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guished from treaties. It is my hope that these hearings will afford the Congress a basis for determining the sort of so-called Executive agreement which, under the provisions of the Constitution, should be submitted to the Congress for its approval and that this measure will provide a focal point for the many views which will be expressed before the subcommittee.

Mr. President, I ask unanimous consent that the bill be referred to the Committee on the Judiciary, with the understanding that after that committee has completed its consideration of the bill, it then be referred to the Committee on Foreign Relations; and I would like to assure the Senate and the Chair that I have consulted with the distinguished chairman of the Committee on Foreign Relations (Mr. FULBRIGHT) and he agrees to this unanimous-consent request as to the reference of the bill.

The PRESIDING OFFICER. Is there objection?

Mr. JAVITS. Mr. President, may I hear the unanimous-consent request?

Mr. ERVIN. It was that this bill, which deals with Executive agreements, shall be referred initially to the Committee on the Judiciary, and that after the Committee on the Judiciary has completed its consideration of the bill, it then be referred to the Committee on Foreign Relations. I assure the Senator from New York that I have consulted with the distinguished chairman of the Committee on Foreign Relations, and he has agreed to this reference. The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. ERVIN. Mr. President, I ask unanimous consent that the text of the bill be printed in the RECORD at this point.

There being no objection, the bill was ordered to be printed in the RECORD, as follows:

S. 3475

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Whereas, the Constitution of the United States established a system of shared powers between the legislative and executive branches of the United Staes Government in the making of international agreements; and whereas, the Congress finds that its powers have been substantially eroded by the use of so-called executive agreements, and the Senate is thereby prevented from performing its duties under section 2. Article II, of the Constitution, which provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur," and, whereas, the Congress is often prevented from participating in the conduct of foreign relations by way of prior statute or concurrent resolution, therefore be it enacted as follows:

SECTION 1. (a) In furtherance of the provisions of the United States Constitution regarding the sharing of powers in the making of international agreements, any executive agreement made on or after the date of enactment of this Act shall be transmitted to the Secretary of State, who shall then transmit that agreement (bearing an identification number) to the Congress. However, any such agreement the immediate disclosure of which would, in the opinion of the President, be prejudicial to the security of the United States shall instead be transmitted by the Secretary to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate written injunction of secrecy to be removed only upon due notice from the President. Each committee shall personally notify the members of its House that the Secretary has transmitted such an agreement with an injunction of secrecy, and such agreement shall thereafter be available for inspection only by such members.

(b) Except as otherwise provided under subsection (d) of this section, any such executive agreement shall come into force with respect to the United States at the end of the first period of 60 calendar days of continuous session of Congress after the date on which the executive agreement is transmitted to Congress or such committees, as the case may be, unless, between the date of transmittal and the end of the 60-day period, both Houses pass a concurrent resolution stating in substance that both houses do not approve the executive agreement.

(c) For the purpose of subsection (b) of this section

(1) continuity of session is broken only by an adjournment of Congress sine die; and

(2) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.

(d) Under provisions contained in an executive agreement, the agreement may come into force at a time later than the date on which the agreement comes into force under subsections (b) and (c) of this section.

SEC. 2. For purposes of this Act, the term "executive agreement" means any bilateral or multilateral international agreement or commitment, other than a treaty, which is binding upon the United States, and which is made by the President or any officer, employee or representative of the executive branch of the United States Government.

SEC. 3. (a) This section is enacted by Congress

(1) as an exercise of the rule-making power of the Senate and the House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of concurrent resolutions described by subsection (b) of this section; and it supersedes other rules only to the extent that they are inconsistent therewith; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.

(b) For the purposes of this section, "concurrent resolution" means only a concurrent resolution of either House of Congress, the matter after the resolying clause of which is as follows: "That the Congress does not approve the executive agreement numbered- -transmitted to (Congress) (the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives) by the President on 19-", the blank spaces threin being appropriately filled, and the appropriate words within one of the parenthetical phrases being used; but does not include a concurrent resolution which specifies more than one executive agreement.

(c) A concurrent resolution with respect to an executive agreement shall be referred to a committee (and all concurrent resolutions with respect to the same executive agreement shall be referred to the same committee) by the President of the Senate or the Speaker of the House of Representatives as the case may be.

(d) (1) If the committee to which a concurrent resolution with respect to an executive agreement has been referred has not reported it at the end of 20 calendar days after its introduction, it is in order to move either to discharge the committee from further consideration of the concurrent resolution or to discharge the committee from further consideration of any other concurrent resolution with respect to the executive agreement which has been referred to the committee.

(2) A motion to discharge may be made only by an individual favoring the concurrent resolution, is highly privileged (except that it may not be made after the committee has reported a concurrent resolution with respect to the same executive agreement), and debate thereon shall be limited to not more than 1 hour, to be divided equally between those favoring and those opposing the resolution. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

(3) If the motion to discharge is agreed to or disagreed to, the motion may not be renewed, nor may another motion to discharge the committee be made with respect to any other concurrent resolution with respect to the same executive agreement.

(e) (1) When the committee has reported, or has been discharged from further consideration of, a concurrent resolution with respect to an executive agreement, it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the resolution. The motion is highly privileged and is not debatable. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disagreed to. (2) Debate on the concurrent resolution shall be limited to not more than 10 hours, which shall be divided equally between those, favoring and those opposing the resolution. A motion further to limit debate is not debatable. An

amendment to, or motion to recommit, the concurrent resolution is not in order, and it is not in order to move to reconsider the vote by which the concurrent resolution is agreed to or disagreed to.

(f) (1) Motions to postpone, made with respect to the discharge from committee, or the consideration of a concurrent resolution with respect to an agreement, and motions to proceed to the consideration of other business, shail be decided without debate.

(2) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a concurrent resolution with respect to an executive agreement shall be decided without debate.

[From the Congressional Record, vol. 115, No. 105, June 25, 1969]

PROCEEDINGS AND DEBATE OF THE 91st CONGRESS, SECOND SESSION

NATIONAL COMMITMENTS

A resolution (S. Res. 85) expressing the sense of the Senate relative to commitments to foreign powers.

Mr. ERVIN. Mr. President, Senate Resolution 85, the so-called national commitments resolution, signifies what hopefully may be an important watershed in our Nation's constitutional history. The resolution is evidence of the fact that the Senate has once again become alert to its responsibilities in the field of foreign affairs. This resolution is a declaration that the Senate henceforth will insist upon its constitutional prerogatives. And it is a promise to the American people that the Senate intends to discharge its obligations as the representative of the people's voice in the making of foreign policy. As such, I support the resolution wholeheartedly, and urge its adoption.

While I support the resolution and commend the efforts of the junior Senator from Arkansas in bringing it forth, I cannot help observing that it is unfortunate that such a declaration by the Senate has become necessary. The resolution is testimony to the fact that over the courese of the past 50 years. and especially since World War II, the power to make foreign policy has shifted almost entirely to the President. This trend has gone so far that a theory has developed that the making of foreign policy is solely the president's prerogative. This view is held by a large segment of the Nation's political scientists. It is shared by much of the public and, needless to say, it is forcefully espoused by the executive branch as well.

Under this theory, Congress is considered to be little more than a rubberstamp of the executive branch. The functions of Congress is to approve what the Executive does in foreign affairs, to appropriate the money it seeks without question or cavil, and to give its automatic consent and the support to whatever policy comes from the executive branch. As the foremost advocate of this theory, the Department of State often makes little effort to hide its belief that foreign policy is much too important and much too complicated to be left to the untutored mercies of mere Senators and Representatives. In its view, foreign affairs must be exclusively the concern of experts, of which class, the Department considers itself the epitome. The Department and those who share its views make the common mistake of the confusing information for knowledge and knowledge for wisdom. They are ignorant of that definition which is singularly appropriate in this context-that an expert is one who knows about nothing.

This feeling that the Senate intrudes upon the President's constitutional duties when it seeks to participate in the formulation of foreign policy reflects a state of affairs which has existed for some time. It is not a happy moment when the Senate must in a resolution declare that foreign policy is a product of "action taken by the executive and legislative branches of the U.S. Government." This is clear from the plain words of the Constitution. Unfortunately, because of the abdicatcon of its constitutional responsibilities over the past decades, the point has now been reached when the Senate must try to regain -first symbolically, as by the adoption of the resolution-and then in practice, its coequal role in the formulation of foreign policy.

The present low state of the Senate's power in the field of foreign policy was forcefully brought home to me during hearings conducted by the Subcom

mittee on Separation of Powers in mid-1967. The Subcommittee on Separation of Powers was established earlier in that year to examine the doctrine of division of powers established by the Constitution and to evaluate its modern strength and significance. At its first hearings, the subcommittee received testimony from the Senator from Arkansas (Mr. FULBRIGHT) and from the then Senator from Oregon, Mr. Morse, outlining their views of the responsibilities of Congress in the making of foreign policy. In their testimony they described the persistent trend to Executive supermacy in this field. The Senator from Arkansas (Mr. FULBRIGHT) summarized the major events which have marked the decline of congressional influence in foreign policy:

The authority of Congress in foreign policy has been eroding steadily since 1940, the year of America's emergence as a major and permanent participant in world affairs, and the erosion has created a significant constitutional imbalance. Many, if not most, of the major decisions of American foreign policy in this era have been executive decisions. Roosevelt's destroyer deal of 1940, for example, under which 50 American ships were given to Great Britain in her hour of peril in exchange for naval bases in the Western Hemispher, was concluded by executive agreement, ignoring both the treaty power of the Senate and the war power of the Congress, despite the fact that it was a commitment of the greatest importance, an act in violation of the international law of neutrality, an act which according to Churchill, gave Germany legal cause to declare war on the United States. The major wartime agreements-Quebec, Tehran, Yalts, and Postdam-which, as it turned out were to form the de facto settlement of World War II, were all reached without the formal consent of the Congress. Since World War II the United States has fought two wars without benefit of congressional declaration and has engaged in numerous small-scale military activities-in the Middle East, for example, in 1958, and in the Congo on several occasions-without meaningful consultation with the Congress.

That the Cnngress shares constitutional power with the executive branch in the making of foreign policy is clear, as I have said, from the plain words of the Constitution itself. In his statement to the subcommittee, Senator Morse summarized the powers in the field of foreign policy allocated to the President and to Congress :

Scholars in the field generally recognize that under the Constitution the powers in the field of foreign policy and war were divided between Congress and the President. The President was made Commander in Chief of the Army, Navy, and militia when called into service. He was given the power to receive Ambassadors and other Public Ministers and the duty to see that the laws be faithfully executed.

Congress was given the power to declare war, to raise and support armies and provide and maintain a Navy, to make rules governing these forces, to provide for organizing and calling forth the militia, and to regulate commerce with foreign nations. In addition, Congress was to make all laws necessary for carrying out the powers vested in the Government and was given the power of the purse through the provision that no. moneys could be drawn from the Treasury without an appropriation by law.

In addition, of course, the Senate has the responsibility of confirming appointments to diplomatic posts and by two-thirds vote must give its "advice and consent" to treaties before they become effective.

Despite this constitutional power and responsibility,-the post-World War II years have seen a failure on Congress part to play an active, creative role in the making of foreign policy. The report on the resolution by the Foreign Relations Committee traces the reasons for this decline:

[T]he basic cause has been the unfamiliarity of world involvement and recurrent crisis to the American people and their government. Prior to 1940 foreign crises were infrequent and therefore put no lasting strain on our institutions.

Since 1940 crisis has been chronic and coming as something new in our experience, has given rise to a tendency toward anxious expediency in our response to it. The natural expedient-natural because of the real or seeming need for speed-has been executive action.

In other words, the trend to Executive supremacy is a product of the cold war and of recurrent and almost constant crisis in which the stakes are often the very survival of this country and the world. Since the United States be

came the major actor in world affairs, we have become involved in almost every event everywhere on the globe, and even our noninvolvement is a key element in the affairs of other nations. The sheer size, complexity, and critical nature of America's foreign policy has led to a feeling that only the President with his advisers can adequately formulate as well as execute foreign policy.

Congress itself acquiesced and supported the preeminent role of the Execu tive. Understandably, Congress became reluctant to question the judgment-before the fact-of the President and his advisers. The salutary principle of a non-partisan foreign policy-"Politics stops at the water's edge"-developed into a withdrawal of Congress from any significant role in the formulation of foreign policy.

Evidence of this withdrawal of Congress from its constitutional obligations can be seen in almost every aspect of our policy. In the years since World War II, for example, the treaty power which the President shares with the Senate has atrophied. Since 1946, the United States has become a party to more than 5,000 international agreements, but only 245 of them have been treaties. The great bulk are executive agreements. The executive agreement, of course, is a purely executive contract. Unlike the treaty, which requires twothirds approval by the Senate, the executive agreement can be negotiated and executed without Senate advice or Senate consent. For the most part, the public and the Senate are not even aware when these executive agreements are made or what they contain.

In an effort to obtain a fuller understanding of the use of executive agree ments and their influence on the distribution of power between the Executive and Congress in the field of foreign policy, the Subcommittee on Separation of Powers recently asked the Department of State to analyze all of the executive agreements entered into since World War II. The Department of State was requested to collect all the agreements, classify them by subject matter, and state the legal or constitutional authority under which they were made.

It took the Department almost 4 months to prepare the report the subcommittee requested on these 5,000 executive agreements. Their report totals almost 300 typewritten, legal-sized pages. It is not, I must stress, a reprint of the agreements nor an exhaustive analysis of their terms, their legal effect, or even their legal underpinning. It is merely a listing by subject matter of the agreements and a listing by citation of the authority for each.

The accompanying memorandum by the Department states:

From time to time comparisons are made between the number of treaties and the numbers of so-called executive agreements made . . . that this study! covers nearly 5,000 international agreements other than treaties made during the period 1946-1968. During the same period, and not counting certain earlier treaties which were brought into force during the period, 245 treaties (121 bilateral, 124 multilateral) were made and brought into force and have been published or are in the process of being published in the Treaties and Other International Acts Series and the permanent statutory volumes (UST). A comparison merely on the basis of total figure is, of course, meaningless.

While it is true that the mere ehumeration of these agreements is not conclusive proof that the executive agreement has supplanted the treaty, it is enough to warrant a full-scale study of the importance of the executive agreement and its effect on the Senate's role in treatymaking.

The Senate cannot take at face value the assertion by the Department that every agreement is properly based upon constitutional authority and that all are consistent with congressional delegations of authority and existing law. Many of them, it appears, were made according to the President's "inherent powers" to conduct foreign policy. But what those "inherent powers" consist of, and whether executive agreements signed under such authority trespass on the Senate's treaty powers, are questions which the Senate ought to answer for itself if it is to give substantive meaning to the resolution.

The quantitative increase in the use of executive agreements in recent decades has been matched by an increase in their qualitative standing. Where once the executive agreement was a decidedly subordinate instrument reserved for international "housekeeping" arrangements, now it is often alleged that the executive agreement stands on an equal footing with the treaty. It is commonly asserted, for example, that anything which can be done by treaty can be done by executive agreement. Thus, the President, under this view, has the power to determine whether the Senate will play any role in making foreign

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