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

tion to the same effect has been disagreed to) to move to proceed to the consideration of the resolution. The motion is highly privileged and is not debatable. 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. (2) Debate on the concurrent resolution shall be limited to not more than two hours, which shall be divided equally between those favoring and those opposing the resolution. A motion further to limit debate is not debatable. An amendment to, or motion to recommit, the concurrent resolution is not in order, and it is not in order to move to reconsider the vote by which the concurrent resolution is agreed to or disagreed to.

(f) (1) Motions to postpone, made with respect to the discharge from committee, or the consideration of a concurrent resolution with respect to an agreement, and motions to proceed to the consideration of other business, shall be decided without debate.

(2) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a concurrent resolution with respect to an execuive agreement shall be decided without debate.

Senator ERVIN. The subcommittee is very fortunate in having some very distinguished witnesses who have agreed to aid the committee by their appearance and by expressing their views on this very important subject.

The first of our witnesses is one of America's most distinguished lawyers, a former member of the Supreme Court of the United States and former Ambassador of the United States to the United Nations, the Honorable Arthur J. Goldberg.

We certainly do appreciate, far more than I can say, your willingness to be here and give us the benefit of your study and observations and reflections on this very important matter.

STATEMENT OF HON. ARTHUR J. GOLDBERG, JUSTICE, SUPREME COURT OF THE UNITED STATES, RETIRED, AND FORMER AMBASSADOR TO THE UNITED NATIONS

Mr. GOLDBERG. Thank you very much, Mr. Chairman, and members of the committee.

I am privileged to appear here today at the committee's invitation to give my views on what the chairman has just properly characterized as a most important question of our Government's policy.

I want to commend this committee for addressing itself to this subject which bears importantly on our constitutional commitment to separation of powers.

The problem of executive agreements vis-a-vis the treaty power of the Senate has properly become a matter of increasing concern. And it is most approprate that this Subcommittee on the Separation of Powers thoroughly examine the questions involved in this vital area of our foreign affairs, because the basic issue really is separation of powers and our constitutional applicability.

Before addressing myself specifically to the fundamental question relating to the treaty power of the Senate and the asserted countervailing claim of executive authority to enter into binding agreements with foreign countries without the consent of Congress, I would like to make a general observation which is relevant, however, to the particular matter which this committee is exploring.

It is an understatement to observe that we are approaching, if we have not already reached, a constitutional crisis in the relations between the Executive and Congress. This is evident from recently approved bills by one or both Houses, to which the chairman has referred in his statement, from hearings in several areas involving Executive-congressional relations and from differing positions asserted respectively by the Executive and by Congress.

For example, the Senate very recently, by an overwhelming vote, approved a bill sponsored by Senators Javits, Stennis, Eagleton, and Spong relating to the war powers of the President.

Just the other day, the Committee on the Judiciary had to take a stand under the leadership of the chairman of this subcommittee regarding an asserted claim by the President of executive privilege for one of his White House aides. In my view, Mr. Chairman, your position was entirely correct and based upon a proper concept of the Constitution's allocation of powers between the Executive and Congress.

It is true if I may interject-that there are executive privileges, but these are the President's, and these privileges are designed to protect the President in the course of his conduct of his office. They do not relate to the denial to the Congress of its need and right to know from members of the White House staff of matters of public concern that do not infringe upon the confidential communications between the President and the members of his staff. I think it was all to the good that Mr. Flanigan testified. I regret that there were limitations which had to be agreed upon in order to obtain that very limited appearance before the Judiciary Committee.

I recall, Mr. Chairman, as you do, some of Justice Brandeis' most pertinent observations. One of these basic to our democracy is that "sunlight is the most powerful disinfectant." Indeed, it is.

At the instance of Senator Case and others, the Senate has approved S. 596, requiring that international agreements other than treaties hereinafter entered into by the United States be submitted to Congress within 60 days after the execution thereof. This bill reflects the frustration of Congress with respect to the subject of executive agreements.

I regret that the Executive, has asserted that it would only comply in part with this bill. In my view, there is no need or justífication for administrations, past and present, to oppose, as they have done and are doing, these efforts by Congress to perform its proper role in our constitutional scheme.

The President, Congress and, importantly, the American people need to be constantly reminded that we are a government of separation of powers and that an essential safeguard of our democracy is the checks and balances which the Founding Fathers provided in the Constitution.

I also regret that the executive branch of the Government seems to regard congressional efforts in this area to be an attack upon presidential powers and prerogatives. These efforts should be welcomed as a return to the true constitutional faith upon which, as Judge Learned Hand once reminded us, we have risked our all.

It is in light of these general observations that I now turn to the specific question of executive agreements.

A good way to start is the fact that executive agreements are not mentioned in the Constitution. This is in sharp contrast with the express language of the Constitution relating to treaties.

The treaty language in the Constitution, article II, section 2, establishes our constitutional structure for dealing with what I would term to be substantive agreements between our country and foreign powers. The language bears repeating. "He"-the Presidentshall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Mr. Chairman, one does not have to be a jurist, a lawyer or a political scientist to understand the plain meaning and import of these words. The Constitution, by this language, requires the President to submit substantive agreements-whatever the nomenclature that may be attached to these agreements-affecting our relations with other countries to the Senate for approval by the requisite majority.

The treaty provision of the Constitution parallels the constitutional provisions relating to the War Power. Article I, section 8, of the Constitution provides that Congress shall have power to declare war. These explicit words and its legislative history make it crystal clear that the power to sanction the use of the sword is in Congress. And the Constitution confirms that this is so by further words in article I, section 8, that Congress shall have power

To raise and support Armies. . . to provide and maintain a Navy .. to make rules for the Government and regulation of the land and naval forces. [and] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers

Now, it is true, as the administration asserts, that article II, section 2, provides that

The President shall be Commander in Chief of the Army and Navy of the United States ***.

Here, again, however, the meaning and intent are clear and confirmed by the constitutional debates. Only Congress constitutionally can make war. The President, after a proper declaration of war by Congress is entrusted with the function of waging a war declared by Congress. But even this power of the President is subject to the check of congressional control of appropriations.

Now, Mr. Chairman, it is also true that the Constitution, in vesting the Executive Power in the President, empowers him to conduct the Nation's foreign policy. I emphasize "conduct." But, as I have already pointed out, this power is subject to the very important check that the Senate must, under article III, section 2, advise and consent to his making of treaties, and Congress as a whole must pass. the laws to raise the revenues required both for military and foreign affairs.

Congress, therefore, has the power of the purse, not only with respect to the sword but with respect to the conduct of diplomacy.

The Administration argues that tradition sustains the Executive's power to enter into executive agreements dealing with substantive as well as routine or administrative matters.

Now, Mr. Chairman, it is true, as you have pointed out, that executive agreements have proliferated, particularly in recent times. But

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past practice cannot justify departure from plain constitutional mandates. At most, past practice demonstrates that Congress has been derelict in the performance of its constitutional responsibilities while the Executive has been over-assertive in extending its authority beyond the Constitution.

And I am more than gratified, as the American people should be, that under the leadership of the chairman and this committee Congress is now seeking to repair what in the past has been too much acquiescence in Executive actions asserting powers beyond the Constitution.

Now, Mr. Chairman, you have adverted to one of the arguments that have been made before this Committee and the Foreign Relations Committee about the exigencies of modern times and the necessity in this troubled nuclear age for the Executive taking action to protect our Nation. This is the concept of so-called "inherent powers." It is a weak reed upon which to rely.

You, Mr. Chairman, have cited some cases on this subject, and I would like to mention another one, the great case of Youngstown versus Sawyer, the steel seizure case in which I, personally, participated when I was at the private bar, before assuming public office.

In that case, Justice Black rejected, for the Court, the concept of inherent powers which would operate to extend Presidential authority beyond the Constitution. Long before that case, the Supreme Court, in Ex parte Milligan, a post-Civil War case, declared that applicable:

The Constitution of the United States is a law for rulers and people, equally in war and in peace.

Now, if in the time of actual wartime the Constitution cannot be displaced, it cannot be displaced during a period of cold wars and during a period of international tension.

When I was on the Supreme Court, I said that the Constitution was not a suicide pact. It is not a suicide pact, but any concept that Congress would be delinquent in protecting our Nation's conduct of foreign affairs seems to be one which does not do justice or credit to the responsibility and the character of the men and women whom the people have elected to represent them in Congress.

Now, this is not to say that the President does not possess some implied powers as Chief Executive to enter into binding agreements with foreign powers on his sole authority. But this power under the Constitution is necessarily confined to matters of a routine or administrative nature or matters expressly authorized by a treaty approved by the Senate or by other appropriate legislation.

In matters of weight and substance, such as stationing of troops in a foreign country or entering into or renewing agreements with foreign powers for military bases, fidelity to the Constitution requires the Executive to seek the advice and consent of the Senate to such agreements. However such agreements may be termed, they are treaties in a constitutional sense.

The recently concluded so-called executive agreements between the United States and Portugal and the United States and Bahrain involve weighty and important matters embracing deployment of our armed forces and substantial foreign assistance. I agree with