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Philip W. Buchen Files
Philip Buchen's General Subject Files
subjects
Vietnam (Republic)
Mayagüez Incident, 1975
Legislation
Executive-Legislative relations
Vietnam War, 1961-1975
Treaties
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The original documents are located in Box 12, folder "Executive Agreements (1)" of the
Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 12 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
HELLO MR. PRESIDENT? THIS IS
THE SPEAKER OF THE HOUSE CALLING.
LISTEN JERRY. THANKS FOR CONSULTING
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HAVE IT ON YOUR DESK BEFORE OUR
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By MacNelly for the Richmond News Leader
FORD LIBRARY is GERALD
THE WHITE HOUSE
WASHINGTON
Philip Barringer
DOD
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Justice
Jack Goldklang
Justice
Monroe Leigh
State
Arthur Rovina
State
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FORD is LIBRARY QERVIL
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Department of Justice
STATEMENT OF RALPH E. ERICKSON
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
before the
SUBCOMMITTEE ON SEPARATION OF POWERS
OF THE COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
on
EXECUTIVE AGREEMENTS
and
S. 3475
May 19, 1972
GERALD LIBRARY FORD
Mr. Chairman, Members of this Subcommittee:
I appreciate this opportunity to appear before you
to discuss the legal aspects of "executive-legislative
relations in foreign affairs" with particular reference
to executive agreements.
When S. 3475, which proposes a new role for Congress
in connection with executive agreements, was introduced
Senator Ervin expressed the concern that the Founding
Fathers' concept of shared powers in the area of interna-
tional agreements had been substantially eroded by the use
of executive agreements. (118 Cong. Rec. S 5787). In
light of that expressed concern, I would like today to
provide the Committee with some general observations
regarding international agreements together with our views
on the legal aspects of executive agreements. Thereafter
I will address myself specifically to S.3475, which we
oppose as not being constitutional.
CRALD FORD LIBRARY
I.
It will be useful I believe, to begin with a brief
mention of the treaty-making power. In recent years state-
ments have been made by members of the Senate as to the
intentions of the Framers concerning treaties. These
statements deserve analysis. For example, in the debate
over agreements made with Portugal and Bahrein, Senator
<1 Case asserted: "The Constitution does not define the
term 'treaty.' Yet, it seems clear that the Founding Fathers
intended any agreement with a foreign country on a matter
of substance to be embraced within the term." 118 Cong.
Rec. S 3286, March 3, 1972.
We can find no evidence for Senator Case's contention
if it is taken to mean that all international agreements
on matters of substance must take the form of a treaty.
The available records of the Constitutional Convention do
not indicate that any question was raised concerning the
scope of the term "treaty," or that a treaty was to be
the only means for concluding agreements on matters of
substance. Although Senator Ervin suggested when S. 3475
- 2 -
GENALE FORD LIBRARY
was introduced that the treaty is the only kind of inter-
national instrument mentioned in the Constitution (118 Cong.
Rec. S 5787), an examination of its text does not support
this. In the vocabulary of the Framers, the term "treaty"
did not cover every type of arrangement with a foreign
nation. Article I, § 10 carefully distinguishes between a
"Treaty, Alliance and Confederation," which the states are
absolutely prohibited from entering, and an "Agreement or
Compact * * * with a foreign Power" which the states may
make provided they obtain the consent of Congress. The
draftsmen of the Constitution thus made a clear distinction
between treaties and agreements. Chief Justice Taney
stated that difference as follows, quoting from Vattel, a
scholar on international law well known to American lawyers
during the period of the Revolution:
"A treaty * * * is a compact made with the
view to the public welfare, by the superior
power, either for perpetuity, or for a con-
siderable time. * "
'The compacts which have temporary matters
for their object, are called agreements, con-
ventions and pactions. They are accomplished
by one single act, and not by repeated acts.
FORD
- 3 -
LIBRARY
These compacts are perfected in their execution,
once for all; treaties receive a successive
execution, whose duration equals that of the
treaty. Holmes V. Jennison, 39 U.S. 540, 572
(1840).
In some ways the best evidence of the Framers' intention
not to limit international agreements to treaties lies in
the usage of executive agreements in the early days of the
Republic. The Post Office Act of 1792 authorized the Post-
master General to "make arrangements with the postmasters
in any foreign country for the reciprocal receipt and
delivery of letters and packets, through the post-offices.
1 Stat. 232, 239. These were plainly not treaties in the
constitutional sense. If they had been, congressional
authorization would have been of no avail to the President
in the absence of the advice and consent of two-thirds of
the Senators present. It is also worthy of note that the
courts have rejected the contention that executive agreements
authorized by statute violate the Constitution because they
impinge on the treaty power. See Star-Kist Foods, Inc. V.
United States, 169 F. Supp. 268 (Cust. Ct. 1958), and cases
collected therein. In Field V. Clark, 143 U.S. 649 (1892),
- 4 -
LIBRARY
the Supreme Court upheld an act permitting the President to
change duties on certain imports. The first Mr. Justice
Harlan noted the well-established practice of granting dis-
cretion of this kind to the executive in matters relating
to trade with other nations, when he stated:
"* * * the practical construction of the
Constitution, as given by so many acts of
Congress, and embracing almost the entire
period of our national existence, should not
be overruled, unless upon a conviction that
such legislation was clearly incompatible
with the supreme law of the land." 143 U.S.
at 691.
It has been said by an eminent authority that between 1789
and 1939 over 1300 international agreements based on various
types of authority were consummated without the participation
of the Senate. E. Corwin, The President: Office and Powers
422 (1957). It therefore seems plain to me that there is no
validity at all to the claim that the executive agreement as
a method of international dealings is beyond the powers
authorized by the Constitution.
Turning then to the permissible uses of the executive
agreement, it is the firmly established policy of the
Executive branch that executive agreements should not be
- 5 -
LIBRARY
used when the subject matter should be covered by a treaty;
there must be a constitutional source of authority for the
agreement. As stated in the Foreign Affairs Manual of the
Department of State, the executive agreement form is only
used for agreements which are made (a) pursuant to or in
accordance with existing legislation or a treaty; (b) subject
to congressional approval or implementation; or (c) under
and in accordance with the President's constitutional
power. See 11 Foreign Affairs Manual 722; 14 M. Whiteman,
Digest of International Law 195 (1970).
Basically, the making of executive agreements involves
a procedure which is supervised primarily by the Department
of State. In this connection I should inform the Committee
that it is not a regular practice for the Department of
Justice to be consulted in the making of such agreements,
although there are occasions when we are called upon to
discuss specific related legal questions.
Questions of separation of powers are not likely to
be raised in Congress concerning agreements based on treaties
- 6 -
GERALD LIGHTS FORD
or statutes since Congress or the Senate alone has, by
express delegation, empowered the Executive to make them.
Apparently the issue of authority tends to arise most
often where the Constitution or implied constitutional
powers are the source of the President's authority. An
executive agreement made by the United States, which does
not rely for authority on a treaty or act of Congress, may
deal with any matter that under the Constitution falls
within the independent powers of the President. Restatement
(Second), Foreign Relations Law of the United States,
§ 121 (1965); 14 M. Whiteman, Digest of International Law
195 (1970).
The independent authority of the President to make
executive agreements is based on a number of express
constitutional provisions including the following:
"The executive Power shall be vested in a
President of the United States of America."
Art. II, § 1;
"The President shall be Commander in Chief
of the Army and Navy * *." Art. II,
§ 2; and
- 7 -
BERALO FORD VIBRARY
"[H]e shall receive Ambassadors and other public
Ministers; he shall take care that the Laws be
faithfully executed * " Art. II, § 3.
The President also derives constitutional power in his
role as Chief Executive to make executive agreements based
on attributes of the sovereignty of the United States. In
other words, the United States can act in the international
field to the same extent as other sovereign nations do.
The classic exposition of this concept appears in the
83
opinion of the Supreme Court in United States V. Curtiss-
Wright Export Corp., 299 U.S. 304, 318 (1936) :
"* * * the investment of the federal govern-
ment with the powers of external sovereignty did
not depend upon the affirmative grants of the
Constitution. The powers to declare and wage war,
to conclude peace, to make treaties, to maintain
diplomatic relations with other sovereignties, if
they had never been mentioned in the Constitution,
would have vested in the federal government as
necessary concomitants of nationality. * * As
a member of the family of nations, the right and
power of the United States in that field are equal
to the right and power of the other members of the
international family. Otherwise, the United States
is not completely sovereign. The power to acquire
- 8 -
LIBRARY
territory by discovery and occupation * the
power to make such international agreements as
do not constitute treaties in the constitutional
sense * * * none of which is express 1y affirmed by
the Constitution, nevertheless exist as inherently
inseparable from the conception of nationality."
(Emphasis added.)
As the State Department has indicated, the number of
agreements based solely on the constitutional authority of
the President is relatively small. One type of agreement
where that power is exercised is recognition of foreign gov-
ernments, based on the constitutional power of the President
to "receive Ambassadors and other public Ministers"; another
is the settlement of foreign claims. The Curtiss-Wright
opinion has been followed in subsequent decisions which
have upheld the President's power to make executive agreements
in these two areas. In United States V. Belmont, 301 U.S. 324
(1937), the Supreme Court upheld the validity of an executive
- 9 -
FORD i LIBRARY GERALD
agreement, not based on any pre-existing treaty or statute,
which established relations with the Soviet Union and settled
certain claims by assignment of assets to the United States.
The Court said:
"Governmental power over external affairs
is not distributed, but is vested exclusively in
national government. And in respect of what was
done here, the Executive had authority to speak
as the sole organ of that government. The assign-
ment and the agreements in connection therewith
did not, as in the case of treaties, as that term
is used in the treaty making clause of the Consti-
tution (Art. II, § 2), require the advice and
consent of the Senate.
an international compact, as this was, is not
always a treaty which requires the participation of
the Senate. There are many such compacts, of which
a protocol, a modus vivendi, a postal convention,
and agreements like that now under consideration
are illustrations.' 301 U.S. at 330.
Similar language was used by the Supreme Court in United States
V. Pink, 315 U.S. 203, 229 (1942).
Furthermore, some power to make executive agreements can
be implied from the treaty power. Although treaties require
the concurrence of the Senate, as Curtiss-Wright and Belmont
indicate the President alone negotiates. In the course of
negotiating a treaty, it is sometimes necessary to conclude
an interim arrangement or modus vivendi until the treaty is
finally ratified. See United States V. Belm nt, supra at 330RD
- 10 -
1 GERALD LIBRARY
The President also may make agreements based on his
power as Commander in Chief. Controversy in this area
has been relatively recent. A point of departure often
mentioned is 1940, when the United States was being
increasingly thrust into the international arena. Britain,
having sustained heavy losses, appealed for American
destroyers. President Roosevelt asked Attorney General
Jackson for his opinion regarding the authority for
effectuating by executive agreement an exchange of
American destroyers for British bases in the Western
Hemisphere.
The Attorney General concluded that the agreement
could be made without submitting it to the Senate as a
treaty for its advice and consent. 39 Ops. A.G. 484
(1940). The President's authority was deemed to derive
from his constitutional powers as Commander in Chief
and from "that control of foreign relations which the
Constitution vests in the President as part of the
Executive function," citing Curtiss-Wright, supra,
39 Ops. A.G. at 486.
FORD i LIBRARY GRANTO
- 11 -
Since no future "commitment" was involved, Attorney General
Jackson held that the agreement did not require the advice
and consent of the Senate:
"* * *. Some negotiations involve commit-
ments as to the future which would carry
an obligation to exercise powers vested in
the Congress. Such Presidential arrange-
ments are customarily submitted for ratifi-
cation by a two-thirds vote of the Senate
before the future legislative power of the
country is committed. However, the
acquisitions which you are proposing to
accept are without express or implied
promises on the part of the United States
to be performed in the future. The con-
sideration, which we later discuss, is
completed upon transfer of the specified
items. The Executive agreement obtains an
opportunity to establish naval and air bases
for the protection of our coastline but it
imposes no obligation upon the Congress to
appropriate money to improve the opportunity.
It is not necessary for the Senate to ratify
an opportunity that entails no obligation."
39 Ops. A.G. at 487.
One scholar who commented on Attorney General Jackson's
opinion stated:
"While there is no clear line between
the subjects on which the President can enter
into agreements under his constitutional powers
to conduct foreign relations and those on which
he must ask the advice and consent of the Senate,
it appears that the prime consideration is whether
the agreement imposes legal obligations upon the
DEBALO FORD LIBRARY
- 12 -
United States beyond the independent power
of the President to fulfill. If the aid of
Congress is necessary for fulfillment, the
President should, before finally approving
the instrument, either get the advice and
consent of the Senate, thus making it a treaty
in the constitutional sense, or he should get
an authorizing act from Congress making
appropriations or enacting legislation to ful-
fill such obligations. Since the present
agreement imposed no such obligation requiring
congressional action, neither of these pro-
cedures was necessary." Editorial Comment,
Q. Wright, The Transfer of Destroyers to Great
Britain, 34 Am. J. Int'l L., 680, 681 (1940).
In the last few years there have been a growing number
of occasions when the Executive and the Senate have disagreed
on the scope of the President's powers to conclude executive
agreements relating to the war power. Given the fact that
there is no simple answer to the question of the precise
magnitude of the independent powers of the President, each
dispute has itself become part of both the lore and the
legal precedent on this subject.
For example, in June 1969, the Senate debated and
adopted a "sense of the Senate" resolution that the use of
armed forces on foreign territory or a promise to assist a
foreign government by American military or financial
- 13 -
FORD & LIBRARY
resources can only be achieved by a treaty, statute or
concurrent resolution. S. Res. 85, 91st Cong., 1st Sess. ,
115 Cong. Rec. 17214-17245.
Also, in 1970 debate arose as to whether the proposed
Friendship and Cooperation Agreement with Spain should be
submitted to the Senate as a treaty. (T.I.A.S. No. 6924).
That debate focused largely on the question of the effect
of the agreement, that is, did it constitute a military
commitment by the United States to Spain? The Administra-
tion's position was that it did not constitute a commitment,
while Senator Fulbright, among others, challenged the
Administration's position, and argued that if his inter-
pretation was correct then the matter was of sufficient
importance to require the concurrence of the Senate. As
a subsequent resolution passed by the Senate demonstrated,
the issues raised did not in any realistic sense relate to
the law or constitutional practice concerning the right of
the President to make agreements for bases as much as they
did to the meaning of the agreements. See S. Rep. No.
91-1425 on S. Res. 469.
GERALD FORD LIBRAR,
- 14 -
It is difficult for us as lawyers to state the
"holding" of each of the debates. Indeed, they emphasize
the importance of the Executive dealing with these matters
on a case-by-case basis. It is against this background
that we must view S. 3475.
II.
I will now turn- to some specific comments on S. 3475.
Senator Ervin has stated that the bill is designed to
"help restore the balance of power between the executive
and legislative branches of the government in the area of
international agreements." S. 3475, he states, would
also further the constitutional prerogatives of Congress
by requiring transmission of all executive agreements to
both houses of Congress. In general, executive agreements
would come into force 60 days after transmittal unless,
prior to the expiration of the 60-day period, both houses
of Congress pass a concurrent resolution disapproving the
executive agreement.
GERALD P. PORO
I believe that this proposal, although intended to
resolve a constitutional problem, presents substantial
constitutional problems of its own.
- 15 -
The President has independent power under the Consti-
tution to conclude executive agreements. For example, as
I have noted, he has specific constitutional power to
"receive Ambassadors" (Art. II, § 3), and thus to recognize
foreign governments. Under his power as Commander in Chief,
he has the right to make operational arrangements, such as
cease-fire agreements to insure the safety of troops which
have been placed at his disposal. Cf. Ex parte Milligan,
71 U.S. 2, 139 (1866). In my opinion, Congress cannot by
statute take away or substantially limit this power.
Further, if the President sent an agreement to Congress
which he did not have authority to make, it is doubtful
that the failure of Congress to disapprove the agreement
could give it a validity it would not otherwise have.
Similarly, if the President has authority, either by
statute or treaty, to enter an executive agreement, that
power continues until the statute is repealed or the
BERMIO FORD LIBRARY
treaty is no longer in force.
It is also our position that Congress cannot, in fact,
take legally binding action against any of these exercises
of authority by concurrent resolution. This is not a
- 16 -
5.5 nas exemption broad
no section 4
94TH CONGRESS
1ST SESSION
S. 632
Spectral
51651
IN THE SENATE OF THE UNITED STATES
FEBRUARY T, 1975
54/2/2
Mr. BENTSEN introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
To help preserve the separation of powers and to further the
constitutional prerogatives of Gongress by providing for
congressional review of executive agreements.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That the Congress declares that the Constitution of the
4 United States established a system of shared powers between
5 the legislative and executive branches of the United States
6 Government in the making of international agreements; the
7 powers of Congress have been substantially eroded by the
8 use of so-called executive agreements, and the Senate is
9 thereby prevented from performing its duties under section
10 2, article II, of the Constitution, which provides that the
FORD : LIBRARY
II
2
1 President "shall have power, by and with the advice and
2 consent of the Senate, to make treaties, provided two-thirds
3 of the Senators present concur".
4
SECTION 1. (a) In furtherance of the provisions of the
5 United States Constitution regarding the sharing of powers
6 in the making of international agreements, any executive
7 agreement made on or after the date of enactment of this Act
8 shall be transmitted to the Secretary of State, who shall then
9 transmit such agreement (bearing an identification number)
10 to the Congress. However, any such agreement the immedi-
11 ate disclosure of which would, in the opinion of the Presi-
12 dent, be prejudicial to the-security of the United States shall
13 instead be transmitted by the Secretary to the Committee
14 on Foreign Relations of the Senate and the Committee on
15 Foreign Affairs of the House of Representatives under an
16 appropriate written injunction of secrecy to be removed only
17 upon due notice from the President. Each committee shall
18 personally notify the Members of its House that the Secre-
19 tary has transmitted such an agreement with an injunction
20 of secrecy, and such agreement shall thereafter be available
21 for inspection only by such Members.
22
(b) Except as otherwise provided under subsection
(d). QUERTO R. FORD LIBRART
23 of this section, any such executive agreement shall come
24 into force with respect to the United States at the end of the
25 first period of sixty calendar days of continuous session of
3
1
Congress after the date on which the executive agreement is
2 transmitted to Congress or such committees, as the case may
3 be, unless, between the date of transmittal and the end of the
4 sixty-day period, both Houses agree to a concurrent resolu-
5 tion stating in substance that both Houses do not approve the
6 executive agreement.
7
(c) For the purpose of subsection (b) of this section-
S
(1) continuity of session is broken only by an ad-
9
journment of Congress sine die; and
10
(2) the days on which either House is not in session
11
because of an adjournment of more than three days to a
12
day certain are excluded in the computation of the sixty-
13
day period.
14
(d) Under provisions contained in an executive agree-
15 ment, the agreement may come into force at a time later than
16 the date on which the agreement còmes into force under sub-
17 sections (b) and (c) of this section.
18
SEC. 2. For purposes of this Act, the term "executive
19 agreement" means any bilateral or multilateral international
20 agreement or commitment, other than a treaty, which is
21 binding upon the United States, and which is made by the
22 President or any officer, employee, or representative of the
23 executive branch of the United States Government.
24
SEC. 3. (a) This section is enacted by Congress—
FORD : LIBRARY 033870
25
(1) as an exercise of the rulemaking power of the
4
Senate and the House of Representatives, respectively,
1
and as such it is deemed a part of the rules of each
2
House, respectively, but applicable only with respect to
3
the procedures to be followed in that House in the case
4
of concurrent resolutions described by subsection (b)
5
of this section; and it supersedes other rules only to
6
the extent that they are inconsistent therewith; and
7
(2) with full recognition of the constitutional right
S
of either House to change the rules (so far as relating
9
to the procèdure of that House) at any time, in the same
10
manner, and to the same extent as in the case of any
11
other rule of that House.
12
(b) For the purposes of this section, "concurrent reso-
13
lution" means only a concurrent resolution of either House
14
of Congress, the matter after the resolving clause of which
15
is as follows: "That the Congress does not approve the
16
17
executive agreement numbered
transmitted to (Con-
gress) (the Committee on Foreign Relations of the Senate
18
and the Committee on Foreign Affairs of the House or Rep-
19
resentatives) by the President on
, 19 .", the
20
blank spaces therein being appropriately filled, and the ap-
21
propriate words within one of the parenthetical phrases being
22
used; but does not include a concurrent resolution which
23
FORD i OERALD LIBRARY
specifies more than one executive agreement.
24
(c) A concurrent resolution with respect to an execu-
25
5
1 tive agreement shall be referred to a committee (and all con-
2 current resolutions with respect to the same executive agree-
3 ment shall be referred to the same committee) by the
4 President of the Senate or the Speaker of the House of
5 Representatives as the case may be.
6
(d) (1) If the committee to which a concurrent resolu-
7 tion with respect to an executive agreement has been referred
S has not reported it at the end of twenty calendar days after
9 its introduction, it is in order to move either to discharge
10 the committee from further consideration or the concurrent
11 resolution or to discharge the committee from further con-
12 sideration of any other concurrent resolution with respect to
13 the executive agreement which has been referred to the
14 committee.
15
(2) A motion to discharge may be made only by an
16 individual favoring the concurrent resolution, is highly privi-
17 leged (except that it may not be made after the committee
18 has reported a concurrent resolution with respect to the
19 same executive agreement), and debate thereon shall be
20 limited to not more than one hour, to be divided equally
21 between those favoring and those opposing the resolution.
22 An amendment to the motion is not in order, and it is not in
23 order to move to reconsider the vote by which the motion is
BERALD FORD LIBRARY
24 agreed to or disagreed to,
6
1
(3) If the motion to discharge is agreed to or disagreed
2 to, the motion may not be renewed, nor may another motion
3 to discharge the committee be made with respect to any other
4 concurrent resolution with respect to the same executive
5 agreement.
6
(e) (1) When the committee has reported, or has been
7 discharged from further consideration of, a concurrent resolu-
8 tion with respect to an executive agreement, it is at any time
9 thereafter in order (even though a previous motion to the
10 same effect has been disagreed to) to move to proceed to
11 the consideration of the resolution. The motion is highly
12 privileged and is not debatable. An amendment to the motion
13 is not in order, and it is not in order to move to reconsider
14 the vote by which the motion is agreed to or disagreed to.
15
(2) Debate on the concurrent resolution shall be limited
16 to not more than ten hours, which shall be divided equally
17 between those favoring and those opposing the resolution.
18 A motion further to limit debate is not debatable. An amend-
19 ment to, or motion to recommit, the concurrent resolution is
20 not in order, and it is not in order to move to reconsider the
21 vote by which the concurrent resolution is agreed to or dis-
22 agreed to.
23
(f) (1) Motions to postpone, made with respect to the
24 discharge from committee, or the consideration of a concur-
BERALD FORD LIBRARY
25 rent resolution with respect to an agreement, and motions
7
1 to proceed to the consideration of other business, shall be
2 decided without debate.
3
(2) Appeals from the decisions of the Chair relating to
4 the application of the rules of the Senate or the House of
5 Representatives, as the case may be, to the procedure relat-
6 ing to a concurrent resolution with respect to an executive
7 agreement shall be decided without debate.
4
S
SEC 5 The provisions of section 1 of this Act shall not
9 apply to any executive agreements entered into by the
10 President pursuant to a provision of the Constitution or prior
11 authority given the President by treaty or law.
Something like
This passed w/o hearings
in The Senate last year.
S.3830 - See Rentionstatement
§5notin bill Ericson
TexTified on =
FORD : LIBRARY QERALD
is sutont
94TH CONGRESS
1ST SESSION
S. 1251
IN THE SENATE OF THE UNITED STATES
MARCH 20 (legislative day, MARCH 12), 1975
Mr. GLENN introduced the following bill; which was read twice and, by
unanimous consent, referred to the Committee on Government Operations
and to the Committee on Foreign Relations, if and when reported by the
Committee on Government Operations
MARCH 21 (legislative day, MARCH 12), 1975
The Committee on Government Operations discharged, and referred to the
Committee on the Judiciary, and if and when reported to the Committee
on Foreign Relations
A
BILL
To provide for improved government organization with respect
to executive agreements and to provide improved proce-
dures for congressional review of such executive agreements.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Executive Agreements
4 Review Act".
5
SEC. 2. (a) In furtherance of the provisions of the
6 United States Constitution regarding the sharing of powers
7 in the making of international agreements and in order to
M
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8 promote greater certainty and understanding with regard to
II
2
1 international agreements, any executive agreement made
2 on or after the date of enactment of this Act shall be trans-
3 mitted (bearing an identification number) by the President
4 to the Senate. Any such agreement the immediate disclosure
5 of which would, in the opinion of the President, be pre-
6 judicial to the security of the United States shall instead be
7 transmitted by the Secretary to the Committee on Foreign
8 Relations of the Senate under an appropriate written in-
9 junction of secrecy to be removed only upon due notice from
10 the President. Such committee shall notify the Member of
11 the Senate that the Secretary has transmitted such an agree-
12 ment with an injunction of secrecy, and such agreement shall
13 thereafter be available for inspection only by such Members.
14
(b) Except as-otherwise provided under subsections
15 (d) or (e) of this section, any such executive agreement
16 shall come into force with respect to the United States at
House 17 the end of the first period of sixty calendar days of contin-
one
vato
18 uous session of the Senate after the date on which the
19 executive agreement is transmitted to the Senate or such
20 committee, as the case may be, unless, between the date
21 of transmittal and the end of the sixty-day period, the
22 Senate agrees to a resolution pursuant to section 4 of this
23 Act stating that the Senate disapproves the executive
24 agreement.
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why nov go nto effect.
3
1
(c) For the purpose of subsection (b) of this section-
2
(1) continuity of session is broken only by an
3
adjournment of the Senate sine die; and
4
(2) the days on which the Senate is not in session
5
because of an adjournment of more than three days to
6
a day certain are excluded in the computation of the
7
sixty-day period.
8
(d) If the executive agreement specifically SO provides,
9
the agreement may come into force at a time later than
10 the date on which the agreement would otherwise come
11 into force under subsections (b) and (e) of this section.
12
(e) (1) The provisions of subsection (b) of this Act
13 shall not apply with respect to a particular executive agree-
14 ment if the Committee on Foreign Relations reports and
one (truce
15 the Senate agrees to a resolution approving such agree-
Volo
16 ment.
17
(2) Such resolution shall be considered in accordance
18 with subsections (a), (b), (e), and (f) of section 4 of
19 this Act.
20
(f) (1) In the event a resolution of approval is, in
21 accordance with subsection (e) of this section-
22
(A) adopted, it is not at any time thereafter in
23
order to move to proceed to the consideration of a res-
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24
olution of disapproval under subsection (b) of this sec-
GERALD
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25
fion; or
4
1
(B) not adopted, it is in order at any time there-
2
after to move to proceed to the consideration of such
3
resolution of disapproval;
4 with respect to the same executive agreement.
5
(2) In the event a resolution of disapproval is, in ac-
6 cordance with subsection (b) of this section-
7
(A) adopted, it is not at any time thereafter in
8
order to move to proceed to the consideration of a reso-
9
lution of approval under subsection (e) of this section;
10
or
11
(B) not adopted, it is in order at any time there-
12
after to move to proceed to the consideration of such
13
resolution of approval;
14 with respect to the same executive agreement.
15
SEC. 3. For purposes of this Act, the term "executive
16 agreement" means any bilateral or multilateral international
17 agreement or understanding, formal or informal, written
18 or verbal, other than a treaty, which involves, or the intent
19 is to leave the impression of, a commitment of manpower,
20. funds, information, or other resources of the United States,
21 and which is made by the President or any officer, employee,
22 or representative of the executive branch of the United
23 States Government.
24
SEC. 4. (a) This section is enacted by Congress
25
(1) as an exercise of the rulemaking power of the
LIBRARY GERALD ? FORD
26
Senate and as such it is deemed a part of the rules of
5
1
the Senate but applicable only with respect to the pro-
2
cedure to be followed in the Senate in the case of a
3
resolution described by subsection (b) or (e) of this
4
section; and it supersedes other rules only to the extent
5
that they are inconsistent therewith; and
6
(2) with full recognition of the constitutional right
7
of the Senate to change the rules (so far as relating to
8
the procedure of the Senate) at any time, in the same
9
manner, and to the same extent as in the case of any
10
other rule of the Senate.
11
(b) For the purposes of this section, "resolution" means
12 only a simple resolution of the Senate, the matter after the
13 resolving clause of which is as follows: "That the Senate
14 (approves) (disapproves) the executive agreement num-
15 bered
transmitted to (the Senate) (the Committee on
16 Foreign Relations of the Senate) by the President on
17
, 19 .'', the blank spaces therein being appropri-
18 ately filled, and the appropriate words within one of the
19 parenthetical phrases being used; but does not include a
20 resolution which specifies more than one executive
21 agreement.
22
(c) A resolution with respect to an executive agree-
23 ment shall be referred to a committee (and all resolutions
24 with respect to the same executive agreement shall be re-
FORD & LIBRARY 074479
25 ferred to the same committee) by the President of the
26 Senate.
6
1
(d) (1) If the committee to which a resolution with
2 respect to an executive agreement has been referred has not
3 reported it at the end of thirty calendar days after its intro-
4 duction, it is in order to move either to discharge the com-
5 mittee from further consideration of the resolution or to
6 discharge the committee from further consideration of any
7 other resolution with respect to the executive agreement
8 which has been referred to the committee.
9
(2) A motion to discharge may be made only by an
10 individual favoring the resolution, is highly privileged (ex-
11 cept that it may not be made after the committee has re-
12 ported a concurrent resolution with respect to the same
13 executive agreement), and debate thereon shall be limited
14 to not more than one hour, to be divided equally between
15 those favoring and those opposing the resolution. An amend-
16 ment to the motion is not in order, and it is not in order
17 to move to reconsider the vote by which the motion is agreed
18 to or disagreed to.
19
(3) If the motion to discharge is agreed to or disagreed
20 to, the motion may not be renewed, nor may another motion
21 to discharge the committee be made with respect to any
22 other resolution with respect to the same executive
23 agreement.
24
(e) (1) When the committee has reported, or has been
25 discharged from further consideration of, a resolution with
LIBRARY GERALD R. FORD
7
1 respect to an executive agreement, it is at any time thereafter
2 in order (even though a previous motion to the same effect
3 has been disagreed to) to move to proceed to the considera-
4 tion of the resolution. The motion is highly privileged and
5 is not debatable. An amendment to the motion is not in
6 order, and it is not in order to move to reconsider the vote
7 by which the motion is agreed to or disagreed to.
8
(2) Debate on the resolution shall be limited to not
9 more than ten hours, which shall be divided equally be-
10 tween those favoring and those opposing the resolution. A
11 motion further to limit debate is not debatable. An amend-
12 ment to, or motion to recommit, the resolution is not in order,
13 and it is not in order to move to reconsider the vote by
14 which the concurrent resolution is agreed to or disagreed
15 to.
16
(f) (1) Motions to postpone, made with respect to the
17 discharge from committee, or the consideration of a resolu-
18 tion with respect to an agreement, and motions to proceed
19 to the consideration of other business, shall be decided with-
20 out debate.
21
(2) Appeals from the decisions of the Chair relating to
22 the application of the rules of the Senate to the procedure
23 relating to a resolution with respect to an executive agree-
&
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24 ment shall be decided without debate.
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94TH CONGRESS
S. 1251
is
1ST SESSION
CERALD
A BILL
To provide for improved government organiza-
tion with respect to executive agreements
8
SEC. 5. No executive agreement shall come into force
2 with respect to the United States except in accordance with
3 the provisions of this Act, upon the enactment of which the
4 President shall see that all countries and international agen-
5 cies with which the United States has relations shall be
and to provide improved procedures for
congressional review of such executive agree-
ments.
By Mr. GLENN
MARCH 20 (legislative day, MARCH 12), 1975
Read twice and referred to the Committee on Govern-
ment Operations and to the Committee on Foreign
6 notified of the provisions of such Act.
Relations, if and when reported by the Committee
on Government Operations
MARCH 21 (legislative day, MARCH 12), 1975
The Committee on Government Operations discharged,
and referred to the Committee on the Judiciary,
and if and when reported to the Committee on
Foreign Relations
1
ASSISTANT ATTORNEY GENERAL
SECRET
Department of Justice
Mashington, D.C. 20530
MAR 28 1975
MEMORANDUM FOR DUDLEY H. CHAPMAN
Associate Counse1 to the President
Re: Information on Executive Agreements
In connection with the introduction of S. 1251, the
Executive Agreements Review Act, by Sen. Glenn on March
20, 1975, you have requested copies of studies prepared
by this Office relating to the subject matter of the bill.
I am enclosing a number of documents prepared by
Jack Goldklang of this Office including the following:
(1) Memorandum for the Honorable John W. Dean, III,
Counsel to the President re: Whether U.S. bases agreement
with Spain should have been submitted to the Senate for its
advice and consent to ratification (Feb. 17, 1971) (SECRET).
(2) Memorandum for the Honorable John W. Dean, III,
Counsel to the President re: Constitutionality of Proviso
to Section 33 of the Arms Control and Disarmament Act
(June 13, 1972).
(3) Statement of Ralph E. Erickson, Assistant Attorney
General, Office of Legal Counsel, before the Subcommittee
on Separation of Powers of the Committee on the Judiciary,
United States Senate on Executive Agreements and S. 3475,
May 19, 1972.
Antonin (Scalia
Assistant Attorney General
Office of Legal Counsel
SECRET
ATTACHED.
ATI
IS
UNCLASSIFIED.
ITEM WITHDRAWAL SHEET
WITHDRAWAL ID 00694
Collection/Series/Folder ID No.
: 001900173
Reason for Withdrawal
:
NS, National security restriction
Type of Material
:
MEM, Memo (s)
Creator's Name
: Thomas Kauper
Receiver's Name
: John Dean
Description
:
re bases agreement with Spain
Creation Date
: 02/17/1971
Volume (pages)
: 19
Date Withdrawn
: 05/11/1988
REE:LU:JMG:dp;hr
cc: Mr. Erickson
Mr. Ulman
Uir. Goldklang
Mrs. Gauf
June 13, 1972
Files
6/13/72
MEMORANDUM FOR THE HONORABLE JOHN W DEAN, III
Counsel to the President
Re: Constitutionality of Proviso to Section 33
of the Arms Control and Disarmament Act
This is in response to your memorandum of June 7, 1972,
asking for our views concerning the constitutionality of
the proviso in Section 33 of the Arms Control and Disarmament
Act. 22 U.S.C. 2573, 75 Stat, 634 (1961). That proviso
states:
"That no action shall be taken under this or any
other law that will obligate the United States
to disarm or to reduce or to limit the Armed
Forces or armaments of the United States, except
pursuant to the treaty making power of the
President under the Constitution or unless
authorized by further affirmative legislation
by the Congress of the United States. #
Although you do not expressly refer to the Interim Agreement
with the USSR on Certain Measures with Respect to the
Limitation of Strategic Offensive Arms, dated May 26, 1972,
we assume that your inquiry is directed to the constitution-
ality of the proviso as applied to that type of agreement.
As noted incour memorandum to you of June 7, the text
of the proviso and its legislative history indicate that it
was intended by Congress to apply to agreements such as
the Interim Agreement. The Agreement would, during the
interim period pending conclusion of an agreement on more
complete measures, effect a limitation on the armaments of
the United States by obligating the United States not to
undertake construction of additional fixed land-based
intercontinental ballistic missile launchers after July 1,
1972; not to convert land-based launchers for light ICBMs
into launchers for heavy types; and to limit the number of
missile launching submarines. The Agreement is to remain
in force for five years unless earlier replaced by an
agreement on more complete measures limiting strategic
offensive arms.
The question as to whether the proviso represents an
unconstitutional encroachment on the President's authority
to conclude executive agreements requires analysis in two
stages: (1) whether the President could, in the absence of
legislative restriction, conclude an executive agreement
limiting arms based on his constitutional power; and
(2) whether Congress has the authority to limit that power
by legislation.
I.
An executive agreement which does not rely for authority
on a treaty or act of Congress may deal with any matter that
under the Constitution falls within the powers vested in the
President. Restatement (Second), Foreign Relations Law of
the United States $ 121 (1965). When it comes to executive
agreements relating to military matters, the President's
power is based principally on his constitutional authority as
Commander in Chief and on the foreign relations power, which
the Constitution vests in the Chief Executive. See United
States V. Curtiss-Wright Export Corp., 299 U.S. 305, 318
(1936) 39 Ops. A.G. 484, 486 (1940). In his role as
Commander in Chief the President has discretion concerning
the command and deployment of forces and the conduct of
campaigns. Cf. Ex parte Milligan, 71 U.S. 2, 139 (1866). As
noted in our memorandum to you of June 12, 1972, we are of
the opinion that the President can by virtue of his constitu-
tional authority issue certain orders which would require the
termination of contracts for the construction of Land-based
missile launchers or missile launching submarines, or direct
that no more missiles of certain types be added to the
Nation's arsenal. It might be argued therefore that he could
agree with another country to take such action, and he would
not have to submit the agreement to Congress for approval.
- 2 -
There is not much precedent, however, for arms limit-
ation agreements based solely on Executive authority. As
noted in our memorandum of June 7, the Rush-Bagot Agreement
of 1817 provided for the limitation of the naval forces to
be maintained by the United States and Great Britain on the
Great Lakes. Nearly a year after concluding this matter
as an executive agreement, President Monroe nevertheless
sent it to the Senate, inquiring whether "this is such an
agreement as the Executive is competent to enter by the
powers vested in it by the Constitution, or is such a one
as requires the advice and consent of the Senate." The
Senate, by resolution, two-thirds concurring, approved the
arrangement as a treaty. D. Levitan, Executive Agreements:
A Study of the Executive in the Control of the Foreign
Relations of the United States, 25 Nw. U.S. Rev. 364, 376
(1940). Since then, however, a series of executive agree-
ments has been concluded with Canada bringing our arrange-
ments regarding armed vessels on the Great Lakes up to
date even though the original tresty did not specifically
authorize such executive agreements. See G. Bunn, Missile
Limitation: By Treaty or Otherwise?, 70 Colum. L. Rev. i,
27-30 (1970).
In 1931 the United States, in response to a request
from the League of Nations, stated that it was prepared for
a period of one year to accept an armaments truce provided
that like action was taken by the other principal military
and naval powers. This has been described as an executive
agreement on arms limitation and is perhaps the best example
that can be found where such an agreement was reached that
was not related to a treaty. W. McClure, International
Executive Agreements 122-123 (1941).
Thus, it appears that if the proviso to section 33 had
not been enacted, it might well be concluded that the
President can enter into certain types of arms limitation
agreements with foreign powers based solely on his consti-
tutional powers.
- 3 -
II.
Although the President may, in general, enter certain
types of executive agreements dealing with arms limitation,
we believe, however, that the better view is that Congress
may circumscribe such action, as it has done in the proviso
to section 33.
At the outset, it should be noted that the enactment of
the proviso was not accomplished by Congress alone; President
Kennedy signed it into law and did not at that time indicate
that he entertained any doubts as to its constitutionality,
John F. Kennedy, Public Papers of the Presidents 626 (1961),
nor does the public record indicate that any such objection
was made by Executive spokesmen at any time during the legis-
lative consideration of the proviso.
In the more than ten years since the proviso has been
law, the Executive branch has not, to our knowledge, chal-
lenged its constitutionality. United States practice, so
far as we are aware, has been consistent with the proviso.
We know of no executive agreements limiting armaments that
have been made during this period. As against this, the
tresty-making power has been resorted to on a number of
occasions in the arms control area. Such treaties include
the recent Seabed Arms Control Treaty, the Limited Test Ban,
and the Nuclear Nonproliferation Treaty. A Biological
Warfare Convention has been negotiated but not submitted to
the Senate. Under the circumstances, the proviso is entitled
to be viewed as presumptively squaring with the Constitution.
The legislative history of the proviso shows that
Congress enacted it in order to preserve what it considered
to be its role in such matters under the Constitution. Thus,
when the matter was first raised in the House, a member of
Congress read various provisions of the Constitution relating
to the war powers of Congress into the record and, in a
It may be noted on the other hand that on occasion Presi-
dents have signed bills while indicating that certain parts
are unconstitutional. See, 2.5., United States V. Lovett,
328 U.S. 303, 313 (1946).
- 4 -
colloquy on the House floor made clear that the Arms Control
and Disarmament Act would not in any way act as "a delegation
or derogation" of the power of Congress. 107 Cong. Rec. 20293.
Subsequently, when the proviso was introduced, Representative
Fountain, its sponsor, stated: "This amendment is designed
to insure that on the subject of arms control no President
of the United States, whoever he may be, will ever take any
action that is not in conformity with the Constitution of
the United States. 107 Cong. Rec. 20309.
The power of Congress in this area has a considerable
breadth. It includes the power to raise and support armies
and to provide and maintain a navy (Art. I, $ 8). One
distinguished constitutional acholar has explained these
powers as follows:
"The clauses of the Constitution which give
Congress authority 'to raise and support armies,
to provide and maintain a navy' and 30 forth,
were not inserted for the purpose of endowing
the National Government with power to do these
things, but rather to designate the department
of Government which should exercise such powers.
Moreover, they permit Congress to take measures
essential to the national defense in time of
peace as well as during a period of actual con-
flict. That these provisions grew out of the
conviction that the Executive should be deprived
of the 'sole power of raising and regulating
fleets and armies' which Blackstone attributed
to the King under the British Constitution, was
emphasized by Story in his Commentaries. He
wrote: *Our notions, indeed, one of the dangers
of standing armies, in time of peace, are derived
in a great measure from the principles and
examples of our English ancestors. In England,
the King possessed the power of raising armies
in the time of peace according to his own good
pleasure, And this prerogative was justly
esteemed dangerous to the public liberties.
- 5 -
Upon the revolution of 1688, Parliament wisely
insisted upon a bill of rights, which should
furnish an adequate security for the future.
But how was this done? Not by prohibiting stand-
ing armies altogether in time of peace; but (as
has been already seen) by prohibiting them without
the consent of Parliament. This is the very pro-
position contained in the Constitution; for
Congress can alone raise armies; and may put them
down, whenever they choose." E. Corwin, The
Constitution of the United States of America 330
(1964 ed.).
Although the present proviso may have been motivated by
apprehensions quite different from those which motivated the
Framers, i.e., that a contemporary President might disperse
an army which Congress had raised, the analysis of Professor
Corwin, that the power of decision is placed in large part in
the hands of Congress, would seem, in our view, to be still
applicable.
The limited judicial precedent available on the subject
confirms this. In Ex Parte Milligan, 71 U.S. 2, 139 (1866),
the opinion of four concurring Supreme Court Justices
stated that
"Congress has the power not only to raise and
support and govern armies but to declare war.
It has, therefore, the power to provide by law
for carrying on war. This power necessarily
extends to all legislation essential to the
prosecution of war with vigor and success,
except such as interferes with the command of
forces and the conduct of campaigns. That
power and duty belong to the President as
commander-in-chief."
Similarly, in 1850 Chief Justice Tanay, for the Court,
said:
"His [the President's] duty and his power are
purely military. As Commander in chief, he is
- 6 -
authorized to direct the movements of the naval
and military forces placed by law at his command,
and to employ them in the manner he may dees
most effectual to harass and conquer and subdue
the enemy." ( Emphasis added.) Fleming V. Page,
50 U.S. 608, 615, 618 (1850).
In recent times the powers of the President as military com-
mander have been enlarged by constitutional practice and
tradition. However, we believe that, as applied to the
question at hand, the force of these dicta remain sound.
For, as here, where the President claims authority based on
general provisions of the Constitution to authorize what
Congress has forbidden his power has been said to be at its
"lowest ebb." See the concurring opinion of Justice Jackson
in Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 at
637-638 (1952). A court could uphold such action only by
disabling Congress from acting on the subject; in this case
such a result is highly unlikely given the broad grants of
power delegated to Congress by Article I, section 8.
It may be argued that the President has, by impounding
funds for military appropriations, asserted his power as
Commander in Chief against that of Congress to support armed
forces. However, as noted in our memorandum of June 12, ap-
propriation acts generally "are of a fiscal and permissive
nature and do not in themselves impose upon the executive
branch an affirmative duty to expend the funds." 42 Op.
A.G., No. 32 at 4 (1967). Here the language of the proviso
is, of course, mandatory. In addition, the legislative
history of the proviso makes clear that it was not intended
to interfere with the President's right to control the size
of United States armed forces under existing law. H. Rep.
No. 1263, 87th Cong. What the proviso does is make clear
that the President could not obligate the United States to
reduce or limit forces by agreement with a foreign country.
We conclude therefore that, under the stated circumstances,
the proviso to section 33 of the Arms Control and Disarmament
Act is constitutional.
Ralph E. Erickson
Assistant Attorney General
Office of Legal Counsel
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THE WHITE HOUSE
WASHINGTON
May 2, 1975
TO:
PHIL BUCHEN
FROM:
JIM WILDEROTTER
Attached per your request is the legis-
lative history of the "International
Agreements" Act, 1 U.S.C. S 112b.
The House Report (Tab A) is controlling;
also attached FYI is the Senate Report
(Tab B).
LIBRARY GERALD : FORD
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Public Law 92-403
92nd Congress, S. 596
August 22, 1972
An Art
86 STAT. 619
To require that international agreements other than treaties, hereafter entered
into by the United States, be transmitted to the Congress within sixty days
after the execution thereof.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That title 1, United
U.S. interna-
States Code, is amended by inserting after section 112a the following
tional agree-
new section:
ments other
than treaties.
"§ 112b. United States international agreements; transmission to
Transmittal to
Congress
Congress.
"The Secretary of State shall transmit to the Congress the text of
64 Stat. 980.
any international agreement. other than a treaty, to which the United
States is a party as soon as practicable after such agreement has
entered into force with respect to the United States but in no event
later than sixty days thereafter. However, any such agreement the
immediate public disclosure of which would, in the opinion of the
President. be prejudicial to the national security of the United States
shall not be so transmitted to the Congress but shall be transmitted
to the Committee on Foreign Relations of the Senate and the Com-
mittee on Foreign Affairs of the House of Representatives under
an appropriate injunction of secrecy to be removed only upon due
notice from the President."
SEC. 2. The analysis of chapter 2 of title 1, United States Code, is
amended by inserting immediately between items 112a and 113 the
following:
"112b. United States international agreement; transmission to Congress."
Approved August 22, 1972.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 92-1301 (Comm. on Foreign Affairs).
SENATE REPORT No. 92-591 (Comm. on Foreign Relations).
CONGRESSIONAL RECORD, Vol. 118 (1972):
Feb. 16, considered and passed Senate.
Aug. 14, considered and passed House.
GPO 83-139
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92D CONGRESS
HOUSE OF REPRESENTATIVES
2d Session
an
REPORT
No. 92-1301
TRANSMITTAL OF EXECUTIVE AGREEMENTS
TO CONGRESS
AUGUST 3, 1972-Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. ZABLOCKI, from the Committee on Foreign Affairs,
submitted the following
REPORT
[To accompany S. 596]
Th Committee on Foreign Affairs, to whom was referred the bill
(S. 596) to require that international agreements other than treaties,
hereafter entered into by the United States, be transmitted to tne
Congress within sixty days after the execution thereof, having con-
sidered the same, r eport favorably thereon without amendment and
recommend that the bill do pass.
COMMITTEE ACTION
S. 596 was passed by vote of 81 to 0 in the Senate on February 16,
1972. It was referred to the Foreign Affairs Committee on February 17,
where identical bills (H.R. 14365 by Mr. Zablocki and H.R. 14647
by Mr. Whalen) were already pending. A hearing on the measures
was held by the Subcommittee on National Security Policy and
Scientific Developments on June 19. Witnesses were Senator Clifford
P. Case of New Jersey, the author of S. 596, and Mr. Carl Salans,
deputy legal adviser to the Department of State.
The subcommittee subsequently approved sending S. 596 to the
full committee for consideration. On August
the committee
,
by voice vote approved the measure without amendment and ordered
it reported to the House.
MEANING AND BACKGROUND OF THE BILL
The legislation is not complex.
First, it provides that the Secretary of State will transmit to Con-
gress the text of any international agreement-other than a treaty-
to which the United States is a party as soon as practicable after the
S3-006
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2
agreement has entered into force, but in no case more than 60 days
thereafter.
Second, for those agreements which are sensitive and must be kept
secret in the national interest, S. 596 provides that the President should
transmit them not to the Congress as a whole, but to the House Foreign
Affairs Committee and the Senate Foreign Relations Committee.
Those agreements would be held under an appropriate injunction of
secrecy which could be removed only upon due notice from the
President.
The bill is not retroactive and would not require that the more than
4,360 existing international agreements to which the United States is
presently a party be transmitted to the Congress. All international
executive agreements executed after the legislation goes into effect,
however, would be covered. The United States enters into approxi-
mately 200 such agreements each year.
As State Department witnesses have readily admitted the Congress
has not always been kept adequately informed about the international
executive agreements entered into by the President and officials of
the executive branch on behalf of the United States.
For example, the provisions of the Yalta agreement at the end of
World War II were not publicly disclosed for 3 years, and the entire
text of the Yalta agreement was not published until 1947-a sit-
uation which resulted in considerable controversy in the Congress and
among the American public.
More recently, the Symington Subcommittee on National Commit-
ments uncovered contemporary examples of secret agreements entered
into without adequate reference to the Congress.
Each incident in which such secret agreements become known
create tensions and irritations between the Congress and the executive
branch which severely inhibit carrying out an effective foreign policy.
In recent testimony before House Foreign Affairs Subcommittee on
National Security Policy and Scientific Developments, Mr. McGeorge
Bundy stated that:
The most serious present difficulty in the framing and
execution of the foreign policy of the United States is the
almost complete breakdown of effective relations between the
executive and legislative branches of the government.
S. 596 is a step toward restoring a proper working relationship
between the Congress and the executive branch in the area of foreign
affairs. By establishing in law a formal procedure for the transmittal
to Congress of all executive agreements, the bill would eliminate one
potential source of friction.
State Department spokesmen have expressed their preference for
informal "practical arrangements" for providing Congress with in-
formation about executive agreements, rather than passage of legisla-
tion in this-area.
Informal procedures would not, however, address the basic problem
involved. Such arrangements would still leave with the executive
branch the discretion to disclose or not to disclose as it saw fit. More-
over, informal procedures worked out by the present administration
with the Congress would not be binding cn future administrations and
likely would require renegotiation every few years.
H. Rept. 92-1301
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3
Working on a "case by case" basis, therefore, is not likely to be a
satisfactory answer to the present difficulties and might well result in
an exacerbation of tensions.
It should be pointed out that this legislation is not new. Its history
goes back to 1954 when a similar proposal was introduced in the Senate
by Senators Homer Ferguson of Michigan and William Knowland of
California. In 1956 it was adopted unanimously in the Senate but the
House failed to act.
The Eisenhower administration had a hand in shaping the bill,
which was seen as an acceptable alternative to measures affecting
executive agreements which had been offered by Senator John Bricker
of Ohio. S. 596 is virtually identical to the earlier legislation.
In hearings before the Senate Foreign Relations Committee last
October, the State Department recommended against the adoption of
S. 596 in favor of mutually acceptable practical arrangements. In
May, following unanimous Senate passage, the Department changed
its position and stated that the executive branch would not oppose
the bill's adoption if Congress believed that to be desirable.
Spokesmen for the Department of State have, however, raised
several issues about the legislation which require additional committee
comment.
ADDITIONAL COMMITTEE COMMENTS
1. What constitutes an international agreement.-During committee
hearings a State Department spokesman raised the question of what
kind of arrangements constitute international executive agreements
within the meaning of the legislation. He pointed out that many
exchanges involve administrative working details for carrying out a
treaty or agreement or are in the nature of commercial contracts
relating to sales of equipment and commodities.
Clearly the Congress does not want to be inundated with trivia.
At the same time, it would wish to have transmitted all agreements of
any significance.
2. Physical security of classified agreements.-A question was raised
by the State Department spokesman on possible difficulties involved in
establishing a viable working procedure for transmitting sensitive
agreements, including measures for their storage, rules on their removal
from storage areas, and questions of access by various personnel.
The committee does not believe that the situation poses any real
problem. A number of classified materials already repose within the
committee offices. They are safeguarded by security procedures which
have proved effective in the past. Should the executive branch believe
that the present system requires enhancement as a result of the
passage of S. 596, the committee stands ready to cooperate.
In that context, it should be noted that the bill leaves to the dis-
cretion of the President which agreements shall be made public
and which shall be kept secret. Further, under the bill, once an
agreement has been classified, only he has the right to declassify it.
The right of declassification is not open to the committee or to any
Member of Congress. Thus, the legislation helps protect against
unauthorized disclosures.
3. Transmittal of all executive agreements.-Question was also
raised by the State Department spokesman about the authority of
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H. Rept. 92-1301
GERALD
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1
Congress to oblige the President to transmit the texts of all inter-
national executive agreements. The contention was that in some cases
the Congress would not have a legitimate interest in the texts of agree-
ments concluded by the President with foreign states and that he
could keep that information from Congress under a right of executive
privilege.
Study of this issue by the committee, aided by specialists from the
American Law Division of the Congressional Research Service,
Library of Congress, does not indicate any constitutional or other
legal basis for such a view.
The right of the President to conclude executive agreements is not
in question here, or in any way affected by S. 596. Thus, the bill in no
way transgresses on the independent authority of the Executive in the
area of foreign affairs.
As the State Department itself has recognized, however, executive
agreements have the same effect as treaties in international law. To
the nations with which they have been concluded, there is no difference
between the two. That is, executive agreements no less than treaties
bind the United States of America as a whole nation-not just the
President or administration. which makes them-under international
law.
Nor, under international law, is the duration of an executive agree-
ment limited by the tenure of the President who concluded it. It
continues to be binding on the Nation after he has left the scene, just
as a treaty would.
If the contention of the Department of State is accepted, the
Congress, in effect, would agree that the President has the right to
bind it, and the rest of the Nation, to agreements in perpetuity with
foreign nations about which the Congress has no right to know.
Such a situation is clearly a distortion of the constitutional grant of
power to both the executive and legislative branches in the area of
foreign affairs, and smacks of the practice of the English sovereigns
against which our Founding Fathers were reacting.
Under Article 1, Section 8, of the Constitution the Congress is
empowered to make laws "necessary and proper" for carrying into
execution all powers vested by the Constitution in the Government of
the United States or in any officer of that government. Under that
authority, which includes the domain of foreign affairs, the Congress
clearly has the power to require the disclosure to itself of the texts of
all international executive agreements.
H. Rept. 92-1301
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Calendar No. 564
92D CONGRESS
}
SENATE
REPORT
2d Session
No. 92-591
TRANSMITTAL OF EXECUTIVE AGREEMENTS TO
CONGRESS
JANUARY 19, 1972-Ordered to be printed
Mr. FULBRIGHT, from the Committe on Foreign Relations,
submitted the following
REPORT
[To accompany S. 596]
The Committee on Foreign Relations, to which was referred the
bill (S. 596) to require that international agreements other than
E
treaties, hereafter entered into by the United States, be transmitted
to the Congress within 60 days after the execution thereof, having
considered the same, reports favorably thereon without amendment
and recommends that the bill do pass.
The bill was approved by the committee on December 7, 1971, with-
out amendment. The essential provision of the bill reads as follows:
"The Secretary of State shall transmit to the Congress the
text of any international agreement, other than a treaty, to
which the United States is a party as soon as practicable after
such agreement has entered into force with respect to the
United States but in no event later than 60 days thereafter.
However, any such agreement the immediate public disclosure
of which would, in the opinion of the President, be prejudicial
to the national security of the United States shall not be so
transmitted to the Congress but shall be transmitted to the
Committee on Foreign Relations of the Senate and the Com-
mittee on Foreign Affairs of the House of Representatives
under an appropriate injunction of secrecy to be removed
only upon due notice from the President."
COMMITTEE ACTION
Public hearings on S. 596, which had been introduced in the Senate
by Senator Case on February 4, 1971, provided the committee with
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testimony expressing the favorable views of a distinguished historian
and a leading academician and the unfavorable views of the admin-
LIBRARY
65-010 o
2
istration. On October 20, 1971, Prof. Ruhl J. Bartlett of the Fletcher
School of Law and Diplomacy provided the committee with an analy-
sis of the problem of secrecy to which this bill addresses itself in the
broader context of the historical problem of executive agreements as
means of contracting significant foreign commitments. On the basis
of this historical perspective, Professor Bartlett expressed his view
that-"this proposed measure is so limited in its scope, so inherently
reasonable, so obviously needed, so mild and gentle in its demands, and
so entirely unexceptionable that it should receive the unanimous ap-
proval of the Congress."
On the same day the committee heard testimony by Prof. Alexander
M. Bickel of the Yale University Law School, who also expressed
strong support for the measure. "In requiring, as S. 596 would do,"
said Professor Bickel, "that international agreements other than
treaties to which the United States is a party be transmitted to it,
Congress would be exercising a power that, in my opinion, clearly
belongs to Congress under the Constitution."
Professor Bickel also expressed his belief that "Congress has too
long tolerated, indeed cooperated in, a diminution of its role in the
conduct of foreign affairs and in the decision of questions of war and
peace-a diminution that approaches the vanishing point."
In this respect, Professor Bickel concluded, the balance of power
between Congress and the President ought to be redressed, to which
end S. 596 would constitute "an important step."
The views of the administration were presented to the Committee
on October 21, 1971, by Mr. John R. Stevenson, Legal Advisor to the
Department of State. Mr. Stevenson expressed the administration's
view that the provision of a reliable flow of information to Congress
could best be provided for by "practical arrangements" of a nonlegis-
lative nature. Conceding that in the past they (the Congress) have
not been informed on a current basis but only ad hoc some years later,
Mr. Stevenson concluded nonetheless that "we are dealing with a ques-
tion of practical arrangements, not with a question of right or author-
ity which would in any way be altered by statute."
On December 7, 1971, the bill was considered by the committee in
executive session and ordered reported without amendment and with-
out dissent.
BACKGROUND OF THE BILL
The legislative history of S. 596 goes back to 1954 when a similar
proposal was introduced in the Senate by Senators Homer Ferguson
of Michigan and William Knowland of California. It was reported
favorably to the Senate in August 1954 but no action was taken on the
bill. The proposal was revived by Senator Knowland in 1955 and
subsequently, in July 1956, favorably reported and then adopted
unanimously by the Senate. No action was taken by the House of
Representatives.
As adopted in 1956, and as introduced by Senator Case in February
1971, the bill was in a form which had made it acceptable to the Eisen-
hower administration. As originally conceived in 1954, the proposal
called for the submission of all executive agreements to the Senate
within 30 days. The Eisenhower administration, through its Assistant
Secretary of State for Congressional Relations, Thruston B. Morton,
P
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S. Rept. 92-591 o
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3
objected that the 30-day time period was too short and objected fur-
ther to the absence of a provision for the protection of highly classi-
fied agreements. In order to meet that objection, the bill was amended
to provide for a 60-day transmittal period and also to permit the
President, at his option, to submit sensitive agreements not to the
Senate as a whole but to the Committee on Foreign Relations "under
an appropriate injunction of secrecy." With these amendments the
Eisenhower administration offered no objection to the bill.
As reintroduced by Senator Case in 1971, S. 596 was broadened to
require the reporting of agreements to the House of Representatives
and its Committee on Foreign Affairs as well as to the Senate and its
Committee on Foreign Relations. In all other respects the bill as intro-
duced by Senator Case and favorably reported by the Foreign Rela-
tions Committee in 1971 is the same as the proposal to which the
Eisenhower administration offered no objection in 1954 and 1955.
COMMITTEE COMMENTS
In the view of the Foreign Relations Committee, S. 596 embodies
a proposal which is highly significant in its constitutional implica-
tions. The bill does not undertake to resolve fundamental questions
relating to the treaty power of the Senate and the frequently counter-
vailing claim-or simple use-of executive authority to enter into
binding agreements with foreign countries without the consent of
Congress. S. 596 undertakes only to deal with the prior, simpler, but
nonetheless crucial question of secrecy. The committee shares Pro-
fessor Bickel's view that the adoption of this bill would be "an im-
portant step' in the direction of redressing the balance of power
between Congress and the President in the conduct of foreign relations.
The committee does not accept the administration's view, as ex-
pressed by Mr. Stevenson, that the sole requirement for the flow of
reliable information to Congress is the working out of "practical
arrangements." As outlined by Mr. Stevenson, these "practical ar-
rangements" would still fail to establish the obligation of the executive
to report all agreements with foreign powers to the Congress. In the
absence of legislation, even the soundest of "practical arrangements"
would leave the ultimate decision as to whether a matter was to be
reported or withheld to the unregulated judgment of the executive.
It is well and good to speak, as Mr. Stevenson does, of the execu-
tive's recognition of the needs of Congress and of the desirability of
"mutual cooperation and accommodation" between the two branches
of government. These are highly desirable, but the principle of manda-
tory reporting of agreements with foreign countries to the Congress is
more than desirable; it is, from a constitutional standpoint, crucial and
indispensable. For the Congress to accept anything less would repre-
sent a resignation from responsibility and an alienation of an authority
which is vested in the Congress by the Constitution. If Congress is to
meet its responsibilities in the formulation of foreign policy, no infor-
mation is more crucial than the fact and content of agreements with
foreign nations.
As the committee has discovered, there have been numerous agree-
ments contracted with foreign governments in recent years, particu-
larly agreements of a military nature, which remain wholly unknown
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S. Rept. 92-591 O
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4
to Congress and to the people. A number of these agreements have been
uncovered by the Symington Subcommittee on Security Agreements
and Commitments Abroad, including, for example, an agreement with
Ethiopia in 1960, agreements with Laos in 1963, with Thailand in 1964
and again in 1967, with Korea in 1966, and certain secret annexes to the
Spanish bases agreement.
Section 112 (a) of title I of the United States Code now requires the
Secretary of State to compile and publish all international agreements
other than treaties concluded by the United States during each calen-
dar year. The executive, however, has long made it a practice to with-
hold those agreements which, in its judgment, are of a "sensitive"
nature. Such agreements, often involving military arrangements with
foreign countries, are frequently not only "sensitive" but exceedingly
significant as broadened commitments for the United States. Although
they are sometimes characterized as "contingency plans," they may
in practice involve the United States in war. For this reason the com-
mittee attaches the greatest importance to the establishment of a legis-
lative requirement that all such agreements be submitted to Congress.
The committee fully recognizes the sensitive nature of many of the
agreements the executive enters with foreign governments. At some
point the committee may wish to explore the question whether the
executive is exceeding his constitutional authority in making some of
these agreements. That, however, is not the issue to which S. 596
addresses itself. Its concern is with the prior, more elemental obliga-
tion of the executive to keep the Congress informed of all of its foreign
transactions, including those of a "sensitive" nature. Whatever ob-
jection on security grounds the executive might have to the submis-
sion of such information to Congress is met by the provision of the
bill which authorizes the President, at his option, to transmit certain
agreements not to the Congress as a whole, but to the two foreign
affairs committees "under an appropriate injunction of secrecy to
be removed only upon due notice from the President."
As reported by the Foreign Relations Committee, S. 596 would not
require the submission to Congress of international agreements en-
tered into prior to the enactment of the bill. It is the strongly held
view of the committee, however, that the absence of a retroactive pro-
vision in this bill is not to be interpreted as license or authority to
withhold previously contracted agreements from the Congress. In
keeping with the spirit and intent of the bill, the committee would ex-
pect the executive to make all such previously enacted agreements
available to the Congress or its foreign affairs committees at their
request and in accordance with the procedures defined in the bill.
In conclusion, the committee reiterates its view that the proposal
contained in S. 596 is a significant step toward redressing the imbal-
ance between Congress and the executive in making of foreign policy.
Twenty years ago Congres undertook an examination of the broader
issue of the treaty power through its consideration of the so-called
Bricker amendment. One of the essential purposes of the Bricker
amendment, in the various forms in which it was considered by Con-
gress, was to place restrictions on the use of executive agreements as
a means of contracting significant agreements with foreign powers in
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circumvention or violation of the treaty power of the Senate.
GERALD
LIBRARY
S. Rept. 92-591 O
5
The present proposal, which was originally initiated as a modest
alternative to the Bricker amendment, does not purport to resolve the
underlying constitutional question of the Senate's treaty power. It
may well be interpreted, however, as an invitation to further consid-
eration of this critical constitutional issue. For the present, however,
the committee strongly recommends the adoption of S. 596 as an effec-
tive means of dealing with the prior question of secrecy and of assert-
ing the obligation of the executive to report its foreign commitments
to Congress.
S. Rept. 92-591 o
FOR is LIBRARY GENALD
Thursday 5/8/75
Meeting
5/9/75
10 a.m
4:30 In checking around, I reconstruct the following
(PLEASE TELL ME IF THE FACTS AREN'T CORRECT
OR IF ANYONE ELSE SHOULD BE INVOLVED):
Apparently, Arthur Rovina in Monroe Leigh's office
632-1074
called the various people for the meeting. My understanding
is that the following will attend:
Philip Barringer (Robert Ellsworth cannot come)
Ox. 5-6386
(Director of Foreign Military Rights, Int. Security Affairs)
Antonin Scalia
739-5111
Jack Goldklang (Staff Attorney)
739-5
Monroe Leigh
632-9598
Arthur Rovina
632-1074
Subject: hearings next week on Executive Agreements
Seems as if somebne from Congressional Office should attend.
Roosevelt Room is tied up
Situation Room is tied up
So I guess we'll have to have it in your office.
THE WHITE HOUSE
WASHINGTON
May 16, 1975
Exec
MEMORANDUM FOR:
JEANNE DAVIS
FROM:
PHILIP W. BUCHEN
SUBJECT:
Senate Foreign Relations
Committee Request for
Presidential Correspondence
on Saudi Arabia
In response to your memorandum of May 12 on the above
subject, I comment as follows:
1. Preferred option: I prefer option 2 of this
draft memo under which appropriate representatives
of the Senate Foreign Relations Committee would
be permitted to review the classified letters, but
would not be provided with copies of those letters.
Option 1 providing copies to the Committee on
a classified basis -- tracks too closely the
procedure required under the Case Act for "inter-
national agreements." Adopting that option might
be interpreted as an acknowledgement that these
letters in fact represent an "international agree-
ment," a position we have rejected in the case of
the Nixon-Thieu letters. Option 3 -- total denial--
strikes me as unnecessarily belligerent and inappro-
priate in view of the low sensitivity of these
particular letters and the Senate's unquestionable
legitimate inquiry into the scope and nature of U. S.
commitments in the Middle East.
2. Legal basis for denial: For language to support
option 3, I would suggest the following:
The letters in question do not constitute interna-
tional agreements because they do not bind the
U. S. as a Nation. They are not in any way analagous
to treaties and do not abrogate in any way treaty
power of the Senate.
BERALD FORD LIBRARY
- 2 -
In truth and in fact the letters in question represent
nothing more than confidential communications between
heads of state. As such, to provide them to the Congress
would irreparably harm the ability of a President to
conduct the foreign relations of the United States. If
the President's correspondence with other heads of state
is subject to being provided to the Congress, the result
would be a significant chill in the candor and utility
of such confidential exchanges. As President Ford
recently indicated, "it would not be wise to establish
the precedent of providing correspondence between the
heads of state."
FORD VIBRARY
classified
THE WHITE HOUSE
WASHINGTON
Senate
Iroign
May 16, 1975
Relations
MEMORANDUM FOR:
JEANNE DAVIS
(see
Exper
FROM:
PHILIP W. BUCHEN
agreements)
SUBJECT:
Senate Foreign Relations
Committee Request for
Presidential Correspondence
on Saudi Arabia
In response to your memorandum of May 12 on the above
subject, I comment as follows:
1. Preferred option: I prefer option 2 of this
draft memo under which appropriate representatives
of the Senate Foreign Relations Committee would
be permitted to review the classified letters, but
would not be provided with copies of those letters.
Option 1 - providing copies to the Committee on
a classified basis - tracks too closely the
procedure required under the Case Act for "inter-
national agreements." Adopting that option might
be interpreted as an acknowledgement that these
letters in fact represent an "international agree-
ment," a position we have rejected in the case of
the Nixon-Thieu letters. Option 3 -- total denial--
strikes me as unnecessarily belligerent and inappro-
priate in view of the low sensitivity of these
particular letters and the Senate's unquestionable
legitimate inquiry into the scope and nature of U. S.
commitments in the Middle East.
2. Legal basis for denial: For language to support
option 3, I would suggest the following:
The letters in question do not constitute interna-
tional agreements because they do not bind the
U. S. as a Nation. They are not in any way analagous
to treaties and do not abrogate in any way treaty
power of the Senate.
- 2 -
In truth and in fact the letters in question represent
nothing more than confidential communications between
heads of state. As such, to provide them to the Congress
would irreparably harm the ability of a President to
conduct the foreign relations of the United States. If
the President's correspondence with other heads of state
is subject to being provided to the Congress, the result
would be a significant chill in the candor and utility
of such confidential exchanges. As President Ford
recently indicated, "it would not be wise to establish
the precedent of providing correspondence between the
heads of state."
BERALD FORD LIBRARY