"On Identifying and Solving the Problem of Compliance with International Law, Proceedings of the American Society of International Law (1964), 1–9.

"The Role of Domestic Courts in the International Legal Order," Indiana Law Journel (1964), 429–445.

1965

"International Legal Order: Alywn V. Freeman v. Myres S. McDougal," American Journal of International Law, Vol. 59, No. 1 (January 1965), 66–71. The Authority of the United Nations to Control Non-Members, Center of International Studies (Princeton University), Research Monograph 18, 1965. "The Claimants of Hiroshima," The Nation, Vol. 200, No. 7, (February 1965), 157-161.

1965-66

"The Revolution in Peace Education," Saturday Review (May 1966), 59–61, 77.

"The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki," American Journal of International Law, Vol. 59, No. 4 (October 1965), 759–793.

"Operation Stanleyville: A Lesson in Third World Politics," The Correspondent, No. 35 (Winter 1965), 63–73.

“On Minimizing the Use of Nuclear Weapons: A Comparison of Revolutionary and Reformist Perspectives," in On Minimizing the Use of Nuclear Weapons: Three Essays, by Richard A. Falk, Robert C. Tucker, and Oran R. Young, Center of International Studies (Princeton University), Research Monograph 23, 1966, 1-72.

1966-67

"International Law and the United States Role in the Viet Nam War," Yale Law Journal, Vol. 75 (June 1966), 1122-1160.

"The South West Africa Cases: An Appraisal," International Organization, Vol. 21 (Winter 1967), 1–23.

"On Regulating International Propaganda: A Plea for Moderate Arms," Law and Contemporary Problems (1966), 622–634.

"New Approaches to the Study of International Law," American Journal of International Law, Vol. 61 (April 1967), 477–495.

"On the Quasi-Legislative Competence of the General Assembly," American Journal of International Law, Vol. 60 (October 1966), 782-791.

"The International Regulation of Violence in the Developing Countries," Proceedings, American Society of International Law (1966), 58-68.

1967-68

"Conflict of Laws," International Encyclopedia of the Social Sciences, Vol. 3 (1968), 246–253.

"International Law and the United States Role in Viet Nam: A Response to Professor Moore," Yale Law Journal, Vol. 76, No. 6 (1967), 1095-1158.

"On Treaty Interpretation and the New Haven Approach: Achievements and Prospects," Virginia Journal of International Law, Vol. 8, No. 2 (April 1968), 323-355.

1968-69

"Ending the Vietnam War," The Nation (June 1969).

"On Treaty Interpretation and the New Haven Approach," Virginia Journal of International Law, VIII (1968), 323–355.

"A Political Solution for Vietnam?" Dissent (May-June 1969), 196-198.

A Vietnam Settlement: The View from Hanoi, Center of International Studies (Princeton University), Policy Memorandum 34, 1968.

The Sir Legal Dimensions of the Vietnam War, Center of International Studies (Princeton University), Research Monograph 34, 1968.

1969-70

"The Beirut Raid and the International Law of Retaliation," American Journal of International Law, Vol. 63, No. 3 (July 1969), 415-443.

80-847-72- -14

"Charybdis Responds: A Note on Treaty Interpretation," (editorial comment), American Journal of International Law, Vol. 63, No. 3 (July 1969), 509-513.

"Law, Lawyers, and the Conduct of American Foreign Relations," Yale Law Journal, Vol. 78, No. 6 (May 1969), 919-934.

"World Population and International Law," (editorial comment), American Journal of International Law, Vol. 63, No. 3 (July 1969), 514-520.

"Songmy: War Crimes and Individual Responsibility," TRANS-action, (January 1970), 33-40. Republished in modified form in The Nation (January 1970), 77-82, under the title "War Crimes: The Circle of Responsibility."

"New trends in International Law: The Challenges of the Ecological Age," Naval War College Review (March 1970), 18-25. Republished in modified form in American Association of University Women Journal (May 1970), 185-188, under the title "No Nation Can Go It Alone."

1970-71

"The American POWS: Pawns in Power Politics,' The Progressive (March 1971) 13-21; Congressional Record, CXVII (March 11, 1971), 1–3.

"The Cambodian Operation and International Law," American Journal of International Law, 65 (January 1971), 1-25.

"Drifting Toward Armageddon," The Progressive (October 1970), 48–54. "Naciones Unidas: Varios Sistemas de Operación," Foro Internacional, 2 (1970), 139-159.

"The Nuremberg Tradition," Intercom, 13 (Jan./Feb. 1971), 29–32. "Realistic_Horizons for International Adjudication,” Virginia Journal of International Law, 11 (May 1971), 314–326.

"Toward Equilibrium in the World Order System," Proceedings of the American Society of International Law (September 1970), 217-224.

"U.S., U.S.S.R., and World Environment," University (Spring 1971), 19-24. "War Crimes and Individual Responsibility: After the Calley Verdict," Church and Society (May/June 1971), 23–32, 61–62.

(with Rennie Davis and Robert Greenblatt) "The Way to End the War: The Statement of Ngo Cong Duc," New York Review of Books (Nov. 5, 1970), 17-18.

"What We Should Learn from Vietnam," Foreign Policy, 1 (Winter 1970), 98-114.

"Why Impeachment?" The New Republic (May 1, 1971), 13–14.

S. 3475-TO HELP PRESERVE THE SEPARATION OF POWERS AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF EXECUTIVE AGREE

MENTS

FRIDAY, MAY 12, 1972

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS OF THE
COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess at 10:15 a.m., in room 2228, New 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; and Prof. Arthur S. Miller, staff consultant.

Senator ERVIN. The subcommittee will come to order.

Will counsel call the first witness?

Mr. EDMISTEN. Mr. Chairman, the first witness is Prof. Alan Swan, who has been with us before in another matter, and we welcome him.

Senator ERVIN. Yes, sir. I remember most pleasantly his previous appearance, and we want to welcome you back to the subcommittee and express our deep appreciation for your appearance and your willingness to give us the benefit of your views on this matter as well as for your previous aid to the committee.

STATEMENT OF PROF. ALAN SWAN, PROFESSORIAL LECTURER IN LAW, GRADUATE SCHOOL OF BUSINESS, UNIVERSITY OF CHICAGO

Mr. SWAN. I thank you very much, Senator. It is a great pleasure to be here again, and I hope I can discuss the bill before the subcommittee in some detail. If it is all right with the Senator, I would like to proceed with my statement.

Senator ERVIN. That will be entirely all right.

Mr. SWAN. And then take questions.

My personal interest in the constitutional law of executive agreements, and particularly my doubts concerning some of the more expansive claims for the Executive, go back to my days as an executive branch lawyer when I was among the claimants. Since then, time for reflection and investigation has confirmed these doubts and

yielded what I hope is the somewhat more mature view of the problem offered here.

In one narrow sense, of course, the making of international agreements is a wholly Executive function, As "sole organ of external relations," to use Marshall's famous phrase, the Executive alone can conduct negotiations, sign agreements and issue the final utterance necessary for an agreement to become a valid international obligation of the Government. These functions are executive in character, however, precisely because they are instrumental functions necessary to carry out the antecedent policy decision to make an agreement. It is the scope of the President's power to make this policy decision. which alone is of interest to us here.

In addressing this subject, I would first state as a major premise my conviction that the vision of Government embodied in the Constitution can be kept alive in the management of our foreign affairs only through a truly collaborative regime in which the President and Congress exhibits a high degree of mutual trust and confidence. I note that this principle is reflected in the preamble to S. 3475. Anything less would force us either to abandon the separation of powers principle-and assign a position of complete supremacy to one branch or the other-or risk a total paralysis in the exercise of governmental responsibility. It can scarcely be believed that the Constitution would force such an unhappy choice upon us. For no society will tolerate governmental paralysis for long. Yet, we today even more than our forefathers, should be aware that there is neither a great divide between the domestic and foreign spheres of our national life nor a unique competence in the Executive to manage

the latter.

In applying this broad conception to our topic, I would, through a modest adaptation of Justice Jackson's concurring opinion in the Steel Seizure case, suggest the need to deal quite separately with four distinct categories of agreements.

There are agreements made pursuant to an authorization of Congress or an antecedent treaty. These raise no question of the constitutional power of the President. He is merely executing the law. The question instead is whether, by its liberality, Congress has conferred upon the President possibilities for independent action which tend to undermine the maintenance of a truly collaborative regime. I answer that we have gone a long way in this direction, and that with Congress alone lies the solution.

The second category consists of agreements made by the President under his specifically enumerated constitutional powers in areas where Congress possesses concurrent authority but is silent. Here Congress holds a residual power. Should it act and its will become law, the President could no longer invoke his own powers but would be under his usual obligation faithfully to execute the law. Unfortunately, even the brief record offered here shows how this residual power has suffered. Presidents, by ever more expansive interpretations of their enumerated powers, have increasingly succeeded in confronting Congress with events that foreclose alternative policy decisions. Congress in turn has been unable or unwilling to forestall the President by asserting clear and comprehensive policies of its

own. It is the focus on this latter deficiency and, I might add, the refusal to try to legislate an interpretation of the President's powers, that is to me the chief virtue of S. 3475.

A third category consists of agreements not encompassed within any of the President's specifically enumerated powers, but nevertheless made without congressional participation on the theory that the President possess an inherent agreement-making power. This latter is sometimes attributed to the Executive power clause and sometimes. is said to flow from the nature of the Presidential office. Whatever its theoretical foundations, it has been used to claim for the President a residual power to make agreements unilaterally on any subject not specifically enumerated in either articles I or II. More importantly, where the agreement touches upon one or more of Congress' enumerated powers-especially the appropriations power-the theory has been employed to justify a commitment, which though carefully made subject to implementing action by Congress, nevertheless, pledges the word of the United States and then places upon Congress the onus of breaking that word if it should fail to pass the necessary legislation. In effect, under this theory, the President has claimed authority to make what amounts to a non-self-executing treaty, without consulting the Senate; a claim nowhere better illustrated than in the case of the recent Spanish Base Rights Agree

ment.

Finally, a fourth category consists of agreements made by the President on subjects admittedly within his exclusive control. Here again the problem is one of controlling a too expansive interpretation of the Presidential powers. In view of my doubts concerning the efficacy of legislating against such interpretations, I can only suggest that if congressional control is reestablished over agreements in the other three categories, this group should pose no danger to the kind of collaborative regime which I have already suggested is commanded by the Constitution.

It is, of course, not possible here to essay each instance where, under article II, the President may be thought to possess a concurrent or exclusive agreement making power. Instead, I would turn my attention to the inherent power theory. This notion has not only given rise to a wide-ranging presidential substitute for the nonself-executing treaty, but its origins go back to certain theories of Alexander Hamilton which have, in turn, supplied succeeding generations of executive officials with a basic rationale for an ever more expansive view of the President's foreign policy powers.

One is tempted to dismiss the whole idea of an inherent agreement-making power as a loose and irresponsible use of adjectives, to borrow Justice Jackson's phrase. An inherent, among other like powers, the Justice said:

... either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship but it is at least a step in that wrong direction.

Unfortunately, the notion has not yielded to such judicial scoldings, and to understand its vitality, it is wise to begin with Hamilton's defense of Washington's Proclamation of Neutrality of 1793.