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. 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.

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 constitutional authority, in reliance on a delegation of power from the Congress, or on a combination of the two. The classic example of an agreement relying wholly on the President's constitutional authority is one relating, for instance, to diplomatic recognition. A tariff agreement may be said to rely almost exclusively 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.

I make these statements without in each instance saying that it is my belief. That is understood, because it is my statement.

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. In sum, while there is some contrary authority, 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.

Having now unburdened myself of my opinion that there is no important legal distinction between a treaty and an executive agree

ment, 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 understanding 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. The 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 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 (ne statement has been made without any specific authorization from Congress.

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 nontreaty 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.

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. 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 quasicommitments-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 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 foreign 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.

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.

Thank you, Mr. Chairman.

Senator ERVIN. Well, I will have to concede that there are Supreme Court decisions which sustain your position that executive agreements do have a legal standing. I must also confess that those decisions give me much pause. It is undoubtedly, as you point out, within the prerogatives of the President to determine whether he will recognize a foreign nation, and, as we all know, President Franklin D. Roosevelt, after many years of nonrecognition on the part of this Government, recognized the Communist regime in Russia. One of his actions connected with that recognition was an executive agreement which was upheld, I believe, in the Pink case where the President made an executive agreement which had the effect of setting aside the law of the State of New York as to subjecting certain property to answerability for liability to the citizens of New York.

I am also concerned with some of the expressions in the Missouri case. I could sort of reconcile myself on the Missouri case on the grounds that the migratory fowl involved were birds engaged in interstate and foreign commerce, in that they flew from one State to another, but still then on that basis it is a pretty slim basis to put them under the interstate commerce clause, since the hunting of those birds under the laws of the States has also been a matter regarded as falling within the domain of the State rather than the Federal Government.

I also take some consolation in the fact that there is a story which I have never been able to verify, of a very successful midwest lawyer who never conceded that the court was right when they decided a case against him. He died leaving a substantial estate, and some of his heirs attempted to displace his testamentary disposition of his property. They attacked it on the ground that he lacked testamentary capacity, which they undertook to prove by evidence of his unwillingness to concede that the court was ever right in deciding a case against him. I am told that the court decided that this was not evidence of his incapability to give testament. The decision is consoling, for I am unable to give mental acceptance to some of these cases which do establish the propositions which you have pointed out.

Mr. CLIFFORD. I read the Belmont case, and the Curtiss-Wright case, and the Pink case, together with other supporting cases as constituting Supreme Court approval of the existence of the presiden