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CONGRESSIONAL OVERSIGHT OF

EXECUTIVE AGREEMENTS

HEARING

BEFORE THE

SUBCOMMITTEE ON SEPARATION OF POWERS

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

NINETY-SECOND CONGRESS

SECOND SESSION

ON

S. 3475

A BILL TO HELP PRESERVE THE SEPARATION OF POWERS
AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF
CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF

EXECUTIVE AGREEMENTS

APRIL 24 AND 25 ; MAY 12, 18, AND 19, 1972

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1972

80-847

COMMITTEE ON THE JUDICIARY

JAMES O. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas

ROMAN L. HRUSKA, Nebraska SAM J. ERVIN, JR., North Carolina

HIRAM L. FONG, Hawaii PHILIP A. HART, Michigan

HUGH SCOTT, Pennsylvania EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina BIRCH BAYH, Indiana

MARLOW W. COOK, Kentucky QUENTIN N. BURDICK, North Dakota

CHARLES MCC. MATHIAS, JR., Maryland ROBERT C. BYRD, West Virginia

EDWARD J. GURNEY, Florida JOHN V. TUNNEY, California

SUBCOMMITTEE ON SEPARATION OF POWERS

SAM J. ERVIN, JR., North Carolina, Chairman JOHN L. MCCLELLAN, Arkansas

CHARLES MCC. MATHIAS, JB., Maryland QUENTIN N. BURDICK, North Dakota

EDWARD J. GURNEY, Florida
Rufus L. EDMISTEN, Chief Counsel and Staf Director

JOEL ABRAMSON, Minority Counsel
WALKER F. NOLAN, Jr., A88istant Counsel

TELMA P. MOORE, Executive A88istant
W. P. GOODWIN, Jr., Editorial Director
PHILIP B. KURLAND, Chief Consultant
ALEXANDER M. BICKEL, Consultant

ARTHUR S. MILLER, Consultant
RALPH K. WINTER, Jr., Consultant

(II)

CONTENTS

HEARING DAYS

Buzhardt, J. Fred, general counsel, Department of Defense

Byrd, Elbert M., Jr., former professor, Department of Government and

Politics, University of Maryland..
Case, Clifford P., a U.S. Senator from the State of New Jersey --

Clifford, Clark M., former Secretary of Defense

Erickson, Ralph E., assistant attorney general, Office of Legal Counsel,

Department of Justice..

Falk, Richard A., Jr., professor, Woodrow Wilson School, Princeton

University

Fisher, Adrian S., dean, Georgetown University Law Center-

Fulbright, J. W., a U.S. Senator from the State of Arkansas -

Goldberg, Arthur J., Justice, Supreme Court of the United States, retired,

and former Ambassador to the United Nations...

Haviland, Henry Field, Jr., director, Fletcher School of Law and Di-

plomacy, Tufts University-.

Jackson, William E., Jr., assistant professor, Department of Political

Science, Davidson College-

Katzenbach, Nicholas deB., former U.S. Attorney General and former

Under Secretary of State

Kelly, Alfred H., chairman, Department of History, College of Liberal

rts, Wayne State University --

Moore, John N., professor, School of Law, University of Virginia -

Robinson, James A., president, Macalester College -

Stevenson, John R., legal adviser, Department of State -

Swan, Alan, professorial lecturer in law, Graduate School of Business,

University of Chicago --

Symington, Stuart, a U.S. Senator from the State of Missouri...

PROPOSED LEGISLATION

S. 3475, a bill to help preserve the separation of powers and to further the

constitutional prerogatives of Congress by providing for congressional

review of executive agreements---

RELATED LEGISLATION

S. 596, a bill to require that international agreements other than treaties,

hereafter entered into by the United States, be transmitted to the

Congress within 60 days after the execution thereof..

S. Res. 214, resolution relative to the submission of any Portuguese fare

agreement as a treaty---

S. 3637, a bill providing that no funds may be obligated or expended to

carry out certain agreements to which the Senate has not given its

advice and consent..

7

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627

77

347

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360

357

SUPPLEMENTAL MATERIALS
Borchard, Edwin, excerpt from “Treaties and Executive Agreements-A

Reply”, 54 Yale Law Journal, No. 3, pp. 628-629 (1945) ---
Byrd, Èlbert M., Jr., “Constitutional Limits on International Agreements

in the Space Age”, 56 Northwestern University Law Review (1961)...
Case, Clifford P., a Ủ.S. Senator from the State of New Jersey:

"S. 596- Introduction of a bill relating to Executive Agree-
ments”, 117 Congressional Record, February 4, 1971.-

“Statement by Senator Case on his Portugal-Bahrain Reso-

lution”, release, March 3, 1972..

“Separation of Powers”, Christian Science Monitor, May 15,

1972

“Statements on Introduced Bills and Joint Resolutiono"; S.

3637, Congressional Record, May 24, 1972..

Ervin, Sam J., a U.S. Senator from the State of North Carolina:

“National Commitments”, 115 Congressional Record, June 25,
1969.

“The Role of the Congress in the Making of Executive Agree-

ments”, introduction of S. 3475, 118 Congressional Record, April 11,

1972

Fulbright, J. W., a U.S. Senator from the State of Arkansas, “U.S. Com-

mitments to Foreign Powers”, introduction of Senate Resolution 151, 113

Congressional Record, July 31, 1967.-

McDougal, Myres S., Sterling professor of law, Yale Law School, excerpt

from letter of April 12, 1972

Montross, George M., “Vas Our Government Become an Elective Mon-

archy?''

Moore, John N., professor, School of Law, University of Virginia, letter of

May 15, 1972

Resolutions of States making application to the Congress of the United

States to call a constitutional convention for proposing an amendment to
the Constitution of the United States relating to treaty making:

State of Florida, with statement of Claude Pepper, a U.S.
Representative from the State of Florida, “Proposed Constitutional
Amendment Relating to the Making of Treaties”, 91 Congressional
Record 4965, May 24, 1945-

State of Georgia, 98 Congressional Record 1057 (1952)

State of Indiana, 103 Congressional Record 6473, May 8, 1957
Symington, Stuart, a U.S. Senator from the State of Missouri, “Vietnam-

Misunderstood Understandings”, statement on the Senate floor, April 25,

1972.

U.S., Department of State:

“Department Circular No. 175”, December 13, 1955.

“Circular 175 Procedures”, 11 Foreign Afairs Manual, ch. 700,

June 6, 1969.

Excerpts from “International Agreements Other Than

Treaties 1946–1968: A List with Citations of Their Legal

Bases”, January 10, 1969, pp. 261-273, citations of agree-

ments made under the President's constitutional authority.

Excerpt from “Addendum to the Compilation of January 10,

1969, entitled 'International Agreements Other Than

Treaties 1946–1968', to cover the period to April 1972”,

pp. 36-39, citations of agreements made under the President's

constitutional authority, and statistical analysis of agree-

ments from 1955 to 1972.

Agreement with Spain, “Friendship and Cooperation”, Au-

gust 6, 1970

Agreement with Spain, “Defense, Use of Military Facilities

in Spain", September 25, 1970

Agreement with Portugal, supplementing the agreement of

September 6, 1951, as supplemented, “Continued Stationing

of American Forces at Lejes Base, Azores”, December 9, 1971-

Agreement with Bahrain, “Deployment in Bahrain of the United

States Middle East Force", December 23, 1971

Memorandum of Law Regarding Conclusion of Agreement with

Portugal and Bahrain, Office of the Legal Adviser, Feb-

ruary 1, 1972.

637
638
639

407

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