that expressed concern, I would like today to provide the committee with some general observations regarding international agreements together with our views on the legal aspects of executive agreements. Thereafter I will address myself specifically to S.3475, which we oppose as not being constitutional.

It will be useful, I believe, to begin with a brief discussion of the treatymaking power. In recent years statements have been made by Members of the Senate as to the intentions of the Framers concerning treaties. These statements deserve analysis. For example, in the debate over agreements made with Portugal and Bahrain, Senator Case asserted:

The Constitution does not define the term "treaty". Yet, it seems clear that the Founding Fathers intended any agreement with a foreign country on a matter of substance to be embraced within the term. (118 Cong. Rec. S 3286, March 3, 1972.).

We can find no evidence for Senator Case's contention if it is taken to mean that all international agreements on matters of substance must take the form of a treaty. The available records of the Constitutional Convention do not indicate that any question was raised concerning the scope of the term "treaty", or that a treaty was to be the only means for concluding agreements on matters of substance. Although it was suggested, when S. 3475 was introduced, that the treaty is the only kind of international instrument mentioned in the Constitution (118 Cong. Rec. S. 5787), an examination of its text does not support this. In the vocabulariy of the Framers, the term "treaty" did not cover every type of arrangement with a foreign nation. Article I, section 10, carefully distinguishes between a "treaty, alliance and confederation," which the States are absolutely prohibited from entering, and an "agreement or compact *** with a foreign power" which the States may make provided they obtain the consent of Congress. The draftsmen of the Constitution thus recognized a distinction between treaties and agreements. Chief Justice Taney stated that difference as follows, quoting from Vattel, a scholar on international law well known to American lawyers during the period of the Revolution:

"A treaty *** is a compact made with the view to the public welfare, by the superior power, either for perpetuity, or for a considerable time.***

"The compacts which have temporary matters for their object, are called agreements, conventions and pactions. They are accomplished by one single act, and not by repeated acts. These compacts are perfected in their execution, once for all; treaties receive a successive execution, whose duration equals that of the treaty." Holmes v. Jennison, 39 U.S. 540, 572 (1840).

In some ways the best evidence of the Framers' intention not to limit international agreements to treaties lies in the usage of executive agreements in the early days of the Republic. The Post Office Act of 1972 authorized the Postmaster General to "make arrangements with the postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices." 1 Stat. 232, 239. These were plainly not treaties in the constitutional sense. If they had been, congressional authorization would have been

of no avail to the President in the absence of the advice and consent of two-thirds of the Senators present. It is also worthy of note that the courts have rejected the contention that executive agreements authorized by statute violate the Constitution because they impinge on the treaty power. See Star-Kist Foods, Inc. v. United States, 169 F. Supp. 268 (Cust. Ct. 1958), and cases collected therein. In Field v. Clark, 143 U.S. 649 (1892), the Supreme Court upheld an act permitting the President to change duties on certain imports. The first Mr. Justice Harlan noted the well-established practice of granting discretion of this kind to the Executive in matters relating to trade with other nations, when he stated:

"***the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land." 143 U.S. at 691.

It has been said by an eminent authority that between 1789 and 1939 over 1,300 international agreements based on various types of authority were consummated without the participation of the Senate. E. Corwin, The President: Office and Powers 422 (1957). It, therefore, seems plain to me that there is no validity at all to the claim that the executive agreement as a method of international dealings is beyond the powers authorized by the Constitution.

Turning then to the permissible uses of the executive agreement, it is the firmly established policy of the executive branch that executive agreements should not be used when the subject matter should be covered by a treaty; there must be a constitutional source of authority for the agreement. As stated in the Foreign Affairs Manual of the Department of State, the executive agreement form is used only for agreements which are made: (a) pursuant to or in accordance with existing legislation or a treaty; (b) subject to congressional approval or implementation; or (c) under and in accordance with the President's constitutional power. See 11 Foreign Affairs Manual 722; 14 M. Whiteman, Digest of International Law 195 (1970).

Basically, the making of executive agreements involves a procedure which is supervised primarily by the Department of State. In this connection I should inform the committee that it is not a regular practice for the Department of Justice to be consulted in the making of such agreements, although there are occasions when we are called upon to discuss specific related legal questions.

Questions of separation of powers are not likely to be raised in Congress concerning agreements based on treaties or statutes since Congress or the Senate alone has, by express delegation, empowered the Executive to make them. Apparently the issue of authority tends to arise most often where the Constitution or implied constitutional powers are the source of the President's authority. An executive agreement made by the United States, which does not rely for authority on a treaty or act of Congress, may deal with any matter that under the Constitution falls within the independent powers of the President. Restatement (Second), Foreign Relations Law of the

United States, § 121 (1965);14 M. Whiteman, Digest of International Law 195 (1970).

The independent authority of the President to make executive agreements is based on a number of express constitutional provisions including the following:

The executive power shall be vested in a President of the United States of America. Art. III, Section 1;

The President shall be Commander in Chief of the Army and Navy ***. Art. II, Section 2; and

[H]e shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed * * *. Art. II, Section 3.

The President also derives constitutional power in his role as Chief Executive to make executive agreements based on attributes of the sovereignty of the United States. In other words, the United States can act in the international field to the same extent as other sovereign nations do. The classic exposition of this concept appears in the opinion of the Supreme Court in United States v. CurtissWright Export Corp., 299 U.S. 304, 318 (1936):

*** the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality. * * * As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. Tht power to acquire territory by discovery and occupation *** the power to make such international agreements as do not constitute treaties in the constitutional sense *** none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nationality. (Emphasis added.)

As the State Department has indicated, the number of agreements based solely on the constitutional authority of the President is relatively small. One type of agreement where that power is exercised is recognition of foreign governments, based on the constitutional power of the President to "receive ambassadors and other public ministers"; another is the settlement of foreign claims. The CurtissWright opinion has been followed in subsequent decisions which have upheld the President's power to make executive agreements in these two areas. In United States v. Belmont, 301 U.S. 324 (1937), the Supreme Court upheld the validity of an executive agreement not based on any preexisting treaty or statute, which established relations with the Soviet Union and settled certain claims by assignment of assets to the United States. The Court said:

Governmental power over external affairs is not distributed, but is vested exclusively in national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treatymaking clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.

*** an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations. 301 U.S. at 330.

Similar language was used by the Supreme Court in United States v. Pink, 315 U.S. 203, 229 (1942).

Furthermore, some power to make executive agreements can be implied from the treaty power. Although treaties require the concurrence of the Senate, as Curtiss-Wright and Belmont indicate the President alone negotiates. In the course of negotiating a treaty, it is sometimes necessary to conclude an interim arrangement or modus vivendi until the treaty is finally ratified. See United States v. Belmont, supra at 330.

The President also may make agreements based on his power as Commander-in-Chief. Controversy in this area has been relatively recent. A point of departure often mentioned is 1940, when the United States was being increasingly thrust into the international arena. Britain, having sustained heavy losses, appealed for American destroyers. President Roosevelt asked Attorney General Jackson for his opinion regarding the authority for effectuating by executive agreement an exchange of American destroyers for British bases in the Western Hemisphere.

The Attorney General concluded that the agreement could be made without submitting it to the Senate as a treaty for its advice and consent. 30 Ops. A.G. 484 (1940). The President's authority was deemed to derive from his constitutional powers as Commander-inChief and from "that control of foreign relations which the Constitution vests in the President as part of the Executive function," citing Curtiss-Wright, supra, 39 Ops. A.G. at 486.

Since no future "commitment" was involved, Attorney General Jackson held that the agreement did not require the advice and consent of the Senate. According to that opinion:

*** Some negotiations involve commitments as to the future which would carry an obligation to exercise powers vested in the Congress. Such Presidential arrangements are customarily submitted for ratification by a two-thirds vote of the Senate before the future legislative power of the country is committed. However, the acquisitions which you are proposing to accept are without express or implied promises on the part of the United States to be performed in the future. The consideration, which we later discuss, is completed upon transfer of the specified items. 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 Ops. A.G. at 487.

One scholar who commented on Attorney General Jackson's opinion stated:

While there is no clear line between the subjects on which the President can enter into agreements under his constitutional powers to conduct foreign relations and those on which he must ask the advice and consent of the Senate, it appears that the prime consideration is whether the agreement imposes legal obligations upon the United Sates beyond the independent power of the President to fulfill. If the aid of Congress is necessary for fulfillment, the President should, before finally approving the instrument, either get the advice and consent of the Senate, thus making it a treaty in the constitutional sense, or he should get an authorizing act from Congress making appropriations or enacting legislation to fulfill such obligations. Since the present agreement imposed no such obligation requiring congressional action, neither of these procedures was necessary. Editorial Comment, Q. Wright, The Transfer of Destroyers to Great Britain, 34 Am. J. Int'l L., 680, 681 (1940).

In the last few years there has been a growing number of occasions when the executive and the Senate have disagreed on the scope of the President's powers to conclude executive agreements relating

to the war power. Given the fact that there is no simple answer to the question of the precise magnitude of the independent powers of the President, each dispute has itself become part of both the lore and the legal precedent on this subject.

For example, in June 1969, the Senate debated and adopted a "sense of the Senate" resolution that the use of armed forces on foreign territory or a promise to assist a foreign government by American military or financial resources can only be achieved by a treaty, statute or concurrent resolution. S. Res. 85, 91st Cong., 1st Sess., 115 Cong. Rec. 17214-17245.

Also, in 1970 debate arose as to whether the proposed Friendship and Cooperation Agreement with Spain should be submitted to the Senate as a treaty (T.I.A.S. No. 6924). That debate focused largely on the question of the effect of the agreement, that is, did it constitute a military commitment by the United States to Spain? The Administration's position was that it did not constitute a commitment, while Senator Fulbright, among others, challenged the Administration's position, and argued that if his interpretation was correct, then the matter was of sufficient importance to require the concurrence of the Senate. As a subsequent resolution passed by the Senate demonstrated, the issues raised did not in any realistic sense relate to the law or constitutional practice concerning the right of the President to make agreements for bases as much as they did to the meaning of the agreements. See S. Rep. No. 91-1425 on S. Res. 469.

It is difficult for us as lawyers to state the "holding" of each of the debates. Indeed, they emphasize the importance of the Executive dealing with these matters on a case-by-case basis. It is against this background that we must view S. 3475.

Accordingly, I think it now appropriate to turn to some specific comments on S. 3475. You, Mr. Chairman, have stated that the bill is designed to "help restore the balance of power between the executive and legislative branches of the government in the area of international agreements." S. 3475, you state, would also further the constitutional prerogatives of Congress by requiring transmission of all executive agreements to both houses of Congress. In general, executive agreements would come into force 60 days after transmittal unless, prior to the expiration of the 60-day period, both houses of Congress pass a concurrent resolution disapproving the executive agreement.

I believe that this proposal, although intended to resolve a constitutional problem, presents substantial constitutional problems of its

own.

The President has independent power under the Constitution to conclude executive agreements. For example, as I have noted, he has specific constitutional power to "receive Ambassadors” (Art. II, Section 3), and thus to recognize foreign governments. Under his power as Commander-in-Chief, he has the right to make operational arrangements, such as cease-fire agreements to insure the safety of troops which have been placed at his disposal. Cf. Ex parte Milligan, 71 U.S. 2, 139 (1866). In my opinion, Congress cannot by statute take away or substantially limit this power. Further, if the Pres