So I did not argue that part, I was not too concerned.

I know some of my constituents came up and said, "You ought to put an end to the Vietnam war," and I said:

Please tell me how to do it, I am not Commander-in-Chief of the Armed Forces, and if I issue an order to immediately leave Vietnam and stop fighting, the military would pay no attention to it.

They said, "Well, you can vote to cut off appropriations." I said:

No, I can't do that, either, because if we cut off appropriations, the boys over there that have been sent there, in many cases without their consent, would not have any weapons to fight with, they would not have any munitions to fight with, they would not have any provision to take care of the wounded in hospitals, and I just cannot do that.

And that is the fix that the President can get Congress into where we must to a certain extent, go along whether we want to or not.

Dr. BYRD. Senator, I would not think of it quite as either/or as all of that.

You would have advance notice to the President. For example, this year's appropriation bill, the money is already existing which he has expended, for example, in Vietnam. Your appropriation bill effective as of July 1, next fiscal year, or for that matter, effective October 1 or December 1, "There shall be no more appropriations for the Vietnam war." I am using this theoretically.

Then the monkey is on the President's back. He still has time to get them out and have all of the material for the hospitals and everything else really needed for the boys. But he knows there comes a time when he will not have it. The responsibility is his, very clearly, as taken by the Congress Appropriations Act, to take that interval to spend the money already existing to pull out.

He will know, by the law and appropriation, he will not have money after that date.

Senator ERVIN. Suppose that date comes, and the President does not pull them out. Then what?

Dr. BYRD. I think public opinion in the country has bearing on this. And if the record is clear, as I have indicated, that the Congress has given plenty of notice to the President what would happen in the period of time, and he has not acted, then it seems to me the public opinion of this country will determine very clearly where that accountability and the responsibility is. And they will put it clearly on the President.

Now, I do not think the President is going to do that, because he knows they will understand that to be the case. Therefore, he will not want to take that action and get himself in such a bind as that.

Senator ERVIN. What importance do you attribute to article II, section 2, which provides the conditions on which treaties should be made?

Dr. BYRD. First of all, just as a general answer, it is specific in the Constitution, a treaty shall be approved by two-thirds of the Senate to become effective, or in order for the President to ratify it. But if you mean the question whether or not I think that is the only means of international agreement provided for, either directly or by implication by the Constitution, then I do not agree to that.

I think the constitutional implication in many cases provided for international agreements other than treaty. It is occasionally

remarked, just as an example-sometimes we go roundabout to get a point. But as an example, that treaties are the only international instrument recognized or mentioned in the Constitution.

Well, strictly speaking, that is not so. The Congress may approve a compact between States-or to put it another way, compacts between States or compacts between a State or States and a foreign nation shall not become effective without the approval of the Congress. That is a compact which is not a treaty and the provisions for approving it are not the same as for the treaty, which is two-thirds of the Senate.

So the Constitution specifically in one instance does mention some instrument other than a treaty.

Senator ERVIN. What provision?

Dr. BYRD. What provision-I have to look it up.

Senator ERVIN. Because I cannot recall it.

Dr. BYRD. May I, just after I finish this? I will show it to you.
Senator ERVIN. You can finish your statement.

Dr. BYRD. Exactly. I brought the book with me.

Now, the point I was going to make is if the Congress has the power to approve a compact made by one State with a foreign nation, why shouldn't

Senator ERVIN. I recall the clause about compacts between States, but that is part of the Union.

Dr. BYRD. And with a foreign nation. Yes. The point I was trying to make is if the Congress has the power-I mean both Houses of Congress by simple majority-has a power to approve a compact between a State and foreign nation, it is a fairly reasonable inference they would have the power to approve a compact between the Federal Government and a foreign nation.

That is one way that you get implications.
Senator ERVIN. With foreign countries?
Dr. BYRD. Yes, sir.

Senator ERVIN. The Congress could take charge of foreign policy in that case and exclude the President.

Dr. BYRD. No, not totally, I think, except by the appropriations route. Because, as I tried to point out in the very first of my statement, that one of the major distinctions that I have found historically between treaties and other agreements-or shall we put it this way, between the foreign affairs power functions of the Senate on the one hand and the foreign affairs power functions of the House of Representatives on the other hand, is that the Congress combined has only delegated powers to the Federal Government, but that the treaty power goes beyond the delegated power there as such, and is in itself a substantive power, rather than merely procedural. So as I indicated some examples, subject matters over which it has never been held or even suggested that Congress may pass legislation with a simple majority of the Congress, domestic or foreign, that would involve these, or control these, things reserved for the State, but that are in treaties from the very beginning.

The very first treaties have done this. So you have this very great distinction with regard to the Federal principle we have, since we are not a unitary government.

Senator ERVIN. I think I have the clause. Article I, section 10: "No State shall, without the consent of Congress,*** enter into any agreement or compact with another State, or with a foreign power." Dr. BYRD. Yes, sir.

Senator ERVIN. You construe that to imply that it authorizes Congress to make compacts with a foreign nation?

Dr. BYRD. No, sir, I did not say that.

Senator ERVIN. That is the reason I was asking you.

Dr. BYRD. I said the Federal Government.

What I would imply more specifically, would be there have been many more farfetched analogies drawn in law-and I am not telling you anything about this-than this, that if the Constitution recognizes that the Congress may approve an agreement with a foreign nation, made by a State, why in heaven's name couldn't it approve an agreement made with a foreign nation by the executive branch of the Government, which in the order of things, the national level would be much more important than that of a single, solitary State of the Union.

Senator ERVIN. I believe that is a non sequitur because I think the expression of one thing is the exclusion of another, and here there is a specific expression.

Dr. BYRD. Senator, if I may interrupt you. One of the problems in interpreting treaty power with being the only method-I know you do not do this but some do-as the only method of entering into international agreement, because the Constitution mentioned treaty and did not mention anything else, and the expression of that was exclusion of all others. I do not agree with any ironclad moves of logic in that direction.

Senator ERVIN. Also, section 10 of article I says no State shall enter into any treaty.

Dr. BYRD. Exactly. They may not enter into a treaty but may enter into an agreement.

This is such a long way of getting around, perhaps, the point I was making whether inferential or explicit, the Constitution provides for an instrument other than a treaty. I maintain that is one way it does and also as mentioned by the Senator who testified previously, Senator Fulbright, he kind of agreed the recognition power amounts to agreement power.

Senator ERVIN. Of course, I take the position that, as far as any agreement of substance, the treatymaking power is the only way an agreement can be made with a foreign nation.

Dr. BYRD. Legally.

Senator ERVIN. I recognize that a treaty has the force of law, and I also recognize that Congress has the power to legislate. I take the position, I think within the view of the Constitution, that the Executive has the power to make executive agreements to implement a treaty or a law, because his principal executive function is to see that laws are faithfully executed.

Dr. BYRD. I am glad you mentioned the distinction between these because, strictly speaking, when an executive agreement is mentioned to me, after I studied this so many years, it does not relate, it makes

80-847-72- -6

no sense to me, just an executive agreement. It is either a combination of authority given by the Congress to the President, either by treaty or by statute, to enter into an agreement. And when that applies to other than treaty, I call that myself, to try to be more specific, a congressional executive agreement. Meaning invoking the powers of Congress and supplemented by the President in effectuating the power.

Then, in addition, the third type is what I call presidential agreements, or international presidential agreements, either of which are with regard to usage. So you can understand one another, which power of the Constitution you are talking about when you say presidential agreement.

What I call presidential agreement is the President invoking his own authority, and recognition agreement would be one of those, for example, you see.

Senator ERVIN. Of course, there is a great deal of difference between students of the subject with respect to the meaning of the executive power of the President.

Dr. BYRD Exactly.

Senator ERVIN. Because some of them take the position that it gives the President some powers which are not expressed in the Constitution and, of course, I will have to concede two Supreme Court decisions lend some content to that.

Dr. BYRD. I kind of presume you are talking about the inherent powers doctrine here which came out with Curtiss-Wright, for example. Would that be one you are speaking about?

Senator ERVIN. Yes.

Dr. BYRD. There is no one, I think, who has given more and stronger argument against that position than I have. I totally reject any idea of the inherent power doctrine, because by the very definition it means not subject to constitutional authority.

Senator ERVIN. Yes.

Dr. BYRD. And every individual, official in this country, as far as I am concerned, is operating legally under the authority of the Constitution, and no inherent power doctrine says he may do this or that just because he exists.

Senator ERVIN. I take the position, further that the only powers are those expressly granted or reasonably implied from the powers that are made. I think maybe you and I are in substantial agreement on that.

Dr. BYRD. Yes, indeed.

Senator ERVIN. Now, regretfully, I have not had a chance to read. your book. I look forward to reading it.

Dr. BYRD. Thank you.

Senator ERVIN. If you have no objection, I would like to place in the record, immediately after your testimony, your article on the "Constitutional Limits on International Agreements in the Space Age."

Dr. BYRD. Certainly. Yes, indeed.

Senator ERVIN. Thank you. (The document follows:)

CONSTITUTIONAL LIMITS ON INTERNATIONAL AGREEMENTS IN THE SPACE AGE

(By Elbert M. Byrd, Jr.1)

Political scientist Byrd maintains that the Constitution as a flexible instrument can cope with the problems of the Space Age, if our social and political maturity can. He discusses limits on the treaty-making power, particularly when it affects federal-state relationships; the use of the commerce and international law clauses for international agreements; the effect of the unamendable equity of representation in the Senate clause; the "divorce mill” and “degree mill" problems; the status of aliens and their property; creation of new states; the Bricker Amendment; first amendment freedoms; the fifth, fourth, and fourteenth amendments; the feasibility of an international criminal court; article III and the sixth amendment respecting courts and jury trial; enforcement of an international arms control and inspection treaty in view of the constitutional prohibitions regarding search and seizure; other inherent powers of the President and implied and delegated powers of Congress.-Ed.

It is occasionally reported that law school deans feel it is a mistake for law students studying constitutional law to read the Constitution because it will only serve to confuse them. As a mere example, the principle to be derived from the case of Marbury v. Madison 2 will come through with a great deal of clarity, but to attempt to derive the principle from the words of the Constitution will perhaps involve a frustrating experience. While the objectives of law school training need not be discussed here, an objective of "total" understanding might be much better served if students were first presented with a set of facts similar to those in the Marbury case, and instructed to find the "answer" in the Constitution before they turn to the reported case itself.

As a generality, reported cases are of value. They are particularly significant when they record decisions on the same point in the same way throughout a long line of adjudications. They are of importance in those areas where previous cases have been overruled specifically or sub silentio, for the point in question is made clear and a new departure is afforded in terms of case law. Previous cases are also important, although less so, for the purpose of analogous reasoning or argument to a new but substantially related problem, particularly if the identical powers of government are called in question as between the two fact situations. But where there are involved powers of government which have never on a specific point been the subject of adjudication, and especially where the fact situations are also novel, it is likely to be found that reported cases are virtually useless.

It is in the latter kind of situation that the Constitution itself must be reopened. One may also reopen the classical records, debates and commentaries on the Constitution when it was fresh from the pen. Often the historical records will be found to be useless, for obviously one is not going to find answers to such questions as whether or not radio waves are part of commerce. Occasionally the uncontested words of a founding father will provide absolute semantic answers to current questions, and the researcher's pulse will tingle at the discovery. But one soon notes that for some questions the mental picture behind the words could not possibly have included the physical facts pertinent to the researcher. And for other questions, even though technological development is not involved, semantical development may well be crucial. For example, after the federal government was established, it was often referred to as "Congress" by those who had become accustomed to referring to the old organization under the Articles of Confederation as "Congress." 3 Thus, when they used that word, one today is often uncertain as to whether they were referring to Congress or to the whole of the federal government. For another example, today's vocabulary certainly does not envision "the executive" as including the Senate of the United States, but one is not at all certain that the term did 1 Assistant Professor of Government and Politics, Univ. of Maryland. Author. TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES (1960). B.S. 1953, M.A. 1954, Ph.D. 1959, American University.

25 U.S. (1 Cranch) 137 (1803).

3 John Taylor of Caroline, for example, spoke within a single paragraph of the treaty power having been surrendered to "the United States," to "the General Government," and "to Congress." 3 BENTON, ABRIDGEMENT OF THE DEBATES OF CONGRESS FROM 1789 TO 1857 14 (1857).