網頁圖片
PDF
ePub 版

SUPPLEMENTAL MATERIALS

Page

627

"National Commitments", 115 Congressional Record, June 25,

357

Moore, John N., professor, School of Law, University of Virginia, letter of

May 15, 1972.

Resolutions of States making application to the Congress of the United
States to call a constitutional convention for proposing an amendment to
the Constitution of the United States relating to treaty making:

State of Florida, with statement of Claude Pepper, a U.S.
Representative from the State of Florida, "Proposed Constitutional
Amendment Relating to the Making of Treaties", 91 Congressional
Record 4965, May 24, 1945..

State of Georgia, 98 Congressional Record 1057 (1952).
State of Indiana, 103 Congressional Record 6473, May 8, 1957.
Symington, Stuart, a U.S. Senator from the State of Missouri, "Vietnam-
Misunderstood Understandings", statement on the Senate floor, April 25,

1972..

637

638

639

407

417

U.S. Department of State-Continued

Memorandum of Law, "Procedures for Implementing the Page
Commitments Contained in the North Atlantic Treaty",
Deputy Legal Adviser, February 14, 1972.

Press release, Treaties and Agreements: Azores and Bahrain
Facilities", April 1972__.

418

56

56

"Treaties and Agreements: Azores and Bahrain Facilities",
GIST, Bureau of Public Affairs, No. 73, April 1972..

National Foundation on the Arts and the Humanities, letter of April 5,
1972__

596

Special Action Office for Drug Abuse Prevention, Executive Office of the
President, letter of March 31, 1972__

State, Department of, letters of April 10 and April 20, 1972.
Tariff Commission, letter of April 6, 1972, with attachment_
Transportation, Department of, letter of April 10, 1972, with attachment__
Treasury, Department of, letter of April 10, 1972, with attachments--
U.S. Information Agency, letter with attachments..

NEWS ARTICLES

Baltimore Sun, Baltimore, Md., "The Moscow Agreements, Limited",
editorial, May 28, 1972.

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
Storage", June 7, 1972

659

Long Island Newsday, "War and Peace Powers", April 6, 1972.

The New York Times, "Congress Urged To Curb Use of Executive Ac-
cords", April 25, 1972.

645

"The Treaty Powers", editorial, May 1, 1972
"The Moscow Summit", editorial, May 28, 1972
"Kremlin Terms Accords Triumph", June 2, 1972.

646

655

658

Noyes, Crosby S., "Russia Gets N-Superiority on a Silver Platter", the
Evening Star, May 30, 1972_

656

[blocks in formation]

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
COMMITTEE ON THE JUDICIARY,

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

« 上一頁繼續 »