ident sent an agreement to Congress which he did not have. authority to make, it is doubtful that the failure of Congress to disapprove the agreement could give it a validity it would not otherwise have.

Similarly, if the President has authority, either by statute or treaty, to enter an executive agreement, that power continues until the statute is repealed or the treaty is no longer in force.

It is also our position that Congress cannot, in fact, take legally binding action against any of these exercises of authority by concurrent resolution. This is not a legislative process which finds recognition in the Constitution. Although there are some legislative precedents which exist in the field, such as the Atomic Energy Act, 42 U.S.C. 2153(d), we are not aware of judicial decisions supporting the practice.

In view of these legal considerations, particularly the constitutional infirmity, we respectfully recommend against enactment of S. 3475. The very source of the President's powers suggests that the determination of whether an international arrangement is to be effected by treaty or executive agreement should be resolved by the existing sound and traditional constitutional process. The criteria established by the State Department call for consideration, as a matter of policy, of relevant non-legal factors, such as the role of tradition, formality and importance of obligations, on the one hand, and the breadth of the President's legal authority on the other. 14 Whiteman, Digest of International Law 209 (1970). As a basic legal proposition, however, it is our firm position that the President is and must remain free of statutory limitations on his independent constitutional powers to enter into international agreements. Thank you, Mr. Chairman.

Senator ERVIN. I do not know whether I construe your argument right but you take section 10 of the Constitution which prescribes limitations upon the State-provisions that no State shall enter into any treaty, alliance, or confederation and no State shall without the consent of Congress enter into any regional compact with another State, as not simply limiting the powers of the States, but as expanding the powers of the President. Is that a correct statement of your argument?

Mr. ERICKSON. No, that is not correct. That is an illustration of the distinction between an agreement and a treaty.

Senator ERVIN. But is there a single express provision in the Constitution recognizing the power of the United States to enter into an agreement with another nation other than the provision of section 2 of article 2, that the President shall have the power by and with the advice and consent of the Senate to make treaties, provided twothirds of the Senators present concur?

Mr. ERICKSON. I am sorry, Senator. Would you

Senator ERVIN. Is there a single express provision in the Constitution authorizing the United States to make any agreement with a foreign nation other than provision of section 2 of article 2 authorizing the President by and with the advice and consent of the Senate to make a treaty?

Mr. ERICKSON. Well, that certainly is the source of the treaty power. I have no question about that. I think in the course of my

statement I have indicated the other sources which we consider the bases for the President's authority or the Executive's authority to enter into executive agreements.

Senator ERVIN. Well

Mr. ERICKSON. You ask if they are express?
Senator ERVIN. Yes.

Mr. ERICKSON. They are express in the sense that we are relying upon the express powers of the President. Nowhere do we find words expressly giving the President power to make executive agree

ments.

Senator ERVIN. The power of the President to make an executive agreement is not expressed at all anywhere in the Constitution. It has been implied from other powers which are expressed, does it not? Mr. ERICKSON. The word "agreement" does not expressly appear in the powers granted to the Executive.

Senator ERVIN. That is right.

Mr. ERICKSON. That is not our position.

Senator ERVIN. You quote at length the Curtiss-Wright case.
Mr. ERICKSON. Yes.

Senator ERVIN. My own opinion is that the Curtiss-Wright case is just an emulative example that some people talk too much. Mr. Justice Southerland went too far in his opinion. Do you actually accept his theory that the President has powers in the international field which are not express or impliedly stated in the Constitution?

Mr. ERICKSON. I think these powers are implied in the Constitution in the sense that the powers that are given to the Executive in the Constitution necessarily permit the implication.

Senator ERVIN. Well, Judge Sutherland says in effect that President has inherent powers that are not to be determined by any express or implied provisions of the Constitution. He says flatly that the United States as a sovereign has any power in the international field that any other country on the face of the earth possesses, does he not?

Mr. ERICKSON. Well, Mr. Chairman, our position is, I suppose, one of semantics in part, but I do not dispute the fact that we are relying upon the Constitution itself in this context.

Senator ERVIN. Well, I am thinking about the Curtis-Wright case. Frankly, it seems, with all due respect to Justice Sutherland, who ordinarily was a very careful writer, that he took a flight far beyond the intellectual stratosphere when he wrote that opinion, and it is inconceivable to me that the Federal Government or any department of the Federal Government has any power which is not either expressly or impliedly stated in the Constitution.

Mr. ERICKSON. Well, I would accept that general proposition. I would state further, however, that here we are relying upon the powers that derive from the President's capacity as Chief Executive, which are certainly well founded and based upon the Constitution.

Senator ERVIN. Well, you say you accept that as a general proposition. Can you state any exceptions to that proposition?

Mr. ERICKSON. I did not mean to indicate exceptions to it. I am just simply stating as a general proposition we are in this specific case relying on the extensive powers, and in many cases exclusive

powers, of the President in the conduct of foreign affairs as Chief Executive.

Senator ERVIN. Do you think the words "executive power" give the President anything to do except to carry out the laws of the United States the Constitution and laws of the United States-to faithfully see that they are executed?

Mr. ERICKSON. No, I do not.

Senator ERVIN. In other words, I reject, as I understand it, the doctrine of inherent power. I do not think the President or the Congress have any powers except those expressly or impliedly given by the Constitution. In fact, I think the Constitution was written to make it certain that the President did not have any such powers. I hope you do not disagree with me on that.

Mr. ERICKSON. I think if there is a disagreement, we disagree to the extent of what powers flow from the grant of express powers to the President, the Executive power, and the scope of the implied

powers.

Senator ERVIN. I have no objection to implied powers but I do object to the idea that there are inherent powers that exist outside of the Constitution.

Now, I am much intrigued by the reliance on the opinion of Justice Jackson when he was Attorney General in respect to the 50 over-age destroyers. I have great difficulty reconciling that opinion which he gave the President as the Presidents' lawyer, with the concurring opinion he wrote, as a justice of the Supreme Court, in the Steel Seizure case. If you can reconcile the two, I would be awfully glad to have you do it because I think the two things are irreconcilable.

Mr. ERICKSON. Well, I would say that in the Steel Seizure case, 343 U.S. 579 (1952), we are dealing as may so often be the case, with general observations of the relationships of the executive and legislative branches of the Government. The opinion rendered by Mr. Justice Jackson when he was Attorney General goes to the specific point of an executive agreement and certainly I would be prepared to accept his opinion as expressed in his opinion while Attorney General as not being inconsistent with his opinion in the Steel Seizure Case.

Senator ERVIN. As I construe Justice Jackson's opinion as Attorney General, he said the power of the President as Commander-inChief gave him the power to give away without the consent of the Congress, 50 destroyers. Is that not what it says when you reduce it down to its bare essentials?

Mr. ERICKSON. I am sorry. I did not get the question.

Senator ERVIN. I say, the way I construe the opinion which Justice Jackson gave the President when he was the President's lawyer, instead of a Justice of the Supreme Court, is that, he said the power of the President as Commander-in-Chief gave the President the right to give away the 50 destroyers without the consent of the Con

gress.

Mr. ERICKSON. Well, yes. He was certainly relying upon the President's powers as Commander-in-Chief and I think also the, Executive's power, in connection with the conduct of foreign relations.

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Senator ERVIN. Do you not have a little difficulty with the theory that the President's powers as Commander-in-Chief of the Navy gives the President the power to give away the Navy? Does that not give you some pause?

Mr. ERICKSON. That is one part of it. There is the further factor that this was the implementation of a foreign policy.

Senator ERVIN. This

Mr. ERICKSON. In other words, Justice Jackson, I think

Senator ERVIN. This is his foreign policy as Commander-in-Chief. I find great difficulty in accepting the position that the President's power as the Commander-in-Chief of the Navy, gives him the power to give away the Navy without the consent of Congress.

Mr. ERICKSON. I think that bold proposition, that single proposition causes me some concern, too, but in the context in which it was done here, it is quite different.

Senator ERVIN. I do not disapprove of the President doing that, but I think it was a gross usurpation of power and I think the excuse that his Attorney General gave him to justify it was purely a specious consideration.

Mr. ERICKSON. Well, as I am sure you realize, there were two sides to it.

Senator ERVIN. Yes, the right side and the wrong side.

Mr. ERICKSON. This was based on an exchange for bases.

Senator ERVIN. The constitutional side and nonconstitutional side. Mr. ERICKSON. No, I would not relegate it to that point. I am saying that the obsolete destroyers were transferred in exchange for rights to certain bases.

Senator ERVIN. If he can give away 50 destroyers I do not see why he cannot give away the State of Texas without asking the consent of Congress.

Mr. ERICKSON. Mr. Chairman, I cannot concede that he gave them away. I think this was an international bargain or agreement.

Senator ERVIN. It was an international bargain made by the Commander-in-Chief by executive agreement, without the consent of Congress by which the President gave away a substantial part of the Navy in return for some bases, and I find great difficulty with it.

Mr. ERICKSON. And I think we have to assume that the President at that time felt that those bases were important for the protection of our Nation.

Senator ERVIN. I think he thought it was necessary for the protection of England and I think that was a correct conclusion at the particular time.

Now, it is your position that there is no valid legislation which Congress can enact in the field in which the powers given by the Constitution to the President give him the right to conclude an international agreement without the consent of Congress?

Mr. ERICKSON. Oh, I think there is certainly an area where there is a concurrent authority.

Senator ERVIN. But would not the necessary and proper clause which empowers Congress to enact any legislation necessary or appropriate to carry out the powers of the President give Congress the power to pass legislation which would require the President to make

known to the Congress any agreement, any executive agreement, he made with another nation even in fields like that covered by the Pink and Belmont cases?

Mr. ERICKSON. Oh, I do not have a great deal of difficulty with the proposition that the necessary and proper clause can be the basis for a power to enact legislation which would relate to the exercise of the President's power. The concern I have is where that legislation would be so broad as to limit the President's powers.

Senator ERVIN. But as I take it, then, you think that Congress can prescribe some procedure by which the President's power is to be exercised, provided the procedure does not limit his exercise of the

power.

Mr. ERICKSON. I think the important thing is that they not limit the President's power and procedures could have that effect, of

course.

Senator ERVIN. Would not Congress have the power in your judgment, to enact legislation that would require the President to inform the Congress that he had made an executive agreement with a foreign nation in a field in which the power of the President to make that agreement is exclusive?

Mr. ERICKSON. Yes. To enact a statute which would require advice. that an agreement has been concluded would certainly be within that power; however, as I have just noted such a statute could not be applied in such a manner as to limit the President's power.

Senator ERVIN. Now, you question the legal or constitutional accuracy of Senator Case's statement, that the Constitution contemplates that every agreement between the United States and a foreign nation involving a matter of substance shall be presented to the Senate in the form of a treaty rather than made by an executive agreement. Do you challenge the accuracy of that?

Mr. ERICKSON. Yes. I am challenging it in a sense that I am not exactly sure what it means. You will recall a part of the quote I used referred to

It seems clear that the Founding Fathers intended any agreement with a foreign country on a matter of substance be embraced within the term.

The term being "treaty".

Now, substance in that context bothers me, if he means any agreement of any significance at all. I do not consider that to be the constitutional test.

Senator ERVIN. Well, are you able to give us any test? The word "substance" is not a very precise word.

Mr. ERICKSON. Mr. Chairman, I sincerely wish that I could give you a clear cut test. As you know, it is very difficult. I tried, in the course of my statement, to present what I think are the general parameters and the comparatively easy questions within the President's exclusive or independent powers. On the other side, there are those that obviously should be concluded by treaty; but the in-between ground is rather rough. And that is the area where the definition would be helpful and that is where it is most difficult to come out with an express definition.

Senator ERVIN. Do you think Congress would have the power, under its legislative power, especially under the necessary and proper clause, to prescribe what types of agreement should be made by treaty?