son, and the absence of clearly understood definitions of the situations where such shortcut methods of making foreign commitments are and are not proper, leave open a discretion in the Executive which runs counter to the letter and spirit or article II, section 2 of the Constitution.

The legal basis for the use of executive agreements is unclear at best, and most frequently has been grounded on the argument of usage a legal justification that is not entirely satisfactory. As I have often noted in various other contexts, murder and rape have been with us since the dawn of human history, but that fact does not make rape legal or murder meritorious. In effect, reliance on usage in this instance grounds concepts of constitutionality on acquiescence rather than on the written document, and is, to my mind, wholly acceptable. It always has been my view that the Constitution means what it says. Moreover, I am not impressed with the recitation of so-called precedents to support de facto constitutional amendments. Even 200 years cannot make constitutional what the Constitution declares is unconstitutional.

Aside from the absence of a legal basis for the practice, there is no accepted definition of what constitutes an executive agreement. The general textbook definition states that undertakings involving the national interest, political issues, changes of national policy, and commitments of a permanent nature usually take the form of treaties, while those involving adjustments of detail, and those which are more or less of a temporary nature often take the form of Executive agreements. In a document entitled circular No. 175, the Department of State, in a masterpiece of circularity, decrees that Executive agreements "shall not be used when the subject matter should be handled by treaty," but the circular gives no precise standard for when a treaty should be used. The Department of State, in the foreword to its publication "Treaties in Force," classifies international agreements other than treaties as being those which are made by the Executive (a) pursuant to and in accordance with the existing legislation or treaty; (b) subject to congressional approval or implementation; or (c) under and in accordance with the President's constitutional power. But what is the constitutional power of the President to make Executive agreements?

The State Department admits that it is unable to devise a standard for when "the subject matter and the treatment thereof are within the constitutional powers of the President." I again quote from its circular 175:

Difficulty of Precise Definition :

Precise formula not available because it involves definition of:

(1) entire scope of the President's authority in the field of foreign affairs. (2) entire scope of delegated powers of Congress and its powers under the final paragraph of Article I, Sec. 8, of the Constitution, which provides that Congress shall have power: To make all laws which shall be necssary and proper for carrying into Execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

A determination of the scope of the President's authority in the field of foreign affairs, as well as the scope of the powers of the Congress in this field, is the heart of our inquiry. We should not shrink from the task merely because it is difficult.

The courts have not squarely faced the issue. Four cases are often cited in connection with the subject: United States v. CurtissWright Corp., 299 U.S. 304 (1936); United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942), and Reid v. Covert, 354 U.S. 1 (1957). However, a brief analysis reveals that none of them dealt on point with the thrust of these hearings: to determine the proper role of the executive agreement as an instrument of foreign policy. In Curtiss-Wright, Mr. Justice Sutherland, in what must be characterized as dicta, enunciated his view that the power of the Federal Government does not derive solely from affirmative grants in the Constitution but from the powers inherent in its sovereignty, and that even beyond that authority, there is power in the executive branch deriving from "the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations..." The doctrine of inherent powers was again enunciated in United States v. Belmont and in United States v. Pink, but was explicitly rejected by the Supreme Court in Reid v. Covert.

However, in rejecting the doctrine of inherent powers which had been expressed in Curtiss-Wright, Belmont, and Pink, the Supreme Court failed to substitute a precise standard for determining the allocation of external powers. Only when individual rights have been threatened by an executive agreement has the Court been willing to intervene.

The doctrine of inherent powers seems to have become the most important rationale utilized by the executive branch in recent years in its effort to usurp legilsative power both in the domestic and foreign affairs arenas. It is used by persons who want to justify acts which cannot be justified under the plain written provisions of the Constitution. In the arena of foreign affairs, the Founding Fathers considered carefully the proper allocation of powers and concluded that the President should not be permitted to engage in treatymaking without the advice and consent of the Senate.

I have always considered the division of authority between the President and Congress in foreign affairs to be most accurately characterized by Prof. Edward S. Corwin in his book, "The President: Office and Powers." This work has been widely quoted, often to support the proposition that the President should have the major role in determining the substantive content of foreign policy. Indeed, Professor Corwin does recognize that this has been the case in recent history. It is significant that he concludes that such was not the intent of the basic document. He states:

The principle that the National Government is as to external affairs a completely sovereign government being conceded, it logically follows that Congress' legislative power in the same field is also plenary. Except indeed for its inability to require the President to exercise his concurrent powers in the same field, Congress has approximately as broad powers over such matters as has the British Parliament. And, of course, once Congress has legislated, the President becomes constitutionally obligated to take care that its laws be faithfully executed. . . . Congress has, to repeat, vast powers to determine the bounds within which a President may be left to work out a foreign policy.

I subscribe fully to that view. By far the most significant powers in the field of foreign relations are conferred upon the Congress

alone or upon the President and the Congress jointly. The powers conferred individually upon the President are instrumental only. I find nothing in the basic document and nothing in the debates of the Constitutional Convention to support a broader conception of the President's diplomatic role. In short, what the framers intended was that the President should be the channel of communication between the United States and foreign nations, but, in fulfilling that function, he should be merely the executor of a power of decision that rests elsewhere; that is, in the Congress. This was the balance of power between the President and Congress intended by the Constitution. This is the balance of power that the Congress can enforce if it is only willing to do so.

Our system of government rests on a system of shared powers and responsibilities. In reaffirming the constitutional role of the Congress in the field of foreign affairs, much more is at stake than a formalistic observance of a paper distribution of powers, prerogatives, duties, and functions. The framers of the Constitution did more in devising that document than merely deal out the elements of power among three branches of the Government. Because the Founding Fathers knew that the absence of the consent of the governed would lead to revolt, they sought to strike a balance between tyranny on the one hand, and anarchy on the other. Because this principle was recognized as applicable to foreign policy as well as to domestic policy, they gave Congress, and especially the Senate, important responsibilities in this field. The Senate's ultimate responsibility is to make certain that our Nation's foreign policy remains responsive to the wishes of the people, because in a democratic society, no policy, however enlightened, can long survive without the consent and support of the people.

The importance of the congressional role in formulating foreign policy lies in mobilizing and expressing popular support. Through the Congress, the people have a voice and a way to make it heard. Neither the Department of State, nor the Supreme Court, nor even the President, can perform this great function of giving expression to the people's wishes on an issue.

If foreign policy were the exclusive domain of the Executive, the decisions and the policy of the United States would not be made with the active participation of the people. The people will not forever support a foreign policy which is made for them, but without them.

At this point, I should like to commend the Senate Committee on Foreign Relations for its tireless efforts to restore the legislative branch of the Government to its constitutional role in this area. Senator Case has performed yeoman service in securing Senate passage of S. 596 and S. Res. 214. These measures are indeed a step in the right direction.

During these hearings, the subcommittee will consider carefully the provision of S. 3475, which I introduced on April 11, 1972. The bill is simple in its terms. It recognizes that the Founding Fathers' concept of shared powers in the area of international agreements has been substantially eroded by the use of so-called executive agreements. In plain language, the measure defines executive agreements

and requires that the Secretary of State shall transmit each such agreement to both Houses of Congress. If, in the opinion of the President, the disclosure of any such agreement would be prejudicial to the security of the United States, the bill provides that it shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy. Under this injunction of secrecy, only the members of both Houses of the Congress shall be permitted to inspect the document.

The bill further provides that each executive agreement transmitted to the Congress shall come into force and be made effective after 60 days or later if the agreement so provides-unless both Houses pass a concurrent resolution expressing disapproval of the executive agreement between the date it is transmitted to the Congress and the end of a 60-day period. In other words, the Congress, in its sharedpower role, will have an opportunity to state that it does not approve of an executive agreement during the 60-day period after the agreement is transmitted to the Congress.

It appears to be that the executive branch of the Government. would welcome a method whereby the Congress would share the responsibility for making international agreements which affect the international image of our Nation and its people, the allocation of our tax resources, and, in many instances, impinge upon the possibilities of achieving peace in the world.

(S. 3475 follows:)

S. 3475, 92nd Cong., second sess.

A BILL To help preserve the separation of powers and to further the constitutional prerogatives of Congress by providing for congressional review of executive agreements 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 estalished a system of shared powers between the legislative and executive branches of the United States 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 hereby 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 on 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 such 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 sixty calendar days of continuous session of Congress after the date on which the executive agreement is transmit

ted to Congress or such committees, as the case may be, unless, between the date of transmittal and the end of the sixty-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 three days to a day certain are excluded in the computation of the sixty-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 rulemaking 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 resolving 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 therein 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 twenty 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 one 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 mo