to the Congress to do certain things. For example, whether or not a member should be expelled. I call that a plenary power, not an inherent power, because the Constitution has specifically provided for it. But it is plenary. When I say plenary, I mean not subject to anybody else's approval or disapproval. Professor MILLER. Well, Dr. Byrd, you are not suggesting the President or the Congress is not subject to Supreme Court review, are you? Dr. BYRD. Yes. Professor MILLER. You are? Dr. BYRD. Yes. Professor MILLER. That the Supreme Court has no jurisdiction to review acts of Congress? Dr. BYRD. You did not ask me that. You aked me if the Supreme Court has authority over the Congress or the President, and that is different from reviewing of acts of Congress. Professor MILLER. But certainly, both the executive and the legislative are subject to judicial review? Dr. BYRD. Well, I would just answer you this way, if I may. The Supreme Court is subject to congressional review. Professor MILLER. Well, that may well be as a matter of checks and balances and it might be very proper, but it simply means, however, that each branch is subject to review by other branches to some extent. Dr. BYRD. This goes on all the time, the review bit. Professor MILLER. But the question, sir, is this: what powers are plenary powers? Give me even an article I, section 8 power of Congress to regulate commerce among the States. It is still subject to Supreme Court determination on whether or not a given statute falls within that power. Dr. BYRD. Well, I thought you were going to say it is still subject to approval by the President, and if he vetoes it, approval by Congress over the veto. Professor MILLER. Certainly. Dr. BYRD. I would not say that is a plenary power. I would not take that as an example of plenary power. Professor MILLER. What is an example of plenary power of Congress? Dr. BYRD. Expelling a member. Professor MILLER. The other question, of course, I think is the relationship of Powell v. McCormack, which may have some bearing on this, of the power of Congress. At least the Court did interven and make a decision with respect to the late Adam Clayton Powell Dr. BYRD. Yes, it did. Professor MILLER. So it is subject to review. Now, whether or no it is still an unsettled question Dr. BYRD. It now will continue to be, with the death of the lat Congressman. Professor MILLER. So we have even then, I think at best, on sev eral questions, not a settled question Dr. BYRD. What subject? Professor MILLER. On the expulsion. I do not think you can cite a case, can you? Dr. BYRD. I can cite the constitutional language which does not provide any other agency will have any approval with regard to that. Professor MILLER. So can Speaker McCormack take the Supreme Court ruling. Let me turn to another area, if I might. This goes to the power of Congress. I think perhaps we could discuss this at length. I agree with Senator Ervin's interpretation quite strongly, as I understand the purport of yours. I am interested now in the policy. I am quite sure that future witnesses before this subcommittee are going to make the point that submission of executive agreements of any type to the Congress for 60 days will work an intolerable burden upon the conduct of foreign relations. I wonder if you could give us your views. Dr. BYRD. I am not going to make that Professor MILLER. Would you comment on that statement? Dr. BYRD. I will comment on it. Let me say to you, I have been awfully busy lately and I wish I had had more time to prepare for this testimony. I arrived in town last night. And where I live, I do not have a Library of Congress available. I live up in the mountains of West Virginia now. But I will suggest this to you: you check me out, if you may, someone may. A few years ago when I was working on the subject, my almost certain memory is that there was a statute at large which said "all executive agreements shall be approved by Congress." Now, whether it has been under recodification, taken out or repealed in some other fashion, I do not know. The point I am making, I think that it is in the statutes already. And this leads me to the question Professor MILLER. Do you infer from that-if you are correct, and I am not sure whether you are or not-that all executive agreements which have not been submitted to Congress and have not been approved are invalid or llegal? Dr. BYRD. No sir. I do not infer that. Professor MILLER. Then, this statute is just a mere meaningless gesture? Dr. BYRD. Exactly. I will point this out and say if I am right in my memory, that this statute-and I think it was 1919 that it was passed this statute is ineffectual. It is a dead letter. It has not been implemented. It has not been carried out. Now, there has been, to my knowledge, no commentary or struggle over why it has not been implemented or carried out, but I would say the same thing with regard to the--I hope you understand me. I am not arguing for the executive branch or Congress or anyone else. I am trying to say I have no bones to pick with any one of the branches, but I very greatly do sympathize with the purposes indicated by these resolutions. What I am speaking about is whether or not they are going to be effectual, whether they will work, and in my judgment, similar things in the past have not worked and these will not either. Professor MILLER. Will they hamper the Executive, Dr. Byrd? Dr. BYRD. From the public relations point of view, they will hamper him. But that is a roundabout way. I do not believe whenI do not know what you mean when you say hamper them, but it will go in that direction. Professor MILLER. There will be severe intrusion or intervention up the Executive prerogratives. Dr. BYRD. I do not believe it will be. I do not think it is a real case of that. Professor MILLER. Have you had a chance to read the Senator's bill? Dr. BYRD. Yes, I read it the night before I left home. Professor MILLER. Would you care to comment on it in general, as to whether you think it is driving in the right direction or not? Dr. BYRD. The concurrent resolution device, since there is not a definition there between-as the Senator preceding me spoke ofimportant or unimportant, significant or insignificant executive agreement, and no definition with regard to whether it is written or verbal, I think that if it were all inclusive as the language seems to be and if it were faithfully carried out, which I do not believe it will be, but if it were, the Congress will be interfering with Executive prerogatives. They would be approved by silence automatically, because you could not get to all of them. And that puts you, it seems to me, from a Constitutional and psychological point, in a worse position than before, because it would be argued you did not object during 60 days. That makes it, according to your own laws, you approved it, so don't come back to us with any of your problems. From that point of view, I think it would be ineffective and maybe worsen the situation. Professor MILLER. I have no further questions. Senator ERVIN. As I understand your position, I think that proposals like my proposal and the proposal of Senator Case and others that are seeking what you call an automatic device, regardless of whether they are constitutional or not, are unwise. They are ineffective. Dr. BYRD. I would say unwise-if you mean it would be unwise to rely on what might be accorded automatic devices to beat the problem. That is correct. Senator ERVIN. Yes. I am frank to say that I cannot find very many powers that the President can exercise himself in the field of foreign relations. I recognize the one about recognizing foreign nations and, like Professor Miller, I think that is implied from other provisions of the Constitution. The way I take it, the President has power as Commander in Chief to direct how the Armed Forces will be employed when he has been authorized by declaration of war to employ those in combat with a foreign enemy, what I called a defensive war, I think he has the right to direct how they should be employed in resisting an invasion. Despite the fact that Presidents have used the Armed Forces to invade Republics on many occcasions, I have always maintained that although we have had murder and larceny in every generation, that fact has not made murder meritorious or larceny legal. I think the Supreme Court sustains that in the Steel Seizure case. It says it does not matter how many times the Presidents have acted unconstitutionally in the past, it does not set aside the fact the President could not act in that case without authority from Congress. Dr. BYRD. Well, I certainly agree with what the Supreme Court said in the Steel decision case, yes. Senator ERVIN. It says here in section 8 of article I, "The Congress shall have the power to make all laws which shall be necessary 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." It would seem to me that would give Congress power in most cases to regulate how the President selects the size of the power the Constitution gives them. Dr. BYRD. I think in most cases you are right. But where the Constitution gives the President direct power as Commander in Chief, then I think it is a constitutional question that is not so easily reconciled, and I do not think it will be reconciled, because I do not think the Supreme Court is going to decide that. Senator ERVIN. They have not thus far, of course, but it seems to me when you say he is Commander in Chief of the Army and Navy Forces, and the militia when called into service for the United States, that that is subject to the other provisions of the Constitution in respect to power of Congress to declare war and in respect to the power of the President to repel invasion, but I do not believe that gives him the power to order, even though it has been exercised on occasion by Presidents, the power to send our forces abroad without the consent of Congress, to maintain law and order in foreign nations. Dr. BYRD. It is a difference of view as to what the Commander in Chief means. Senator ERVIN. Oh, yes. Dr. BYRD. I repeat, I think it applies to plenary power, absolute power as to deployment over those forces in existence, but the forces in existence were put in existence by the Congress and they are subject to be reduced by the Congress or a specific provision by appropriation, that money may not be spent in a specific area. And in that way, you do not have troops, for example, to go to a specific area, so the President cannot send troops he did not have for the area. Senator ERVIN. I think Congress can regulate those matters to some considerable degree. If I recall correctly, just before the beginning of the Second World War, we passed a draft law and provided in the law that no drafted man could be sent to fight outside of the borders of the country. Dr. BYRD. No, sir. I think I am familiar with that. It says: "No American may be sent to participate in a foreign war." Right? You know what the President said? "Now that there has been an attack on Pearl Harbor, it is no longer a foreign war, it is a domestic war." Senator ERVIN. You may be right in your recollection of that. I wouldn't gainsay. Dr. BYRD. Just one word can be twisted, you understand, and make an awful lot of difference. The executive branch, as I said, has hundreds of staff people daily with their time to play the role. You do not have the time. Senator ERVIN. But I would hate to think about the only effective power Congress has in this field is the appropriation power. Dr. BYRD. Why, Senator? Senator ERVIN. Because the President can do what he pleases, and all along there is no way to restrain his activities. He can go out and make any kind of agreement with any other country, and the Congress cannot do anything about it except withhold funds after his error is discovered. Dr. BYRD. That is doing a lot about it. Senator ERVIN. Well, it is locking the stable door long after the horse Dr. BYRD. I mentioned the horse a moment ago. I may say with regard to that—don't misunderstand me. I am for essentially what your purposes are. I was against the Vietnamese war a long time before a lot of other people. When I ran for Congress in 1966, 85 percent of the people, according to the public opinion polls, were for the Vietnam invasion or sending troops to Vietnam. And, of course, I probably made a mistake saying I am against that when only 15 percent of the people said they agreed with me. So I am not a Johnnycome-lately; I was too early on that, politically speaking. So it is immaterial to me though, with regard to what I told you, what my views are on that. I was against the Vietnam situation way back then. But it is a matter of my being against the wisdom of the President, not a matter of my being against the power of the President. I think there is a distinction we must pay much more attention to than we have. Senator ERVIN. We have a North Carolina expression: "He can do about it like he damn pleases." If you excuse the North Carolina expression. Dr. BYRD. I think you get the point. As long as you let him. Senator ERVIN. That is the reason I think the Founding Fathers put that treatymaking provision in article II, section 2. They meant what they said. Dr. BYRD. But, Senator, James Madison was one of the architects of the Constitution and that provision. One of the very first international agreements was other than a treaty. It was borrowing a very large sum of money from Holland and legislation passed, and along with the same thing, the same Jay Treaty debate that went on for 65 days with nothing else taken up but just that one subject in the House here. Madison had many occasions publicly to comment on that, but only in writing to Thomas Jefferson by letter, saying it is a verynot quoting exactly-it is a very interesting thing to note that the agreement with Holland on floring was consummated solely with the power of the Congress and the Senate not having its treaty power operating. He said this in a letter to Jefferson. Senator ERVIN. I think that was in the field of our legislative power. Dr. BYRD. But it is international agreement. Senator ERVIN. But it was legislatively authorized. |