And I recall one statement in my constitutional law class, a long time ago, that in many cases constitutional law was public policy crystallized. And I think in many ways that would not be crystallized at all.

Professor MOORE. Let me answer both of your points on it.

First, on the Pueblo case, the answer as to how far the President's inherent authority as Commander-in-Chief would go really depends on what he is trying to do. It is unquestionable--and this is what I was trying to get at-that he has the authority to defend against an attack, an ongoing attack, on American warships that are on the high seas. It seems to me that that is not subject basically to challenge nor is it challenged by the War Powers bill, nor is there really any dispute about it. If 3 years after that the Pueblo was used as an excuse to invade North Korea, that would trouble me in terms of—it would not only trouble me, but that would be a violation of the President's authority as Commander-in-Chief, it goes beyond that.

In terms of how we work out these issues, the issues will not be worked out by specific legislation. They are constitutional issues. And the President is powerless to change the constitutional line, as is Congress, in the absence of a validly adopted constitutional amendment. In practice, the line is going to be drawn by the kind of hearings that we are holding today, that the Senate Foreign Relations Committee has held, and that occurred at the time of the exchange between Hamilton and Madison. It is going to be worked out in the day-to-day operations of the executive branch in its relations with Congress. And hopefully it is going to be determined on the basis of some kind of functional test of how we ought to draw the line.

And there is something I would like to recommend on that, because there seemed to me to be some criteria that we can get a grip on. The starting point ought to be, we should prefer the sharing authority. And that means the widest possible participation in decisions by the Executive and Congress acting together. We ought to draw the line under that when we find and only when we find, a good functional reason for doing so. There are some. One of those is negotiating responsiveness. And one of those is secrecy, and one of those is the need to act quickly and decisively in emergencies. Those are the things, it seems to me, the kind of areas that we ought not to tie the Executive's hands in. We need that kind of authority from the Executive; and we should try to draw the line issue by issue in reference to what those functional points might be.

Senator ERVIN. I take much consolation from the fact that you do emphasize that the powers, both of the President and the Congress in respect to foreign affairs, ought to be found in the Constitution instead of in this concept of Justice Sutherland set out in the CurtissWright case.

Professor MOORE. Right, Senator.

I think one of the other points that we need to make is that the issue we are talking about is not determined by the Curtiss-Wright case. We don't even need to discuss the Curtiss-Wright case because what the Curtiss-Wright case says is that the foreign affairs power is inherent. And I think that also is a matter of constitutional law

today, it is good law, that the Federal Government has the power in foreign affairs and not the States. But it doesn't tell us at least I am somewhat unhappy with the reasons given in the Curtiss-Wright case-as to how you divide the authority that is inherent between the President and Congress. And I suspect that both get some of that inherent power from the same kind of reasons we are talking about otherwise.

Senator ERVIN. I prefer to call it implied power rather than inherent.

Professor MOORE. Yes.

Senator ERVIN. Thank you very much. You have made a very interesting contribution. Someone has said that while there is some difference of opinion, sometimes the differences of opinion strike sparks of illumination. Thank you very much.

Professor MOORE. Thank you, Mr. Chairman. It was a pleasure to

come.

BIOGRAPHICAL INFORMATION-JOHN NORTON MOORE

CURRICULUM VITAE AND SELECTED RECENT PUBLICATIONS

Name and Present Position.-John Norton Moore, Professor of Law and Director of the Graduate Program, The University of Virginia School of Law; Sesquicentennial Associate of the University of Virginia Center for Advanced Studies; member of the State Department Advisory Panel in International Law.

Courses: 1970-71 Academic Year.-International Organizations and the Strategy of World Order, Principles of Property, Seminar in The International Law of Conflict Management, Seminar in Legal Education.

Place and Date of Birth.-New York, New York, June 12, 1937.

Educational Background.-B.A. in Economics 1959 Drew University; LL.B. (J.D.) with distinction 1962 Duke Law School; LL.M. 1965 The University of Illinois; Fellow, The University of California (Berkeley) International; Legal Studies Program 1963; Special Fellow of the National Institute of Health, The Yale Law, School 1965–66.

Professional Experience.-Teaching Associate 1962-63, The University of Illinois School of Law; Assistant Professor of Law, The University of Florida School of Law 1963-64; Assistant Dean and Assistant Professor of Law, The University of Florida School of Law 1964-65; Associate Professor of Law and Assistant Dean, The University of Florida School of Law 1965-66 (on leave at the Yale Law School); Associate Professor of Law, The University of Virginia School of Law 1966-69; Professor of Law, The University of Virginia School of Law since September 1969; Director of the Graduate Program, The University of Virginia, School of Law since September 1963; Co-Director, The Council on Legal Education Opportunity Summer Institute, The University of Virginia, 1969; Sesquicentennial Associate of the University of Virginia Center, for Advanced Studies for the 1971-72 academic year; Member of the State Department Advisory Panel in International Law since 1970; Lecturer at the Judge Advocate General's School since 1968; and Consultant in international law to the Naval War College since 1967.

Associations and Learned Societies 1970-71.-Member of The Order of the Colif; Member of The Bar of the States of Illinois, Virginia, and Florida; Member of the Executive Council and the Executive Committee of the American Society of International Law; Member of the Board of Review and Development of the American Society of International Law; Chairman, The American Society of International Law Committee on the 1971 Annual Meeting; Rapporteur of the American Society of International Law Study; Panel on the Role of International Law in Internal Conflicts, Member of the American Society of International Law Ad Hoc Committee on Governance; Member of The Executive Council of the Charlottesville Committee, of the Council on Foreign Relations; Rapporteur in the continuing conference on Environment and Society, in Transition sponsored by the American Branch of the World Academy of Arts and Sciences and the American Geographic Society; Member, The

Committee on Studies Beyond the First Degree in Law, of the Association of American Law Schools; Member, The Association of American University Professors; Member, the American Bar Association; Member, United Nations Association of the United States; Member, International Association of Environmental Lawyers, Chairman, The Committee on International Law and the Use of Force of the American Bar Association Section of International and Comparative Law; Co-Chairman, Committee on Humanitarian Protection for Victims of Armed Conflict; Member of the Board of Editors of the American Journal of Int'l Law, and member, Am Branch of the Int'l Law Association. Current Law School and University Committees 1970-71 The University of Virginia.-Chairman, The Educational Policy Committee of the School of Law; Chairman, The Committee on Reduced Teaching Loads of the School of Law; Member, The Graduate Committee of the School of Law; Member, The Law Day Committee of the School of Law; Member, The President's Ad Hoc Committee on Selecting a New Dean, for the Graduate School of Business Administration; Member, The University Committee on Students; Member, the University Committee on Foreign Students; and Member, The University Committee on Scientific Computer Users.

SELECTED PUBLICATIONS AND RESEARCH IN PROGRESS

Selected recent publications

Strengthening the Congressional Role in the Use of the Armed Forces Abroad (Testimony before the Senate Foreign Relations Committee April 26, 1972). The Role of Congress and the President in the Use of the Armed Forces Abroad (Testimony before the Subcommittee on National Security Policy of the House of Representatives June 25, 1970) reprinted in Congress. The President, and the War Powers 91st Cong. 2d Sess. (Comm. Print 1970).

The Arab-Israeli Conflict and the Obligation to Pursue Peaceful Settlement of International Disputes. Kansas Law Review 403-440 (Spring 1971).

Legal Dimensions of the Decision to Intercede in Cambodia. American Journal of International Law 37-75 (January, 1971). (Prepared for an American Society of International Law forum on the Cambodian Incursion, Washington, D.C. June 1970 and reprinted in a Committee Print of the Senate Foreign Relations Committee. A revised version will be published in the January 1971 issue of the American Journal of International Law.

The Justiciability of Challenges to the Use of Military Forces Abroad. Virginia Journal of International Law 10 (December, 1969), 85-107.

The Elephant Misperceived; Intervention and American Foreign Policy. Virginia Law Review 56 (1970), 364–370.

The Control of Foreign Intervention in Internal Conflict. Virginia Journal of International Law 9 (May, 1969) 205-339.

Intervention: A Monochromatic Term for a Polychromatic Reality. II R. Falk (ed.), The Vietnam War and International Law 1061 (1969).

The National Executive and the Use of the Armed Forces Abroad. Naval War College Review 21 (1969). 28-38.

Prolegomanon to the Jurisprudence of Myres McDougal and Harold Laswall. Virginia Law Review 54 (1968), 662–688.

International Law and the United States Role in Viet Nam: A Reply. Yale Law Journal 76 (May, 1967), 1051-1094.

Law and Politics in the Vietnamese War: A Response to Professor Friedmann. American Journal of International Law 61 (1967), 1039.

Research completed and accepted for publication

Law and The Indo-China War: Study of the Vietnam War and Its Implications for the Future of the International Legal Order (A book to be published by the Princeton Press, Fall 1971).

The Role of Regional Arrangements In the Maintenance of World Order. Prepared for III C. Black & R. Falk (ed.), The Future of the International Legal Order: Conflict Management (1971).

Review of "The Legal Effects of United Nations Resolutions," by Jorge Castaneda. Prepared for The American Journal of International Law (1971). Major research in progress

Editor, The Arab-Israeli Conflict and International Law (Prepared for the American Society of International Law Panel on the Role of International Law in Internal Conflicts and to be published by the Princeton University Press in three volumes hardcover and a one volume abridged edition.

Editor, Law and Civil War In The Modern World (Prepared for the American Society of International Law in Internal Conflicts and expected to be published during late 1972)

Strengthening the Role of Law in the National Foreign Policy Process. (An article being prepared on proposals to increase the role of law in the policy planning process).

Senator ERVIN. Counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is Prof. Alfred H. Kelly, chairman, department of history, College of Liberal Arts, Wayne State University.

Senator ERVIN. I want to welcome you to the subcommittee and to express our deep appreciation for your willingness to come and give us the benefit of your views and observation on what I consider a very important question.

STATEMENT OF PROF ALFRED H. KELLY, CHAIRMAN, DEPARTMENT OF HISTORY, COLLEGE OF LIBERAL ARTS, WAYNE STATE UNIVERSITY

Professor KELLY. Thank you, Senator.

I am a constitutional historian, although I have taught in the Wayne Law School. My point of view is somewhat different from that of a lawyer approaching this problem. I approach the problem in terms of constitutional history. And I am looking at the development of living practice rather than in terms of arguing cases, although I have some citations.

If I may, I will read this. It isn't too long.

An analysis of the relationship between executive agreement and the treatymaking power must begin by taking into account the very substantial shift in the balance of power between the Executive and Congress which has taken place in the area of foreign policy in the last 30 years or so. The fundamental causes lying behind this shift are well known to the members of this committee, and need not be expounded at any very great length here. They begin with the fact that the destruction of the balance of power in Europe and the technological disintegration of the ocean barrier, both of which occurred between 1885 and 1945, plunged the United States after 1940 very heavily into the politics of Western Europe and finally of the entire eastern hemisphere, to the end of preventing a single power statefirst Germany and then the Soviet Union-from establishing general hegemony in Western Europe, a hegemony which would have menaced the welfare, prosperity, and at last even the basic security of the United States and the Western Hemisphere generally. The result was a vast increase in the foreign policy operations of the executive branch of the Government, operations which to a considerable extent by their very nature tended to exclude the two houses of Congress from direct participation. The advent since 1945 of a bipolarized world, in which the United States became the leader of a complex series of grand alliances intended to check and balance the power of the Soviet Union strengthened substantially this tendency. Immersed as it now was in something like traditional balance of power diplomacy, the United States reacted in essentially the traditional fashion by conducting extensive, intimate and generally secret

executive to executive negotiations in the accepted style of Talleyrand, Metternich, or Castlereach.

The very nature of this process, which originated before the flowering of constitutional democracy in the United States or anywhere else, is anticonstitutional, and antidemocratic. Within the American Government it can be described as directly at odds with the traditions of the separation of powers, checks and balances and above all constitutional supremacy. It is not that those practicing the new diplomacy were anticonstitutionalists; on the contrary, no one was engaged in a conspiracy to subvery the constitutional system. But secret diplomacy, summit negotiations, the implementation of alliance systems, the secret activities of American agents and diplomats with respect to Nicaragua, Cuba, or Greece, let alone Germany or India, all took their toll of internal constitutional processes. Even the open implementation of treaties openly arrived at in the Wilsonian fashion-for example, the decision by President Truman in 1951, for example, to station four Army divisions in the nascent Federal Republic of Germany in fulfillment of U.S. obligations under the NATO Pact-had some adverve effect upon internal constitutional processes, as the feeble "sense of the Senate" resolution on that subject adopted at the time of the so-called Great Debate attested. And even where a prior statutory base existed for the conduct of the diplomacy in question, deliberately brought into being by consultation between the Executive and the Congress, as was the case with respect to the Marshall plan, the resultant operation of the ECA led to an elaborate body of diplomatic activity on the part of the Executive in which Congress could play but little part.

The rise of collective security and the American commitment to the United Nations, ironically, also damaged internal American constitutional processes. The Truman decision to oppose by force the 1950 invasion of South Korea subverted the constitutional power of Congress to decide between war and peace, even though the President nominally did not take the United States into war and technically acted only in pursuance of a Security Council resolution. There was some considerable constitutional force in Senator Robert Taft's embittered observation during the Great Debate that by intervening in Korea the President had "usurped power and violated the Constitution and laws of the United States," even though few men then or now would question the integrity of motives that had caused the President to act as he did. Subsequent executive action, either in support of the United Nations, of American regional treaty obligations, or simply of American power interests-in Lebanon, the Offshore Islands, Thailand, Cuba, and Vietnam-acted further to alter the internal balance of power within the American constitutional system.

One should not fall into the simplistic interpretation that the Executive acted in all these matters without a pretense of constitutional foundation or in direct subversion of the rights of Congress. That was seldom the case, and even where the situation approached that-as in my opinion it did in the Destroyer Base Deal in 1940, where I would agree with the late E. S. Corwin's devastating analysis of the situation-the Republic was faced with the fact of a