tial power to make executive agreements. Also, I have been intrigued by an incident in American history when President Cleveland was meeting with his Cabinet, and after an erudite, lengthy academic discussion, he said to them:

Gentlemen, you overlook the fact that what we are considering is a condition and not a theory.

I read someplace that in the first 50 years of our Government, there were almost as many executive agreements entered into as there were treaties. In the second 50 years, a great many more executive agreements than treaties, and in the third 50 years, five or 10 times as many executive agreements as treaties, and, as the chairman pointed out, we have in existence today over 4,000 executive agree

ments.

Now, for us to sit here in this ivory tower and say we are not going to approve the constitutionality of executive agreements is beside the point. I think you have stated it correctly. Let us accept the existence of the executive agreement, as your bill does. You not only refer to executive agreements in the preamble of your bill, but you take it upon yourself to describe what you consider an executive agreement to be. They do exist. The President has authority in a number of areas, and I think the correct way is to proceed as you have done, assume that they exist, assume that he has powers, but now let us control that power.

Senator ERVIN. Well, I certainly agree that executive agreements do have a real function to serve in our scheme of government. They can serve a real purpose in the area of foreign policy. What prompts the bill in part is that I am concerned with the secrecy which accompanies so many of the executive agreements. I certainly agree with you that they serve a function and appreciate your suggestions to the effect that where the making of an executive agreement falls within the undoubted constitutional power of the President, that Congress cannot regulate those executive agreements.

In other words, taking the question of the plainest case, as you point out, where the question involved is the recognition of a foreign country. Undoubtedly, under the Constitution that power belongs to the President and not to the Congress, and I also certainly agree that the bill can not invalidate a delegated Presidential power. One of the purposes of the hearing is to have inadvertencies or defects in the legislation pointed out so they can be corrected.

Mr. CLIFFORD. In this regard, I think the committee would want to look with care at the language which would permit the Congress to overrule or disallow an executive agreement when that executive agreement is in accord with legislation already passed by Congress. You could get into trouble in attempting to overrule or rescind an act of Congress legally signed by the President some years before by passing a concurrent resolution of the Senate and the House saying that a certain action under that law is not appropriate.

Senator ERVIN. Well, I would certainly have to concede, that that is a point which is very valid, because a statute requires the signature of the President as well as the passage by both Houses of Congress. Where the President is exercising authority under an act of Congress, I think a serious constitutional question arises whether

Congress, by concurrent resolution which does not have to go to the President for his signature or his approval or disapproval would have the power in such a situation, as you point out, to act as this bill undertakes to authorize the Congress to act.

I have been concerned ever since I have been in the Senate about one matter you talked about here. The President is making a visit to a foreign country, or some of the Cabinet such as the Secretary of State may visit a foreign country, and make oral commitments to the people of that nation who do not understand our system of government-and I will say the same thing about Senators or Congressmen. They undertake to speak, and many foreigners think that they have the power as they would have in their own country in many cases to make binding commitments. I do not know any way that we can regulate that. As you point out, it is beyond regulating.

Mr. CLIFFORD. It has created some of the gravest dangers. Some of our top officials have made comments with reference to Cambodia that I think have created impressions in Cambodia that we have what would be considered to be a mutual-assistance pact and that we would come to the assistance of Cambodia if their present government is threatened.

I might say in that regard also, without attempting to be hypercritical, that I recall a statement made some time ago by President Nixon when he was visiting in Thailand, and at that time he said, in substance: "We will stand by these brave people and assist them in turning back aggression, whether from without or from within." And I thought we had all better stay awake that night and think about what that commitment meant. If some kind of civil disturbance started within Thailand, which some have described as having the same the origin as the Vietnamese difficulty, we would be in Thailand taking one side against another side within Thailand. I thought it was an extraordinarily dangerous statement for a President to make.

Senator ERVIN. Yes. Some time ago I attempted to make a study of the way we got involved in Vietnam, and it is a long story. I was astounded to find that on several occasions our Presidents made statements which the people of that area could only interpret as a commitment by the President of American protection. At the time many of these statements were made there was nothing whatever, no action on the part of the Congress, which would authorize the President to make any statements of that kind or anything to indicate that Congress approved of those statements. And that was long before the Tonkin Gulf Resolution. From my study of the SEATO Treaty, I was never able to find anything in that agreement which bound us to take any of the action we have taken over there simply because it provided that no obligation would be binding on us unless it was assumed in the manner provided by our constitutional processes. I sometimes think we sort of talked our way into our present involvement in Southeast Asia largely through remarks made by Presidents for which there was not authority outside of a proclivity to talk.

Mr. CLIFFORD. I think that is very true.

As you will recall, neither South Vietnam nor Cambodia is a signatory to the SEATO Treaty. They are merely protocol members,

and yet the assumption existed that some kind of a commitment was made. But now that introduces a question of even more acute interest now. The Tonkin Gulf Resolution was interpreted-and I think properly so by President Johnson as having given him authority to send American troops and engage in military activity in Vietnam.

But what is the authority of the President today to continue on with that military activity and even to expand it in some directions, because the Gulf of Tonkin Resolution has now been repealed?

Senator ERVIN. That is the thing that compelled me to vote against its repeal. I was on the Senate Armed Services Committee when Secretary Rusk and Secretary McNamara appeared before us and asked us to pass the Gulf of Tonkin Resolution. I asked them some questions at that time, and I did not see anything in the answers they gave that showed we had any commitment as a nation, absent the resolution.

The broad language of the Tonkin Gulf Resolution did not escape me at the time. I interpreted it very broadly, and it undoubtedly conferred the power on the President to use the Armed Forces in Southeast Asia to repel any kind of aggression from any area. I was astounded when the administration got behind the repeal of the Tonkin Gulf Resolution after opposing it, because, to my mind, the clause about the declaration of war, according to the way I interpret the Constitution, recognizes two kinds of war. One is an offensive war which requires a declaration of war by the Congress before the President has constitutional power to use our Armed Forces. The other is a constitutional recognition, in two places, that it is the duty of the President to fight a defensive war; that is, to repel an invasion. Article IV, section 4 expressly spells that out. It is the duty of the United States to protect any State against invasion, and we even have a clause near the end of article I that says that even a State can wage war in self-defense if the time does not permit delays. So, it seems to me that the administration was very unwise in apparently advocating the repeal of the Gulf of Tonkin Resolution, because I have never been able to find, outside of purely defensive things, what authority the President has to act after the repeal.

Mr. CLIFFORD. One of the values of your bill and this type of hearing is to go into a deeper and even more significant question that exists in our country today. Our Government is supposed to act as the result of the will of the people.

Now, the will of the people is best manifested through the Congress of the United States. We do not have referenda on great issues as they do in some countries. But how could one explain this following situation:

I believe today the overwhelming weight of the opinion in this country is against the expanding of our aerial attacks and naval attacks in North Vietnam. In addition, I think that the people are deeply concerned about the taxes that they pay today, and yet without any consultation with the Congress, which is really the closest representative of the people, a policy is instituted which is costing tens of millions of dollars.

We have read of the sorties of the B-52's. My recollection is that every time a B-52 flies over North Vietnam it costs us $40,000. Do

the people get any choice as to whether they wish their money to be spent in that manner or for the enormous naval flotilla that we have assembled?

Now, I think, as you go into the narrower problem of executive agreements, there is also the question of the conduct of military activities. Must there not be some closer kind of relationship between the Executive and the Congress so that the American people can exert their will in order to have an impact upon executive decisions? It is not taking place today.

Senator ERVIN. Well, I certainly agree, as stated before, that the executive agreement is a very useful tool for implementing foreign policy. I would restrict it, if I could, to the implementation of prior treaties or the implementation of acts of Congress. You have made a very helpful contribution to the study of the committee by pointing out that there are certain areas in which the President has the constitutional power to act without the consent of Congress and that Congress cannot legislate to control that, his action in those cases. This suggests a very appropriate amendment which should be made to this bill. Also, you have made a very helpful suggestion in respect to the necessity of amending the bill to allow for the fact that Congress lacks the power to nullify a prior act of Congress by a concurrent resolution which does not require the consent of the President. That is the purpose, as you suggested to begin with, of holding a hearing of this kind.

I want to thank you very much for those suggestions.

Professor Miller?

Professor MILLER. Thank you, Senator.

Mr. Clifford, I have some technical questions, if I may pose them to you.

Í am interested in your views particularly on the nature of the power that Congress exercises if it does enact a bill such as this.

Do you have any doubts in your mind as to the constitutional power of Congress to enact this bill, subject, of course, to some refinements, such as you have suggested, but at least with the thrust of S. 3475?

Mr. CLIFFORD. I see no difficulties in that regard.

If you will look at Article I of our Constitution and note the broad authority given there, that the Congress shall have power to levy and collect duties, Congress shall have power to regulate commerce with foreign nations, which would relate very closely to this type of legislation, to establish a uniform rule of naturalization, to define felonies committed on the high seas and offenses against the law of nations, to declare war, to raise, support and maintain, an Army and Navy, and then note the sweeping clause that says that Congress shall have the right to make all laws which shall be necessary to carry out the aforementioned.

If you consider these powers under article I, and combine them with its power under article II in which it is given the right to advise and consent with the President on the question of entering into treaties, I find no difficulty at all in recognizing the power given to the Congress to pass this kind of law under our Constitution.

Professor MILLER. I might note, too, that article II, section 8, clause 18, the implied powers clause, gives Congress the power to

enact laws which are based on powers vested in other departments of government as well. So, would it not be the case, Mr. Clifford, that Congress under its implied powers clause could still enact this bill?

Mr. CLIFFORD. I think probably so. I would not be quite so clear on that. I do not know that it has received the degree of clarification that one would like, but I would generally agree with that possibility.

Professor MILLER. Another question: In your testimony, you make the point-and I think rightfully so that the President has the full power to recognize foreign governments. Why does that include the power to settle claims? Are you suggesting inherent power here because it takes in other actions that, under our system, have been left to the President alone?

I see no boundaries in your statement.

Mr. CLIFFORD. It was in this regard that as I listened to Justice Goldberg I found myself in disagreement. I do not have any particular concern over what you call it, whether you call it inherent power or whether you call it the basic constitutional power. But when the Constitution says that the President shall be the chief executive of our country, when it says that he shall have the power to enter into treaties, that he shall have the power to appoint ministers and ambassadors, I find that this constitutes a sweeping delegation of power that I think our Presidents must have. I do not feel concern with the fact that the Constitution does not delineate the specific powers of the Presidency. No group of men, no matter how intelligent, or how scholarly, as our forefathers obviously were, would have the prescience to be able to foresee in 1787 what was going to exist in 1972. So, I think they gave him broad powers, and I think he has used that broad power to enter into executive agreements. And if we wanted to clarify the debate, I would take the position that there are inherent powers in the chief executive.

Professor MILLER. Let me pursue that just a moment, sir.

In settlement of claims, for example, such as under the recognition by President Roosevelt of the Soviet Union—and the Pink and Belmont cases brought this up-should not the Congress have the authority to take a look at the assignment of monetary claims owned by the former government of the Czar?

In other words, that is a claim, and should it be resolved according to executive agreement or New York State law?

You say that is the type of agreement the President has inherent authority to make?

Mr. CLIFFORD. I would say, yes, I would go that far. I think that the President under his implied power of the Constitution has that right without any act of Congress. When a matter became a controversy between a State and what the court considered to be a higher law, that which the Constitution would refer to as the supreme law of the land, the Supreme Court has gone with the latter theory in deciding those cases.

Professor MILLER. But that went only to the State and Federal power. It did not go to a congressional-executive relationship; is that not true?