States in agreements with other countries. They call it executive agreements. Well, this just means that the President makes a deal, by himself. There is no warrant for it in the Constitution, no mention of it.

But under such arrangements we have been committed to a great variety of things, the destroyers for bases deal, of lend-lease arrangements, Korean mercenaries, just for a few examples. Over the whole period of the last third of a century, these things have been going on to our own knowledge, and I have no doubt that under earlier Presidents there were similar encroachments on the prerogatives and the responsibilities of Congress. We are always asked to pay for the cost of these things, but we have not been able to exercise our responsibility to consider them ahead of time and to approve or disapprove to disapprove as well as to approve.

There has been created an atmosphere in which, if Congress exercises its power to disapprove, it is considered recalcitrant, stubborn, mulish, and obstructive.

I have no formula or precise test for the determination of when it is proper and when it is not proper for the Executive to make agreements by itself. I do not think you can make one, but that does not mean we should not try. I think we can approach one; we can perhaps begin to prick out some of the spots on this line of demarcation. But I think, in general, all we can say, really, is that if a matter is important, surely the Senate should have a voice and it should be treated as a treaty. If it is relatively unimportant, or perhaps if it comes in a gray or middle area, we just sort of have to deal with it on the basis of looking at each instance as it comes up. And here is where, of course, my interest in getting all agreements before us comes in. At least, if we have them all before us we can look at them and we can then decide whether, in particular cases, matters are important enough to justify an insistence upon our

Senator ERVIN. I think the advantage of that is-and of course it is well recognized as constitutional doctrine that treaties are placed on the same parity as an act of Congress in the Constitution. It is recognized that Congress by a subsequent act cannot abrogate a prior treaty, and surely no one can contend that an executive agreement has any more dignity than a treaty. If Congress can pass a subsequent act and nullify a treaty that it thinks is unwise, it could certainly if it knows what is in the executive agreement and finds one it thinks transcends what should have been done either from the standpoint of power or the standpoint of policy-it could certainly pass an act to nullify an executive agreement which it felt was not either in harmony with the wisdom or which was at variance with the Constitution. This is one of the great virtues of your

act.

Senator CASE. This is exactly true. And to have the sanction of the authority, which the chairman's judgment on matters of this kind carries, is enormously satifying.

Senator Byrd, Harry Byrd, recently made this point, and I think we are quite right: "When there is doubt about things, the doubt ought to be resolved in favor of the legislative process." And it is our right-not only our right, but our responsibility to insist on this,

because, otherwise, as has happened for so many years and decades, our role will slip away and it becomes a surprising thing for Congress to assert its authority-and, in the minds of many, the wrong thing. But it is not wrong.

This is so interesting in so many ways. As the chairman knows, I have not always agreed with my own party on certain things as the chairman has not always agreed with his. But that does not mean that you are not loyal to your party or that you do not believe in it. It just means that you have a higher conception of what party loyalty is than those who follow blindly what is a majority or what a President feels. And this is all we are talking about, and this is what we are talking about here.

It seems to be even more important, because we are talking about, in this case, international agreements and not just those in the Nation or the country but those in the international sphere.

The kinds of things that we have dealt with by agreements that have not been subjected to congressional approval have run the whole gamut, the Taiwan contingency plan is another example. While it may or may not have committed us to defend Thailand, it is not very clear on this, we in the Senate did not even know that an agreement existed. And that is the point of it. Legally, one could say it had no effect without the advice and consent of the Senate. But I do not think the Thais would understand that or did understand it. Unless we make it clear, unless we make it absolutely clear as to the limits of Presidential authority, then foreign countries are going to misunderstand and there is going to be a lot of grief resulting from that misunderstanding and an awful lot of pressure on us in Congress to fulfill agreements which we did not participate in making, although we should have.

Senator ERVIN. It is quite significant that the list of the treaties and international agreements of the United States in force on January 1, 1972, shows that we did not have a single treaty with Thailand. We have several executive agreements concerning agricultural commodities, several executive agreements about atomic energy, and executive agreements about air transportation, but not a single treaty.

Apparently any executive agreement relating to the use of troops is more or less a secret affair.

Senator CASE. That is right. And that raises another aspect of this whole question which I think underlies the wisdom of the Founding Fathers.

Senator ERVIN. We also have an agreement relating to defense, an executive agreement relating to military assistance. We have an executive agreement about economic and technical cooperation and education, but no treaty whatever on these matters with Thailand has ever been submitted to the Senate.

Senator CASE. That is true, and I think it is a very good example of the exclusion of the Congress, and particularly the Senate, from this whole process which it is supposed to participate in continuously, actively.

Well, there are many different kinds of agreements. The chairman has run over those with Thailand just now, and it is an interesting thing to see, with this small country, what a variety there is.

Broadly, I think agreements can be said to fall into several categories. Among the very important ones are agreements providing for military bases abroad, our military bases abroad, and those which revise or extend the rights to bases. Also there are, of course, agreements providing for the storage of nuclear weapons overseas. And there are many other important things like taxation, and sometimes these ought to be included as treaties. But my primary concern here is with regard to agreements which touch on our national security. And, here, whatever be true as to other kinds of agreements relating to business arrangements, cultural agreements and those relating to travel, and the like agreements relating to national security, involving the use of American military forces, clearly are important enough to be treated as treaties.

I do not want to talk about myself, but I did evince my concern on this, as the chairman knows, by introducing a resolution that indicated the sense of the Senate that the recent agreements with Portugal and Bahrain ought to be submitted as treaties. The Senate approved this proposition which was a day when the Senate was not largely attended, but I think it was 50 to 6, and the Executive politely said, "Well, no; we do not think we will do that." So, I found it necessary to ask the Foreign Relations Committee to approve a resolution-to approve not a resolution but a legislative provision that we would not pay for these things until they are submitted as treaties, because when it comes to a question of confrontation, little as we want it, we are really faced with the proposition that our sole authority comes down to the power of the purse. And we do not like to have it that way. We do not like to exercise this ultimate power. But I think matters have come to the point where we must have recourse to it in order to straighten things out. When it comes to agreements affecting our national security, I think we really have no alternative but that which lies in our ancient right or power of withholding funds for anything with which we do not agree.

Mr. Chairman, I have taken more of your time than I am entitled to. If you have any questions as to the balance of my statement, I will be glad to attempt to answer them either now or later for the record. But I just want to say again that I regard your activity in this field as a crowning achievement in a legislative career that is historic, and I hope you will accept that.

Senator ERVIN. I admit again, as I admitted at the beginning, that this bill was conceived of because of the concept, embodied in your bill, requiring that Executive agreements be filed with the Congress. I sincerely hope that we can arrive at something that is workable.

It is hard to lay down firm principles at this stage, but I have the conviction that the provision of the Constitution requiring the President to make treaties by and with the advice and consent of the Senate gives the legislative branch a voice in the making of treaties and in the formulation of all matters of any substance in them. The executive agreement, of course, is clearly a very useful tool, it seems to me, to implement a treaty arrangement that has been approved by the Senate, and also where Congress, as it has done on a number of

occasions, passes a law authorizing the President in advance to take certain action in respect to trade and other matters. But I certainly do not believe that the executive agreement should supersede treaties in matters of great consequence. Two of the matters of great concern and consequence are those relating to the use of our Armed Forces and agreements in which we pledge financial assistance to other nations. We often have pledges made by the executive branch of the Government which would entail the expenditure of considerable sums out of the treasury, whereby Congress is left in the condition that it has to either repudiate the President or go along as a matter of course.

Senator CASE. That is true. And it has led on a number of occasions to a situation in which, after we have reluctantly gone along then we are charged with having approved of things with which we had nothing to do in the beginning.

Senator ERVIN. Now, I am frank to state that there are some decisions, such as the Pink and the Belmont decisions, which indicate the President has a constitutional right to act only in one restricted field of Presidential policy; that is, in the sense that he is allowed to receive ambassadors from other countries. That implies the power to recognize the government of another country. Those cases, which also trouble me a great deal, are in the ultimate analysis based on the theory that the recognition process can be conditional instead of absolute in other words, that the President, before he recognized either as de facto or de jure the government of another country, can lay down conditions with which that government must comply in order to be recognized by the United States. That is one of the few exceptions that I think the Constitution warrants for an executive agreement.

Senator CASE. Yes, that is a most interesting spiral of authority, and I think it is one which, as the chairman suggested, does have substantial constitutional basis.

Senator ERVIN. But it would be rare that that power would be employed, because it is rare that the President is called on to determine whether the government of a country is a de facto government or a de jure government.

That is not the usual day-by-day incident in which the executive agreement is employed.

I think you made a fine exposition that I think is in harmony with George Washington's Farewell Address. I think perhaps the wisest thing he said was that it is just as important to preserve the distribution of power among the several departments of government as it was to originate them. Washington said that the Constitution was designed to make each department of government a guardian to resist encroachment by other departments upon the domain assigned to it. That necessarily causes some friction. Judge Brandeis said that the Constitution was intended to cause a little friction in order to save the people from arbitrary exercise of power by any one department of government.

Senator CASE. This is axiomatic and nothing to be unhappy about. I do think that General Washington, the President and Father of Our Country, was extraordinarily ingenious. He took a somewhat dif

ferent view as to executive privilege which I do not think we can completely follow. On one occasion at least, he justified withholding matters from the House, and I think it was something about the Jay Treaty, on the theory that he was protecting the Senate's prerogative in the matter of ratification of a treaty. That was an exercise in logic that is to be wondered at, I think.

And yet his instincts were sound, and, even in the instance you referred to, he was talking about the prerogatives of the Executive. That was his job to defend, as it is our prerogative of the Legislature. Senator ERVIN. Yes.

Mr. EDMISTEN. Senator, I want to point out for the record that we have all sorts of mutual defense assistance agreements with Portugal, including the one to which you alluded. We have a treaty entitled "Treaty for the Advancement of Peace." We have another treaty called an arbitration treaty. I think this points out the great significance that the Department of State places on executive agreements as opposed to treaties in many instances.

Senator CASE. You are quite right, and we have fallen into the practice of taking care of the trivials by treaties, and having separate votes and rollcall votes in the Senate, having them on Mondays and Fridays as a means of getting people to spend a long weekend here instead of away, and then letting matters of real substance, as you have indicated, be done by executive agreement. And this is, I think, something we are all concerned with.

Senator ERVIN. Well, Senator, the subcommittee is deeply grateful to you, not only for your appearance here but for the fight you have been making in this field for a long time. We solicit any suggestions that may occur to you at any time as to changes in phraseology that you think would make this bill more workable.

Thank you very much for your presence here, Senator
Senator CASE. Thank you.

Senator ERVIN (continuing). And for your substantial contribution.

Will counsel call the next witness?

Mr. EDMISTEN. Mr. Chairman, the next witness is Dean Adrian S. Fisher of the Georgetown University Law Center.

Senator ERVIN. I do want to welcome you to the subcommittee and express our appreciation not only for your willingness to come and give us the benefit of your views on this subject but also for the great help you have been to us in times past.

STATEMENT OF DEAN ADRIAN S. FISHER, GEORGETOWN
UNIVERSITY LAW CENTER

Dean FISHER. Well, I am honored by the opportunity, Mr. Chairman. I hope you will feel the same way when I am finished. There used to be an old statement by a man who said:

Let he not boast who puteth on his armor but he who taketh his armor off. And I hope I can live up to your kind remarks.

Senator ERVIN. I just wondered. We have might few opportunities, with our concerns about government, to ever take our armor off. Dean FISHER. I have my statement here, Mr. Chairman, and I am