will say, the necessity of crises management, the need for speed, the need for secrecy when it is a genuine need for secrecy, which override this interest in shared responsibility. And that, in fact, is what the division of powers under the Constitution, it seems to me, is based on, that despite the enormous importance of some decisions made under the Commander-in-Chief power, we do say those decisions are entrusted to the Executive.

At the opposite extreme, if I can move to the second test for scope, we have a test that says that the scope of authority is one that is plenary in the President, and it is based on his inherent authority under the foreign relations power of the United States. We cannot dismiss this theory out of hand, since it is the theory which is held by some of the most thoughtful constitutional observers of treaty power, including Prof. Wallace McClure and Prof. Quincy Wright. I am somewhat troubled, however, by it because it seems to me it is based on several points that are not fully explained. One is that just because there is an inherent Federal power of foreign relations, it does not necessarily mean that that power is concurrent with Presidential as opposed to congressional power. We have still not divided up that power between Congress and the President. I think it is clear beyond doubt that the power is Federal and does reside in the States, and I think that basically the Curtiss-Wright decision, in suggesting that there was this inherent power, is basically going to a point though that there was, in fact, some suggestion that the power would reside in the Executive, and Hamilton certainly took that view.

The second thing that troubles me about it, I think, is it is too broad in terms of constitutional policies at stake. We are concerned with shared responsibility, and unless there is a good functional reason for setting aside that principle, then it seems to me we ought to maximize congressional participation.

Let me shift to the third scope of the subject matter test, and this is the one that I would embrace, and also the one that I believe is most widely shared today, and that is what I would call a subject matter test: and that is the President, only the President and Congress have the authority to conclude executive agreements in situations in which the agreement and the subject matter of the agreement is within their constitutional powers. That is, if you take the powers of the President constitutionally, you take the powers of Congress constitutionally, they can conclude international agreements that are inherent, that are incident to those particular powers. Now, this test, it seems to me, is the one that is reflected in most of the case law on point.

It is implicit in circular 175, the State Department's procedure for choosing internally within the administration which kind of form is to be used, and it seems to me it would be the one most in keeping with our tradition of separation of powers. If we adopt the subject matter test, there are basically four different kinds of modalities then of concluding international agreements.

The first of those is the treaty, and under the treaty power, you can conclude any international agreement that is properly a subject of foreign relations with no basic limitation on the subject.

The second would be the executive agreement pursuant to treaty, which is nothing more than saying a treaty can delegate authority to the executive branch to conclude further agreements. I would call that an executive agreement pursuant to treaty. Some scholars call that kind of agreement itself a treaty.

The third category would be that the Congress and the President, acting together, even in terms of either a prior delegation of authority or in terms of subsequent approval, can act together to conclude an international agreement. I would call that a congressional-executive agreement. It must be concluded within the realm of the basic authority of Congress to act in general.

Lastly, the President can, within the area of Presidential power in general, conclude international agreements which are incident to those kinds of Presidential powers. And I would call that kind of an agreement a Presidential agreement, which is a particular kind of executive agreement.

Now, let us look very briefly at the scope of these, because once you put it in terms of subject matter, you still have to answer the question: Well, how much authority does Congress have and how much authority does the President have? In terms of congressional authority, there is some doubt still, I suppose, based on Mr. Justice Holmes' dictum in Missouri v. Holland, whether Congress has legislative authority that is coextensive with the treaty power. I am persuaded that today it does, and there is no area properly the subject of foreign relations that Congress could not deal with. Let us say, if it does not violate some other guarantee of the Constitution or the principle of separation of powers, if that is so, then congressional-executive agreements basically for constitutional purposes are essentially the equivalent of the treaty power.

With respect to Presidential agreements and Presidential authority, there are the usual sources here, the Commander in Chief power, the Presidential power as Chief Executive, his power as the principal representative of the Nation in foreign affairs, and his power to make sure that the laws are properly executed.

One point that I think is critical to make at this point is that we should not simply equate executive agreements with Presidential agreements. Of the 5,590 agreements which have been entered into by the United States between 1955 and April of 1972, the best indication that I can find is that only 64 of those agreements, or slightly over 1 percent of the total of agreements were concluded pursuant to solely Presidential authority. I think that fact is of major significance if we are concerned with the abuse of the executive agreement and legislation to try to get to whatever the problem may be!

Let me for a moment progress and try to deal specifically with the Spanish, Portugese, and Bahrain base agreements, since I know this is an area that particularly concerns the Congress. The agreement. with Portugal for the use of Lajes Field in the Azores would seem authorized pursuant to article 3 of the North Atlantic Treaty which contemplates joint efforts to maintain a capacity for individual and collective defense. Similar executive agreements have been concluded pursuant to the North Atlantic Treaty, and covering the defense of Iceland, the defense of Greenland, and providing military facilities

in Canada and Greece, as well as a prior agreement with Portugal, providing military facilities in the Azores. The North Atlantic Treaty aside, the base agreement with Portugal, as well as those with Spain and Bahrain, which are not within the NATO area, would seem to be within the independent authority of the President, as Commander in Chief, at least in the absence of legislation prohibiting such initiatives. The closest precedent would seem to be the destroyer for bases deal during 1940 by which President Roosevelt acquired base_rights in New Foundland, Bermuda, the Bahamas, Jamaica, St. Lucia, Trinidad, and British Guinea, in exchange for the transfer to a sorely pressed Great Britain of 50 over-age destroyers. Prior to the agreement, President Roosevelt cautiously obtained the opinion of Attorney General Robert H. Jackson that transfer by Presidential agreement would be lawful. Although Jackson's opinion also relied on a somewhat stretched interpretation that existing legislation authorized acquisition of the bases, the opinion strongly suggested that the acquisition would have been constitutional even if concluded solely on the President's authority as Commander in Chief.

Similarly, there is substantial authority that the Commander-inChief power includes the authority to station the Armed Forces abroad, even in time of peace, which is a slightly different way of phrasing largely the same issue. The principal examples of this practice include President Roosevelt's actions immediately before U.S. entry into World War II in occupying Greenland with American forces and in arranging through an exchange of letters for the substitution of American for British forces in Iceland.

Let us go to the third issue, the scope of congressional authority to regulate executive agreements. Here it seems to me Congress can certainly terminate any delegation of authority which it has made to the Executive for the Executive to conclude international agreements. That simply is the kind of formal termination of the delegation of authority.

Secondly, I think Congress has the power to by specific legislation terminate the effect of international agreements, whether concluded by the treaty power or concluded by the executive agreement power.

In terms of the limitations on congressional authority, however, I think there are generally three, and they are inherent in the doctrine of separation of powers. The first of those is that it seems to me rather unquestionable that at this point that there are at least some areas that are exclusively within Presidential control. Those would include in a kind of hard-core minimum the conduct of hostilities during a major war. Secondly, the recognition of foreign governments, and third, I believe, the negotiation of international agreements, so at least it is within those areas of exclusive Presidential authority where there is no power of Congress to limit the power of the President in any way.

Secondly, the power of Congress is to investigate and to seek information about these issues. Also, it seems to me to be limited probably by the same kind of relevance test and subject matter test. If it is a subject matter which Congress does not have authority to legislate on, Congress probably does not have authority to make an investigation.

I doubt, for example, if they could investigate the executive branch in their operation of the combat and conduct of hostilities to take Hamburger Hill in Vietnam.

A third point is though Mr. Justice Jackson has strongly implied in his three categories in the steel seizure case, that when Congress acts against the President, any Presidential powers are at their lowest ebb; nevertheless, it seems to me questionable whether Congress can broadly withdraw a major area of independent Presidential authority as opposed to enacting legislation on a case-by-case basis. And that really, I suppose, goes to a kind of constitutional amendment saying that we are going to try to redraw the lines ahead of time in terms of which branch has the authority to conclude which kinds of agreements. And I am troubled by that, even in terms of Mr. Justice Jackson.

Senator ERVIN. I just have a signal that I have a rollcall vote, and I think perhaps this is an appropriate time to recess until 2 o'clock. Will that suit you to come back at 2?

Professor MOORE. That is fine, Mr. Chairman.

Senator ERVIN. Thank you.

(Whereupon, at 12:40 p.m., the hearing was recessed to reconvene at 2:00 p.m., this same day.)

AFTERNOON SESSION

Senator ERVIN. The subcommittee will come to order.

STATEMENT OF JOHN NORTON MOORE-Resumed

Professor MOORE. Any thoughtful observer must share the concern of Congress that it maintain a vigorous role in the conduct of foreign affairs, that it be more fully informed of the international agreements entered into by the executive branch, and that the Nation avoid involvement in foreign wars without the most careful appraisal. Nevertheless, it is my judgment that S. 3475, the principal legislation before this subcommittee, is both unconstitutional and unwise.

Whatever the test of the constitutional parameters of the authority of the President to conclude presidential agreements, it is clear that a bill which asserts congressional control over all executive agreements would encroach on the independent authority of the President. At least those agreements concluded pursuant to the exclusive authority of the President, such as agreements incident to the conduct of hostilities in wartime, are not validly subject to congressional control. For this reason alone S. 3475 would, if enacted, be unconstitutional. Moreover, even in areas where agreements validly concluded pursuant to Presidential authority must yield to inconsistent legislation, it seems improbable that they must yield to a concurrent resolution as opposed to an act or joint resolution having the force of law.

The bill also seems unwise. Thus, section 1(b) might be construed as a blanket delegation of authority to the President to conclude any executive agreement, subject only to obtaining a congressional majority to defeat each such delegation under the special procedures

of the bill. The wisdom of such a sweeping delegation without more explicit congressional consideration of each category of agreement, even if constitutional, is open to doubt. I would like to point out that the language of section 1(b) is rather broad there. It says: "Except as otherwise provided, any such executive agreement shall come into force with respect to the United States at the end of that first period of 60 days."

So, it seems to me that there is a strong case to be made of what in fact would occur is a very blanket delegation of authority to the President under the procedures of the bill.

Second, the bill would mean that no executive agreement could be concluded in less than 60 days and would mean at least a 60-day delay for all executive agreements other than those which by their terms are to take effect beyond 60 days from their conclusion. This delay would seem both dangerously rigid in situations of national opportunity and emergency and inordinately costly in the day-today conclusion of international agreements of a routine nature. For example, in the happy event of a negotiated settlement of the Indochina war it would seem beyond belief to be required by law to delay for 60 days the effect of an executive agreement ending the war—including the repatriation of American prisoners of war.

Third, as the last example implies, since even oral agreements may be binding on the Nation, and since many minor and unreported agreements are routinely entered into in the normal operation of a government, the breadth of the net cast by section 2, which includes any "international agreement or commitment, other than a treaty, which is binding upon the United States," may be so broad as to be unworkable.

Even if procedures can be devised for ferreting out and reporting all such agreements to Congress-at reasonable or unreasonable cost in time and resources within the executive branch-Congress would be deluged with a mass of trivia. Such a deluge is hardly responsive to the concerns which prompted the bill.

Lastly, except for agreements concluded pursuant to powers exclusively presidential, an area which cannot be invaded by any legislation, Congress already has constitutional authority to terminate executive agreements by passage of subsequent inconsistent legislation. Congress also has constitutional authority to control appropriations.

In summary, the procedures established by S. 3475 seem costly in a number of important respects yet achieve only marginal gains in the congressional role.

In conclusion, the overwhelming bulk of executive agreements are concluded pursuant to congressional or treaty authority. Thus for purposes of congressional-executive relations, the issue is not executive agreements versus the treaty power. The issues are instead what subject matter is properly a subject for presidential agreement and what presidential agreements must yield to inconsistent legislation. In answering these questions, there is the same strong interest in shared responsibility in the conduct of foreign affairs as in the Nation's domestic affairs. This principle should yield only when necessary to serve an equally compelling need for dispatch, decisiveness,