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With respect to those executive agreements in which the Department of Defense has an interest, the Congress is already intimately involved in the overwhelming majority.

As I pointed out earlier, approximately 60 percent of the executive agreements in which the Department of Defense is interested are in implementation of foreign aid legislation. Insofar as grant military aid agreements are concerned, the primary effect of these agreements is to secure agreement from potential recipient nations to the conditions and limitations prescribed by the Congress in the Foreign Assistance Act and other legislation. The Congress is not only well aware of the content of such agreements, but is in fact the initiator, through statutes, of the substantive provisions in such agreements. The same is true with respect to foreign military sales. These programs are reviewed thoroughly by both the authorizing and appropriations committees of the Congress. For each of these agreements, there is specific statutory authority, which demonstrates a high degree of congressional control.

The next largest category of agreements in which the Department of Defense has an interest are those concerning our rights to construct, operate and maintain military facilities and installations overseas. From a practical standpoint, these agreements provide only an option to the U.S. Government, and the exercise of the options is dependent upon both authorizations and appropriations from the Congress. The military construction authorizations and appropriations are premised on detailed justifications, which insures that the Congress is intimately involved in the process of implementation of such agreements.

Another substantial category of agreements of interest to the Department of Defense are those relating to status of forces. In most instances, these agreements involve the detailed implementation of treaties. Congress monitors the status of forces agreements through the Status of Forces Subcommittee of the Committee on Armed Services of the Senate, which you, Mr. Chairman, also chair. At a minimum, annual hearings are held to receive the report from the Department of Defense required by Senate resolution.

These examples demonstrate, I believe, that insofar as this concerns executive agreements in which the Department of Defense is interested, the mechanism and procedures which now exist provide the means for effective congressional control over such executive agreements and the procedure proposed by S. 3475 would only add new procedures to those which exist. These new procedures, however, would exact, in my opinion, a high and unjustified price in the capability of the Executive to effectively negotiate agreements essential and desirable in the interest of the United States. The proposed delay in effective dates would constitute a severe impairment and, in some cases, would preclude the consummation of agreements which could otherwise be obtained to advance the interest of the United States.

To the extent that the bill would purport to deprive the President of the power to make executive agreements in implementation of those authorities vested in him by the Constitution, the bill would be in conflict with the Constitution and, of course, we all know that a statute must be in consonance with the Constitution. With respect to

those agreements which are authorized by statute or a treaty, a similar constitutional question is presented by a bill which would purport to impose procedures which would impair the President's abil ity to negotiate since the President under our constitutional pattern is the instrument of the nation for the conduct of international negotiations. In addition, the bill provides for the disapproval of an executive agreement, whatever the authority for its execution, by a concurrent resolution, which, of course, is not a law. Under the supremacy clause in Article VI of the Constitution, Congress has no authority by concurrent resolution to repeal or amend the laws of the United States or treaties made under the authority of the United States.

In short, Mr. Chairman, I believe that S. 3475 is unnecessary, and impractical, and it raises serious constitutional issues. It, therefore, should not be enacted in our opinion.

That concludes my statement.

Senator ERVIN. Now, do you agree with me that executive agreements can be divided into three classifications, the first classification being executive agreements which are made by the President in the exercise of exclusive constitutional powers given him, and the second class being those which are designed to implement a prior treaty or act of Congress, and the third class, those which necessarily require subsequent congressional action for their implementation?

Mr. BUZHARDT. Mr. Chairman, I believe in the last category you would have to include not only those which require subsequent legislation but those which have prior authorization by statute, or maybe that was the second category. Maybe I did not understand.

Senator ERVIN. That was the second. In other words, it seems to me there are three categories of agreements we can make with foreign countries.

Mr. BUZHARDT. Right.

Senator ERVIN. The first is where the President makes an agreement which constitutes an exercise of an exclusive power given him by the Constitution as is illustrated in the Pink and the Belmont

cases.

Mr. BUZHARDT. Yes.

Senator ERVIN. The second is where the President makes an executive agreement for the purpose of carrying into effect a prior treaty or prior act of Congress. And the third is where the President makes an agreement which necessarily requires for its implementation subsequent congressional action. Those three, it seems to me, cover about any kind of agreement that can be made.

Mr. BUZHARDT. Yes. I think I divided them somewhat differently, into those that are authorized by treaty, those that are authorized by statute, those authorized by the-in which the President has independent constitutional authority or some combination of the three. I think that would cover all of them and I think that is a little narrower, a little more concise. I think the one-the real difference we may have is adding a category of where the President has enters into an executive agreement which requires a subsequent authority of Congress. I find it hard to find out how that is a separate category because it still must be pursuant to a treaty, to a statute or in his constitutional authority.

Senator ERVIN. Well, I had in mind in that third category an executive agreement which would undertake to provide that the United States should give financial aid to a foreign country, or an executive agreement which would authorize the use of the Armed Forces of the United States in other than a defensive war.

Now, those two cannot become binding unless the Congress acts in the future.

Mr. BUZHARDT. Let me address them one at a time, Mr. Chairman. I think the first example you gave falls within the category of prior authorization by statute because we have the Foreign Assistance Act of 1961. In the absence of that, I am not sure the President could conclude an agreement that was binding

Senator ERVIN. That is the point I am making.

Mr. BUZHARDT (continuing). Without an act of Congress to give aid to a foreign country. I do not think we could commit. I have serious questions about it.

Senator ERVIN. That is the point I am making. Of course, if the President were empowered by an independent provision of the Constitution that gave him exclusive authority to make a binding agreement, or if there were a prior treaty or a prior act of Congress which authorizes the President in substance to make an agreement, then he certainly would have the authority to negotiate such an agreement. But there are classes of executive agreement to be negotiated by the President which cannot be carried out by the President in the exercise of his own powers, but requires the exercise of powers of Congress for its implementation, and that, of course, is not a binding commitment on the United States unless Congress in effect by subsequent action, approves it.

Mr. BUZHARDT. That is correct, but even a treaty may require subsequent implementing legislation before it can be implemented by the President, hence your third category does not apply only to executive agreements.

Senator ERVIN. You have given us a very complete exposition of the different kinds of agreements and different kinds of treaties which affect the Defense Department, and point out, I think rightly, that the great majority of agreements we have with foreign countries which involve matters of major importance have been in the form of treaties. Then you point out also that I am surprised at the percentageyou say about 60 percent of the executive agreements which are made under the auspices of the Department of Defense are foreign aid commitments which

Mr. BUZHARDT. Mr. Chairman, if I might say, I am talking about the ones the Department of Defense is interested in, that have an impact on the Department of Defense. That includes categories over and above those the Department of Defense official signs. Some of those are State Department. Many of the foreign aid agreements are actually signed by the State Department, not the Department of Defense. So this applies to those which we are interested in, not just to those we signed.

Senator ERVIN. Yes, I understand that, particularly with reference to the sales of arms to other nations, because the Department of Defense has peculiar interest in that.

Mr. BUZHARDT. And we do sign those, Mr.Chairman.

Senator ERVIN. Yes. Now, of course, most of our commitments by which we have stationed troops abroad have been in the form of agreements that have been pursuant to treaty obligations.

Mr. BUZHARDT. Yes.

Senator ERVIN. I would imagine that the Department of Defense or its subsidiaries necessarily have to make what you might call housekeeping agreements with foreign nations where our troops are stationed under treaty commitments.

Mr. BUZHARDT. Yes.

Senator ERVIN. I would assume these have all been authorized either by act of Congress or been authorized by treaties.

Now, is there any doubt in your mind that even taking the first category of executive agreements-that Congress, while it cannot limit the President's power to make an agreement which is sanctioned by his independent powers under the Constitution, that Congress could pass a statute which would require the President to submit those agreements to Congress merely for the information of Congress?

Mr. BUZHARDT. No, Mr. Chairman, I do not have any question that Congress could pass such an act. We both know from our prior discussion, there is some possibility that a question of executive privilege might arise. It may arise on occasion where an Executive would think it not in the national interest to that extent and I would think even if this were done it would be

Senator ERVIN. With respect to the second category of agreements, those which have been authorized by prior statute, or by prior treaty, is there any doubt in your mind that Congress has the right, the power, to adopt procedures which make it certain that the executive branch of the Government is carrying out those powers in a manner consistent with the intent of Congress?

Mr. BUZHARDT. I think there is a limitation there, that they do not interfere with the President's authority to negotiate. I also think there is an additional limitation which was brought to my mind at least by your discussion with Mr. Erickson. I question whether Congress could write procedures into statute which would be valid if they attempted to bind either that Congress or future acts by a subsequent Congress It is conceivable to me that, for instance, under the bill you have introduced, if the Executive entered into an executive agreement to provide grant aid under the Foreign Assistance Act, which is a congressional authorization, and your bill was law; the agreement was submitted to the Congress; Congress passed a resolution of disapproval of the agreement; and then subsequently during the appropriations process the Congress nevertheless passed the appropriation, neither your bill nor the resolution of disapproval could keep the appropriation from being effective. The executive could spend the money as the Congress appropriated because the Congress could not bind itself by its prior act. Conversely, if the Congress passed a resolution of disapproval under your bill, it would not legally bind Congress to subsequently appropriate emobile implementation.

Senator ERVIN. I am not troubled by that point, but I think, that while Congress cannot tie its own hands, it can tie the President's hands to some extent.

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Mr. BUZHARDT. I think it can tie the President's hands to the extent it does not interfere with his ability to negotiate.

Senator ERVIN. Yes. But I think that Congress has the power to determine whether the negotiation in which the President is engaged is consistent with the act of Congress which authorizes the negotiations.

Mr. BUZHARDT. Mr. Chairman, I would suggest that if the President executed an executive agreement to carry out a congressional act which in fact exceeded the authority of the congressional act, that to the extent it did exceed the congressional authority, it would be null and void and the place to so declare it would be in the courts, not in the body that authorized the legislation. It would be a matter of violation of law. The law you had passed would have no force and effect.

Senator ERVIN. How do you account for the General Accounting Office? It is not necessarily dealing with foreign affairs, but I would think that the General Accounting Office could determine whether an expenditure made by the President under a prior act of Congress was in harmony with the prior act of Congress.

Mr. BUZHARDT. I would agree that the General Accounting Office could make such a determination in the normal course of events as the Comptroller General's rulings would apply. I think as a matter of practice they are generally followed, but if you wanted to punish somebody, or recover the funds, then you would have to proceed in

the courts.

Senator ERVIN. Of course, we have a controversy-among many of our controversies between the legislative and executive branches, one about that very question. It is not in the defense field. It is not in the field of executive agreements with foreign countries. But Congress set up the General Accounting Office as an arm of the Congress, with authority under the statute to pass on the validity of Federal expenditures. We have often had disagreement between the General Accounting Office and the Justice Department in respect to rulings by the Comptroller General. I have introduced a bill to give, in those situations, the General Accounting Office authority to go into court to determine if its ruling is valid when the Department of Justice disagrees.

Mr. BUZHARDT. I am aware of that bill, Mr. Chairman. And I might say, if you will notice, as a matter of practice, the Department of Defense follows the General Accounting Office rulings.

Senator ERVIN. Considering again this question that Congress lacks the power to pass on the validity of an act which it has authorized, that is, whether the act has been carried out by the President. You are familiar, of course, with the procedure by which the President is given the power by Congress to reorganize the departments and agencies of the Federal Government.

Mr. BUZHARDT. Yes.

Senator ERVIN. The legislation contains a provision which gives the President power to reorganize, but all those acts contain a provision that either House of Congress may, within a limited time, veto the reorganization. Why would not a procedure like that, written into an act of Congress, give Congress the power to nullify action of

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