ferred to, in Southeast Asia, ought to be submitted to Congress for a treaty form so that the American people will know what it is that we are committed to.

The fact of the matter is, Professor, that the so-called commitments made by the Executive in times of stress do not stand up anyhow unless they have been constitutionally approved.

I recall when I was at the U.N. and we had the Middle East crisis, there was loose talk about commitments. The fact of the matter is that nothing happened with respect to these commitments. It would have been much better for everybody concerned if the socalled commitments had been put in a treaty form, submitted to and approved by Congress, and then we would have had a commitment that we would have honored as a nation that keeps its treaty obligations.

Professor MILLER. One more brief question, Senator.

When you talk about executive agreements, of course, most of those in your judgment—or at least in your experience, sir-are negotiated not by the President or the Secretary of State but by relatively minor executive officials.

Could you give us any estimate as to how many of these the Secretary of State or the President actually get?

Mr. GOLDBERG. Very few by the President himself. I would suppose that the President and the Secretary of State get involved in what we might term the major ones like the Portugal-Bahrain agreement which, in itself, indicates that they ought to be called treaties. The others are handled by subordinate officials of the State, Treasury, Commerce, or other departments of the government. And all the more reason, therefore, that they be submitted to Congress.

Professor MILLER. And there is no place in the executive department where these are screened and looked through as a central clearing office, to your knowledge?

Mr. GOLDBERG. I cannot answer that as of now, but, in my own experience, when I was the Secretary of Labor for example, there was no central clearing office for executive agreements.

Professor MILLER. Thank you, sir. No further questions.

Mr. EDMISTEN. Mr. Goldberg, I just talked to a gentleman in the Defense Department the other day, and he, in very glorious language, assured me that if this bill were to pass it would take transfer trucks to carry the executive agreements over here. Is that just a smokescreen?

Mr. GOLDBERG. If it takes transfer trucks to carry all of the agreements that have been made involving commitments and deployment of forces, and so on, then, the time is long overdue for them to be carried over here, whether it is one truckload or two or three. But I think that is an exaggeration. We are not talking about routine orders; we are talking about something substantial. And I cannot believe that there are truckloads of substantive agreements. If there are, we are in much worse shape than I thought, in terms of honoring the Constitution.

Mr. EDMISTEN. I would like to point out that in the State Department's publication, "Treaties in Force," under the caption of Bahrain, there is one international agreement, the one that is under controversy. So, I do not think the truckload comes into play there.

Also, Mr. Goldberg, in the foreword to this document, it lists the three situations under which the executive branch of the government has power to make executive agreements: (a) pursuant to and in accordance with existing legislation or treaties; (b) subject to congressional approval or implementation; and (c) under and in accordance with the President's constitutional power.

Now, could not part (c) be just a catchall?

Mr. GOLDBERG. That is right. Once you say (c), then, you have no constitutional guideline as to what an executive agreement is. Professor MILLER. May I interject?

Mr. EDMISTEN. Yes.

Professor MILLER. I take it you are suggesting by citing the Steel Seizure case that the President's inherent powers are almost nonexistent?

Mr. GOLDBERG. Yes. He has implied powers derived from language of the Constitution, but the concept of inherent powers for the President or for the Congress or for the judiciary is entirely at variance with our constitutional scheme. We are a country with a written Constitution. As I said, Learned Hand said that we staked our all on it, and that document is a document which defines and limits powers.

Mr. EDMISTEN. Thank you, Mr. Chairman.

Justice Goldberg, just one question.

When Professor Miller read the pertinent section in this bill, S. 3475, he referred to the definition which includes any bilateral or multilateral agreements which implies that it is not just a substantial agreement; it is any routine agreement. So, in essence, you can have a truckload of routine agreements coming over from the Defense Department.

In your role as Ambassador to the U.N., in which you probably had to consummate routine agreements as well as substantive agreements in a very practical sense, would you find this bill a restraint on your efforts in the Unied Nations?

Mr. GOLDBERG. Not at all, because, as I said, Senator Ervin's bill is a very moderate bill. All it requires is that it be sent over, routine or substantive, and then unless it is disapproved it remains in effect. So, whether it applies to substantive or administrative matters, the bill would place them in the public domain where they ought to be with appropriate safeguards of secrecy and security provisions.

Senator ERVIN. Your position is that a substantial agreement has no place in an executive agreement?

Mr. GOLDBERG. No, such an agreement is a treaty; really, in a constitutional sense.

There are two aspects to this problem. If an agreement is a treaty, there is no constitutional right to place it in effect without the advice and consent of the Senate. On what might be properly called executive agreements, I think Congress ought to be advised and its approval sought.

Senator ERVIN. Well, the committee is certainly indebted to you for a most eloquent and lucid statement.

Mr. GOLDBERG. Thank you, Mr. Chairman.

BIOGRAPHICAL INFORMATION-ARTHUR J. GOLDBERG

Arthur J. Goldberg has served as Associate Justice of the Supreme Court of the United States, the Permanent Representative of the United States to the United Nations with the rank of Ambassador, and Secretary of Labor.

Justice Goldberg was born in Chicago, Illinois, on August 8, 1908, the son of Joseph and Rebecca Goldberg.

He received his elementary education in Chicago Public Schools and was graduated from Benjamin Harrison High School in 1924. Mr. Goldberg attended Crane Junior College, a branch of the City College of Chicago. He received the Bachelor of Science in Law degree in 1929 and Doctor of Jurisprudence in 1930 from Northwestern University. He was Editor in Chief of the Illinois Law Review.

In 1929, Mr. Goldberg was admitted to practice before the Illinois bar. He qualified for practice before the Supreme Court of the United States in 1937.

He was engaged in private practice in Chicago from 1929 until 1948 and was the senior partner of the firm of Goldberg, Devoe, Shador and Mikva, Chicago, 1945 to 1961. Mr. Goldberg also practiced law with Goldberg, Feller and Bredhoff, Washington, D.C., 1952-1961, as the senior partner of that firm.

Mr. Goldberg was General Counsel of the Congress of Industrial Organizations, (CIO) 1948-1955, and United Steel Workers of America, 1948-1961. He was Special Counsel for the AFL-CIO, 1955-1961. He also was Legal Advisor to several international unions.

During World War II he served as Special Assistant with the rank of Captain and Major with the Office of Strategic Services.

He is author of articles in American legal publications and journals of opinion, and the author of several books, including "AFL-CIO: Labor United," "The Defense of Freedom: The Public Papers of Arthur J. Goldberg," and "Equal Justice: The Warren Era of the Supreme Court."

Mr. Goldberg married Dorothy Kurgans, an artist, in 1931. They have two children, a daughter, Mrs. Barbara Cramer, a social worker in Chicago, and a son, Robert M. Goldberg, an Alaska lawyer.

Justice Goldberg is practicing law in Washington, D.C., and is also a University Professor of Law and Diplomacy at American University, Washington, D.C.

Senator ERVIN. And the next witness is a distinguished lawyer and also a distinguished public servant, the Honorable Clark Clifford.

I wish to welcome you to the committee and express our deep appreciation for your willingness to come and give us the benefit of your study, observations and views on this very important question.

STATEMENT OF HON. CLARK M. CLIFFORD,

FORMER SECRETARY OF DEFENSE

Mr. CLIFFORD. Thank you, Mr. Chairman. I would like to commend your staff for the scheduling of witnesses, because I think that between the testimony of my old and good friend, Justice Goldberg, and mine, you will find substantial differences, which would, I think, be of interest to this committee.

Also, I do not find the matter as simple as Justice Goldberg does. I find it considerably more complex than he.

Also it seems to me that we must consider whether or not this legislation might possibly go too far, and, as I understand it, that is one of the reasons that you, as chairman, are having these hearings. I have a prepared statement which is not lengthy. It has footnotes in it, and in order to move more expeditiously I will not read the footnotes. Those can be studied at some later time by persons who find the statement interesting enough to do so.

Senator ERVIN. Well, your entire statement will be printed in the record, including those footnotes.

(The prepared statement submitted by Mr. Clifford reads in full as follows:)

STATEMENT OF CLARK M. CLIFFORD ON THE SUBJECT OF EXECUTIVE AGREEMENTS VERSUS THE TREATYMAKING POWER

I.

Thank you, Mr. Chairman, for your invitation to appear here today to discuss the scope of the treaty-making and executive agreement authorities. I appreciate this opportunity to give you my views on this question, which, I believe, is so important in our system of the separation of powers.

This is a subject that has concerned the Congress, from time to time, through the years. I can recall at least two major inquiries and it is interesting to recall the positions taken on the issues in those cases.

The first instance was at the close of World War II, when United States membership in the United Nations was under consideration. Because of President Wilson's inability to secure two-thirds of the Senate in favor of a treaty calling for our membership in the League of Nations, many feared a similar setback on the U.N. Some suggested that our participation in the United Nations be based on an executive agreement implemented through ordinary legislation; in this manner, the requirement of a two-thirds vote in the Senate could be avoided. The question debated at that time was whether such an executive agreement would be legally equivalent to a treaty. As we all know, the issue was not put to the test, since the United States used the treaty process to adhere to the U.N. Charter and the other international agreements of the period. In each case, however, implementing legislation was also secured.

The next major examination of the President's power to make treaties and executive agreements came in 1953, when the so-called Bricker Amendment was first introduced. Spurred largely by the controversy over the Yalta and Potsdam Agreements, Senator Bricker and his supporters sought to curb the treaty-making power by a constitutional amendment requiring implementing legislation for every treaty and executive agreement. Despite strong opposition from President Eisenhower and Secretary Dulles, the Bricker Amendment failed by only one vote to secure the needed two-thirds majority.

Our inquiry today is also motivated by immediate concerns over particular policies. This time, it is primarily our involvement in the Vietnam conflict that has led to questions regarding the President's power to make international agreements and commitments. While a person's views on Vietnam are bound to color his approach to this issue, I think the questions we are concerned about go further than any particular policy.

I should begin by stressing my own belief in a strong presidency. I need not review all the reasons why, in today's world, our Chief Executive must be able to provide strong leadership both domestically and internationally. Any undue restrictions would gravely impair the President's ability to carry out the responsibilities we now expect him to bear.

But, despite this belief, I am troubled about the recent trend toward unilateral exercise of presidential powers in the international area. As a consequence, our foreign policy has all too often been based upon the proposition that the United States should act as the world's policeman, Shortly after the Cold War began in earnest, we sought to build a strong alliance against communistic aggression. As the years passed, we enlisted as many nations as possible in this cause. Our efforts to this end were assisted by grants of economic and military aid, but they included a great many formal and informal commitments to the defense of those other nations. While resistance to the threat of Soviet aggression in Europe and elsewhere was necessary, I am afraid we became preoccupied with our effort to forge alliances and let it go far beyond our realistic needs. The result has been, I think, to overstretch our capabilities and to make commitments creating exaggerated expectations in others. This expansive view of our world role led directly to Vietnam.

II.

The specific question you have asked me to discuss is the relationship between the treaty and the executive agreement as a means of implementing our

foreign relations. This question, Mr. Chairman, involves legal aspects central to the bill (S. 3475) you recently introduced. It is a question that also raises many important policy considerations. I want to discuss both of these matters, but first let me offer my views, as a lawyer, on the strictly legal aspects.

We all know from the Constitution that the President may negotiate treaties and may ratify them on behalf of the United States after the Senate, by twothirds vote, has given its consent. Once a treaty comes into force, it is the supreme law of the land, with the same status as a statutory enactment. As such, the treaty is superior to any contrary State laws and preexisting federal legislation.

There is authority for the proposition that the treaty power is broader than the power given to the Congress in Article I of the Constitution.1 Under that interpretation, a treaty may be made concerning any matter appropriate to our foreign relations, whether or not that matter has specifically been entrusted to the Congress under Article I of the Constitution. But, it is clear that a treaty may not be inconsistent with any specific provision of the Constitution.2

The legal parameters of the executive agreement power have developed more slowly, but today the process appears complete. Such an agreement in my opinion is indistinguishable from a treaty from the international point of view. That is, it matters not to the other country or countries involved how we have made our agreement; their main interest is in having an obligation of the United States,

From the domestic point of view, however, an executive agreement can raise basic constitutional issues regarding the scope of the powers of Congress and the President. In making such an agreement, the President can act on the basis of his own consitutional authority, in reliance on a delegation of power from the Congress, or on a combination of the two.3 The classic example of an agreement relying wholly on the President's constitutonal authority is one relating for instance to diplomatic recognition. A tariff agreement may be said to rely almost excluisvely on congressional delegations of power. And many of our mutual assistance agreements partake of both authorities.

The cases establish that an executive agreement is the supreme law of the land in the sense of superseding contrary state law. It is also clear that congressional delegations of power to the President in the international field may be a good deal broader and less precise than would constitutionally be permitted in delegations involving domestic affairs. In sum, while there is some contrary authority, I think that the law supports the use of the executive agreement in any case in which the United States is not required to take any action or where such action as we agree to take is already authorized by the Constitution or our laws.

Is there any difference then between a treaty and an executive agreement? My answer is that, in legal force and effect, a properly concluded executive agreement, supported, where necessary, with implementing legislation, is tantamount to a treaty.

I note, with interest, in examining the witness list for these hearings, that there will appear before this Committee some of the leading legal scholars and authorities in the country. I am sure they will discuss in detail the technical ramifications of these questions so that you will be fully informed in this regard. My acquaintanceship with the problem has been a practical one as the result of serving in the executive branch of our government and attempting to adjust to the proper roles to be exercised, in this area, by the President and the Congress.

1 Missouri v. Holland, 252 U.S. 416 (1920). Reid v. Covert, 354 U.S. 1 (1957).

I have not stressed the distinction between the negotiation of an agreement and its implementation. It can be argued that the President is free to negotiate about anything and that he only depends on Congress for authority to implement his agreements. This analysis, while perhaps sound on strictly logical grounds, strikes me as somewhat artificial, since a responsible President must be concerned that agreements he makes will actually be carried out. The analysis also can lend unwarranted support to the practice of making quasicommitments, which call for no specific act by the United States in the case of attack and, therefore, require no implementing legislation until something is to be done. See Part III.

U.S. v. Belmont. 301 U.S. 324 (1937); U.S. v. Pink, 315 U.S. 203 (1943); BaldwinLima-Hamilton v. Superior Court, 25 Cal. Rep. 798 (Ct. of App. 1st Dist 1962). U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

U.S. v. Guy Capps, Inc. 204 F 2d 655 (4th Cir. 1953).