Congressional Oversight of Executive Agreements

agreements he entered into? You heard the previous witness testify that there might be some relatively small areas. Would you agree with his testimony?

Mr. JACKSON. Well, I think it is generally recognized, Professor Miller, that the powers of the President under the Commander in Chief clause, give him certain flexibilities and room for initiative in moving about the Armed Forces of the United States, once they are committed by congressional authorization, once they are committed to conflict. So, certainly I would think-I do not think Congress has any business, or the Senate has any business, giving day-to-day military orders to the President.

Mr. MILLER. Well, you did testify, did you not, about the President's reaction to a statement about the withdrawal and so on, and you questioned that, it seems to me.

Mr. JACKSON. I did.

Mr. MILLER. You said you were not in agreement with it. Now, I take it that is under his commander in Chief power, and Congress has no authority over him?

Mr. JACKSON. No, sir. I think the Congress can state its views of the foreign policy of this country. The President signed that statement into law as part of the Defense Procurement bill, of course, and I do not-I do not for a moment think that he has it solely within his authority to say, I disregard, and Congress can talk all it wants to, and state policy, but it is not my policy.

Mr. MILLER. What is the remedy you suggest? You have suggested a legislative blockade. Maybe it should be something a little less drastic.

Mr. JACKSON. Constant guerrilla warfare on the part of the Congress, continuing with hearings on bills such as Senator Fulbright's, Senator Case's, and Senator Ervin's bill, and

Mr. MILLER. You see no judicial remedy?

Mr. JACKSON. I do not put much faith in the power of the Congress over the purse strings to control the Executive.

Mr. MILLER. No, no. In the courts? You see, I would put little faith in the power of the Supreme Court to balance these delicate problems between the Congress and the Executive.

Mr. JACKSON. Professor Miller, do you think that the court would touch such a hot constitutional issue?

Mr. MILLER. That is one reason why I think the courts are not a remedy. I do not see any specific remedy. I can see a broad legislative blockage, and that is an interesting thought, but a specific remedy for a specific problem on those executive agreements is what the committee is searching for. I was wondering if you had any thoughts along that line, other than the Senator's bill, of course, which I take it you would approve of in general?

Mr. JACKSON. Oh, yes, generally speaking I do, with the qualifications I made. Of course, the Congress could have a very active lawyer on its part, and I believe Senator Hartke and others proposed this in the past, and go to court and say that we know that there are certain outstanding executive agreements that we have not been informed about, yet we are being asked, or we will be asked, to appropriate money to implement these agreements. We are demand

ing the Congress be informed under the Constitution. I suppose that is one tack than can be taken.

Mr. MILLER. Well, I think there are certain technical, legal difficulties there, without pursuing it. Senator, I think it would be useful for Professor Jackson to send a letter also on a specific remedy, as well as the general issue of executive agreements.

Senator ERVIN. I agree with you, and that would be very helpful to us if you would.

Mr. MILLER. I have one other question.

Mr. JACKSON. Either legislative or judicial?

Mr. MILLER. Well, I would say this, without getting into an argument over law, that I do not see any real role for the courts here. I think if Congress cannot settle its own problems, I do not think they should toss the ball down the street to the Supreme Court. They are not going to settle Congress's problems, it seems to me.

Senator ERVIN. Well, Senator Hartke's proposal was that Congress have the counsel of a constitutional counsel to present its intent to the courts, since so many congressional acts, especially those of major importance, are passed by a very ill-advised Congress. Some Senators raised the question that if the majority of Congress is entitled to have a counsel, then the minority ought to have one too. But, I would say this: there was raised quite a question a couple of years ago when the Comptroller General, who is the arm of the Congress, and who is empowered by act of Congress to deny the payment of an obligation which is contrary to the authority grated by Congress, made a ruling, and then the Attorney General made a diametrically opposite ruling. Congress, by reason that it depended upon the Attorney General to be the lawyer for the Government in the courts, was powerless to carry out its authority. So, I have introduced a bill that would provide that in this very restrictive field when there is a difference of opinion between the General Accounting Office and the Department of Justice with reference to the legality of the expenditure, that the General Accounting Office can secure its own attorney and litigate its question in the court if need be. Otherwise, Congress has no way in the world to enforce the decision of its own agency, the General Accounting Office. I think that this is one field in which Congress should authorize some form of independent counsel.

Mr. JACKSON. Well, of course, as you well know, Professor Miller, Senator Case tried when he heard about the Portugal and Bahrain Agreements, he tried by Senate resolution to have those submitted as treaties. He failed, and then he resorted to the power of the purse, and there he shall fail also, I feel certain. But, I mean, there is something that specifically has been done, a specific remedy that has been attempted on executive agreements.

Mr. MILLER. Well, I think that I only have one other question, Professor Jackson. I think this bothers me a bit because I am not quite sure that I understand if there is any precedent for it. On page 5 of your statement you mention that if the Congress were to pass a bill over a Presidential veto, that the President would commandeer funds from the Treasury. I am not sure I am aware of any actions by this President or previous Presidents in this regard. Do you have any instances? I know of reprograming funds, for exam

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

THURSDAY, MAY 18, 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 10:30 a.m., in room 1318, New Senate Office Building, Senator Sam J. Ervin (chairman of the subcommittee) presiding.

Present: Senators Ervin (presiding) and Gurney.

Also present: Rufus Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Walker F. Nolan, Jr., assistant counsel; Philip B. Kurland, chief consultant.

Senator ERVIN. The subcommittee will come to order. First I must apologize for being late. I have been out of Washington for 2 or 3 days.

Counsel will call the first witness.

Mr. EDMISTEN. Mr. Chairman, the subcommittee will hear from Hon. Nicholas deB. Katzenbach, former Attorney General and former Undersecretary of State.

STATEMENT OF HON. NICHOLAS deB. KATZENBACH, FORMER ATTORNEY GENERAL AND FORMER UNDERSECRETARY OF

STATE

Senator ERVIN. We are delighted to welcome you back to the city. The subcommittee appreciates your willingness to come far more than I can say.

Mr. KATZENBACH. Thank you very much, Mr. Chairman. It is always a great privilege to testify before you when you are in the Chair.

I have a prepared statement. It is not a very long one. Shall I run through it?

I appreciate the invitation of the committee to testify today and to give you my views on the subject of executive agreement versus the treatymaking power.

The fundamental problem, of course, is to work out acceptable and workable rules for the Executive and Congress in the formula

Education.-Received the A.B. degree in economics and political science at Davidson College in 1957 and the A.M. degree in international affairs and American government at the University of North Carolina, Chapel Hill, in 1959. The M.A. thesis entitled "Disarmament and Security," was an examination of the relationship between U.S. arms control policy and U.S. defense policy, 1955-1958.

Entered Columbia University through the Russian Institute in September, 1959; later switched to an American government major (with a minor in Soviet and Chinese political institutions) in the Public Law and Government Department. Departed Columbia for several years, beginning in 1961 (see employment record); Ph.D. dissertation not completed.

Employment.-Held a departmental assistantship in the Department of Political Science, U.N.C.-Chapel Hill, 1957-59.

Worked as full-time research assistant to Dr. Samuel P. Huntington, director of the Institute of War and Peace Studies (Columbia University), 1960-1961, 1962-1963. Assisted in researching The Common Defense: Strategic Programs in National Politics (1961); Political Power, USA/USSR (1964); and Changing Patterns of Military Politics, International Yearbook of Politcal Behavior Research (1962).

Ford Foundation Senate Intern, 1961-1962, serving full-time on the staff of the Majority Leader of the New York State Senate, Albany.

Budget Examiner, International Division, Bureau of the Budget, Executive Office of the President, 1963-64. Worked on military aid and military sales programs.

Taught American and comparative government as an Instructor in Political Science at the University of North Carolina at Charlotte, 1964-1965 (11⁄2 years).

Assistant Professor of Political Science, Davidson College, 1968.

Courses in American national government and Soviet and Chinese political institutions.

PUBLICATION OF NOTE

1. William E. Jackson, Jr., "Defense: The Missile Nobody Needs," The New Republic, Oct. 28, 1967.

2. Jon W. Fuller and William E. Jackson, Jr., "Striking the Tripolar Balance," Christianity and Crisis, April 28, 1969.

3. William E. Jackson, Jr., Statement submitted to the Subcommittee on Separation of Powers, Hearings on Executive Privilege (Washington: GPO 1791), pp. 515–520.