sive way but will only note briefly that the authority of the President to conclude international agreements other than treaties Hows from several of his enumerated powers.14

Agreements concerning military matters are based at least in part on the President's power as Commander in chief of the armed forces.15 This includes not only purely military agreements, such as practical arrangements for cooperation with other nations in defense matters, but also, for example, agreements on conditions of armistice, including the administration of occupied territory pending conclusion of a peace treaty.16

The President's authority to conclude executive agreements may also derive from his treaty powers.17 Although treaties can be made only by and with the advice and consent of the Senate, it is the President alone who negotiates,18 and the process of negotiation may include the conclusion of protocols which represent stages in those negotiations, or a modus vivendi in limited terms designed to serve as a temporary measure pending the conclusion of a treaty.19

The power to receive ambassadors and other public ministers 20 has been a partial basis for agreements incident to the recognition of foreign governments, including such matters as the settlement of foreign claims.21

The provision empowering the President to take care that all the laws be faithfully executed,22 provides a basis for agreements designed to implement certain provisions of the Constitution, statutes, and treaties, as well as other international obligations of the United States.23

More generally, and under the authority of the executive power clause, the President acts as the sole organ of the Nation in its external relations and its sole representative with foreign nations.25 Or, as Thomas Jefferson so aptly put it: "The transaction of business with foreign nations is executive altogether." And the normal conduct of foreign relations continually requires the conclusion of agreements of various sorts to compose differences with other gov

14 The following discussion of various types of agreements in terms of specific powers is drawn largely from McDougal and Lans, Treaties and Congressional-Executive_or_Presidential Agreements: Interchangeable Instruments of National Policy, 54 Yale L. J. 181, 244-252 (1945). This breakdown is unquestionably somewhat arbitrary, since most, if not all, of the types of agreement referred to are at least arguably based on a conjunction of two or more of the President's enumerated powers.

15 U.S. Constitution, art. II, sec. 2, par. 1. See opinion of the Attorney General regarding the acquisition of Naval and Air Bases in exchange for overage destroyers, 39 Op. Atty. Gen. 484, 486 (1940); McDougal and Lans, supra note 14 at 245-247; Borchard, Treaties and Executive Agreements-A Reply, 54 Yale L. J. 616, 649 (1945); 1 Willoughby, The Constitutional Law of the United States, sec. 298, pp. 540-541 (2d ed. 1929); Corwin, ed., The Constitution of the United States of America; Analysis and Interpretation, S. Doc. 170, 82d Cong., 1st sess. 433 (1952), repeated in 1964 ed., S. Doc. 39, 88th Cong., 1st sess. 484 (1964).

16 McDougal and Lans, supra note 14 at 246-247; Corwin, supra note 15, 1953 ed. at 434-435, 1964 ed. at 485-486.

17 U.S. Constitution, art. II, sec. 2, par. 2.

18 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

19 Corwin, supra note 15, 1952 ed. at 433, 1964 ed. at 485.

20 U.S. Constitution, art. II, sec. 3.

21 United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942); McDougal and Lans, supra note 14 at 247-248.

22 U.S. Constitution, art. II, sec. 3.

23 1 Op. Atty. Gen. 566, 570-571 (1822); McDougal and Lans, supra note 14 at 248; Corwin, supra note 15, 1952 ed. at 441-445, 1964 ed. at 492-497.

24 U.S. Constitution, art. II, sec. 1, par. 1.

25 United States v. Curtiss-Wright Export Corp., supra note 18 at 319.

ernments, or regulate matters of mutual concern, and thus insure the satisfactory continuation of diplomatic relations.26

With respect to agreements concerning military matters, such as those under which rights are acquired to use defense-related facilities abroad, the agreement-making authority of the President, as I have indicated, flows at least in part from his powers as Commanderin-Chief. At the same time, Congress also has extensive powers in the defense area. In particular, under article I, section 8 of the Constitution, the Congress is given the explicit powers:

27

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.

To provide and maintain a navy.

To make rules for the government and regulation of the land and naval forces.28

In addition, of course, Congress has the general power:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. 29

Agreements relating to military and defense matters thus involve a broad area of responsibility in which certain constitutional powers are shared between the Executive and the Congress. This results in a rather complex legal situation in which the lines of constitutional authority are somewhat unclear, but which can at least be analyzed in general terms.

Probably the best judicial discussion of the constitutional relationship between the two branches in this sort of situation is contained in the well-known concurring opinion of Mr. Justice Jackson in the Steel Seizure case.30 In that opinion, Justice Jackson addressed the general doctrine of separation of powers in the following terms:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoined upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.31

Starting from this basic premise, he compared the powers of the President in three different circumstances.

In the first, when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, since it includes not only his own independent powers but also whatever powers Cogress can delegate.

The second situation is one in which, in the absence of either a grant or a denial of authority by Congress, the President acts on the basis of his independnet powers alone. Here it may be the absence of any congressional action, in an area in which the President and Congress have concurrent authority, that enables the President to act independently.

26 McDougal and Lans, supra note 14 at 248-252; Corwin, supra note 15, 1952 ed. at 433, 1964 ed. at 484-485.

27 See 39 Op. Atty. Gen. 484, 486 (1940).

28 U.S. Constitution, art. I, sec. 8, cls. 11, 12, 13, and 14.

29 Id.. cl. 18.

30 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

31 Id. at 635.

Finally, when the President takes measures incompatible with the expressed or implicit will of Congress, his power is at its minimum, since he then can act only upon the basis of his own independent powers minus the powers of Congress over the particular matter in question.32

Now, the problem Justice Jackson was discussing there did not involve agreements, but I believe his opinion does contain some useful guidelines for our understanding of the division of constitutional powers with respect to executive agreements, in particular those agreements relating to military or defense matters. It enables us to address the constitutional question in terms of three distinct categories of executive agreement.33

The first category consists of agreements which the President cannot carry out without affirmative authority from the Congress. Obvious examples include agreements on tariffs or those requiring the expenditure of public funds.

The second category of agreements includes those for which no affirmative congressional grant of authority is required but which involve matters over which the President and the Congress have concurrent authority. These are agreements which the President has authority to conclude under his independent constitutional powers but which may not be inconsistent with any action which Congress may have taken in the exercise of its own powers over the subject matter.34

The third category of agreements would include those which the executive can conclude in the exercise of his constitutional powers and with which Congress may not constitutionally interfere. This, I think, is a very small category. It would clearly include, for example, certain operational agreements the President deemed necessary under certain circumstances to ensure the safety of U.S. forces under his command.35

32 Id. at 635-638.

33 For similar analyses see "Association of the Bar of the City of New York, a continued defense of the Constitution against the Bricker proposals 11-16 (1955); reprinted from 10 Record of the Association of the Bar of the City of New York, No. 3, pp. 114-142 (1955); and testimony of Alexander M. Bickel in "Hearings before the Senate Committee on Foreign Relations on S. 596, to Require that International Agreements other than Treaties, Hereafter Entered into by the United States, be Transmitted to the Congress within Sixty Days after the Execution Thereof, 92d Cong., 1st Sess. 26-27 (1972)," hereinafter cited as "Hearings on Transmittal of Executive Agreements to Congress."

34 See "United States v. Guy W. Capps, Inc. 204 F. 2d 655, 658-660 (4th Cir 1953), aff'd on other grounds, 318 U.S. 296 (1955); Opinion of the Attorney General regarding the Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 OP. ATT'Y GEN. 484, 494-496 (1940);" Sutherland, “The Bricker Amendment, Executive Agreements, and Imported Potatoes, 67 Harv. L. Rev. 281, 285-291 (1953)."

35 See testimony of Alexander M. Bickel, "Hearings on Transmittal of Executive Agreements to Congress 31, 41-42." There are relatively few court cases on the question of the extent to which Congress is constitutionally precluded from interfering with the exercise by the President of his independent constitutional powers. In Ex Parte Milligan (71 U.S. (4 Wall.) 2 (1866)), a case which involved the war powers of Congress, the opinion of four concurring Supreme Court Justices stated that:

"Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of forces and the conduct of campaigns. That power and duty belongs to the President as commander-in-chief." (71 U.S. at 139.)

Other cases relating to congressional limitation on powers vested exclusively in the President include Ex Parte Garland, 71 U.S. (4, Wall.) 333 (1866) and United States v Klein, 80 U.S. (13 Wall.) 128 (1871) which held unconstitutional attempts by Congress to limit the effect of pardons granted by the President in exercise of his power to do so under article II, section 2 of the Constitution; and Myers v. United States, 272 U.S. 52 (1926), which declared invalid a provision of an 1876 statute restricting the power of the President as chief executive to remove from office those officers of the Government appointed by and with the advice and consent of the Senate.

The point that I think emerges from this kind of analysis is that the use of the executive agreement form does not amount to an assertion of unlimited Presidential authority to conclude international agreements without reference to the legitimate interests of Congress in the subject matter. Rather, it generally involves simply one step among many taken by the Executive to effectuate policies in the formulation of which the Congress plays a key role. With this in mind, let us take a closer look at the question of the treaty power, particularly as it bears upon these defense-related agreements.

IV. THE TREATY POWERS OF THE SENATE IN THE CONTEXT OF DEFENSERELATED AGREEMENTS

A great deal of argument has recently been devoted to the proposition that the only appropriate form for agreements such as those involving defense-related facilities abroad is the treaty form, which, of course, requires the advice and consent of the Senate to ratification by a two-thirds majority. This is the thrust of the most recent Case bill,36 and the argument was pressed at great length with respect to the Spanish Base Agreement.37

I think nobody questions that agreements which involve a basic political commitment, such as an undertaking to come to the defense of another country if it is attacked, should be cast in the form of a treaty in the constitutional sense.38 Such agreements establish basic foreign policy commitments to which our overall defense and security strategies are keyed, and I believe that the framers of the Constitution clearly intended that such fundamental agreements should be subject to the special safeguards of the treaty clause.39

40

As Under Secretary Johnson made clear, the three facilities agreements which I referred to earlier, with respect to Spain, Bahrein, and The Azores, do not involve any defense commitments whatever on the part of the United States. 10 They do not require the United States to use the facilities or to station any forces in foreign territory. In this sense, they constitute what Attorney General (later Justice) Jackson referred to in 1940 as "an opportunity that entails no obligation." 42

41

The central argument advanced by those who favor requiring submission, as treaties, of agreements concerning the use of defense-related facilities abroad, is that the deployment abroad of U.S. forces is a major foreign policy action and may involve many of the same

36 Supra note 11.

37 See generally Hearings on the Spanish Base Agreements.

38 See, e.g.. Testimony of Under Secretary of State for Political Affairs Johnson, Hearing on the Spanish Base Agreement at 19, and Hearings on Executive Agreements with Portugal and Bahrain at 31.

39 See Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570-572 (1840). Corwin states that executive agreements become of constitutional significance when they constitute a determinative factor of foreign policy and hence of the country's destiny. Op. cit., supra note 15, 1952 ed. at 433, 1964 ed. at 485.

40 Hearings on the Spanish Base Agreement at 12; Hearings on Executive Agreements with Portugal and Bahrain at 8, 14.

41 Id.

42 In connection with the so-called "Destroyers-for-Bases" agreement, Jackson ruled that:

"The executive agreement obtains an opportunity to establish naval and air bases for the protection of our coastline but it imposes no obligation upon the Congress to appropriate money to improve the opportunity. It is not necessary for the Senate to ratify an opportunity that entails no obligation." 39 OP ATT'Y GEN. 484, 487 (1940).

risks as an advance commitment of the "mutual defense" variety.43 And so, the reasoning apparently goes, Congress must require the submission of these agreements as treaties in order to insure effective congressional control of deployments.

44

I believe this argument confuses the treaty power, which is not really relevant, with other constitutional powers of the Congress and the President. For example, it has been suggested that the dispatch of American troops to an area of actual or potential warfare involves both the treaty power of the Senate and the war powers of Congress. While it is clear that the war powers do have a bearing on this kind of situation, the argument seems to be that any deployment abroad of Armed Forces automatically involves the treaty powers as well. This proposition has been restated by Senator Fulbright in his testimony earlier in these hearings, in which he set forth his view that a national commitment involving the use of the Armed Forces on foreign territory should be created by the treaty process. Since the mere use of the Armed Forces on foreign territory without any obligation is in itself a national commitment under the definition contained in the "national commitments resolution" to which he referred, he seems to be suggesting that force deployment itself, at least in areas of actual or potential hostilities (though his statement is not entirely clear on this latter point), should be carried out only through the treaty process. I find no warrant in the Constitution for that position.

To begin with, while force deployments on foreign territory normally require the consent of the government in whose territory such deployments take place, that consent is not always embodied in formal agreements. To imagine that the treaty powers relate to matters not involving actual agreements strikes me as a highly novel expansion of the treaty power concept.

Moreover, I think this argument misses the essential point that, even where agreements are involved, they do not necessarily create commitments by the United States.

Agreements permitting the United States to use facilities abroad do not in any sense require deployment of U.S. forces. Critics of the recent agreements have failed to point to a single provision in them which contains a commitment of the U.S. forces there, or to establish a base. The agreements simply constitute action by the President to secure for the United States an "option" to use facilities. The question of whether and how we exercise that option is one of a series of long-term national security decisions in which the Congress plays a vital role. That role includes not only the decision whether to provide funds for the maintenance of facilities abroad, but also such decisions as whether to appropriate money for defense equipment which either requires use of such facilities or renders foreign facilities unnecessary. Thus, the use of the executive agreement procedure in these cases does not in any sense deprive Congress of its opportunity to participate in the overall decisions concerning deployments abroad.

43 Hearings on Spanish Base Agreement at 21, 27, 34-35, 38-39; Hearings on Executive Agreements with Portugal and Bahrain at 3-4, 34-35, 43, 71-72, 74. 44 S. Rept. No. 91-129, 91st Cong., 1st Sess. 28 (1969).