Ervin's Subcommittee on the Separation of Powers of the Senate Judiciary Committee, after lengthy hearings in 1972 on this subject, wrote the following:

American constitutional law recognizes, in the Constitution itself and in judicial opinion, three basic types of international agreement. First in order of importance is the treaty, an international bilateral or multilateral compact that requires consent by a two-thirds vote of the Senate prior to ratification. . . . Next is the congressional-executive agreement, entered into pursuant to statute or to a preexisting treaty. Finally, there is the "pure" or "true" executive agreement. negotiated by the Executive entirely on his authority as a constituent department of government.

It is the prerogative of the Executive to conduct international negotiations; within that power lies the lesser, albeit quite important, power to choose the instrument of international dialog. (italics added)

(Congressional Oversight of Executive Agreements, Committee Print, 93d Cong.. 1st Sess., p. 6.)

It has been stated in these hearings that the executive branch has claimed a totally unfettered right to choose between treaty and executive agreement. . . . we have never claimed that right. Our position... is that where an agreement is properly authorized by law, whether by statute, treaty, or the Constitution, then the President must make a choice between treaty or executive agreement. . . . even where an agreement is authorized by law, the President's choice is not completely unfettered since he is expected to adhere to the customs and practices which have developed since the conclusion of the first executive agreements in the early years of the Republic.

the wording of section 2 (c) of S. Res. 486, in which the Senate would present its opinion that any agreement involving a “significant political, military, or economic commitment to a foreign country" constitutes a treaty is not consistent with many statutes authorizing important agreements, such as the Trade Act, the Atomic Energy Act, and the Arms Control and Disarmament Act, among others. In addition, section 2 (c) of S. Res. 486 would appear to be inconsistent with the 1969 National Commitments Resolution. which permits "national commitments" of the United States "by means of a treaty, statute, or concurrent resolution of both Houses of Congress." The 1969 resolution is perfectly clear that a treaty is not required for "national commitments."

Funding Legislation and the Point of Order Procedure

[W]e are . . . not challenging the Senate right to refuse funding for international agreements. The Senate and the House each have the power to withhold funding from any international agreement, and . . . our remarks should not be taken as casting any doubt whatever on the congressional power of the purse. Our objections to S. Res. 486 . . . are based only on the particular method chosen to exercise the power of the purse, and not the power itself. The normal method for refusing funds is to refuse to pass the

required authorization or appropriation measure. If a majority of either House does not approve of the requisite authorization or appropriation bill, that is the end of the matter-there is no funding.

But the normal majority rule does not apply under S. Res. 486, and that is one of the basic problems. Under S. Res. 486 if the Senate gives its nonbinding opinion that an agreement should be a treaty, and if the Senate does not approve the agreement by twothirds, then the point of order procedure applies, and any Senator can block the funding measure.

The resolution has been described as resting on the rulemaking power of the Senate. Unquestionably the two Houses of Congress have the right and power to establish their own internal rules of procedure. But I believe we are all agreed that internal rules of the Senate and House must be consistent with the Constitution. The Supreme Court has said that each House "may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained." United States v. Ballin, 144 U.S. 2(1892). There are other cases as well that hold that internal rules of the Senate and House must be consistent with the Constitution. See for example, Powell v. McCormack, 395 U.S. 486 (1969).

I believe we are also agreed that the Constitution requires that legislation-all legislation, including funding measures-receive a simple majority for approval. While the Constitution does not explicitly state that voting is by a simple majority, it implies as much in article I, § 3, which provides that "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." Jefferson's manual states that "The voice of the majority decides; for the lex majoris partis is the law of all councils, elections, etc., where not otherwise expressly provided." (At p. 246.) . . . [T]he normal constitutional requirement is for decision by a simple majority-not two-thirds, and certainly not 100 percent. Thus it would be clear. . . that a simple Senate rule requiring that funding legislation be approved by all Senators (a 100% requirement) would be unconstitutional.

What is the difference between such a rule and the rule proposed in S. Res. 486? The only difference is that in S. Res. 486 the Senate must first give its opinion that an executive agreement is or should be a treaty, and then, unless the Senate approves the agreement (now called a treaty) by two-thirds, the point of order procedure applies and any Senator can block the funding for this agreement. In brief, a 100% rule is established on the basis of the Senate's opinion, which is not binding on anyone, that a particular executive agreement should have been a treaty.

In my view. . . the Senate cannot change the constitutional rule of a simple majority into a rule requiring 100% simply on the basis of a nonbinding Senate opinion.

Technical Difficulties

[T]here are other problems as well with the proposed resolution. Since it leaves any executive agreement upon which it

may operate in full force and effect, it leaves standing obligations of the United States under international law. Yet if the funding is cut off, the obligation cannot be performed, and the United States is in the position of having to violate its international legal obligations on the basis of a sense-of-the-Senate resolution. In 1900 the Supreme Court of the United States, in The Paquete Habana, 1975 U.S. 677, said that "International law is part of our law.". . .[I]t is difficult enough for the Government when a duly passed statute places the United States in violation of its international legal obligations. To be put in that position on the basis of a sense-of-theSenate resolution would appear to be unjustified even in domestic law and detrimental to the conduct of U.S. foreign policy.

There are other serious domestic law difficulties and ambiguities with the proposed S. Res. 486. For example, there is the obvious question of time limits. How much time does the Senate have to give its opinion that an executive agreement is a treaty? Suppose that the executive agreement in question is funded through the normal process once or twice, or perhaps more often. Does the Senate nevertheless still have the right to designate it a treaty for purposes of the next round of funding?

There is also the question whether the resolution is aimed only at legally binding commitments. Could S. Res. 486 be applied to any international exchange that engaged the United States in some kind of political or moral undertaking? The Senate might decide first that a particular arrangement was in fact and in law an agreement, and then designate it a treaty. Such action by the Senate would create confusion in the minds of the foreign recipients of such political and moral undertakings and could indicate a degree of commitment beyond that intended by the President or his representatives. . . . [S]uch an action by the Senate in the circumstances just described comes perilously close to usurping the President's constitutional prerogative in negotiation.

Conclusion

... [W]e continue to believe that effective and continuing consultation between the two branches is more likely to achieve the goals we share than the drastic approach represented by this proposed resolution . . . . [Consultation on agreements of significance is already required by the Department of State's Circular 175 Procedure. Perhaps we should be engaged in the development of further mutually agreed details on how that consultation should work....

There are other approaches on this matter that should be explored. For example, we might examine the possibility of having the several Assistant Secretaries of State provide the relevant committees with regular and detailed briefings on developments in their areas of responsibility. These briefings could certainly include reporting in advance on any contemplated international agreements of significance, and could lead to consultations whether particular agreements should be in treaty form. This idea was originally recommended by Secretary of State Rogers in 1971 and repeated by the Legal Adviser in 1972 and 1975.

*

Cong. Rec. Vol. 122, No. 57, Apr. 14, 1976, pp. S5744-5746 (daily ed.), Vol. 122, No. 105, July 1, 1976, pp. S11415-11417 (daily ed.). Dept. of State File L/T. Hearings on Treaty Powers Resolution, Senate Committee on Foreign Relations, July 21 and 28, 1976. The text of draft S. Res. 486 follows:

Resolved, That this resolution may be cited as the "Treaty Powers Resolution".

PURPOSE, FINDINGS, AND DECLARATION

SEC. 2. (a) It is the purpose of this resolution to fulfill the intent of the framers of the Constitution and to ensure, through use of the legislative power of the Senate, that no international agreement constituting a treaty will be implemented by the Senate without its prior advice and consent to ratification of that agreement.

(b) The Senate finds that

(1) article II, section 2, clause 2 of the Constitution, empowers the President "by and with the advice and consent of the Senate to make treaties, provided twothirds of the Senators present concur";

(2)the requirement for Senate advice and consent to treaties has in recent years been circumvented by the use of "executive agreements"; and

(3)the Senate may, for its part, refuse to authorize and appropriate funds to implement those international agreements which, in its opinion, constitute treaties and to which the Senate has not given its advice and consent to ratification. (c)It is the sense of the Senate that, under article 2, section 2, clause 2, of the Constitution, any international agreement which involves a significant political, military, or economic commitment to a foreign country constitutes a treaty and should be submitted to the Senate for its advice and consent.

ADVICE

SEC. 3. It is the sense of the Senate that, in determining whether an international agreement constitutes a treaty under section 2 (c) of this resolution, the President should, prior to and during the negotiation of such agreement, seek the advice of the Committee on Foreign Relations.

CONSENT

SEC. 4 (a) (1) Where the Senate, by resolution, expresses its sense that any international agreement hereafter entered into which has not been submitted to the Senate for its advice and consent constitutes a treaty under section 2 (c) of this resolution and should be so submitted.

(2) Any such resolution shall be privileged in the same manner and to the same extent as a concurrent resolution of the type described in section 5(c) of the War Powers Resolution is privileged under section 7 (a) and (b) of that law.

(b) (1) It shall not be in order to consider any bill or joint resolution or any amendment thereto, or any report of a committee of conference, which authorizes or provides budget authority to implement any international agreement if the Senate has expressed its sense, pursuant to subsection (a) of this section, that such agreement constitutes a treaty under section 2 (c) of this resolution.

(2) This subsection shall not apply if the Senate has given its advice and consent to ratification of such agreement.

(c) Any (1) committee of the Senate which reports any bill or joint resolution, and (2) committee of conference which submits any conference report to the Senate. authorizing or providing budget authority to implement any such agreement, shall indicate in the committee report or joint statement filed therewith, as the case may be, that budget authority is authorized or provided in such bill, resolution, or conference report.

Criteria for Determining What Constitutes an International Agreement

On February 20, 1976, the Comptroller General issued a General Accounting Office (GAO) Report on U.S. Agreements with the Republic of Korea which stated that certain agencies of the Government had not been submitting to the State Department or the

Congress all agency-level agreements which they had concluded. The Report stated that some agencies had apparently interpreted agreements concluded by agency personnel or agreements of a subordinate or implementing character to be outside the reporting requirements of the Case Act (P.L. 92-403; 86 Stat. 619; 1 U.S.C. 112b). That Act requires that all international agreements other than treaties be submitted by the Department of State to the Congress no later than 60 days after their entry into force. The GAO Report called for "clarification of the reporting requirements and improved controls over the reporting of agreements."

Responding to the GAO recommendation, the Department of State, on March 9, 1976, transmitted to all diplomatic posts an airgram concerning Case Act procedures and Department criteria for deciding what constitutes an international agreement. Monroe Leigh, Legal Adviser of the Department of State, sent a memorandum on the same subject, dated March 12, 1976, to all key Department personnel. It was requested that the procedures and criteria be brought to the attention of all personnel "with responsibilities for the negotiation and conclusion of international agreements, whether agency-level arrangements, implementing or operating agreements, or government level agreements." The airgram and memorandum set forth the following discussion of the subject:

A. It is essential that all international agreements concluded by any officer or representative of the U.S. Government be transmitted to the Assistant Legal Adviser for Treaty Affairs no later than 20 days after entry into force. Most agreements enter into force upon signature. The 20-day limit must be met if the Department is to meet its obligations to process and transmit the agreements to Congress no later than 60 days after entry into force in accordance with the Case Act.

B. Whenever a question arises whether any document or set of documents, including an exchange of diplomatic notes or of correspondence, constitutes an international agreement within the meaning of the Case Act, the documents must be sent for decision to the Assistant Legal Adviser for Treaty Affairs. See also 11 FAM [Foreign Affairs Manual] 723.6 and 723.7.

C. The following statement is designed to provide basic guidance with respect to the criteria applied by the Legal Adviser in deciding what constitutes an international agreement. While difficult judgments will have to be made in many cases, it is hoped that the principles set forth below will permit officers in the field to focus on the right questions, and to know when there is an issue for which further guidance from the Department should be sought.

For purposes of implementing legal requirements with respect to publication of international agreements and transmittal of international agreements to Congress, the Legal Adviser applies the following criteria in deciding what constitutes an international agreement:

: