foreign relations. This question, Mr. Chairman, involves legal aspects central to the bill (S. 3475) you recently introduced. It is a question that also raises many important policy considerations. I want to discuss both of these matters, but first let me offer my views, as a lawyer, on the strictly legal aspects.

We all know from the Constitution that the President may negotiate treaties and may ratify them on behalf of the United States after the Senate, by twothirds vote, has given its consent. Once a treaty comes into force, it is the supreme law of the land, with the same status as a statutory enactment. As such, the treaty is superior to any contrary State laws and preexisting federal legislation.

There is authority for the proposition that the treaty power is broader than the power given to the Congress in Article I of the Constitution.1 Under that interpretation, a treaty may be made concerning any matter appropriate to our foreign relations, whether or not that matter has specifically been entrusted to the Congress under Article I of the Constitution. But, it is clear that a treaty may not be inconsistent with any specific provision of the Constitution.2

The legal parameters of the executive agreement power have developed more slowly, but today the process appears complete. Such an agreement in my opinion is indistinguishable from a treaty from the international point of view. That is, it matters not to the other country or countries involved how we have made our agreement; their main interest is in having an obligation of the United States,

From the domestic point of view, however, an executive agreement can raise basic constitutional issues regarding the scope of the powers of Congress and the President. In making such an agreement, the President can act on the basis of his own consitutional authority, in reliance on a delegation of power from the Congress, or on a combination of the two.3 The classic example of an agreement relying wholly on the President's constitutonal authority is one relating for instance to diplomatic recognition. A tariff agreement may be said to rely almost excluisvely on congressional delegations of power. And many of our mutual assistance agreements partake of both authorities.

The cases establish that an executive agreement is the supreme law of the land in the sense of superseding contrary state law. It is also clear that congressional delegations of power to the President in the international field may be a good deal broader and less precise than would constitutionally be permitted in delegations involving domestic affairs.5 In sum, while there is some contrary authority,6 I think that the law supports the use of the executive agreement in any case in which the United States is not required to take any action or where such action as we agree to take is already authorized by the Constitution or our laws.

Is there any difference then between a treaty and an executive agreement? My answer is that, in legal force and effect, a properly concluded executive agreement, supported, where necessary, with implementing legislation, is tantamount to a treaty.

I note, with interest, in examining the witness list for these hearings, that there will appear before this Committee some of the leading legal scholars and authorities in the country. I am sure they will discuss in detail the technical ramifications of these questions so that you will be fully informed in this regard. My acquaintanceship with the problem has been a practical one as the result of serving in the executive branch of our government and attempting to adjust to the proper roles to be exercised, in this area, by the President and the Congress.

1 Missouri v. Holland, 252 U.S. 416 (1920).

2 Reid v. Covert, 354 U.S. 1 (1957).

3 I have not stressed the distinction between the negotiation of an agreement and its implementation. It can be argued that the President is free to negotiate about anything and that he only depends on Congress for authority to implement his agreements. This analysis, while perhaps sound on strictly logical grounds, strikes me as somewhat artificial, since a responsible President must be concerned that agreements he makes will actually be carried out. The analysis also can lend unwarranted support to the practice of making quasicommitments, which call for no specific act by the United States in the case of attack and. therefore, require no implementing legislation until something is to be done. See Part III.

4 U.S. v. Belmont, 301 U.S. 324 (1937); U.S. v. Pink, 315 U.S. 203 (1943); BaldwinLima-Hamilton v. Superior Court, 25 Cal. Rep. 798 (Ct. of App. 1st Dist 1962).

5 U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

6 U.S. v. Guy Capps, Inc. 204 F 2d 655 (4th Cir. 1953).

III

Having now unburdened myself of my opinion that there is no important legal distinction between a treaty and an executive agreement, let me turn to some practical differences I see between the two and some problems those differences can create.

The first difficulty results from the fact that an executive agreement can be concluded and come into force in secret and without Congressional participation. If the President is exercising his constitutional powers, or if he has received advance congressional authorization, he can conclude and implement the agreement without any public announcement. I do not argue that no agreements should be secret. But I do believe that the ready availability of a means for reaching international understandings that can be made and carried out in secret has, by itself, generated unnecessary secrecy.

Examples of this tendency are all too common. We have a long list of secret agreements regarding the supply of military hardware and technical assistance. The use of foreign bases and even the employment in combat of our armed forces have been the subject of secret understandings. But secrecy pervades far more than the military agreement; it is now not uncommon to have a "confidential" side letter accompanying routine economic agreements. Often, the business interests concerned are let in on the secret, but the public-even the Congress-are not.

If we have learned nothing else from Vietnam, it must be clear to all that making foreign policy amidst secrecy is fraught with danger. The executive agreement is only a tool, and, as such, it cannot be blamed for the uses to which it is put. But I cannot help believing that had the executive agreement been used with greater discipline, our foreign policy would not now rely so much on keeping information from our people. I am happy that Congress is now thinking of imposing that discipline.

The second problem I have with the use of executive agreements is limited to the so-called national commitment area, that is, where the United States commits itself to take action to assist other countries in defense against armed attack.

At the outset, I should note that our defense commitments have not obligated us automatically to come to the aid of any other country. Even when embodied in treaties, our understandings have been couched in conditional terms. Nonetheless, these conditional agreements have formed the keystone of the system of mutual defense arrangements we have built since World War II. Not surprisingly, a central element of our foreign policy has been to convince friend and foe that what are conditional commitments will in fact determine our response to aggression.

I make this point because it shows that mutual defense treaty commitments tend to take on a life of their own, that their conditional nature becomes subjugated to the need to preserve the "word" of the United States. This same metamorphosis can apply to conditional commitments embodied in executive agreements never submitted to the Senate or the Congress as a whole. Yet, the justification for making these agreements without involving the Congress is that they do not obligate the United States to act; they are "only" conditional commitments. Thus, since we agree only that we will take such action as we "may consider appropriate" in the event of a threat to Spain, no congressional involvement is sought.

I find it difficult to accept this reasoning. We have told Spain that its security and integrity "are necessary for the common security" 9 of our two countries. Is this very much different from the statement in the North Atlantic Treaty that an attack on one signatory "shall be considered an attack against them all"? Each, I submit, creates the same kind of expectation in the mind of the other signatories. Each is intended to have a deterrent effect upon a possible aggressor. Yet one statement has been made without any specific authorization from Congress.

For example, the North Atlantic Treaty binds a signatory only to take "such action as it deems necessary" in the event of armed attack against another signatory. (Article 5). 8 T.I.A.S. 5437, September 26, 1963.

• Ibid.

In addition to the statements embodied in more formal executive agreements, we have seen a welter of informal commitments made by the President and his chief lieutenants, often in statements made on the occasion of State visits. These sometimes offhand remarks also create expectations that the United States stands ready to assist other countries in the event of aggression from any source, at any time.

Again from the strictly legal point of view, I suppose that because these agreements and statements are technically conditional, they are constitutional. The problem develops when these quasi-commitments come home to roost. If trouble were to develop in Spain, or in another country that has received some kind of non-treaty assurance, it would turn to the United States for assistance, and understandably so. At once, our "word" would be at stake and pressures to take action would mount.

The unrestricted availability of the executive agreement as a vehicle for concluding international defense understandings has made this quasi-commitment problem both acute and dangerous. In this vital area of national interest, the Congress has often been ignored because it is easier to do so and the authority exists for the President to act alone.

IV

To recapitulate, it is my view that the executive agreement authority has a sound basis in constitutional law. However, I think that the free use of executive agreement authority has resulted in a tendency towards undue secrecy and has proliferated assurances of support that have created expectations among a large number of foreign countries. I therefore would like to see proposals adopted to curb these tendencies.

Turning to the bill you have introduced, Mr. Chairman, I sympathize with and support its intention. It makes good sense to have international agreements come before the houses of Congress for consideration before they become effective. The bill does raise, however, two questions that I should like to discuss.

First, the bill would apply to all executive agreements; that is, any international agreement or commitment of the United States other than a treaty. This coverage would, I gather, include those agreements made by the President relying solely on his constitutional authority, such as agreements to recognize a foreign government, to settle claims, to cease hostilities, and to take other actions that, under our system, have been left to the President alone. In these cases, I do not believe the Congress could constitutionally take action, as envisaged in Section 1(b) of your bill, to render such an agreement ineffective. For this reason, I believe that Section 1(b) should be made applicable only to those executive agreements entered into at least in part in reliance upon legislation.

Secondly, I am not sure that a concurrent resolution is constitutionally adequate to overturn an executive agreement based upon existing legislation. If we assume that the Congress has, by statute, authorized the President to enter into a particular agreement, that authorization continues to exist until the statute is repealed. I think there is serious constitutional question whether the Congress can repeal legislation simply by passing a concurrent resolution, which does not go to the President.10 One way of overcoming this problem might be to provide that no existing or future grant of congressional authority to the President may hereafter be used as the basis of implementing an executive agreement unless the procedures of Section 1 of the bill are followed. While this approach is not wholly free from constitutional question, I believe it rests on more secure underpinnings of congressional authority.

The Ervin bill would do much to eliminate the problems of secrecy surrounding the negotiation and implementation of executive agreements. It would also give the Congress an opportunity to reconsider its grants of authority to the President to make agreements in the light of what he does with that authority.

But the bill would leave relatively untouched the problem of quasi-commitments statements by the President or his chief lieutenants that do not legally commit the United States to take action, but which nonetheless create expectations by other countries that we will act. I doubt that this problem is

10 Of course, a concurrent_resolution could have no effect to limit the President in the exercise of his constitutional powers.

susceptible to procedural remedy. It is not realistic to attempt to gag the President nor is it likely that reporting requirements would have a very significant impact.

The root of the problem, I believe, lies in the Congress itself. Since the early 1950's, most congressional forays into foreign policy have been extraordinarily narrow gauged. Thus, the foreign assistance legislation has been burdened over the years with myriad restrictive provisions generally reflecting congressional pique at some presidential decision or frustration with the policies of other countries. I am always struck that these restrictions annually take up days of debate, while matters like the Tonkin Gulf Resolution virtually sail through the legislative process.

It is only very recently that the more basic and important questions of foreign policy have been addressed by the Congress-for example, how does foreign assistance generate quasi-commitments of the United States, or, how does military assistance tie us to particular political constituencies in other countries? These are the kind of questions that Congress is particularly suited to examine by carefully taking testimony and conducting measured debate.

I think a good case can be made that Congress should adopt this role and leave the day-to-day decisions to presidential discretion. If the Congress decides to consider the direction and goals of our foreign policy, I think the commitments problem will diminish. Because, at that time, it will become apparent to all other countries that the President has a partner in making important foreign policy decisions.

What is required is the desire and ability on the part of Congress to participate in making major policy decisions. The desire appears to be developing rapidly S. 3475 and the other proposals seeking to reassert congressional authority in this area are testimony to that. What remains to be supplied is a congressional commitment to a new role in the foreign policy area, with a new set of priorities and a new awareness of where effective action can take place.

V

Now, in conclusion, institutional changes of the kind we have discussed today cannot make men wiser or give them more foresight. Nor can it be said that greater participation by the Congress in making our foreign policy will automatically mean an improvement of that policy. But Congress, by sensibly debating the major issues, can provide the long view that now appears to be missing in our foreign relations. For this reason, I am gratified to see that this committee and Congress as a whole are considering ways to play a more responsible role in making our foreign policy.

Mr. CLIFFORD. I wish to thank you for the invitation to appear here today to discuss the scope of the treaty-making and executive agreement authorities. I appreciate this opportunity to give you my views on this question which I believe is so important in our system of the separation of powers.

This is a subject that has concerned the Congress, from time to time, through the years. I can recall at least two major inquiries and it is interesting to recall the positions taken on the issues in those

cases.

The first instance was at the close of World War II, when U.S. membership in the United Nations was under consideration. Because of President Wilson's inability to secure two-thirds of the Senate in favor of a treaty calling for our membership in the League of Nations, many feared a similar setback on the U.N. Some suggested that our participation in the United Nations be based on an executive agreement implemented through ordinary legislation; in this manner, the requirement of a two-thirds vote in the Senate could be avoided. The question debated at that time was whether such an executive agreement would be legally equivalent to a treaty. As we all know, the issue was not put to the test, since the United States used

the treaty process to adhere to the U.N. Charter and the other international agreements of the period. In each case, however, implementing legislation was also secured.

The next major examination of the President's power to make treaties and executive agreements came in 1953, when the so-called Bricker amendment was first introduced. Spurred largely by the controversy over the Yalta and Potsdam Agreements, Senator Bricker and his supporters sought to curb the treatymaking power by a constitutional amendment requiring implementing legislation for every treaty and executive agreement. Despite strong opposition from President Eisenhower and Secretary Dulles, the Bricker amendment failed by only one vote to secure the needed two-thirds majority.

Our inquiry today is also motivated by immediate concerns over particular policies. This time, it is primarily our involvement in the Vietnam conflict that has led to questions regarding the President's power to make international agreements and commitments. While a person's views on Vietnam are bound to color his approach to this issue, I think the questions we are concerned about go further than any particular policy.

I should begin by stressing my own belief in a strong presidency. I need not review all the reasons why, in today's world, our Chief Executive must be able to provide strong leadership both domestically and internationally. Any undue restrictions would gravely impair the President's ability to carry out the responsibilities we now expect him to bear.

But, despite this belief, I am troubled about the recent trend toward unilateral exercise of Presidential powers in the international arena. As a consequence, our foreign policy has all too often been based upon the proposition that the United States should act as the world's policeman. Shortly after the cold war began in earnest, we sought to build a strong alliance against communistic aggression. As the years passed, we enlisted as many nations as possible in this cause. Our efforts to this end were assisted by grants of economic and military aid, but they included a great many formal and informal commitments to the defense of those other nations. While resistance to the threat of Soviet aggression in Europe and elsewhere was necessary, I am afraid we became preoccupied with our effort to forge alliances and let it go far beyond our realistic needs. The result has been, I think, to overstretch our capabilities and to make commitments creating exaggerated expectations in others. This expansive view of our world role led directly to Vietnam.

The specific question you have asked me to discuss is the relationship between the treaty and the executive agreement as a means of implementing our foreign relations. This question, Mr. Chairman, involves legal aspects central to the bill-S. 3475-you recently introduced. It is a question that also raises many important policy considerations. I want to discuss both of these matters, but first let me offer my views, as a lawyer, on the strictly legal aspects.

We all know from the Constitution that the President may negotiate treaties and may ratify them on behalf of the United States after the Senate, by two-thirds vote, has given its consent. Once a treaty comes into force, it is the supreme law of the land, with the

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