SUPPLEMENTAL MATERIALS Borchard, Edwin, excerpt from "Treaties and Executive Agreements—A Byrd, Elbert M., Jr., "Constitutional Limits on International Agreements in the Space Age", 56 Northwestern University Law Review (1961). Case, Clifford P., a U.S. Senator from the State of New Jersey: "S. 596-Introduction of a bill relating to Executive Agree- ments", 117 Congressional Record, February 4, 1971.. "Separation of Powers", Christian Science Monitor, May 15, "Statements on Introduced Bills and Joint Resolutions"; S. 3637, Congressional Record, May 24, 1972. Ervin, Sam J., a U.S. Senator from the State of North Carolina: Page 627 "National Commitments", 115 Congressional Record, June 25, "The Role of the Congress in the Making of Executive Agree- ments", introduction of S. 3475, 118 Congressional Record, April 11, Fulbright, J. W., a U.S. Senator from the State of Arkansas, "U.S. Com- mitments to Foreign Powers", introduction of Senate Resolution 151, 113 357 Moore, John N., professor, School of Law, University of Virginia, letter of Resolutions of States making application to the Congress of the United State of Florida, with statement of Claude Pepper, a U.S. State of Georgia, 98 Congressional Record 1057 (1952). 1972.. "Department Circular No. 175", December 13, 1955. "Circular 175 Procedures”, 11 Foreign Affairs Manual, ch. 700, Excerpts from "International Agreements Other Than Treaties 1946-1968: A List with Citations of Their Legal Bases", January 10, 1969, pp. 261-273, citations of agree- ments made under the President's constitutional authority. Excerpt from "Addendum to the Compilation of January 10, 1969, entitled 'International Agreements Other Than Treaties 1946-1968', to cover the period to April 1972", pp. 36-39, citations of agreements made under the President's constitutional authority, and statistical analysis of agree- Agreement with Spain, "Friendship and Cooperation", Au- Agreement with Spain, "Defense, Use of Military Facilities in Spain", September 25, 1970-- Agreement with Portugal, supplementing the agreement of September 6, 1951, as supplemented, "Continued Stationing of American Forces at Lejes Base, Azores", December 9, 1971 Agreement with Bahrain, "Deployment in Bahrain of the United States Middle East Force", December 23, 1971___ Memorandum of Law Regarding Conclusion of Agreement with 637 638 639 407 417 U.S. Department of State-Continued Memorandum of Law, "Procedures for Implementing the Page Press release, Treaties and Agreements: Azores and Bahrain 418 56 "Numbers of Treaties and Other International Agreements Concluded by the United States During the Period January 1, 56 "Treaties and Agreements: Azores and Bahrain Facilities", EXECUTIVE AGREEMENTS ENTERED INTO BY UNITED STATES Ervin, Hon. Sam J., Jr., chairman, Subcommittee on Separation of Powers, letter addressed to each of the Departments and Agencies of the Federal Government, soliciting information on the number of executive agree- Atomic Energy Commission, letter of April 6, 1972, with attachments_ Canal Zone Government, letter of April 3, 1972, with attachment_ Civil Aeronautics Board, letter of April 6, 1972, with attachments.. Commerce, Department of, letter of April 20, 1972, with attachment. Council on International Economic Policy, The White House, letter of Defense, Department of (response not received on date of going to press): -Letter to Honorable Melvin R. Laird, Secretary of Defense, Environmental Protection Agency, letter of April 7, 1972- Export-Import Bank of the United States, letter of April 7, 1972_ Federal Communications Commission, letter of April 6, 1972, with attach- Health, Education, and Welfare, Department of, letter of April 11, 1972 Housing and Urban Development, Department of, letter of April 5, 1972, National Foundation on the Arts and the Humanities, letter of April 5, 596 Office of the Special Representative for Trade Negotiations, Executive Office of the President, letter of April 7, 1972 with attachments Overseas Private Investment Corporation, letter of April 6, 1972, with Special Action Office for Drug Abuse Prevention, Executive Office of the State, Department of, letters of April 10 and April 20, 1972. NEWS ARTICLES Baltimore Sun, Baltimore, Md., "The Moscow Agreements, Limited", Page 609 408 610 614 617 622 650 "Spring Thaw in Moscow", editorial, May 25, 1972. "Commitment to Peace", editorial, May 26, 1972 Federal Times, "Case Bill Would Limit Executive Pacts to Bases, Nuclear 659 Finnery, John W., "AID Cutoff Urged Over Base Pacts-Aim Is To Force White House To Seek Senate Approval", the New York Times, Long Island Newsday, "War and Peace Powers", April 6, 1972. The New York Times, "Congress Urged To Curb Use of Executive Ac- 645 "The Treaty Powers", editorial, May 1, 1972 646 655 658 Noyes, Crosby S., "Russia Gets N-Superiority on a Silver Platter", the 656 Philadelphia Inquirer, "Treaties by Another Name", April 10, 1972- Rich, Spencer, Senate To Test Nixon Power on Treaties", the Washing- ton Post, Washington, D.C., April 3, 1972__ "U.S. Policy May Get Hoover-Type Study", the Washington Post, Washington, D.C., April 16, 19721 "Goldberg Hits Lack of Treaties", the Washington Post, Washington, D.C., April 25, 1972___ St. Louis Post-Dispatch, "Moscow Agreements", editorial, May 25, 1972- Stern, Laurence, "U.S. To Have Cambodia Tie After Viet Pullout, Hill Told", the Washington Post, April 24, 1972. - Time Magazine, "Arms Control; Agreement on Enough", May 15, 1972__ The Washington Evening Star, Washington, D.C., "Moon Treaty Work "Message From Moscow", editorial, May 29, 1972. Washington News, "Moscow: So Far, So Good", editorial, May 25, 1972. -The Washington Post, "Those Pacts With Portugal and Bahrain", April 7, S. 3475-TO HELP PRESERVE THE SEPARATION OF POWERS AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF EXECUTIVE AGREE MENTS MONDAY, APRIL 24, 1972 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS OF THE Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m., in room 318, Old Senate Office Building, Senator Sam J. Ervin (chairman of the subcommittee) presiding. Present: Senator Ervin (presiding). Also present: Rufus L. Edmisten, chief counsel and staff director; Joel Abramson, minority counsel; Walker F. Nolan, assistant counsel, and Prof. Arthur S. Miller, consultant. Senator ERVIN. The subcommittee will come to order. The Subcommittee on Separation of Powers today begins hearings on S. 3475, 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. The use of executive agreements as a substitute for treaties has spiraled in recent years, giving rise to increasing concern which has been voiced in Senate hearing rooms, on the Senate floor, and in the national press. Some observers feel that the marked increase in the number of executive agreements vis-a-vis treaties is inevitable in an era when international commerce and communications have shrunk national boundaries and have made it essential that nations be able to enter into technical agreements with a minimum of delay. However, although a majority of the ever-increasing number of executive agreements deal with routine technical matters, it is obvious, to my mind, that in recent years the so-called executive agreement has been used to deal with problems formerly dealt with only by treaty, compelling the conclusion that executive agreements are being used to circumvent the treatymaking provisions of the Constitution. Such a development is contrary to the constitutional principles envisioned by the Founding Fathers as well as a clear violation of the doctrine of separation of powers. To my mind, a thorough examination of the questions involved is needed to provide a clearer definition of the powers, duties, and pre (1) rogatives of the two branches of the Government in this area. At the outset, I should like to emphasize that the subcommittee's examination of the questions involved does not focus on the myriad problems which this conflict has created in the field of foreign relations for those issues are under constant scrutiny by the Senate Foreign Relations Committee. Rather, we shall focus principally on the constitutional issues and the separation of powers problems this conflict pre sents. I know there are many persons, both in the academic field and within the Government, who maintain that exclusive Executive control of foreign policy, and domestic policy, insofar as it may be affected by foreign policy, is the price of survival in this nuclear age. They argue that we live in an age of recurring crises and that the need is great for strong central leadership able to make decisions and take action before the opportunity for constructive action is past. I certainly agree that we live in an era that presents critical challenges to any form of government. However, I do not agree that we need to abandon the constitutional principles that have served us so well throughout our history. I firmly believe that we can adhere to those principles without any loss of effectiveness in the field of foreign policy. Article II, section 2 of the United States Constitution provides that the President "shall have the power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." This language makes it clear that the Founding Fathers did not anticipate that policymaking in the area of foreign affairs should be concentrated in one branch of the Government. All governmental powers, including the treatymaking power, were to be subject to a system of checks and balances under the doctrine of separation of powers. To those persons who advocate exclusive Executive control over foreign affairs in the name of dispatch and efficiency, I would commend the reading of the words of Mr. Justice Brandeis in Myers v. U.S., 272 U.S. 240, 293 (1926): The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. Even Alexander Hamilton, who was a leading advocate of a strong Executive, feared the dangers inherent in placing the conduct of foreign affairs in one branch, and pointed out that it was a shared power. Speaking of the "intermixture of powers" in this field, in Federalist LXXV, he said: *** the particular nature of the power of making treaties indicates a peculiar propriety in that union (the Senate and Executive). Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them.. ... The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the op |