firmed by Congress and the Supreme Court.38 And though the practice is infrequent,39 Congress probably also has authority to subsequently approve an executive agreement.40

With respect to the independent authority of the President to conclude presidential agreements, authority stems primarily from the powers of the President to "receive ambassadors and other public ministers," to "take care that the laws be faithfully executed," as Chief Executive and Commander-inChief, and any inherent foreign affairs power entrusted to the President. These powers include authority to carry on the diplomatic relations of the nation, to recognize foreign governments, to settle claims by and against the United States, to negotiate international agreements and to supervise the conduct of hostilities. Recent agreements concluded solely on presidential authority include settlement of a variety of foreign claims by and against the United States-notably the Litvinov Agreement of 1934 by which the United States acquired Soviet assets located in the United States, the 1949 four power agreement ending the Berlin Blockade, the Korean Armistice Agreements of 1953, and agreements with a number of countries for deployment of United States naval vessels to foreign ports and harbors.41

For agreements which could be supported by constitutional authority under several modalities of agreement, the President may choose among them on the basis of political and other factors. Factors particularly significant in this choice include congressional preference, the importance of congressional involvement-particularly the need for implementing legislation or appropriations, and the degree of formality internationally desirable. For example, since the formalities of the treaty form signal major or long lasting international commitments (note that the converse does not necessarily follow) normally it would be inappropriate to use a treaty when it is internationally desirable to signal only a routine or short term commitment.

It is evident from the variety of constitutional modalities for concluding international agreements, executive agreements should not be confused with agreements concluded solely on presidential authority—that is, presidential agreements. The overwhelming bulk of executive agreements are concluded pursuant to prior or subsequent legislative or treaty authorization. For example, of the 5,591 executive agreements concluded between 1955 and April 1972 only 64, or a fraction over 1%, were concluded solely under the independent authority of the President.42 This ratio is particularly significant in evaluating the significance of executive agreements for the separation of powers or the need for general legislation to assert greater congressional control.

43

The recent hearings concerning the military base agreements with Spain,45 Portugal, and Bahrain,44 the recommendations of the Symington Subcommittee on Security Agreements and Commitments Abroad,45 and the legislation pending before this Subcommittee 46 suggest that a central concern of the Congress is international agreements concluded pursuant to presidential initiative and not subsequently submitted to Congress or the Senate, particularly agreements involving the stationing of the armed forces abroad. In the absence of congressional authorization or approval, such agreements, to be valid, must be concluded either pursuant to treaty authorization or within an area of independent presidential authority.

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.47 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 Commanderin-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 Newfoundland, Bermuda, the Bahamas, Jamaica, St. Lucia, Trinidad, and British Guiana 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.

Happily, there has been little occasion in our history for the interpretation of the powers of the President as Commander in Chief of the Army and Navy. I do not find it necessary to rest upon that power alone to sustain the present proposal. But it will hardly be open to controversy that the vesting of such a function in the President also places upon him a responsibility to use all constitutional authority which he may possess to provide adequate bases and stations for the utilization of the naval and air weapons of the United States at their highest efficiency in our defense.48

Similarly, there is substantial authority that the Commander-in-Chief 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.49 Principal examples of this practice include President Roosevelt's actions immediately before United States 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.

THE SCOPE OF CONGRESSIONAL AUTHORITY TO REGULATE EXECUTIVE AGREEMENTS

Congressional authority to legislate probably extends to any subject genuinely a concern of foreign affairs. Congress also can terminate a prior congressional delegation of authority to the Executive to conclude executive agreements. Similarly, Congress can terminate treaties or executive agreements by enacting subsequent legislation. Such legislation, however, could not lawfully terminate the international effects of agreements, and unless consented to by the other parties to the agreement such termination might both violate international law and undermine the credibility of national commitments. Congressional authority is further limited by the separation of powers doctrine which would prevent congressional encroachment on any exclusively presidential powers. Thus Professor McDougal indicates :

[I]f the subject of the agreement is a matter within the President's special constitutional competence-related, for example, to the recognition of a foreign government or to an exercise of his authority as Commander in Chief—a realistic application of the separation of powers doctrine might in some situations appropriately permit the President to disregard the statute as an unconstitutional invasion of his own power.50

One authority analogously supporting this limitation on congressional authority is Myers v. United States.51 In the Myers case the Supreme Court held that legislation attempting to restrain the President from removing an appointed executive official was an unconstitutional invasion of the removal power of the President. This was so even though the initial power of appointment was constitutionally a joint executive-congressional power. The substantial authority that the conduct of hostilities is an exclusively presidential power 52 also suggests that Congress may not regulate international agreements concluded pursuant to that power. More squarely on point, both President Lincoln and Wilson asserted independent authority to maintain certain international agreements in force despite contrary legislation. President Lincoln had earlier given notice to Great Britain of his intention to terminate the Rush-Bagot of 1817 providing for permanent limitation of naval armaments on the Great Lakes. In 1865 Congress adopted a joint resolution purporting to ratify his action. When British compliance with the agreement thereafter improved, Lincoln changed his mind and refused to terminate the agreement despite the congressional action. Similarly, President Wilson refused to comply with Section 34 of the Merchant Marine Act of 1920 directing the President to give notice of termination of provisions in international agreements restricting the right of the United States to levy certain discriminatory duties. Wilson urged that since the termination clause of the agreements authorized total but not partial termination the congressional action would require the negotiation of new agreements and was an unconstitutional interference with the Executive's authority to conduct foreign affairs.53

At a minimum the separation of powers doctrine would preclude regulation of agreements incident to the conduct of hostilities, but there is substantial au

thority that the prohibition also would extend to the recognition of foreign governments 54 and the negotiation of international agreements.55 And according to at least one constitutional scholar, the prohibition would include the stationing of the armed forces abroad even in peace times.56 At least with respect to the conduct of hostilities, the recognition of foreign governments, and the negotiation of international agreements, exclusive presidential authority seems strongly rooted functionally in the greater capacity of the Executive to act with dispatch, decisiveness, secrecy, and negotiating responsiveness.

The information-gathering and investigative function of Congress extends only to matters within the legislative authority of Congress. Thus, any regulation of executive agreements which requests information about executive agreements in such broad terms that it would also include a request for information related to agreements incident to the exclusive authority of the President, for example, agreements incident to the conduct of hostilities, might, at least in part, exceed congressional authority.57

These considerations, as well as the form of the Bricker Amendment, 58 suggest that constitutional amendment rather than legislation would be the proper form of regulation which seeks to assert blanket congressional authority over executive agreements.

A BRIEF ANALYSIS OF LEGISLATIVE PROPOSALS CONCERNING EXECUTIVE AGREEMENTS 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.59 Nevertheless, it is my judgment that S. 3475, the principal legislation before this Subcommittee, is both unconstitutional and unwise.

S. 3475 would require that "any executive agreement made on or after the date of enactment" be transmitted by the Secretary of State to the Congress. If the President determined that immediate disclosure of an agreement would "be prejudicial to the security of the United States" the agreement could be referred to the Foreign Affairs and Foreign Relations Committees" under an appropriate written injunction of secrecy." The Bill provides that all such agreements would then enter into force only if not disapproved by concurrent resolution within 60 days of transmittal. Finally, the Bill establishes special procedures to expedite congressional consideration of concurrent resolutions with respect to executive agreements.

Whatever the test of the constitutional parameters of the authority of the President to conclude presidential agreements, whether plenary or based on the specific powers of the President in foreign affairs, it is clear that a bill which asserts congressional control over all executive agreements would encorach 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 improble that they must yield to a concurrent resolution as opposed to an act or joint resolution having the force of law.60 As a practical matter, I doubt that either of these constitutional defects is curable without both undermining the purpose of the Bill and creating enormous operational uncertainty in the day-to-day conduct of foreign affairs. Finally, as a minor constitutional defect, since Congress lacks legislative authority with respect to at least those agreements incident to a power exclusively presidential, Congress may not have authority to compel that all executive agreements be transmitted to Congress.

Aside from its considerable constitutional defects, 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.

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

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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-to-day conclusion of international agreements of a routine nature. For example, in the happy event of a negotiated settlement of the Indo-China 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! And to give an example from the day-to-day realm, it seems equally absurd to require agreements concerning the attendance of foreign dignitaries at the funeral of a national leader to be held up for 60 days pending congressional inaction.

Third, as the last example implies, since even oral agreements may be binding on the nation, and since many minor and reported 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. As John Bassett Moore indicates:

The conclusion of agreements between governments, with more or less formality, is in reality a matter of constant practice, without which current diplomatic business could not be carried on. A question arises as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices without attracting public notice; the governments directly concerned exchange views and reach a conclusion by which the difference is disposed of. They have entered into an international agreement. . . .61

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.

Fourth, Congress and the President should work out an arrangement to systematically inform Congress of those executive agreements in which Congress has an interest. But it may be that requiring physical transmission of all such agreements to Congress, even under an appropriate injunction of secrecy, is insufficiently responsive to genuine security needs. Agreements, for example, which also deal with the precise location of nuclear weapons or strike forces located in foreign countries might be described in general outline without being physically transmitted to Congress. Without knowing more about the security procedures of congressional committees and the kinds of sensitive agreements which may be involved, it is difficult to evaluate the strength of this objection. But since presumably all agreements transmitted to the Congress could be the subject of committee and floor debate in both houses, it is difficult to see how the injunction of secrecy could be really effective. This objection applies to S. 596, introduced by Senator Case, as well as to S. 3475.

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.62 Moreover, since Congress has constitutional authority to control appropriations, it seems likely that in most cases this basis alone would provide adequate grounds for congressional consideration of significant executive agreements. For example, appropriations hearings could have been scheduled with respect to the Spanish, Azores, and Bahrain base agreements.

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.

S. Res. 214, agreed to by the Senate on March 3, and S 3447, introduced by Senator Case on April 4,63 are also dubious. Both seek to influence the Administration to submit the military base agreements with Portugal and Bahrain to the Senate as treaties. Without reviewing again the background of these agreements,64 it is my judgment that the agreements are within the authority of the President as Commander-in-Chief, at least in the absence of inconsistent legislation, and that to use the treaty form for these agreements would exaggerate the permanence and importance of the international commitment. Neither agreement is a substantial departure from prior executive agreements sup

ported by Congress nor are they intended to commit the United States to the defense of another country. And in the case of the Azores agreement with Portugal, the agreement, like numerous similar agreements, is rooted in section 3 of the North Atlantic Treaty. Moreover, though the determination of Congress not to allow United States participation in foreign wars without careful congressional appraisal is commendable, the fear that the Azores and Bahrain bases will themselves lead to involvement in foreign wars seems exaggerated. Certainly the Vietnam War did not result simply from the presence of United States bases in Vietnam. In so far as these resolutions require use of the treaty form for these agreements, then, S. Res. 214 and S 3447 seem premised on an erroneous conception of the constitutional exclusivity of the treaty power. They also seem unwise. The real issue is congressional involvement in the decision to conclude such agreements, not the form of agreement. And on that issue Congress can hold hearings on appropriations, or though it would certainly impugn the realiability of United States commitments and might precipitate a constitutional confrontation, Congress could pass an act terminating the agreements. The preferable solution is for full consultation prior to any such agreements so that such horribles can be avoided.65

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, secrecy, crisis management, negotiating responsiveness, or some other need genuinely rooted in functional advantages of the Executive. Such needs seem compelling in regard to the conduct of hostilities, the recognition of a foreign government, and the negotiation of international agreements. For these areas, and there may be others. Executive authority should be and probably is exclusive. For most other areas, presidential agreements should and probably would yield to subsequent legislation.

In considering executive agreements, as well as the other issues in the current debate about the foreign affairs power, we might profitably heed Dean Acheson's timeless reminder that "[t]he central question is not whether Congress should be stronger than the President, or vice versa, but how the Congress and the President can both be strengthened to do the pressing work that falls to each to do and to both to do together."

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The President should remember that congressional support is a prerequisite for a successful foreign policy. The President is dependent on Congress for legislative implementation and appropriations, can in some areas be legislatively curbed by Congress, and above all must have the national consensus which only strong congressional support can provide. Congress can also be a helpful forum for obtaining new ideas and for refining old policies. These realities suggest the importance of vigorous consultation with Congress and of informing Congress of Executive policies fully and candidly even if some lumps are taken in return.

With respect to presidential initiatives toward executive agreements, informal procedures should be worked out to systematically inform Congress of all significant agreements. In addition, congressional preferences to participate in the making of particular types of agreements should be weighted heavily even when the President has constitutional authority to conclude such agreements as presidential agreements or pursuant to prior treaty or congressional authorization. When feasible, the Executive might also experiment with submitting to Congress for approval by joint resolution some of the military base agreements of greatest concern to Congress.

The Congress should remember that there are good reasons for presidential leadership in foreign affairs. These include the facility of the Executive to act with speed and decisiveness, his capacity to respond with a high or low profile, to act with negotiating responsiveness and secrecy-when genuinely required, and to have access to more complete information. The recent China initiative by President Nixon illustrates all of these presidential attributes. Finally, as the only elected official responsible to the nation as a whole, the President has