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commitments by his choise of using executive agreements or formal treaty. The logical result of such a theory is to make a dead-letter of the Senate's prerogatives under article II, section 2.

The executive agreement also may be in the process of becoming equivalent to the treaty in its effect on domestic law. Treaties, under the Constitution, are part of the supreme law of the land and prior, inconsistent statutes are inferior to provisions of treaties. Until recently, executive agreements were not thought to have this same legal standing. But the controversy last year over the international Anti-Dumping Code suggests that the executive branch would like to see even this distinction erased.

The international code was negotiated during the Kennedy round of international trade negotiations despite a prior warning from the Senate that the authority to negotiate did not extend so far as to authorize an agreement to prevent dumping of goods on the international market which was at variance with existing statutory law. Nonetheless, the U.S. representative negotiated an agreement which was in a number of respects inconsistent with the AntiDumping Act passed by Congress in 1921. Although the executive branch never actually conceded that there was a conflict between the two, it was generally agreed that the two were inconsistent. In my judgment this was a clear attempt on the part of the executive branch to utilize an executive agreement to repeal or modify prior existing statutory law adopted by Congress.

As a result of the dispute which arose over the 1967 code, the Senate adopted a provision in the Renegotiation Amendments Act of 1968 which would have suspended the code. However, the compromise language adopted by conference committee permits the code to come into effect but states that in the event of a conflict between the 1967 code and the 1921 act the latter is to govern. It is possible to interpret this series of events as precedent for the principle that executive agreements can modify prior inconsistent statutes unless the Congress takes affirmative steps, as it did in this case, to make clear that the prior legislation is still primary. If such a theory were accepted, then all legal distinctions between executive agreements and treaties would be eliminated. Executive agreements made by the President would then become part of the supreme law of the land without the necessity of ratification by the Senate.

If Congress is to reassert its prerogatives in foreign policy, as Resolution 85 declares, then one of its first tasks should be to scrutinize all past executive agreements to assure itself that each was made under proper legal and constitutional authority. Even more important, the Senate should demand to be informed of all future executive agreements as they are being negotiated and should satisfy itself that the United States is not entering into an international commitment by exclusively executive action which should instead be a product of the joint Senate-Presidential function of treatymaking.

The increase in use and importance of the executive agreement as been matched by the reduced role of the Senate in the treaty making process itself. Treaties are now reserved for the most solemn of international commitments. It sometimes appears that the President submits international agreements in treaty form when he wishes to give particular public stature to an agreement. With the fanfare and publicity given to such agreements, the Senate has little actual power to alter their terms, or even express its views on the nature and scope of the obligations they represent. Invariably Senate misgivings about terms of treaties are represented as obstructionist tactics. The argument is repeatedly heard that so much time and trouble has gone into negotiations that nothing can be permitted which would jeopardize the agreements which have been reached.

The Subcommittee on Separation of Powers' hearings contain an editorial from the New York Times of March 10, 1967, which eptiomizes this attitude. The Times said:

A treaty is a contract negotiated by the executive branch with the government of one or more other countries. In the process there is normally hard bargaining and the final result usually represents a compromise in which everyone has made concessions. Thus when the Senate adds amendments or reservations to a treaty, it is unilaterally changing the terms of a settled bargain. The practical effect of such action is really to reopen the negotiations and force the other party or parties to re-examine their previously offered approval.

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Every time the Senate exercises this privilege it necessarily casts doubt upon the credibility of the President and his representatives and weakens the bargaining power of the United States in the international arena. The Senate's power to do this is unquestioned, but it is equally unquestionable that this power is best used only to express the gravest of concerns, especially in a period of crisis such as is posed by the Vietnam war and efforts to end it.

The Department of State is not aware of the fact that the Senate's ability to "advise" on major treaties is generally nullified by the pressures which are brought to bear to obtain its "consent." As long ago as 1953, Secretary of State Dulles displayed a commendable approach to the problem. He said:

"The Constitution provides that the President shall have power to make treaties by and with the advice and consent of the Senate. This administration recognizes the significance of the word "advice." It will be our effort to see that the Senate gets its opportunity to "advise and consent" in time so that it does not have to choose between adopting treaties it does not like, or embarrassing our international position by rejecting what has already been negotiated out with foreign governments."

The fact is, however, that the executive branch in practice prefers to take full advantage of the position expressed in the New York Times.

As an example of this approach at work I would cite the recent Senate action on the Nonproliferation Treaty. Certain Senators, including myself, were seriously concerned about the nature of the commitment that the treaty imposed upon the United States. Our concern was that the United States was obligating itself to come to the aid of any nation signing the treaty that was thereafter attacked with nuclear weapons or threatened with nuclear blackmail, and that this commitment went beyond our obligations under the United Nations Charter. Our belief that the Nonproliferation Treaty could be the basis for a major expansion of U.S. overseas commitments was based on a resolution passed by the United Nations Security Council and a simultaneous statement of the United States in the United Nations, both of which occurred only 11 days before the treaty was signed. These declarations were clearly for the purpose of assuring nonnuclear nations that signed the treaty that they would be protected from nuclear attack and blackmail. In my opinion, the resolution and U.S. statement amounted to a thinly veiled commitment that we would come to their immediate assistance. In other words, the United States was giving an implicit guarantee of protection to these nations as the price for their accepting the treaty.

Since supporters of the treaty denied that this was the correct interpretation of these statements and assurances. I introduced a reservation to the treaty to make their judgment crystal clear. My purpose was to make certain that no nonnuclear nation would sign the treaty under the misapprehension that the United States, by these words, had made a national commitment to send our boys into battle again to die, without authorization from the Congress of the United States. As I said at the time of the debate on the treaty, we have had much less than this get us into war in the past. I said:

We are in a war today, a war in which over 32,000 American boys have been killed in South Vietnam. We were placed in that war by the act of the President of the United States. He did not have a single statement to make as strong as this reply of the United States to the resolution in the United Nations Security Council to justify his actions.

The reaction from the Department of State to Senate efforts to clarify the treaty was that any attempt to attach a reservation would destroy the delicate political agreement that had been reached. If a reservation were adopted, the treaty would have to be renegotiated. In the words of the Department, a reservation would cause "a stampede which might very well mean the demise of the treaty." Even my alternative of adopting an "understanding"-which is a purely domestic matter between the President and the Senate-was rejected. Again, the argument was that such a step might be misinterpreted by other nations and destroy the treaty's acceptability to them.

It is my feeling that the Senate had an obligation to make clear its views on the nature and extent of the commitments contained in the treaty. It was evident that the Senate was not in favor of any new commitment of the United States to defend nations attacked or threatened by nuclear weapons other than those imposed by existing treaty obligations. It is my judgment that the Senate ought to have made this interpretation explicit in the form of

a "reservation," or at least an "understanding." Our experience in the past has shown us that vague words which all agree at one moment in history mean one thing, can at another point in time be used as the basis for quite a different purpose. What individual Senators may think deep in their hearts about the meaning of a treaty is irrelevant if its words and legislative history mean something else entirely. In acts as important as the ratification of treaties, the Senate has an obligation to make explicit its views on the nature and limits of the obligations which the United States is incurring. And especially in so critical an area as nuclear policy we should be extremely reluctant to substitute private faith in unofficial assurances for explicit limitations that no one can mistake or misinterpret. In the past, we have seen to our dismay what can result from vaguely worded grants of power or authority.

The story of the Nonproliferation Treaty is illustrative of the low state to which the Senate's role in treatymaking has fallen. Since treaties are reserved for major declarations, and there is no room for reservations or understandings, the Senate generally is left with little choice but to approve them, lest the President be repudiated in the eyes of the whole world. As a consequence, major treaties do not offer much room for the Senate in the exercise of its "advice and consent" function.

Of course, the reduced role of the Senate and Congress in foreign policy is best illustrated by the events leading up to our major involvement in Vietnam. As has happened all too often in recent years, the President sought congressional approval of his actions in the heat of crisis. The Congress always finds it difficult to refuse a President when he calls for national support at such a moment. There has been much debate over the legal character and effect of the Tonkin Gulf resolution. In my judgment the resolution did authorize the President to put the Armed Forces into Vietnam, however wise a decision that may have been.

Debate on the meaning of the resolution has led in turn to a consideration of the larger question of whether the President has inherent power to commit U.S. forces to fight overseas in the absence of congressional authority. Those who hold to this view argue that in these modern times the President must and does have the independent power to employ American armed might in the world in order to safeguard our national security. Implicit in this view and perhaps explicit is the idea that the Constitution is outmoded. I cannot agree with such a view.

In Youngstown Sheet & Tube Co. against Sawyer the famous case on the legality of President Truman's seizure of the steel mills during the Korean war. the issue of the President's "inherent war powers" was raised. Mr. Justice Black's opinion in that case contained what I regard as the most ringing reaffirmation of the doctrine of separation of powers that has ever been made. In rejecting the contention that the President had the power to seize the steel mills as an exercise of his authority as Commander in Chief Justice Black said the power belonged to Congress. The existence of a crisis was no excuse for going beyond the words of the Costitution. Justice Black said:

"The founders of this nation entrusted the law-making power to the Congress alone in both good and bad times."

I do not claim to be an expert on the subject of the war powers of the President or of the Congress. I have, however, given a lot of thought and study to it. I have concluded that a distinction must be drawn between defensive warfare and offensive warfare. There is no doubt whatever that the President has the authority under the Constitution, and, indeed, the duty, to use the Armed Forces to repel sudden armed attacks on the Nation. But any use of Armed Forces for any purpose not directly related to the defense of the United States against sudden armed aggression, and I emphasize the word "sudden," can be undertaken only upon congressional authorization. In other words, the power of the President as Commander in Chief of the Army and Navy under the Constitution, when not acting pursuant to congressional authority, is wholly defensive in nature; Congress and Congress alone, by virtue of its constitutional right to declare war, has the power to authorize the employment of the Armed Forces of the United States in offensive warfare.

My position that the power of the President to employ the Armed Forces of the United States is limited to defensive warfare-that is, to resist any attacks upon the United States-and that Congress has the constitutional power to declare war, and that only Congress can authorize the President of the

United States to use the Armed Forces of the United States in offensive war, is sustained by three separate provisions of the Constitution.

The first is found in clause 11 of section 8 of article I of the Constitution, which expressly provides that Congress shall have the power to declare war. That refers to wars which may be designated as offensive wars.

Then there are two provisions in the Constitution which recognize that this country can fight in its own defense without any authorization by Congress.

The first of these is found in clause 3 of section 10 of article I of the Constitution, which provides that no State shall engage in war unless actually invaded or in such imminent danger as will not admit of delay. Under this provision even a State can go to war to defend itself against invasion or imminent threat of invasion, without the consent of the National Government.

The other provision of the Constitution is found in section 4 of article IV. It provides that "the United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invision."

Those constitutional provisions make these two propositions crystal clear: First, that the President has no power under the Constitution to put this Nation at war when the war is offensive in nature; and, second, that the President, or even a State, can fight in self-defense to repeal invasion, without the consent of the Congress.

When the people of the United States adopted the Constitution, vesting in Congress alone the power to authorize offensive warfare, they contemplated that the Members of the Senate and the Members of the House of Representatives should determine, in the exercise of their own judgments, whether sufficient justification exists for committing the Armed Forces of the United States to offensive warfare before they authorize the waging of such warfare. They did not intend that the Members of the Senate and House of Representatives should abdicate their constitutional power and responsibility by delegating to the President the power to engage in offensive warfare or by acquiescing after the fact in such an improper utilization of the Armed Forces.

If, as some believe, the Constitution has become outmoded in respect to which branch should exercise the war power-a view with which I strongly disagree-then the Constitution should be changed by the amendment processes and not by extralegal action of the President and the Congress. I am not impressed with the recitation of precedents to support de facto constitutional amendments. Even 200 years cannot make constitutional what the Constitution declares is unconstitutional.

Mr. President, when the Senate seeks to regain its constitutional role in the field of foreign affairs, much more is at stake than a formalistic observance of a paper distribution of powers, prerogatives, and functions. The framers of the Constitution did more in devising that document than merely deal out the elements of power among three branches of the Government. They recognized that in a government resting ultimately on the consent of the governed, a balance must be struck between the need to have power and exercise it, and the need to control power and keep it disciplined. They sought to strike a balance between tyranny on the one hand and anarchy on the other. This principle was recognized as applicable to foreign policy as well as to domestic policy. It was for this reason that they gave Congress and especially to the Senate such important responsibilities in this field. The Senate's ultimate responsibility is to make certain that our Nation's foreign policy remains responsive to the wishes of the people. This is because in a democratic society, no policy, however enlightened, can long survive without the consent and support of the people.

The importance of the congressional role in formulating foreign policy lies in mobilizing and expressing popular support. Through the Congress, the people have a voice and a way to make it heard. Neither the Department of State, nor the Supreme Court, nor even the President can perform this great function of giving expression to the people's wishes on an issue.

This is the lesson that the debacle in our Vietnamese policy has taught us. Because foreign policy had become the province of the Executive, the decisions and the policy of the United States were not made with the active participation of the people. Instead, policy was made exclusively within the executive branch. The Congress, the Senate, and the country were asked to support that policy, which for some time they did, but they were never asked for their con

sent, and they never had a hand in the making of the policy. Regardless of the merits of our decision to wage war in Vietnam, it has become tragically clear that the people will not support forever a policy which is made for them, but without them.

The consequences of this failure to observe the Constitution are all too evident. True, no Supreme Court decision has adjudged the war in Vietnam as unconstitutitnal on the grounds that Congress adopted no formal declaration of war and because the Senate gave no effective advice and consent. Instead, the declaration of unconstitutionality has come from the judgment of the people. We see the decree everywhere. For the first time in our memory, an incumbent President was forced from office. Young men whose fathers and brothers volunteered to serve their country now desert to Canada and Scandinavia rather than bear arms in the country's cause. Thousands march on Washington and picket the White House, the Capitol, and the Pentagon. Now we have riots and violence on our university campuses. ROTC programs are being forced out of schools, and there is dissension and antiwar activity even among those in uniform.

Perhaps not all the anarchy we see today has been caused by the Vietnamese war and the way in which we became involved. No one can say. But no one can say that the war was not the cause, or at least the catalyst. And I cannot shake the feeling that ultimately the reason so many are now disrespectful and unresponsive to authority is because authority was disrespectful and unresponsive to the Constitution in the making of our policy in Vietnam. Sadly, if we needed proof, we once gain can see the wisdom of the framers' determination that the representative branch of the Government should play a key role in the making of foreign poliiy. Senate Resolution 85 does not fulfill the constitutional responsibility. It merely testifies to an awareness of it that had been lost for far too long. Adequate exercise of the Senate's functions in making policy requires a constant, forceful assertion of that role in all proper circumstances. If the Senate has once again become sensitive to its responsibilities, then proof must be in its actions.

But we must be wary of mistaking opposition pure and simple for the partnership in policymaking that is required between President and Congress. The Senate's responsibility is not fulfilled by obstructionism any more than by abdication of judgment and unthinking acquiescence. The Senate did not exercise its constitutional responsibilities 50 years ago by driving us into isolationism, neutrality, and blind pacifism. The tragedy of World War II should be proof enough that isolation, pacifism, and a blindness to the realities of national security is not the way for the Senate to "advise and consent" in foreign policy.

I commend the Senator from Arkansas for his efforts to bring this resolution to the attention of the Senate, and for his efforts to reawaken a stronger sense of the Senate's constitutional responsibilities.

While we may not always agree on the direction in which the Senate should exercise its responsibilities in foreign affairs, I think we have always been together on the need for a more vigorous Senate role. The Senator has performed a public service of the first importance in causing this debate on the constitutional obligations of the Senate.

[From the Congressional Record, vol. 113, No. 118, July 31, 1967]

Proceedings and Debates of the 90th Congress, First Session

U.S. COMMITMENTS TO FOREIGN POWERS

Mr. FULBRIGHT. Mr. President, I send to the desk a resolution and ask that it be stated.

The PRESIDING OFFICER (Mr. MCCARTHY in the chair). The resolution (S. Res. 151) will be stated.

The legislative clerk read as follows:

S. RES. 151

Whereas accurate definition of the term, national commitment, in recent years has become obscured: Therefore be it

Resolved, That it is the sense of the Senate that a national commitment by the United States to a foreign power necessarily and exclusively results from

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