NATO's overall security and thus is in the best interest of the United States. The proposed Canadian purchase will complement the purchase of a large number of Lockheed maritime patrol aircraft planned by the United States

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