ment, let me turn to some practical differences I see between the two and some problems those differences can create.

The first difficulty results from the fact that an executive agreement can be concluded and come into force in secret and without congressional participation. If the President is exercising his constitutional powers, or if he has received advance congressional authorization, he can conclude and implement the agreement without any public announcement. I do not argue that no agreements should be secret. But I do believe that the ready availability of a means for reaching international understanding that can be made and carried out in secret has, by itself, generated unnecessary secrecy.

Examples of this tendency are all too common. We have a long list of secret agreements regarding the supply of military hardware and technical assistance. The use of foreign bases and even the employment in combat of our Armed Forces have been the subject of secret understandings. But secrecy pervades far more than the military agreement; it is now not uncommon to have a confidential side letter accompanying routine economic agreements. Often, the business interests concerned are let in on the secret, but the public-even the Congress are not.

If we have learned nothing else from Vietnam, it must be clear to all that making foreign policy amidst secrecy is fraught with danger. The executive agreement is only a tool, and, as such, it cannot be blamed for the uses to which it is put. But I cannot help believing that had the executive agreement been used with greater discipline, our foreign policy would not now rely so much on keeping information from our people. I am happy that Congress is now thinking of imposing that discipline.

The second problem I have with the use of executive agreements is limited to the so-called national commitment area, that is, where the United States commits itself to take action to assist other countries in defense against armed attack.

At the outset, I should note that our defense commitments have not obligated us automatically to come to the aid of any other country. Even when embodied in treaties, our understandings have been couched in conditional terms. Nonetheless, these conditional agreements have formed the keystone of the system of mutual defense arrangements we have built since World War II. Not surprisingly, a central element of our foreign policy has been to convince friend and foe that what are conditional commitments will in fact determine our response to aggression.

I make this point because it shows that mutual defense treaty commitments tend to take on a life of their own, that their conditional nature becomes subjugated to the need to preserve the "word" of the United States. The same metamorphosis can apply to conditional commitments embodied in executive agreements never submitted to the Senate or the Congress as a whole. Yet, the justification for making these agreements without involving the Congress is that they do not obligate the United States to act; they are only conditional commitments. Thus, since we agree only that we will take such action as we may consider appropriate in the event of a threat to Spain, no congressional involvement is sought.

I find it difficult to accept this reasoning. We have told Spain that its security and integrity are necessary for the common security of our two countries. Is this very much different from the statement in the North Atlantic Treaty that an attack on one signatory shall be considered an attack against them all? Each, I submit, creates the same kind of expectation in the mind of the other signatories. Each is intended to have a deterrent effect upon a possible aggressor. Yet cne statement has been made without any specific authorization from Congress.

In addition to the statements embodied in more formal executive agreements, we have seen a welter of informal commitments made by the President and his chief lieutenants, often in statements made on the occasion of State visits. These sometimes offhand remarks also create expectations that the United States stands ready to assist other countries in the event of aggression from any source, at any time.

Again from the strictly legal point of view, I suppose that because these agreements and statements are technically conditional, they are constitutional. The problem develops when these quasi-commitments come home to roost. If trouble were to develop in Spain, or in another country that has received some kind of nontreaty assurance, it would turn to the United States for assistance, and understandably so. At once, our "word" would be at stake and pressures to take action would mount.

The unrestricted availability of the executive agreement as a vehicle for concluding international defense understandings has made this quasi-commitment problem both acute and dangerous. In this vital area of national interest, the Congress has often been ignored because it is easier to do so and the authority exists for the President to act alone.

To recapitulate it is my view that the executive agreement authority has a sound basis in constitutional law. However, I think that the free use of executive agreement authority has resulted in a tendency towards undue secrecy and has proliferated assurances of support that have created expectations among a large number of foreign countries. I therefore would like to see proposals adopted to curb these tendencies.

Turning to the bill you have introduced, Mr. Chairman, I sympathize with and support its intention. It makes good sense to have international agreements come before the Houses of Congress for consideration before they become effective. The bill does raise, however, two questions that I should like to discuss.

First, the bill would apply to all executive agreements; that is, any international agreement or commitment of the United States other than a treaty. This coverage would, I gather, include those agreements made by the President relying solely on his constitutional authority, such as agreements to recognize a foreign government, to settle claims, to cease hostilities, and to take other actions that, under our system, have been left to the President alone. In these cases, I do not believe the Congress could constitutionally take action, as envisaged in section 1(b) of your bill, to render such an agreement ineffective. For this reason, I believe that section 1(b)

should be made applicable only to those executive agreements entered into at least in part in reliance upon legislation.

Secondly, I am not sure that a concurrent resolution is constitutionally adequate to overturn an executive agreement based upon existing legislation. If we assume that the Congress has, by statute, authorized the President to enter into a particular agreement, that authorization continues to exist until the statute is repealed. I think there is serious constitutional question whether the Congress can repeal legislation simply by passing a concurrent resolution, which does not go to the President. One way of overcoming this problem might be to provide that no existing or future grant of congressional authority to the President may hereafter be used as the basis of implementing an executive agreement unless the procedures of section 1 of the bill are followed. While this approach is not wholly free from constitutional question, I believe it rests on more secure underpinnings of congressional authority.

The Ervin bill would do much to eliminate the problems of secrecy surrounding the negotiation and implementation of executive agreements. It would also give the Congress an opportunity to reconsider its grants of authority to the President to make agreements in the light of what he does with that authority.

But the bill would leave relatively untouched the problem of quasicommitments-statements by the President or his chief lieutenants that do not legally commit the United States to take action, but which nonetheless create expectations by other countries that we will act. I doubt that this problem is susceptible to procedural remedy. It is not realistic to attempt to gag the President nor is it likely that reporting requirements would have a very significant impact."

The root of the problem, I believe, lies in the Congress itself. Since the early 1950's, most congressional forays into foreign policy have been extraordinarily narrow gauged. Thus, the foreign assistance legislation has been burdened over the years with myriad restrictive provisions generally reflecting congressional pique at some presidential decision or frustration with the policies of other countries. I am always struck that these restrictions annually take up days of debate, while matters like the Tonkin Gulf Resolution virtually sail through the legislative process.

It is only very recently that the more basic and important questions of foreign policy have been addressed by the Congress-for example, how does foreign assistance generate quasi-commitments of the United States, or, how does military assistance tie us to particular political constituencies in other countries? These are the kind of questions that Congress is particularly suited to examine by carefully taking testimony and conducting measured debate.

I think a good case can be made that Congress should adopt this role and leave the day-to-day decisions to presidential discretion. If the Congress decides to consider the direction and goals of our foreign policy, I think the commitments problem will diminish. Because, at that time, it will become apparent to all other countries that the President has a partner in making important foreign policy decisions.

What is required is the desire and ability on the part of Congress to participate in making major foreign policy decisions. The desire

appears to be developing rapidly; S. 3475 and the other proposals seeking to reassert congressional authority in this area are testimony to that. What remains to be supplied is a congressional commitment to a new role in the foreign policy area, with a new set of priorities and a new awareness of where effective action can take place.

Now, in conclusion: Institutional changes of the kind we have discussed today cannot make men wiser or give them more foresight. Nor can it be said that greater participation by the Congress in making our foreign policy will automatically mean an improvement of that policy. But Congress, by sensibly debating the major issues, can provide the long view that now appears to be missing in our foreign relations. For this reason, I am gratified to see that this committee and Congress as a whole are considering ways to play a more responsible role in making our foreign policy.

Thank you, Mr. Chairman.

Senator ERVIN. Well, I will have to concede that there are Supreme Court decisions which sustain your position that executive agreements do have a legal standing. I must also confess that those decisions give me much pause. It is undoubtedly, as you point out, within the prerogatives of the President to determine whether he will recognize a foreign nation, and, as we all know, President Franklin D. Roosevelt, after many years of nonrecognition_on_the part of this Government, recognized the Communist regime in Russia. One of his actions connected with that recognition was an executive agreement which was upheld, I believe, in the Pink case where the President made an executive agreement which had the effect of setting aside the law of the State of New York as to subjecting certain property to answerability for liability to the citizens of New York.

I am also concerned with some of the expressions in the Missouri case. I could sort of reconcile myself on the Missouri case on the grounds that the migratory fowl involved were birds engaged in interstate and foreign commerce, in that they flew from one State to another, but still then on that basis it is a pretty slim basis to put them under the interstate commerce clause, since the hunting of those birds under the laws of the States has also been a matter regarded as falling within the domain of the State rather than the Federal Government.

I also take some consolation in the fact that there is a story which I have never been able to verify, of a very successful midwest lawyer who never conceded that the court was right when they decided a case against him. He died leaving a substantial estate, and some of his heirs attempted to displace his testamentary disposition of his property. They attacked it on the ground that he lacked testamentary capacity, which they undertook to prove by evidence of his unwillingness to concede that the court was ever right in deciding a case against him. I am told that the court decided that this was not evidence of his incapability to give testament. The decision is consoling, for I am unable to give mental acceptance to some of these cases which do establish the propositions which you have pointed out.

Mr. CLIFFORD. I read the Belmont case, and the Curtiss-Wright case, and the Pink case, together with other supporting cases as constituting Supreme Court approval of the existence of the presiden

tial power to make executive agreements. Also, I have been intrigued by an incident in American history when President Cleveland was meeting with his Cabinet, and after an erudite, lengthy academic discussion, he said to them:

Gentlemen, you overlook the fact that what we are considering is a condition and not a theory.

I read someplace that in the first 50 years of our Government, there were almost as many executive agreements entered into as there were treaties. In the second 50 years, a great many more executive agreements than treaties, and in the third 50 years, five or 10 times as many executive agreements as treaties, and, as the chairman pointed out, we have in existence today over 4,000 executive agree

ments.

Now, for us to sit here in this ivory tower and say we are not going to approve the constitutionality of executive agreements is beside the point. I think you have stated it correctly. Let us accept the existence of the executive agreement, as your bill does. You not only refer to executive agreements in the preamble of your bill, but you take it upon yourself to describe what you consider an executive agreement to be. They do exist. The President has authority in a number of areas, and I think the correct way is to proceed as you have done, assume that they exist, assume that he has powers, but now let us control that power.

Senator ERVIN. Well, I certainly agree that executive agreements do have a real function to serve in our scheme of government. They can serve a real purpose in the area of foreign policy. What prompts the bill in part is that I am concerned with the secrecy which accompanies so many of the executive agreements. I certainly agree with you that they serve a function and appreciate your suggestions to the effect that where the making of an executive agreement falls within the undoubted constitutional power of the President, that Congress cannot regulate those executive agreements.

In other words, taking the question of the plainest case, as you point out, where the question involved is the recognition of a foreign country. Undoubtedly, under the Constitution that power belongs to the President and not to the Congress, and I also certainly agree that the bill can not invalidate a delegated Presidential power. One of the purposes of the hearing is to have inadvertencies or defects in the legislation pointed out so they can be corrected.

Mr. CLIFFORD. In this regard, I think the committee would want to look with care at the language which would permit the Congress to overrule or disallow an executive agreement when that executive agreement is in accord with legislation already passed by Congress. You could get into trouble in attempting to overrule or rescind an act of Congress legally signed by the President some years before by passing a concurrent resolution of the Senate and the House saying that a certain action under that law is not appropriate.

Senator ERVIN. Well, I would certainly have to concede, that that is a point which is very valid, because a statute requires the signature of the President as well as the passage by both Houses of Congress. Where the President is exercising authority under an act of Congress, I think a serious constitutional question arises whether