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the President, which was previously authorized by Congress, by con current resolution? If either house can veto it, both houses certainly could veto it.

Mr. BUZHARDT. Mr. Chairman, I am not prepared to defend the constitutionality of the procedures under legislative reorganization acts. There has always been a question raised with respect to procedures which authorize one House or a committee of one House to exercise the powers of the Congress as a whole. And I think there are serious constitutional questions posed, although I do not antici pate as a practical matter, they will ever be litigated.

Senator ERVIN. Well, I do not quarrel with your views on that. because I have often doubted whether Congress can delegate that kind of broad scope of legislative authority to the President. That has been standard practice however, and I think that a very plausi ble case can be made for the proposition that when Congress grants power to the President, Congress can grant that power under the condition that it can be nullified by concurrent resolution or by a veto by either House. But, of course, we cannot settle that propostion here today. Congress ratified treaties which authorized the establishment of the status-of-forces agreements with other nations, but in ratifying those treaties, reserved the power to see how these agreements worked in actual operation.

Mr. BUZHARDT. That is true, Mr. Chairman. but there are practical problems with that approach. For example, as you know, there are joint committees, under the status-of-forces agreements which in some cases meet as often as once a week. They involve an enormous amount of day-to-day affairs and when a joint committee reaches agreement on how to settle one of these housekeeping operations, if you will, it is at least my position that the governments are bound and it would not be practical to make these agreements conditioned on congressional approval.

Now, as you well know from having been chairman for many years of this subcommittee, there is a reporting requirement in the Senate resolution which the Department of Defense maintains and it has always been in the form of a hearing.

Senator ERVIN. I think Congress has plenary power not only to enact legislation within the purview of the Constitution but also power to determine whether that legislation is being properly implemented by the only branch of the Government which can execute congressional acts, and that is the executive branch.

Mr. BUZHARDT. Mr. Chairman, I would agree with you that the Congress has the power to pass judgment on whether the Executive is following an act of the Congress and indeed implementation justifies the original enactment. I would seriously question whether Congress has the power to give the President an authority and a responbility in which he is the exclusive executing instrument and then itself to become a part of the execution of its own laws to the extent that they themselves would make the agreement conditional on their subsequent actions to the extent it even was within the law, and if you made it conditional at all, you would have to make it conditional in total. This would be an invitation for the Executive to have to negotiate with Congress or to permit Congress to participate in the negotiations to make sure you could get one that was binding.

Senator ERVIN. I think Congress can pass an act authorizing the President to negotiate agreements, and it can provide that the agreements not become binding unless they are reported to Congress and meet certain conditions. I think that is illustrated by one of the statutes you cited on page 5, of your statement, I refer to section 33 of the Arms Control and Disarmament Act as amended.

Mr. BUZHARDT. The arms control agreement does require that the Congress would have to approve with subsequent legislation this particular type of agreement. Certainly if you construe the agreements which the Executive reaches in this field as one requiring congressional authority, which I would be inclined to say it takes, I think that that is unquestionably constitutionally valid.

Senator ERVIN. Well, if that is so, why doesn't Congress have the constitutional power to provide that when it grants any power to the President to negotiate, that it can require the President to report how he exercises that grant, and require that it shall be subject to congressional approval? That is all this bill requires, as I construe it, in respect to agreements which are authorized by prior treaty or prior act of Congress.

Mr. BUZHARDT. Well, with respect to a prior treaty, when you ratify I do not believe you can subsequently limit. With respect to a statute

Senator ERVIN. Well, they do exactly that in section 33 of the Arms Control and Disarmament Act.

Mr. BUZHARDT. That wasn't a treaty, Mr. Chairman.
Senator ERVIN. I know.

Mr. BUZHARDT. I say where you ratify a treaty, unless your express reservations at the time, you cannot subsequently pass an act which would then limit the international effectiveness of that treaty and make it contingent on new conditions which the Congress imposed. That would breach the treaty.

Senator ERVIN. I suppose Congress can repeal it.

Mr. BUZHARDT. Congress can nullify the domestic effect of the treaty by a later inconsistent statute.

Senator ERVIN. Now, section 33 of the Arms Control and Disarmament Act I think is very correctly summarized on page 5 of your statement and it provides that the President can make international agreements which obligate the United States to disarm, or reduce, or limit the Armed Forces or arms levels of the United States, but it provides that these agreements shall not become binding unless they are authorized by affirmative legislation on the part of Congress or by subsequent treaty. That being true, I don't see why Congress doesn't have the constitutional power to pass a general statute and make it applicable to future legislation unless Congress repeals it or amends it, which delegates to the President power to make agreements, subject to the reservation that they must be submitted to Congress for inspection, and that they must be approved by Con

gress.

Mr. BUZHARDT. I think where you are dealing with a statute where the President must have a statute, to exercise negotiations, in other words, the subject of the negotiations is conditioned on congressionally provided authority, the Congress could impose limitations in that instance, particularly when the agreement requires

actions by the Government to be performed. Within the United States itself-actions which may be inconsistant with existing statutes. An arms control agreement is an example. The foreign aid program is an example of another kind. There are conditions of all descriptions laid down in the Foreign Assistance Act as you are fully aware. In fact, in most instances the agreements primarily consist of the conditions which Congress imposes. In addition, they are required to be reported.

Now, if we have an agreement providing aid, there has to be included in that agreement the terms and conditions of ultimate disposal of that grant aid and I think for the last 2 years we have had statutory requirements that those be reported to the Congress.

So, where the President's authority to negotiate on a subject matter is derived exclusively from a congressional enactment or a statute, I think the terms and conditions imposed are constitutionally valid.

I think there may be one small qualification, that if Congress tells the President to execute something, they cannot then put conditions on, which from a practical standpoint would make it impossible to do what he has been directed to do. And I think there is some limitation in that. They can't tell him to execute agreements becausethey can't tell him or so circumscribe his procedures for negotiation that he can't actually negotiate because he does have the authority in the Constitution I believe to be the sole negotiator.

Senator ERVIN. I think he has authority to negotiate but I think when he negotiates outside of a very limited number of areas, that the President in effect is negotiating agent for the United States and that Congress has the power to prescribe the conditions, and that his negotiation is not to be binding without subsequent approval of Congress just as in the Arms Control Act. Where the executive agreement necessitates the subsequent exercise of congressional power, I think Congress has a right to limit that in the future instead of waiting and just refuse to exercise its powers subsequently.

Mr. BUZHARDT. Mr. Chairman, I think we would disagree to some extent here. If they tried to institute, the Congress tried to institute the prior agreement for their general appropriations authority, I think you would run into a question of whether you limit the Čongress of the future.

Secondly, I believe it would be a most impractical approach for the simple reason that when you require a waiting period, you do impair the Executive's capability to execute an agreement. In some cases, not a large number, but you can never anticipate in advance, in some cases the ability to arrive at a final agreement at a particular time, as we are all aware, so that events can coincide, what the other side is to do and our Government is to do, is critical to the executive agreement itself, unless you can arrive at a date certain, and sometimes it must be an immediate date certain. The agreement cannot be consummated.

Senator ERVIN. I would think those would be very rare cases.

Mr. BUZHARDT. I can think of a few that I wouldn't care to name but I have participated in some or at least worked in connection with some where that was certainly the case.

Senator ERVIN. But I have no doubt of the power of Congress in respect to the third category of agreements where Congress has to act subsequently to confirm them, and I think a statute.of this kind would produce smoothness in Government operations rather than the contrary. When the President makes an agreement which cannot be carried out without the subsequent action of Congress, there is going to be a time delay there automatically, until Congress enacts the legislation.

Mr. BUZHARDT. That is true. In those cases, and the best example I know is where we negotiate for base rights in a country where it is not under a treaty, through an executive agreement, all we really get from that is an option to use facilities of a foreign government. Sometimes ports and harbors. Real estate. But I think there would be really no purpose in Congress wanting to have a separate consideration of those other than having increase in workloads because nothing can be done without further authorizations and appropriations.

Senator ERVIN. No; but when an agreement is made without it being expressly stated that the agreement is subject to disapproval, or approval as the Congress might see fit, the President puts the Congress in a rather embarrassing position. As I told Mr. Stevenson yesterday, it is much like a man's wife going out and buying some clothes without his consent. It puts the Congress in the position of the husband who has to tell the tradesman that he is not going to pay for the clothes that his wife bought.

Mr. BUZHARDT. Mr. Chairman, I can't think off hand of any agreements that fall into that category because as I say, our base agreements are options for our advantage. They are options. They are clearly dependent on congressional authorization and appropriations. There would be no embarrassment and no breach of arrangements if Congress chooses not to provide the funds or the authorization to use them.

Senator ERVIN. But the trouble is that the President says I have already made this commitment.

Mr. BUZHARDT. Well, if it is a commitment then it is more thanSenator ERVIN. If Congress doesn't go along with the President's action, then the Congress is put in a fix where it has to embarrass the President and the country by refusing to carry it out. That is what I am trying to avoid.

Mr. BUZHARDT. I understand it, Mr. Chairman, although I find it hard to find a specific case where those circumstances would exist.

Senator ERVIN. I can imagine a great many where they exist. For example, a few years ago the President went down to South America and made a speech and told them how much money he was going to give them in the Alliance for Progress and Congress refused to authorize it.

Mr. BUZHARDT. He just didn't sign an executive agreement. He just made a promise in a speech.

Senator ERVIN. About the same thing. If he has written out a piece of paper-I think it was written out in the speech.

Mr. BUZHARDT. It is written out in the speech. I recall the speech. Senator ERVIN. He said we are going to give it to you. The practi

cal effect of the speech is the same as if he had signed his name to it and made an agreement. I see little difference.

Mr. BUZHARDT. There would have had to have been a consideration, of course, for the agreement, I think. I think there was-I think it would have had to have been conditioned on subject to congressional action. I do not think there would have been any embarrassment, in fact, I don't think there was, the fact that it wasn't.

Senator ERVIN. I think it was sort of embarrassing to our relations with those countries. Here is a man who they think is the boss, who goes to their country and makes several promises, and then Congress subsequently has to repudiate the promises. So I think it would be better to have this bill which would prevent such embarrasments. Except in the cases where the executive has to report it to the committee, the Congress has no way to know what the executive branch of the Government is doing in this field.

Mr. BUZHARDT. Mr. Chairman, I might note that if you are going to take care of the situation you just described to me, you had better increase this definition in here to include speeches of the President. Senator ERVIN. Yes.

Mr. BUZHARDT. Because I am not quite sure that the Congress then could constitutionally move because to require the President to have his speeches approved by the Congress, I think would be going a bit far. I don't think that is a problem that can be controlled by the legislative process, what the Executive says in his speech.

Senator ERVIN. No. Certainly, the President has freedom of speech under the First Amendment and we can't keep him from speaking, but we can keep him from carrying out his speeches or his executive agreements where they require subsequent Congressional

action.

Mr. BUZHARDT. Really the point I am making, Mr. Chairman, is I can't think of an instance where we have had actually an executive agreement which attempted to commit the Government and which was not conditioned on subsequent Congressional approval. So I understand it could not be implemented.

Senator ERVIN. Why would Congress not have authority under the Constitution to provide that any agreement made by the Presi dent without its consent, which required subsequent Congressional implementation, should be placed in the form of a treaty and submitted to the Senate for ratification?

Mr. BUZHARDT. I think, Mr. Chairman, you have a very different proposition when you require the President to submit an agreement to the Congress in some cases for approval as legislation or treaty than if you specified that it must be submitted as a treaty. I think it would raise constitutional question as well as grave practical questions if you required the President in advance to make certain categories of agreements in treaties. Many times form of the agreements affects the substance. The fact it is a treaty gives it more dignity and significance internationally than on given occasions might be desirable.

Senator ERVIN. But that is

Mr. BUZHARDT. It might create a difficult problem and interfere drastically with the conditions of our foreign relations.

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