competing with it for creative alternatives to contemporary problems.

Ten years ago, I wrote a book called "Congress and Foreign Policy Making." I argued for a conception of Congress' role as a positive not a negative one. Most reviewers thought I was overly sanguine about the potentialities of congressional influence and initiative in foreign affairs. The executive was considered the favored if not the exclusive party in this field. Congress' role was regarded as confined to limiting, amending, vetoing, or reviewing executive action.

After 10 years, there is greater interest in legislative action, but I confess such interest seems still to concentrate on stopping the executive from making a mistake rather than prompting that branch to find innovative alternatives.

Several years ago, I and many others outlined to the Joint Committee on the Organization of Congress a set of recommendations for making this branch more creative and constructive. Some slight progress has been made, but I believe, frankly, Congress still too often reacts rather than innovates.

And in meeting this objective, nothing is more vital than improving your access to information about foreign affairs. That implies dollars, for staff, for consultants, for studies, for travel, for publications. But, compared to the dollars misspent recently in this society of perverted priorities, what you need is minuscule. If Mr. Clifford's figure of $40,000 per sortie is at all correct, that would provide an awful lot of creative information for Congress and the Executive alike.

In conclusion, Mr. Chairman, I believe that this committee has addressed itself to only half the problem, and perhaps the lesser half at that. Emphasizing the separation of power threatens to inhibit imaginative exercise of separate powers, Congressional as well as presidential. Saying "no" to an executive agreement may constitute a necessary condition for a creative alternative in foreign policy, but not a sufficient one. For this reason, I would welcome greater exploration of ways in which the House and Senate could get off the defensive in foreign policy making and increase their positive contributions to improving our relations with and among other nations.

I hope your subsequent efforts will pursue such a direction. If they do, I believe you will find additional ways to serve the Nation, to maintain its freedom and to secure peace with and among all others.

Senator ERVIN. Do you not believe that the Constitution separates the powers of the President and the Senate with respect to negotiating and approving treaties?

Dr. ROBINSON. Yes, sir.

Senator ERVIN. Then certainly this is a question of separation of powers?

Dr. ROBINSON. Yes, sir.

Senator ERVIN. Now, what limits do you think the Constitution puts on the President when it comes to making agreements with foreign nations?

Dr. ROBINSON. I read with some care the testimony taken in the case of hearings on the Case bill, which I, incidentally, would think would be a happy solution to this problem; that is to say, that all

executive agreements would have to be reported in some systematic, codified way, to Congress. But, I think that on discovery that any executive agreement, in the view of Congress has exceeded congressional policy or its intent, that Congress would, by affirmative action, undertake to repeal that executive agreement.

I am not for unlimited Presidential powers any more than I would be for unlimited congressional or judicial powers, but I think there are serious complications, one which I noticed this morning. I would like to refer to the exchange between Professor Miller and Ambassador Goldberg. I noticed that the question had to do with an example in which an executive agreement committed dollars from this country to another country.

Well, now, if such an executive agreement were brought before Congress, under the Ervin bill, and if that executive agreement were not overturned within 60 days, then it would seem to me that Congress would have, by its silence, given consent to that outflow of dollars, and yet would that not be a subversion of the appropriations provisions of the Constitution?

Senator ERVIN. I would question whether that would be because the Constitution says that no money shall be appropriated except by act of Congress.

Dr. ROBINSON. But if the President is obligated to uphold that agreement, to carry out that agreement by having signed it, and if Congress does not overturn it within 60 days, has not Congress given a kind of assent to it?

Senator ERVIN. What would be the effect of that executive agreement if Congress never heard of it?

Dr. ROBINSON. I assume that part of it could not take force.

Senator ERVIN. Under the present system, if it was not reported to Congress

Dr. ROBINSON. Then the President would have to get the money from some place other than the appropriations, some contingency fund or otherwise.

Senator ERVIN. I do not believe Congress acts through acquiescence as far as appropriations are concerned. I thing the Constitution explicitly says that no money shall be taken out of the Public Treasury except by appropriations authorized by the Congress.

Dr. ROBINSON. I understand that, but I wonder whether foreign governments read the Constitution as carefully as we do, and would they not think

Senator ERVIN. That is fundamentally, I think, our big trouble in this field. Foreign peoples do not always understand our Constitution, and they often think that when the President says something -or even a Senator says something-that it represents how the Government speaks.

Now, I am very much intrigued, as I was intrigued by Mr. Clifford's testimony as to just what legal status an executive agreement has, since the Constitution says that we have three kinds of supreme law of the land-the Constitution, acts of Congress passed pursuant to the Constitution, and treaties.

I recognize that it is a useful instrument to implement a treaty or implement an act of Congress, but it certainly is not the supreme law of the land. I do not believe we have any kind of inferior law

of the land and, therefore, I cannot go along with some of the views that have been expressed by the Supreme Court in the Pink and the Belmont cases.

Do I understand that you take the position that executive agreements should be reported, and that Congress is entitled to know of them?

Dr. ROBINSON. Yes, I see no reason, except the obvious problems of disclosure of secret documents

Senator ERVIN. But, the Congress should not take any action when it sees an executive agreement which undertakes to exercise the lawmaking power of Congress, or which calls for the expenditure of money that only Congress has authority to appropriate.

Dr. ROBINSON. Well, why cannot Congress, by an act of Congress, undertake to overturn such an agreement? Or, if there is reason to believe that the agreement is not in pursuance of an act of Congress, are there not recourses in the courts?

Now, I am not trained in the law, but I am not arguing the legal matters here. I am arguing the policy matters which are that I think the President cannot operate without executive action. I think this is the really fundamental problem, making policies that are not bound up in keeping the Executive from making a bad executive agreement, but how can Congress get the process to be more creative and avoid future Vietnams.

Senator ERVIN. I am also intrigued with your suggestion that the Congress ought to do something affirmative in the field of foreign policy. I would certainly welcome any suggestions you might make as to what affirmative action the Congress can take.

Dr. ROBINSON. If I could expand on that for just a minute, it seems to me the key word is information, and in the history of this country the power, the domination of one branch over the other, has oscillated. At one time there has been a strong Congress, and at other times a strong President.

But, in contemporary public policy, both with respect to foreign policy and domestic policy, by and large I think that the executive is the branch that is dominating the Congress rather than Congress dominating the executive, and you have tried to speculate about why that is the case.

Incidentally, this is true in virtually all other governments. As a matter of fact, when we criticize Congress for being weak, we ought to footnote such a statement and say that it has remained the strongest vis-a-vis the executive body, stronger than any other legislature in the world. It remains, in my judgment, less powerful than the executive, and this has by and large been the trend now for roughly 75 years, and that trend dates from the beginning of what I call the information revolution which is a byproduct of the industrial revolution. An interesting way of illustrating the importance of information and the different ways in which Congress and the executive respond to information is to recall the troubles in completing the census of 1880. 1880 was the first year in which the population of this country grew by more than 10 million in a single deade. Up to that time the Census Bureau processed the enumerations by hand, and by 1885 it became clear that the Census Bureau would

not complete the 1880 enumeration before having to take the 1890 enumeration.

And that is when the first mechanical data processing machine was invented, to process all of this material by machinery instead of by hand.

Simultaneously, or almost simultaneously, came the invention of the typewriter and Pitman's perfection of shorthand, and that just led to a profusion of paper.

We may think of the mimeograph machine as the forerunner to bulging briefcases and files, but the same effect was added by the introduction of data processing, carbon paper and shorthand.

Now, the Executive positioned itself better, somehow to respond to this information revolution. Typically we think of bureaucracy as being executive. There is no reason at all bureaucracy cannot exist in legislative or judicial branches, but the Executive prevailed because the bureaucrats have learned how to acquire, and screen and organize information much more effectively than has Congress.

In addition to their being more information, the industrial revolution also produced more problems, shifts in population, mobility, concentration in the cities, immigration, transportation, communications, and all of the rest which leads to more social problems.

So, with more information about more problems, and with the Executive having bureaucratized itself to handle that information, it got the upper hand, and by and large has kept it. And I think of the reports your committees do. Most of the information comes from the executive branch, and I think Congress has got to regain some of the information advantage before it can be more creative vis-a-vis the Executive.

Senator ERVIN. Well, I think that the weakness you point out in Congress is very substantially a result of party government, although we do not have party government in this country in the strict sense of the term, such as in England. But, the Executive has only one mind and one voice, while in Congress there are 100 Senators and 435 Congressmen. Unfortunately, Congress is at a disadvantage in this respect. When the President takes certain action and makes a certain proposal, there is a substantial percentage of Congress that will support him simply because they belong to his political party and think there is some party advantage in it. That really tends to disable Congress in its ability to take aggressive action in the field of foreign policy.

In other words, I find it very difficult to persuade other Senators to accept my sound views on many problems. It seems to me that Congress has an obligation to protect its legitimate sphere in the field of foreign policy.

Dr. ROBINSON. I do not quarrel with that.

Senator ERVIN. So, I do think that there is a very substantial question of the separation of powers as to whether or not Congress is going to sit by and let the President enter into executive agreements and circumvent the treatymaking process, because in the treatymaking process the President has to consult with Congress.

And I think executive agreements too often are used to circumvent the treatymaking process, and they constitute in legal effect, in many cases, a usurpation of the legislative power of the Congress.

Dr. ROBINSON. Have you given any consideration to proposing a constitutional amendment which would reduce the two-thirds requirement to a majority and share the treatymaking power with the House?

You see, my understanding is that one of the reasons an executive agreement is so profusely used, and was in the 1930s, is and was because in trade agreements and in other matters, the administration. thought getting two-thirds vote of the Senate was too high.

Senator ERVIN. No, I have never given thought to that simply because it is too much of a job to get the Constitution amended. You have to get the two-thirds of each House to vote for a constitutional proposal, and you also have to get three-fourths of the States.

Dr. ROBINSON. Leaving aside that obstacle, assuming you could do that, would that not reduce the temptation to use the executive agreement?

Senator ERVIN. No, I think the two-thirds is a protection against the power of the Executive.

Dr. ROBINSON. But that is one of the factors encouraging the use of agreements.

Senator ERVIN. I think it would increase the power of the Executive in requiring a majority rather than two-thirds. Now, it might obviate some executive agreements, there is no question about that, but it would increase the power of the President and decrease the power of the Senate.

Dr. ROBINSON. But would increase that of the House, by involving the House in treaties.

Senator ERVIN. Well, yes, it would increase the power of the House.

Of course, the Congress cannot make a treaty or negotiate a treaty. George Washington learned that, to his sorrow, when he took the advice and consent literally, and he came down and wanted to sit in the Senate and get the Senate to advise him on what he had put in a treaty, as I recall, and he did not fare very well. He did not receive the respect he was due.

But, I am interested in how the Congress can be more aggressive in this field and take on more power and exercise more power.

Dr. ROBINSON. I think it has to improve its information resources. Senator ERVIN. It would have to get a lot of foreign information that now is available to the President through the CIA which we do not get. We need information about foreign countries and what is going on in them in order to deal with foreign policy. We do not get very much of that, except when we go on a touring junket. I would certainly agree that we need more information, but, our capacity to absorb information is somewhat limited.

I agree that the Executive gets much more appropriations for information. We are rather negligent about it with our own allowances, but we are ever generous when we go to giving it to the Executive.

Professor MILLER. Just a couple of questions, Senator.

Am I correct, Dr. Robinson, in inferring that you think that the bill does not go far enough? You think that the bill is OK, but you would prefer to see something even stronger?