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U.S. Department of State—Continued
Memorandum of Law, “Procedures for Implementing the Page
Commitments Contained in the North Atlantic Treaty”,
“Treaties and Agreements: Azores and Bahrain Facilities”,
Special Action Office for Drug Abuse Prevention, Executive Office of the
President, letter of March 31, 1972 -
editorial, May 28, 1972-
Christian Science Monitor, “Separation of Powers”, by Clifford P. Case,
"Spring Thaw in Moscow", editorial, May 25, 1972
“Commitment to Peace”, editorial, May 26, 1972.
Storage”', June 7, 1972.
Force White House To Seek Senate Approval", the New York Times,
The New York Times, “Congress Urged To Curb Use of Executive Ac-
“The Treaty Powers”, editorial, May 1, 1972.
“Kremlin Terms Accords Triumph”, June 2, 1972.
Evening Star, May 30, 1972.
S. 3475—TO HELP PRESERVE THE SEPARATION OF
POWERS AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF EXECUTIVE AGREEMENTS
MONDAY, APRIL 24, 1972
COMMITTEE ON THE JUDICIARY,
Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 318, Old Senate Office Building, Senator Sam J. Ervin (chairman of the subcommittee) presiding.
Present: Senator Ervin (presiding).
Also present: Rufus L. Edmisten, chief counsel and staff director; Joel Abramson, minority counsel; Walker F. Nolan, assistant counsel, and Prof. Arthur S. Miller, consultant.
Senator ERVIN. The subcommittee will come to order.
The Subcommittee on Separation of Powers today begins hearings 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.
The use of executive agreements as a substitute for treaties has spiraled in recent years, giving rise to increasing concern which has been voiced in Senate hearing rooms, on the Senate floor, and in the national press.
Some observers feel that the marked increase in the number of executive agreements vis-a-vis treaties is inevitable in an era when international commerce and communications have shrunk national boundaries and have made it essential that nations be able to enter into technical agreements with a minimum of delay. However, although a majority of the ever-increasing number of executive agreements deal with routine technical matters, it is obvious, to my mind, that in recent years the so-called executive agreement has been used to deal with problems formerly dealt with only by treaty, compelling the conclusion that executive agreements are being used to circumvent the treatymaking provisions of the Constitution. Such a development is contrary to the constitutional principles envisioned by the Founding Fathers as well as a clear violation of the doctrine of separation of powers.
To my mind, a thorough examination of the questions involved is needed to provide a clearer definition of the powers, duties, and pre
rogatives of the two branches of the Government in this area. At the outset, I should like to emphasize that the subcommittee's examination of the questions involved does not focus on the myriad problems which this conflict has created in the field of foreign relations for those issues are under constant scrutiny by the Senate Foreign Relations Committee. Rather, we shall focus principally on the constitutional issues and the separation of powers problems this conflict presents.
I know there are many persons, both in the academic field and within the Government, who maintain that exclusive Executive control of foreign policy, and domestic policy, insofar as it may be affected by foreign policy, is the price of survival in this nuclear age. They argue that we live in an age of recurring crises and that the need is great for strong central leadership able to make decisions and take action before the opportunity for constructive action is past. I certainly agree that we live in an era that presents critical challenges to any form of government. However, I do not agree that we need to abandon the constitutional principles that have served us so well throughout our history. I firmly believe that we can adhere to those principles without any loss of effectiveness in the field of foreign policy.
Article II, section 2 of the United States Constitution provides that the President “shall have the power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” This language makes it clear that the Founding Fathers did not anticipate that policymaking in the area of foreign affairs should be concentrated in one branch of the Government. All governmental powers, including the treatymaking power, were to be subject to a system of checks and balances under the doctrine of separation of powers. To those persons who advocate exclusive Executive control over foreign affairs in the name of dispatch and efficiency, I would commend the reading of the words of Mr. Justice Brandeis in Ilyers v. U.S., 272 U.S. 210, 293 (1926):
The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
Even Alexander Hamilton, who was a leading advocate of a strong Executive, feared the dangers inherent in placing the conduct of foreign affairs in one branch, and pointed out that it was a shared power. Speaking of the “intermixture of powers" in this field, in Federalist LXXV, he said:
*** the particular nature of the power of making treaties indicates a peculiar propriety in that union (the Senate and Executive). Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them ... The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.
However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration ... The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.
In discussing article II, section 2 of the Constitution, James Iredell, the distinguished member of the North Carolina Ratifying Convention, and one of the first Justices of the U.S. Supreme Court, made it clear that the conduct of foreign affairs was not vested solely in the Executive. I quote his words:
The power of making treaties is so important that it would have been highly dangerous to invest it in the Executive alone, and would have been a subject of much greater clamor. From the nature of the thing, it could have not been vested in the popular representative. It must, therefore, have been provided for with the Senate's concurrence or the concurrence of a Privy Council, (a thing which I believe nobody has been mad enough to propose), or the power, the greatest monarchial power that can be exercised, must have been vested in a manner that would have excited universal indignation, in the President alone.
This quotation is found in Pamphlets on the Constitution of the United States Published During Its Discussion by the People, 1787–1788 (Brooklyn: Brooklyn Historical Club, 1888), page 342, edited by Paul Leicester.
Clearly, the power to enter into executive agreements is not expressly granted under the Constitution, and the most cursory reading of constitutional history reveals the intention of the Founding Fathers that the President was to be precluded from engaging in the making of any substantive foreign policy without the advice and consent of the Senate. For most of our early history, this restraint was honored, and virtually all of our foreign commitments were entered into by formal treaties. For example, as recently as 1930, the United States concluded 25 treaties and only nine executive agreements. In contrast, in 1968 the United States concluded 16 treaties and 266 executive agreements, and by January 1, 1972, the United States had a total of 947 treaties and 4, 359 executive agreements.
During the past few decades, the executive branch has found irresistible the temptation to dispose of what it considered routine matters through the shortcut method of entering into executive agreements, rather than the constitutional method of making formal treaties; nor is it difficult to account for this development. The conclusion of the World Wars, particularly the Second World War, thrust the United States into a position of international leadership and prominence never dreamed of in our earlier history. After World War II, our efforts to render economic aid to Europe to help it rebuild, combined with our cold war efforts to curb the expansion of totalitarian regimes, were expressed in legislatively passed foreign aid programs of unprecedented scope. Many of the executive agreements reflected in the statistics, no doubt, represent minor matters necessary to the execution of our foreign aid commitments. On the other hand, the concept grew, like Topsy, without rhyme or rea