a unique responsibility and capacity for a unified foreign policy. He may, for example, be more aware of the linkeages between foreign policy programs. This is not to suggest that Congress should forego vigorous debate of important foreign policy issues or close scrutiny of Executive policies. It is to suggest that Congress should cautiously assess claims of Executive usurpation of the congressional role in foreign affairs and should curtail presidential flexibility only where there are compelling reasons to do so.

With respect to congressional initiatives toward executive agreements, Congress can make known its interest in considering particular kinds of agreements, and can through hearings formulate policy guidelines for the Executive.67 Drastic legislation or constitutional amendment, however, should be avoided. Present constitutional procedures, like the common law, have evolved from felt needs and the press of trying events. The resulting executive agreement has served us well and if we did not have it we would certainly have to invent it.

FOOTNOTES

1 E. CORWIN, THE PRESIDENT, OFFICE AND POWERS 1787-1957 171 (4th rev. ed. 1957). 2 Alexander Hamilton, "The Letters of Pacificus" THE FEDERALIST ON THE NEW CONSTITUTION 405, 410 (1857).

3 See James Madison, "The Letters of Helvidius," id at 432.

4 See generally, E. CORWIN, supra note 1.

5 For the flavor of the debate compare F. HOLMAN, STORY OF THE "BRICKER" AMENDMENT (Committee for Constitutional Government 1954), with THE BRICKER AMENDMENT: VIEWS OF DEANS AND PROFESSORS OF LAW (Committee for Defense of the Constitution By Preserving the Treaty Power 1957).

Among other misconceptions rife during the Bricker debate were the belief that the treaty power was not subject to the specific guarantees of the Constitution, and the belief that the treaty power was substantially broader than federal legislative authority.

"See, e.g., "War Powers Legislation," HEARINGS BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS, 92d CONG., 1st SESS. (1971); "Congress, the President, and the War Powers," HEARINGS BEFORE THE SUBCOMMITTEE ON NATIONAL SECURITY POLICY AND SCIENTIFIC DEVELOPMENTS OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS, 91st CONG. 2d SESS. (1970).

8 See "Executive Privilege: The Withholding of Information by the Executive," HEARING

BEFORE THE SUBCOMMITTEE ON SEPARATION OF POWERS OF THE SENATE COMMITTEE ON THE

JUDICIARY, 92d CONG., 1st SESS. (1971).

See "Transmittal of Executive Agreements to Congress," HEARINGS BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS, 92d CONG., 1st SESS. (1971), "Transmittal of Executive Agreements to Congress," REPORT OF THE SENATE COMMITTEE ON FOREIGN RELATIONS, 92d CONG., 2d SESS. (Report No. 92-591 Jan. 19, 1972). Subsequently, S 596 was passed unanimously by the Senate.

10 See generally on the authority to conclude international agreements E. CORWIN, THE CONSTITUTION AND WORLD ORGANIZATION (1944); W. MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS (1941); Borchard, Treaties and Executive Agreements-A Reply, 54 YALE L.J. 616 (1945); Garner, Acts and Joint Resolutions of Congress as Substitutes for Treaties, 29 AM. J. INT'L L. 482 (1935); Levitan, Executive Agreements: A Study of the Executive In the Control of the Foreign Relations of the United States, 35 ILL. L. REV. 365 (1940); McDougal & Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, 54 YALE L. J. 181-351, 534-615 (1945), reprinted in M. MCDOUGAL & ASSOCIATES, STUDIES IN WORLD PUBLIC ORDER 404 (1960); J. B. Moore, Treaties and Executive Agreements, 20 POL. SCIENCE QUARTERLY 385 (1905); Wright, The United States and International Agreements, 38 AM. J. INT'L 341 (1944).

11 According to the Harvard Research in International Law "the distinction between so-called 'executive agreements' and 'treaties' is purely a constitutional one and has no international significance." HARVARD RESEARCH, Law of Treaties: Draft Convention, with Comment (1935), reprinted in 29 AM. J. INT'L L. Supp. No. 4 652, 697. See also McDougal & Lans, supra note 10, at 422-23. The form chosen may make an international political difference, however, since treaties normally signal a long lasting or major commitment. 12 The case of Reid v. Covert, 354 U.S. 1 (1957), established the preeminence of the specific guarantees of the Constitution over treaty obligations.

13 See generally I-III M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (1911). See also The Federalist Papers, supra note 2; L. ROGERS, CONSTITUTIONAL ASPECTS OF FOREIGN AFFAIRS (1944); C. ROSSITER, 1787 THE GRAND CONVENTION (1966).

14 See, e.g., McDougal & Lans, supra note 10, at 448-60. Constitutional powers such as "to regulate foreign commerce" and "to declare war" or to act as "Commander in Chief" must, therefore, if they are to be powers that include control over their subject matters and not mere nominal investitures of ceremonial attributes, include the power to shape the policy that is to control agreements made with other governments with respect to such subject matters. Id. at 452.

151 Stat. 236 (1792). The constitutionality of this procedure was upheld by Solicitor General Taft in 1890. See 19 OPS. ATTY. GEN 520 (1890).

16 For a discussion of constitutional development through usage see McDougal & Lans, supra note 10, at 442-60. Corwin says of this usage:

The truth seems to be that the critics of executive agreement who raise the cry of "evasion" rest their case in the last analysis on the idea, never clearly expressed, that all constitutional development-by which they generally mean any departure from their own conception of what the Constitution means-ought to be by formal amendment, and that there is something essentially dishonest about constitutional changes which are brought about by practice and usage, at least as soon as such changes have reached the stage where people become generally conscious of them. I should be disposed to contend, to the

FOOTNOTES--Continued

very contrary, that the most beneficial type of constitutional change is that which issues gradually from, and so has been thoroughly tested by, successful practice. E. CORWIN, supra note 10, at 41.

17 McDougal & Lans, supra note 10, at 474-75.

18 These figures are based on a Department of State estimate discussed by Professor Ruhl J. Bartlett in testimony before the Senate Committee on Foreign Relations. See HEARINGS, supra note 9, at 14, 16.

19 See Addendum to the Compilation of January 10, 1969 Entitled "International Agreements Other Than Treaties 1946-1968 Classified According to the Legal Authority on the Basis of Which They Were Made or Became Effective" to Cover the Period to April 1972. (Office of the Legal Adviser, Department of State), at 39.

20 1 U.S.C. § 112a (1950).

The Secretary of State shall cause to be compiled, edited, indexed and published, beginning as of January 1, 1950, a compilation entitled "United States Treaties and Other International Agreements," which shall contain all treaties to which the United States is a party that have been proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party that have been signed, proclaimed, or with reference to which any other formality has been executed, during each calendar year. ... Id.

21 301 U.S. 324 (1937).

22 315 U.S. 203 (1942).

23 See, e.g., Altman & Co. v. United States, 224 U.S. 583 (1912); Star-Kist Foods, Inc. v. United States, 169 Fed. Supp. 268 (Customs Ct. 1st Div. 1958), and cases discussed in Star-Kist at 278-80.

24 E. CORWIN, supra note 10, at 40. Similarly, Professor McDougal writes:

No one today seriously contends, when the question is squarely put and answered, that the treaty-making procedure is the exclusive mode by which the federal government can under the Constitution make international agreements.

McDougal & Lans, supra note 10, at 448.

25 This test seems implicit in Borchard, supra note 10. Sometimes it is said that this distinction stems from an international distinction between "public treaties" and "agreements" set out in the writings of Emmerich de Vattel and known to the framers. For a critical appraisal of this theory see McDougal & Lans, supra note 10, at 460-75.

26 Wright, supra note 10, at 343.

27 See Levitan, supra note 10, and International Agreements Other Than Treaties 1946-1968: A List With Citations of Their Legal Bases (Office of the Legal Adviser, Department of State 1969).

25 Wright, supra note 10, at 349.

29 W. MCCLURE, supra note 10, at 363.

30 United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936).

31 Id. at 318.

32 This test seems to be the one adapted by, among others, Corwin and McDougal and Lans. See E. CORWIN, supra note 10, at 44; McDougal & Lans, supra note 10, at 475-504. 33 The Department of State Circular 175 provides with respect to the "Exercise of the Executive Agreement-making Power :"

Executive agreements are not used when the subject matter is of such a nature that it should be covered by a treaty. The executive agreement form is used only for agreements which fall into one or more of the following categories:

a. Agreements which are made pursuant to or in accordance with existing legislation or a treaty;

b. Agreements which are made subject to congressional approval or implementation; or c. Agreements which are made under and in accordance with the President's constitutional power.

34 See McDougal & Lans, supra note 10, at 433-35.

35 For a similar differentiation see McDougal & Lans, supra note 10, at 433-35. 36 252 U.S. 416 (1920).

37 Henkin, The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations, 107 U. PENN. L. REV. 903 (1959). The quote is from the scope note.

38 See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); StarKist Foods, Inc. v. United States, 169 Fed. Supp. 268 (Customs Ct. 1st Div. 1958).

One commentator interprets the Curtiss-Wright decision as withdrawing "virtually all constitutional limitation upon the scope of congressional delegation of power to the President to act in the area of international relations." Jones, The President, Congress and Foreign Relations, 29 CALIF. L. REV. 565, 575 (1941).

39 See Addendum, supra note 19, at 39.

40 See McDougal & Lans, supra note 10, at 433; but see Borchard, supra note 10. Senator Fullbright seems to support the authority of Congress to approve executive agreements:

I submit that an undertaking approved by a majority of the House of Representatives and of the Senate is just as solemn as action by two-thirds of the Senate .. such action by both houses is more binding, has greater validity, greater permanency and consistency for the future than has a policy imposed by the power of obstruction, possessed by thirty-four [sic] Senators who, in any given instance, probably will represent a very small fraction of our total population . . the most "binding sanction" would be that procedure which more accurately than any other translates into definite action the will of the greatest number of our citizens. This procedure is, I submit, a joint resolution approved by not less than a majority of both houses of the Congress.

N.Y. Herald-Tribune, Nov. 3, 1943, quoted in E. CORWIN, supra note 10, at 49-50. 41 See International Agreements, supra note 27, at 261-73.

42 See Addendum, supra note 19, at 39. Presumably this figure does not include informal agreements concluded in the day-to-day operation of the Executive branch and not officially reported in Treaties and Other International Agreements.

43 See, e.g., "Spanish Base Agreement,' HEARING BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS, 91st CONG. 2d SESS. (1970); "United States Security Agreements and

FOOTNOTES- -Continued

Commitments Abroad: Spain and Portugal," HEARINGS BEFORE THE SUBCOMMITTEE ON UNITED STATES SECURITY AGREEMENTS AND COMMITMENTS ABROAD OF THE SENATE COMMITTEE ON FOREIGN RELATIONS, 91st CONG. 2d SESS. (1969-70).

44 See, e.g., "Agreements with Portugal and Bahrain," REPORT OF THE SENATE COMMITTEE ON FOREIGN RELATIONS TO ACCOMPANY S. RES. 214, 92d CONG. 2d SESS. (Feb. 17, 1972). 45 "Security Agreements and Commitments Abroad," REPORT TO THE SENATE COMMITTEE ON FOREIGN RELATIONS BY THE SUBCOMMITTEE ON SECURITY AGREEMENTS AND COMMITMENTS ABROAD, 91st CONG. 2d SESS. (1970), at 28.

46 See especially S 3475 introduced by Senator Ervin on April 11. 118 CONG. REC. S 5786-87 (April 11, 1972).

47 See the agreements collected in 48 INT'L LAW DOCUMENTS 1952-53 121-43 (Naval War College 1954).

48 39 OPS. ATTY. GEN. 484, 486 (Aug. 27, 1940).

49 See, e.g., BACKGROUND INFORMATION ON THE USE OF UNITED STATES ARMED FORCES IN FOREIGN COUNTRIES, S2d CONG. 1st SESS. (Comm. Print 1951), at 22-24; and 1970 REVISION, 91st CONG. 2d SESS. 21-23 (Comm. Print 1970).

Senator Fulbright has taken the position that the President has authority, even in peace time, to station the armed forces abroad:

One important issue has been quite clearly defined. That issue is whether the President should seek the advice of Congress on the question of sending troops to Europe now, or whether his discretion should be subject to the consent of Congress. Apparently the President is agreeable to the idea that it is proper for Congress to give him its advice about this question, leaving to him the full responsibility for making the final decision. He is not willing, however, to accept the principle that the consent of the Congress is necessary to validate his decision. In other words, he does not agree that his decision in this matter must be subject to the approval of Congress.

Personally, I agree with the position of the President. I do not agree with the proposal of the minority leader. The Congress has the right and power to raise the Armed Forces, but the President has the responsibility for the command of those forces. If in the exercise of his best judgment the defense of this country requires the sending of troops to Europe, he has the power and the duty to do so. Congress, of course, can refuse to appropriate the money for the troops but that is a decision for which Congress must take the responsibility. In the long run decisions on military strategy are best left to the executive. That is the plain intent of our constitutional system.

97 CONG. REC. 520-21 (1951).

50 McDougal & Lans, supra note 10, at 574. See also McDougal & Lans, supra note 10, at 599, 610. Wallace McClure writes:

The President can do by executive agreement anything that he can do by treaty, provided Congress by law cooperates. And there is a very wide field of action in which the cooperation of Congress is not necessary; indeed, where Congress possess no constitutional authority to dissent.

W. MCCLURE, supra note 10, at 363. (emphasis added).

51 272 U.S. 52 (1926).

52 See the authorities cited in J. N. Moore, "Statement Before the House Subcommittee on National Security Policy," in HEARINGS, supra note 7, at 124, 132-33.

53 See McDougal & Lans, supra note 10, at 610-11.

54 See, e.g., McDougal & Lans, supra note 10, at 610.

55 See, e.g., the opinion of Mr. Justice Sutherland in United States v. Curtiss-Wright Export Corp:

[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.

299 U.S. 304, 319 (1936). See also McDougal & Lans, supra note 10, at 432, 442.

56 III W. WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES 1567 (2d ed. 1929).

57 See the testimony of Professor Alexander M. Bickel before the Senate Committee on Foreign Relations on S 596, HEARINGS, supra note 9, at 27-28.

58 The Bricker Amendment, in its principal form, was a constitutional amendment.

59 See generally on the role of Congress in the conduct of foreign affairs D. CHEEVER & H. HAVILAND, JR., AMERICAN FOREIGN POLICY AND THE SEPARATION OF POWERS (1952); H. LASSWELL, NATIONAL SECURITY AND INDIVIDUAL FREEDOM (1950); L. ROGERS, THE AMERICAN SENATE (1926); J. STENNIS & J. FULBRIGHT, THE ROLE OF CONGRESS IN FOREIGN POLICY (1971); F. WILCOX, CONGRESS, THE EXECUTIVE, AND FOREIGN POLICY A1971); Q. WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS (1922).

60 For the general principle see the Steel Seizure Case, Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

61 J. B. Moore, supra note 10, at 389-90.

62 See United States v. Guy W. Capps, Inc., 204 F. 2d 655 (4th Cir. 1953). The agreement in this case was clearly not within exclusive presidential authority.

63 See 118 CONG. REC. S 5309-15 (April 4, 1972).

64 See, e.g., "Agreements with Portugal and Bahrain," supra note 44. 118 CONG. REC. S 5309-15 (April 4, 1972).

65 The President might also submit such agreements to Congress for approval by joint resolution. Professor Lindsay Rogers writes:

[I]t seems to me that the sensible-indeed the only practicable-procedure is to put the treaty-making authority on the shelf and for the President to enter into international undertakings through executive agreements discussed in advance, so far as is possible, with the House and Senate committees and ratified by joint resolutions of Congress. For this there are many precedents, which have been much discussed.

L. ROGERS, supra note 13, at 23.

66 D. ACHESON, A CITIZEN LOOKS AT CONGRESS 56 (1957).

67 As a step to generally strengthen the role of Congress in foreign affairs, the suggestion of a Joint Executive-Legislative Committee on National Security Affairs has much to commend it. See F. WILCOX, supra note 59, at 157-59.

Senator ERVIN. I think it would be wonderful if you could get the cooperation of Congress and the Executive in this field and many other fields. Your conclusion is that the best way to share the power is to have such cooperation. But unfortunately the legislative branch doesn't think it gets very much cooperation from the President. It has had several almost unnecessary confrontations. Last week we had two, not in the field of foreign policy, but on the question of legislative privilege under the speech or debate clause. The President took the position that the Executive had a right to summon before a grand jury the aides of Congressmen and Senators, and expose their action and let it be judged by that grand jury in the presence of the country. At the same time we had the position taken by the executive department that anybody who was a presidential aide was immune to testifying at all before a congressional committee even when that congressional committee wanted to question the assistant about transactions he had had with third persons and with the Department of Justice, whose officials had already testified to those transactions.

As you state, these conflicts between the Executive and the legislative branches of the Government very much heighten tensions in the foreign policy field in critical times where the emotions of everybody have been aroused as they have with respect to the war in South Vietnam.

Of course, Congress has the power of the purse, as you suggest. But the power of the purse can hardly ever be invoked until after the horse has been stolen, and it is not much use locking the stable after the horse is gone.

The fact is that so many things are presented to Congress as accomplished agreements. The President goes down to South America, makes a public speech and says that we will give them so many hundreds of millions of dollars of foreign aid. I think Congress has come to the conclusion that it is imperative to do something. Peaceful persuasion has not resulted in very much cooperation from the Executive.

In recent days it has been particularly bad. I hate to say that, because I am a cooperative man myself. I believe that cooperation is the best way to make things work.

Can Congress frame any law in this respect that would be constitutional?

Professor MOORE. Senator, I am sure that there are some laws that could be framed that might be constitutional. Certainly Congress, for example, could deal with a specific executive agreement that fell within the unquestioned authority of the Congress and say, "We are going to terminate that executive agreement." Congress may have authority-and this gets more difficult in an area that no one quite knows whether it is exclusive or shared-to deal with the base agreements. I certainly think that the kind of broad bill dealing with executive agreements in general is clearly unconstitutional in this case, S. 3475, and is unwise.

I would share all of the concerns that you express. And I think everyone must be concerned at this point about how we can increase the role of Congress in foreign affairs and to end the spirit of con

frontation that I think does prevail at this present time. Partly it. results from, we are simply having a major national debate at this point and clarifying those lines. I think it is most far reaching, and I suspect in many ways we are going to have more answers when it is completed than has taken place before in the history of the Nation.

During that debate it does seem to me, however, that there are a number of things that we might do more specifically. I strongly support the feeling behind the bill in terms of increasing the information flow of the Congress, of the executive agreements entered into by the nation. And I would certainly support a set of informal procedures which would try to get at that problem. And I think that there is no reason we can't. That should be an eminently solvable kind of problem.

I think a second thing we ought to do is to avoid any kind of legislation which is overly rigid or which is going to check the Executive, or for his part, in terms of responding to Congress, in terms that are too broad. And I think this legislation does do that.

Senator ERVIN. Can you think of any field outside of the fields covered by the recognition power and by the powers of the Commander in Chief in which the President has the power to make executive agreements without the consent of Congress?

Professor MOORE. There are two principal problems. I would like to keep separate the question of whether the President would have authority to conclude executive agreements if Congress has not acted, and the question of whether a later congressional enactment would take precedence over a prior Presidential agreement. I think the line would be drawn in different places for different kinds of Presidential powers.

I am quite sure that the core power of the conduct of hostilities itself is one that will be exclusively the Presidential at one end of this spectrum. On the other hand, I suppose something that involves regulation of the Post Office is clearly congressional at the other end of the spectrum. In between there are some areas that are rather shadowy. I think one of those areas is really the principal concern of Congress right now. I don't think it is executive agreements in general. They have not been abused. Fewer than 1 percent are reached on solely Presidential authority. I think what you were really concerned about is the scope of the commander in chief's power in terms of the stationing of the armed forces abroad. And for my part, we will simply have to recognize that this is an issue in our constitutional history that is somewhat fuzzy. There is at least one constitutional scholar who has taken the position that that would be exclusively presidential and that Congress could not legislate in an area of, let's say, removing those bases or restricting the President from the authority to station troops abroad in times of peace. I find that a close case. And certainly it is the kind of situation that might precipitate an unfortunate kind of constitutional debate or confrontation.

Senator 'ERVIN. I note with interest that your position, which I think is valid, that some of the fears which engenered such a strong support for the Bricker amendment have been dissipated with the