The power to declare war and the power to make treaties, Hamilton asserted, are by their nature Executive powers so that their distribution elsewhere by the Constitution was an exception to the general grant of the Executive power clause and hence to be strictly construed. Anything not strictly within them would remain with the Executive. From this he reasoned that the power to interpret, as distinct from making treaties remained with the President, including the power to determine that a treaty required the Nation to go to war and to act upon that determination. This was, he said, an example of a concurrent power, by which the President might place the legislature under an obligation to declare war or at least create an antecedent state of things which Congress ought to weigh carefully in its exercise of its independent powers.

As later events will show, Hamilton's argument has been and remains a potent force. His characterization of the war and treaty powers as inherently Executive when added to the established fact of the President as sole organ of external relations, created a formidable base for later claims that foreign affairs was a uniquely Executive province warranting the most generous interpretation of the President's enumerated foreign policy powers. Then, if treatymaking was an inherent Executive function, the power to make nontreaty agreements must likewise inhere in the President, in spite of the necessary and proper clause. In this way, Hamilton created a new source of both concurrent and residual power encompassing every conceivable subject on which an agreement might be needed. Lastly, by asserting the right of the President to create an antecedent state of things constraining Congress in the exercise of its powers, Hamilton swept away any inhibition that the vast arrary of grants in article I might otherwise have had upon the exercise of the President's concurrent powers.

While it has taken nearly 170 years for the full implications of the Hamiltonian doctrine to be realized, nothing demonstrates more clearly that we have in fact arrived at that ultimate point than the August 1970, Agreement of Friendship and Cooperation with Spain. As a broad-new-basis for cooperation with the Spanish people, the agreement provides for a range of cooperative activities in education, cultural exchange, scientific and technological research, environment and urban development, agriculture, economic aid and public information. Where, under each of these headings, the United States' commitment is dependent upon appropriations or other legislation, the agreement is dutifully made subject to the requisite congressional action. However, as the Spaniards made only too clear, these provisions are in effect payment by the United States for the right to use Spanish naval and air bases and there can be no doubt that any failure of Congress to provide the legislative support needed would be viewed by Spain as a breach of faith impairing the rights sought to be acquired. Beyond this, and reflecting the basic military purpose of the agreement, are the clauses concerning cooperation for defense. The agreement recites that because the threat to peace is the greatest problem faced by the modern world, the parties agree to remain vigilant, to develop their own defense capabilities and consequently to make compatible their respective defense poli

cies within the framework of their constitutional processes. The latter reservation, paralleling language in all our mutual security treaties, is a revealing indication that the intent and expectation behind the Spanish agreement is hardly distinguishable from the guaranties contained in those treaties. The altogether disingenuous language appears solely intended to obscure the parallel, presumably for the benefit of argument with the Senate. This becomes patent when it is realized that the agreement was made under the expectation that American Forces would remain in Spain under an elaborate set or working arrangements for joint planning, consultation, and for the conduct of joint military exercises, all of which duplicate in character, if not extent, the NATO structure and which have as one inevitable purpose the defense of Spain. Little wonder that General Wheeler, in a moment of embarrassing candor, assured the Spaniards that the presence of American Armed Forces in Spain constituted a more significant security guarantee than would a written agreement. In short, the President has asserted an inherent constitutional power to commit the Nation to expenditures not yet appropriated, to programs not yet legislated, and to the use of American Armed Forces for the defense of another nation all without any consultation with Congress and under terms where Congress' only choice is to accept the President's action or imperil the good faith of the United States. This is the Hamiltonian theory fully matured.

It hardly needs to be stated that such an assertion of Executive power spells the demise of anything approaching a truly collaborative regime in the making of international agreements. Any theory that has brought us to such a pass deserves the most critical attention.

It should be clear that the Hamiltonian theory proves much too much. An inherent power whether predicated on the Executive power clause or upon the nature of the Presidential office, is a power without subject matter limitation. Since then the supremacy clause confers the force of statute upon any constitutionally valid nontreaty agreement. Hamilton's reasoning means that by making an agreement, the President can confer upon himself complete legislative and executive authority on any subject whatsoever so long as the subject is susceptible of being reduced to the form of an international agreement. Even assuming that under the Hamiltonian theory Congress may by affirmative, contrary action deprive the agreement of statutory force, it hardly seems credible that such an extraordinary deviation from the separation of powers principle is to be found in the vague notion of an inherent power that is nowhere even mentioned in the Constitution. This latter point is the thrust of Madison's answer to Hamilton and Hamilton himself certainly must have had some such doubts. Only 5 years earlier in No. 75 of The Federalist he had written:

. . . The qualities. . . indispensable in the management of foreign negotiations point out the Executive as the most fit agent in (the making of treaties) ...; whilst the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a part of the legislative body in the office of making them.

Moreover, if there is a necessity for finding in the Constitution a separable grant of power for the making of nontreaty agreements,

as such, it can be readily found in the grant to Congress under the necessary and proper clause.

Finally, the concept of an inherent Presidential agreement-making power cannot be squared with the history of the treaty-making power in the constitutional convention and finds no support in later judicial authority. Nor is it consistent with the practice of Presi dents until we move well into the modern era.

One point which emerges very clearly from the debates in the constitutional convention is that the provision for a senatorial role in treatymaking was not thought of by the framers as establishing an extraordinary exception to what was otherwise deemed an inherently Executive function. Quite the contrary, guided by their own colonial experience, suspicious of the European models offered them, their thinking started with general acceptance of treatymaking as a wholly legislative function, and ended with a clearer perception of the Executive as spokesman for the Nation and as counterweight to the Senate and hence properly the Government's sole agent in the

process.

Thus, acting upon several resolutions adopted by the convention. including one proposed by Madison explicitly for the purpose of defining all powers that were by their nature Executive, the Committee on Detail recommended first that "the Senate of the United States shall have power to make treaties," and second, that the Executive shall have power to execute the law, receive ambassadors, and act as Commander-in-Chief to mention the stipulations of immediate interest here. During consideration of the committee's recommendations, the danger of a senatorial aristocracy became a matter of increasing concern to certain members, while others began to perceive more clearly the natural instrumental role that the President should play. Madison suggests, for example, that the President "should be an agent in Treaties," while Gouvernor Morris' proposal for a "council of State" characterized the functions of that body with respect to treaties in much the same terms. When the several questions raised in the debate could not be readily disposed of, the matter was referred to a special committee which then recommended what is substantially the language of article II. Even after acceptance of this recommendation, it remained clear that no change in the role of the Senate was contemplated and that inclusion of the President was in recognition of his place as "agent" in the process. In short, Hamilton's theory of the treaty power seems to have been created out of "whole cloth;" a belated effort to resurrect his image, ignored if not rejected by the convention, of the President as a monarch on the model of George III.

If this be true it is hardly conceivable that the framers viewed the making of all other forms of international agreements as a uniquely Executive function. Today, when nontreaty agreements are used on subjects as important and far-reaching as treaties, there is even more reason to reject the Hamilton view.

Consonant with the record of the Constitutional Convention the idea of agreement making as an inherently Executive function can find no support in later judicial authority.

We have already noted Justice Jackson's indictment of the theory. The Curtiss-Wright case, although laden with dicta, holds only that

in the area of foreign affairs, a legislative delegation of authority may accord the President "a degree of discretion and freedom. . which would not be admissible were domestic affairs alone involved." In the famous Pink and Belmont cases, the court rested the validity of the Litvinov assignments upon the President's recognition power or upon his authority to negotiate the settlement of private claims. against foreign governments.

Finally, if we turn to what must necessarily be a too cursory review of the history of executive agreement making, it seems plain that from 1789 to roughly the turn into the 20th century-and this can only be a very approximate dividing line the actual behavior of our statesmen lends little or no comfort to the latter day Hamiltonians. To the contrary, much in this period shows that these views were generally ignored or even discredited. Specifically, there is in this period, a singular paucity of agreements made without some form of legislative participation either by treaty or legislative action. Such agreements as were made without reference to Congress, were made without aid of an inherent power theory, and without importing an expansive interpretation of the enumerated powers in article II. On subjects given by the Constitution explicitly to Congress, the practice of making agreements contingent upon implementing legislation was extremely sporadic. Instead, treaties followed by legislation was the procedure employed. Finally, in their diplomatic discourse, executive officials displayed what by contemporary standards must be regarded as scrupulous efforts to avoid independent commitments of future action on matters within Congress' purview. If there were to be entanglements, Congress had to approve.

Thus, following the enactment of standing legislation a significant number of agreements were made relating to postal services, the reciprocal modification of navigation acts, recognition of trademarks, patents and copyrights. Specific legislation was passed to authorize an agreement limiting armaments on the Great Lakes-the Rush-Bagot agreement. Periodically the President was authorized by statute to settle war reparations and other claims of the Government. Not until the Tariff Act of 1890, were executive agreements, rather than treaties, employed to adjust tariffs and other restrictions on commerce. Fishing rights, the settlement of boundaries and general agreements for the arbitration of disputes were likewise handled by treaty. Once Mr. Jefferson decided that the purchase of Louisiana by treaty did not require a constitutional amendment, executive agreements were used to annex territory only pursuant to Joint Resolutions of Congress, as in the case of Texas and Hawaii, or in furtherance of an antecedent treaty as with American Samoa, parts of the Philippines, and the final arrangements for the Panama Canal Zone. Naval stations and other minor acquisitions followed upon treaties or specific legislation.

Two situations seemed to have been regularly handled by executive agreement without legislative participation.

Beginning with the settlement of the "Wilmington Packet" claims in 1799, the Executive time and again used executive agreements to settle claims of American citizens against foreign governments and also to establish general arbitral or other settlement machinery for

this purpose. It cannot be doubted, that the protection of private citizens and their property abroad, has always been among the foremost tasks of diplomacy and is within the executive domain. On the same grounds, Justice Frankfurter, concurring in the Pink case, found an "indisputable" power in the President to fix the amount of governmental claims, citing as an example the Boxer Indemnity Agreement of 1901, although it might be added, that the disposition of that indemnity once fixed was left to Congress.

Beginning in 1885, a number of executive agreements were made in anticipation of treaty negotiations. Each was justified on emergency or similar grounds, and was operational before the treaty negotiations commenced, but was contingent for its continuance upon the treaty. The settlement of fishing rights in 1885, a prohibition on the killing of seals in the Bering Sea in 1891, and the establishment of a provisional boundary between Canada and Alaska in 1899, were handled in this fashion.

Lastly, and I think most importantly, a not surprising but notable characteristic of this period is the care exhibited by executive officials in avoiding commitments on subjects within Congress' power, particularly the power to decide between peace and war. Thus, after Secretary of State Adams persuaded President Monroe to issue his famous doctrine unilaterally, rather than accept Britain's proposal for a joint declaration, the President insisted that his statement appear in his forthcoming message to Congress. The President wanted it to be, as Bemis has observed, an executive monologue rather than a diplomatic dialogue that might be construed as a guaranty taken with regard to a particular nation. After issuance of the message, Columbia inquired how the United States "intends to resist any interference by the Holy Alliance" in the new republics. Adams responded by pointing out that any action the United States might take would depend on Congress. Five years later, Henry Clay as Secretary of State instructed his Minister in Buenos Aires along the following lines:

The declaration of the late President (Monroe) was that of the head of the Executive Government of the United States. Although there is every reason to believe that the policy which it announced was in conformity with the opinion both of the nation and of Congress, the declaration must be regarded as having been voluntarily made, and not as conveying any pledge or obligation, the performance of which foreign nations have the right to demand.

The Secretary went on to make the obvious point that if ever war should be indicated, "Congress alone" would decide the issue. Clay was not alone. In 1868, Seward, while personally committed to territorial expansion in the Caribbean, irately informed his agent in Port-au-Prince that it was "useless to examine" a Haitain scheme for the grant of base rights to the United States in exchange for financial assistance and a guaranty of Haitian independence. The Executive was, according to Seward, "constitutionally impotent to (accept a scheme) ... Congress would never sanction.”

Perhaps these appearances of scruple, were only because our statesmen found the posture expedient. Even so, they furnished an important precedent for the kind of behavior the Constitution enjoins upon all our statesmen. For its is precisely when it becomes