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the engrossed foreign-language text. The determination of the amount of time required in each instance to complete the engrossing is the responsibility of the Assistant Legal Adviser for Treaty Affairs. 5.8 Certificate on foreign-language text
Before any treaty or other agreement containing a foreign-language text is laid before the Secretary or the Acting Secretary (or any person authorized by either of them) for signature, a signed memorandum shall be obtained from a responsible language officer of the Department certifying that the foreign-language text and the English language text are in conformity with each other and that both texts have the same meaning in all substantive respects. 5.9 Transmission of texts for publication
The office responsible for the negotiation of a treaty or other agreement is also responsible for assuring the most expeditions transmission of the signed original text, together with all accompanying papers such as agreed minutes, exchanges of notes, plans, etc., to the Department for the attention of the Assistant Legal Adviser for Treaty Affairs, Office of the Legal Adviser; provided that where originals cannot be sent accurate certified copies should be obtained and transmitted as in the case of the original (see 4 FSM 226.1, 226.2, 2263 and 227.43). Any officer in the Department having in his possession or receiving from any source a signed original or certified copy of a treaty or agreement or of a note or other document constituting a part of a treaty or agreement shall forward such documents immediately by special messenger to the Assistant Legal Adviser for Treaty Affairs (L/T), in order that processing for publication may take place at once.
This Circular supersedes Department Circular No. 25 of May 15, 1953.
S. 3475—TO HELP PRESERVE THE SEPARATION OF POWERS AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF EXECUTIVE AGREEMENTS
FRIDAY, MAY 19, 1972
COMMITTEE ON THE JUDICIARY,
Washington, D.C. The subcommittee met, pursuant to recess, at 10:10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee), presiding.
Present: Senator Ervin (presiding).
Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Walker F. Nolan, Jr., assistant counsel; and Philip B. Kurland, chief consultant.
Senator ERVIN. The subcommittee will come to order. Counsel will call the first witness.
Mr. EDMISTEN. Mr. Chairman, the first witness this morning is the Honorable Ralph E. Erickson, Office of Legal Counsel, Department of Justice, and he is accompanied by a gentleman he will introduce for the record.
Senator Ervin. I want to welcome both of you gentlemen to the committee and express our appreciation for your willingness to come to us and give us the benefit of your views on this important subject. STATEMENT OF HON. RALPH ERICKSON, OFFICE OF LEGAL
COUNSEL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY JACK GOLDKLANG, ATTORNEY, OFFICE OF LEGAL COUNSEL
Mr. ERICKSON. Mr. Chairman, I am pleased to be here this morning. I would like to introduce the gentleman on my right, Jack Goldklang, an associate from the Office of Legal Counsel. Mr. Chairman, I appreciate this opportunity to appear before you
I to discuss the legal aspects of "executive-legislative relations in foreign affairs" with particular reference to executive agreements.
When S. 3475, which proposes a new role for Congress in connection with executive agreements, was introduced you expressed the concern that the Founding Fathers' concept of shared powers in the area of international agreements had been substantially eroded by the use of executive agreements. (118 Cong. Rec. S 5787). In light of that expressed concern, I would like today to provide the committee with some general observations regarding international agreements together with our views on the legal aspects of executive agreements. Thereafter I will address myself specifically to S.3475, which we oppose as not being constitutional.
It will be useful, I believe, to begin with a brief discussion of the treatymaking power. In recent years statements have been made by Members of the Senate as to the intentions of the Framers concerning treaties. These statements deserve analysis. For example, in the debate over agreements made with Portugal and Bahrain, Senator Case asserted :
The Constitution does not define the term “treaty". Yet, it seems clear that the Founding Fathers intended any agreement with a foreign country on a matter of substance to be embraced within the term. (118 Cong. Rec. S 3286, March 3, 1972.).
We can find no evidence for Senator Case's contention if it is taken to mean that all international agreements on matters of substance must take the form of a treaty. The available records of the Constitutional Convention do not indicate that any question was raised concerning the scope of the term “treaty”, or that a treaty was to be the only means for concluding agreements on matters of substance. Although it was suggested, when S. 3475 was introduced, that the treaty is the only kind of international instrument mentioned in the Constitution (118 Cong. Rec. S. 5787), an examination of its text does not support this. In the vocabulariy of the Framers, the term “treaty” did not cover every type of arrangement with a foreign nation. Article I, section 10, carefully distinguishes between a “treaty, alliance and confederation,” which the States are absolutely prohibited from entering, and an “agreement or compact *** with a foreign power” which the States may make provided they obtain the consent of Congress. The draftsmen of the Constitution thus recognized a distinction between treaties and agreements. Chief Justice Taney stated that difference as follows, quoting from Vattel, a scholar on international law well known to American lawyers during the period of the Revolution:
"A treaty *** is a compact made with the view to the public wel. fare, by the superior power, either for perpetuity, or for a considerable time. * * *
“The compacts which have temporary matters for their object, are called agreements, conventions and pactions. They are accomplished by one single act, and not by repeated acts. These compacts are perfected in their execution, once for all; treaties receive a successive execution, whose duration equals that of the treaty.” Holmes v. Jennison, 39 U.S. 540, 572 (1840).
In some ways the best evidence of the Framers' intention not to limit international agreements to treaties lies in the usage of executive agreements in the early days of the Republic. The Post Office Act of 1972 authorized the Postmaster General to “make arrangements with the postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices. 1 Stat. 232, 239. These were plainly not treaties in the constitutional sense. If they had been, congressional authorization would have been
of no avail to the President in the absence of the advice and consent of two-thirds of the Senators present. It is also worthy of note that the courts have rejected the contention that executive agreements authorized by statute violate the Constitution because they impinge on the treaty power. See Star-Kist Foods, Inc. v. United States, 169 F. Supp. 268 (Cust. Ct. 1958), and cases collected therein. In Field v. Clark, 143 U.S. 649 (1892), the Supreme Court upheld an act permitting the President to change duties on certain imports. The first Mr. Justice Harlan noted the well-established practice of granting discretion of this kind to the Executive in matters relating to trade with other nations, when he stated :
"*** the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land.” 143 U.S. at 691.
It has been said by an eminent authority that between 1789 and 1939 over 1,300 international agreements based on various types of authority were consummated without the participation of the Senate. E. Corwin, The President: Office and Powers 422 (1957). It, therefore, seems plain to me that there is no validity at all to the claim that the executive agreement as a method of international dealings is beyond the powers authorized by the Constitution.
Turning then to the permissible uses of the executive agreement, it is the firmly established policy of the executive branch that executive agreements should not be used when the subject matter should be covered by a treaty; there must be a constitutional source of authority for the agreement. As stated in the Foreign Affairs Manual of the Department of State, the executive agreement form is used only for agreements which are made: (a) pursuant to or in accordance with existing legislation or a treaty; (b) subject to congressional approval or implementation; or (c) under and in accordance with the President's constitutional power. See 11 Foreign Affairs Manual 722; 14 M. Whiteman, Digest of International Law 195 (1970).
Basically, the making of executive agreements involves a procedure which is supervised primarily by the Department of State. In this connection I should inform the committee that it is not a regular practice for the Department of Justice to be consulted in the making of such agreements, although there are occasions when we are called upon to discuss specific related legal questions.
Questions of separation of powers are not likely to be raised in Congress concerning agreements based on treaties or statutes since Congress or the Senate alone has, by express delegation, empowered the 'Executive to make them. Apparently the issue of authority tends to arise most often where the Constitution or implied constitutional powers are the source of the President's authority. An executive agreement made by the United States, which does not rely for authority on a treaty or act of Congress, may deal with any matter that under the Constitution falls within the independent powers of the President. Restatement (Second), Foreign Relations Law of the
United States, $ 121 (1965);14 M. Whiteman, Digest of International Law 195 (1970).
The independent authority of the President to make executive agreements is based on a number of express constitutional provisions including the following:
The executive power shall be vested in a President of the United States of America. Art. III, Section 1;
The President shall be Commander in Chief of the Army and Navy Art. II, Section 2; and [H]e shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed * * *. Art. II, Section 3.
The President also derives constitutional power in his role as Chief Executive to make executive agreements based on attributes of the sovereignty of the United States. In other words, the United States can act in the international field to the same extent as other sovereign nations do. The classic exposition of this concept appears in the opinion of the Supreme Court in United States v. CurtissWright Export Corp., 299 U.S. 304, 318 (1936):
* * * the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality. * * * As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. Tht power to acquire territory by discovery and occupation *** the power to make such international agreements as do not constitute treaties in the constitutional sense
none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nationality. (Emphasis added.)
As the State Department has indicated, the number of agreements based solely on the constitutional authority of the President is relatively small. One type of agreement where that power is exercised is recognition of foreign governments, based on the constitutional power of the President to "receive ambassadors and other public ministers"; another is the settlement of foreign claims. The CurtissWright opinion has been followed in subsequent decisions which have upheld the President's power to make executive agreements in these two areas. In United States v. Belmont, 301 U.S. 324 (1937), the Supreme Court upheld the validity of an executive agreement not based on any preexisting treaty or statute, which established relations with the Soviet Union and settled certain claims by assignment of assets to the United States. The Court said:
Governmental power over external affairs is not distributed, but is vested exclusively in national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treatymaking clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.
an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations. 301 U.S. at 330.
Similar_language was used by the Supreme Court in United States v. Pink, 315 U.S. 203, 229 (1942).
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