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such negotiation must be vested in the Executive. We learned that lesson from the Continental Congress which tried, itself, with limited success to conduct international negotiations. It is to be remembered, however, that we did not really have an Executive at that time.

Your bill does not propose to assume the prerogatives that are vested in article II in the President. It merely proposes to reassert the constitutional scheme of having substantive agreements of our foreign policy referred to Congress for its advice and consent as the Constitution requires.

I think much more is involved than what appears on the surface. What is really involved is the preservation of our democratic system. This really depends upon the restoration to Congress of powers which, with all respect, it has abandoned too long with untold disastrous consequences to our Nation. I commend your bill, and endorse it without any reservations.

Finally, Mr. Chairman, let me say this:

I believe the war powers bill recently approved by the Senate is a reaffirmation of congressional responsibility under the Constitution. Really, it should not have been necessary if we had been faithful to the constitutional provision which says "Congress shall declare war." And, there, too, the asserted instances of past practices are rather flimsy. It is one thing to chase a pirate and another thing to commit hundreds of thousands of American soldiers to combat.

But be that as it may, whatever the past practices may have been, unconstitutional past practices cannot render constitutional, unconstitutional actions.

We come to the case of executive privilege, and, here, too, it seems to me the Executive is stretching the Constitution beyond permissible limits.

And, finally, we must simply put an end to a situation where, as you have pointed out, thousands of agreements are made, many of large moment, representing commitments of our country, and Congress, representing the people, has not participated in approving such commitments, as is required by the Constitution.

I regret that this has reached the stage of a constitutional crisis. There is a tendency on the part of the Executive and sometimes of Congress and the American people when you have a constitutional crisis to say: So what? The courts will resolve it. This overlooks an important factor. There are some things the courts ought not to be called upon to resolve. There are matters which should be resolved by Congress and the Executive without reference to courts. I fear that we are imposing too much of a burden on the courts to determine issues such as those involving the war power or even the inherent powers of the Executive. The courts are not the only ones sworn to defend the Constitution. The President is. Every member of the executive branch and every member of the Congress is. The Constitution is their charge equally as it is the charge of the judicial branch of the Government.

Thank you very much.

Senator Ervin. I want to thank you for a most lucid statement, and I am glad you referred to the case of parte Milligan. It has

always seemed to me that if any one opinion of the Supreme Court could be picked out as the most courageous, the most intelligent opinion ever handed down, it was the Ex parte Milligan.

Mr. GOLDBERG. I agree with that, Mr. Chairman. It is the classic statement of our constitutional commitment and faith.

Senator Ervin. I think it is a good point to start on any constitutional question, because of the part you have cited in your statement, that the Constitution is a law for the rulers and people alike, equal in war and in peace. I also like another expression Judge Davis used, that no doctrine more pernicious was ever invented by the wit of man than the notion that any of the provisions of the Constitution can be suspended under any circumstances.

Now, do you not believe it is fair to say that one of the reasons why the Constitution was written was to prevent any department of Government from claiming that it had any inherent powers that were not either expressly or impliedly set forth in the Constitution?

Mr. GOLDBERG. That is correct, Mr. Chairman.

That is what our Constitution is, a Constitution which delegates powers and limits them.

Senator Ervix. And that was the main reason which prompted the Constitutional convention to write it, and the people to ratify the Constitution, it seems to me.

Mr. GOLDBERG. That is correct. Indeed the people had to be assured by the enactment of the Bill of Rights that restraints upon Government were expressly articulated. The Constitution would never have been ratified if approval of the Bill of Rights had not been assured.

Senator Ervin. Now, as I construe your statement and your remarks you, I think, simplify this matter very much. You point out the fact that we have treaties mentioned in the Constitution, and the method by which they are to be made is set forth, and that executive agreements are not mentioned at all anywhere in that great instrument. It is our position, as you stated very well, that the President is the communicator between our country and foreign nations in foreign affairs. It is your opinion, which you express so clearly, that it lies within the domain of the President, as the executive officer, to actually negotiate a proposed treaty. Then after it has be negotiated by the President, it is entirely within the power of the Senate to either accept or to reject it, depending on whether two-thirds present so vote.

Mr. GOLDBERG. That is correct, Mr. Chairman. And people overlook-and the administration, I think, overlooks-an important fact, that even in the conduct of the foreign policy, as the communicating or negotiating role, there is a check, even at the first instance, conceired by the Founding Fathers: The President may appoint ambassadors but only with the advice and consent of the Senate. If we will lcok back to communications and negotiations in those days when we did not have airplanes and the ability to get around, ambassadors did the negotiating; John Jay with Great Britain and Benjamin Franklin with France. Therefore, the President, in appointing ambassadors who had great powers had to submit their names to the Senate for confirmation. That, in itself, illustrates the

limitations on even the communications role of the Executive. In other words, the Senate was to participate in the selection of the men who were to carry on negotiations.

Senator Ervin. Now, I infer your position—I do not need to infer, because you stated it so clearly—that the Constitution clearly contemplates that all agreements of substance between this Nation and any other nation shall be reduced to the form of a treaty, negotiated for the President and then submitted to the Senate for ratification or rejection?

Mr. GOLDBERG. That is correct, Mr. Chairman.

If we negotiated an agreement relating to migratory birds as a treaty requiring ratification by the Senate, then it seems to me that any treaty or agreement relating to deployment of forces which may lead into involvements of a military character certainly requires that procedure.

Senator Ervin. And is it not extremely important that this procedure be followed in respect to agreements of substance between the United States and foreign countries because of the provi of our Constitution that treaties shall be a part of the supreme law of the land?

Mr. GOLDBERG. Yes, the supremacy clause of the Constitution exalts them to a status equivalent to an act of Congress.

Senator Ervin. Now, as I construe your views, what we call executive agreements can be properly used by the President in at least two situations: (1) To implement a treaty which has been ratified by the Senate, and (2) to carry out any acts of Congress which have been passed by both Houses which deal with aspects of foreign policy?

Mr. GOLDBERG. That is correct. That would be a proper way to enter into an executive agreement, because the Senate has approved the treaty, and, obviously, when a treaty is made it must be implemented, and the President is the one to implement a treaty.

Even there, I put one qualification: The Senate—very wisely in almost all of our treaties has said that commitment of forces shall be subject to our constitutional processes, which means that the President will then have to report to Congress before waging war. His implementation power under that language does not mean that he unilaterally can declare war.

Senator Ervix. I recall that it was expressly stated in the SEATO Treaty that we assume no obligation under that treaty unless it was assumed by compliance with our constitutional process.

Mr. GOLDBERG. I have examined almost every treaty we have made of this character, because of my interest in the subject, and my responsibility when I negotiated treaties as Ambassador, and I found it is almost uniform in the congressional approval of treaties to insert such a clause, and appropriately so because of the declaration of war principle which requires Congress to act in their vital area.

Senator Ervin. Is there any doubt in our mind that the principle that the President exceeds his constitutional powers when he undertakes to make agreements of substance with foreign nations by the executive agreement process rather than by a treaty?

Mr. GOLDBERG. There is no doubt in my mind that that would be a unconstitutional action.

Senator Ervix. There is no doubt of the fact that Congress needs to know what is in executive agreements in order that Congress may function properly where it is called on, for example, to finance commitments made by the President, or which the President undertakes to make in this form, and it is also imperative, is it not, that the Congress, which has a share of power in this field, not only know what is being done by the executive agreement but has the right to participate in, at least approving or rejecting, an executive agreement?

Mr. GOLDBERG. I agree with you, Mr. Chairman. The people certainly have a right to know and Congress needs to know to do its necessary work in connection with the discharging of its constitutional responsibilities.

Senator Ervin. Now, do you agree with me that it is entirely reasonable to anticipate that a bill, such as the one I have proposed, would not put any undue burden on the executive as long as the executive can confine itself to the field of merely implementing existing treaties by executive agreement or by implementing action of Congress by executive agreement !

Mr. GOLDBERG. I can see no practical difficulty at all.

I think the difficulties are conjured up largely out of a sense of, I suppose it must be, lack of faith in Congress. And I think that lack of faith is unjustified by the history of congressional performance and congressional responsibility.

Senator Ervix. I like your quotation from Justice Brandeis about the effect of sunlight as a disinfectant.

Mr. GOLDBERG. The most powerful of all, because it enables the press to know and the people to know; and it brings to bear the accumulated wisdom of a collegiate body upon our most important commitments.

One of the problems I see and a problem not peculiar to the present administration—is that we are becoming far too much a one-man Government. That is not our constitutional scheme.

Senator Ervin. You notice that in my statement I quoted Justice Brandeis that the Constitution was not written to make an efficient Government.

Mr. GOLDBERG. No; and it was not written to make it convenient for any branch of the Government; it was designed to protect the people.

Senator Ervin. Now, do you not believe that Congress, in the enactment of a bill of the nature of this bill, would tend to preserve the separation of powers by reminding the President that he should stay within the constitutional sphere allotted to him?

Mr. GOLDBERG. I do, Mr. Chairman.

Senator Ervin. I think Professor Arthur Miller has some questions he would like to ask.

Professor MILLER. Thank you, Senator.
Just a couple of questions, Mr. Goldberg.

I would like to have it settled in the committee's mind, if we might, as to your views, as a lawyer and as a former Justice of the Supreme Court, as to the power of Congress to enact such a statute.

Is there any doubt in your mind about the constitutional power of the Congress to enact a statute such as this one?

Mr. GOLDBERG. Not at all, under the necessary and proper clause of the Constitution. Congress has the clear right to press the statute.

Professor MILLER. So, the only questions, then, so far as you are concerned, would be whether or not it interferes with the Executivewhich would be a policy question-or whether in fact the power exists and to what extent it does? That is entirely clear?

Mr. GOLDBERG. The power exists. Whether the power should be exercised, as you say, Professor, is a question of policy.

Professor MILLER. Let me ask you a couple of specific questions, sir. The Azores agreement with Portugal, as I understand, is defended by the administration as merely an additional agreement under a former executive agreement which is ultimately based on a NATO agreement. Would this fall within your concept of a routine administrative agreement or a substantial agreement?

Mr. GOLDBERG. This is a very substantial agreement, and has always been regarded so, even by the Executive. In the Azores agreement, we are making an agreement to have essentially a military base in a foreign country for the use of our armed forces. Now, in addition to that, the present agreement goes beyond the prior agreements that had been negotiated. It involves a very substantial foreign aid commitment of several hundred millions of dollars. It seems very ironical to me that on the one hand it is defined as an executive agreement which does not require the consent of Congress while on the other hand it cannot be executed at all unless the Congress allthorizes and appropriates the money. This indicates to me how clearly it involves the treatymaking provisions.

Professor VÍILLER. But it occurs to me, Mr. Goldberg, that the appropriation power is a very slim power indeed once a commitment is undertaken. It is more ostensible than real, and to say the Congress has this check is merely to note a facade

Mr. GOLDBERG. Professor Miller, that is why it is good to have a bill dealing with the subject. I agree with you that once the President has committed the country, Congress is faced with a fait accompli, and it is very difficult at that point not to support the President. It is much better for the other party to know that when the President negotiates, the agreement is subject to approval by Congress.

Professor MILLER. All right. Just two other brief questions, sir. As I understand your statement, you see no undue interference with executive prerogatives or executive methods of conducting foreign relations.

Mr. GOLDBERG. Not at all.

Professor MULLER. And the one question is this: The definition of executive agreement in the bill that the Senator introduced, S. 3475, includes the term “any bilateral or multilateral international agreement or commitment other than a treaty binding on the United States."

Now, we have heard a lot in recent years about commitments and the need for fulfilling them, particularly in Southeast Asia. Would this type of statute cover that type of commitment which abounds, in your judgment?

Mr. GOLDBERG. I think the language you have added would indicate that any commitment of the United States, such as has been re

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