What we are dealing with here very fundamentally is to pull back some of that legislative power so that we no longer have manmade government, but we have government under law. That is what they wrote on the top of this building, did they not? This is just an effort, I think, to carry out that philosophy.

So, when you talk about circumscribing the Executive, yes, sir; it has to be done if you are going to keep a free country.

Mr. PEARSON. Well, opinions might differ on that. My feeling about section 4 is that it is not merely restoring a balance which has been put out of balance but that this is a definite shift and that this would give more power to Congress than it now has because I take it it is pretty clear that under the Constitution as it stands, take, for instance, the Commander in Chief power, the power that the Executive has and was intended to have, the true powers of Commander in Chief, including the necessary powers of working with allies in a war and making deals with allies, as you have to, not necessarily for ending wars or treaties, but just in the prosecution of war. Who is going to fight on what front, who is going to command who, and so forth.

As I read section 4, that power which, under the Constitution, the President has exclusively would be subjected to prior legislation by Congress so that I would say that this was--well, I will not say retrograding, but this is not merely a restoration of power, but it is definitely shifting power from the executive to the legislative.

Senator DIRKSEN. If we are going to consummate a principle to which this joint resolution directs itself, you have to close the back door, too, at the same time. Suppose you could circumvent a treaty with an executive agreement, then what have you actually accomplished?

Mr. PEARSON. That is very true, but I do not think you go so far, do you, as to say that the President shall have no powers to make agreements?

Senator DIRKSEN. No, no.

Mr. PEARSON. Then it becomes a problem if we are in agreement that he should have some power to make agreements on his own hook without legislative sanction, and then it becomes a problem of just drawing a line, what should go to the Senate and what should not. That is a very hard thing to do.

Senator DIRKSEN. You may have a situation where the President contrives to reach some solution through an executive agreement, and the Congress may say O. K. and not even bother itself further. But there is a safeguard because it was only in the manner and to the extent to be prescribed by law. The law is in the legislative branch; that is the exclusive lawmaking body under this Constitution, and if they want to exercise their will and their voice, the power has to be somewhere, and here it is right here.

Mr. PEARSON. I did not mean to say that section 4 operates to restrict the powers of the Nation.

Senator DIRKSEN. That is right.

Mr. PEARSON. That is the problem you have in probably some of these other sections, but the Nation has the power. The question is who exercises it. If we are in agreement that it is a good idea to run a railroad and to let the President make some agreements without congressional action, then it seems clear to me that this is a definite

change in a balance, because now he can make agreements, even the lowest form of agreements, only with congressional action.

Senator DIRKSEN. Are we, too much, losing the distinction between the international application and the application at home. What Senator Bricker has in mind constantly, I think, is so that rights will not be forfeited at home, whether it be done by treaty or executive agreement, and that distinction as between the domestic and the foreign interest has to be kept in mind constantly.

Mr. PEARSON. That perhaps goes more to the second sentence of section 4 and says that anyhow all agreements are subject to the same extent as treaties. I would say this, that if a decision is reached by you gentlemen and the Congress and by the people to put certain limits on treaties, how it is going to be done I do not know. But suppose that is so. Certainly the same restriction should be put on executive agreements.

You would not want to be restricted in making treaties and have less restriction on the executive agrements. One seeks to deal with executive agreements, and another seeks to deal with treaties. So far as scope is concerned, the President should not be able to do more than the Senate.

Aside from that, which perhaps is the incorporation by reference, the limitation of sections 1 and 2 on executive agreements, the other parts of section 4, I do not think really were intended; maybe we can inquire. They were not intended as such to protect the freedoms; those were dealt with elsewhere, were they not, in section 2 rather than the first sentence of section 4? This is more a shifting of the machinery for making agreements with other nations or officials.

The CHAIRMAN. No; it is not.

Mr. PEARSON. Speaking just of section 4.

The CHAIRMAN. I am talking about section 4.

Mr. PEARSON. Yes.

The CHAIRMAN. Do you not know that the Presidents have made executive agreements, and we could not find out about them until months and months afterward? Congress was not notified about them. This section 4 will tend to remedy that.

Mr. PEARSON. Presumably the enabling legislation would require publicity.

The CHAIRMAN. Surely.

Senator DIRKSEN. I think you will concede that if we are going to put a limitation on treaty power, you will have to put it on every other power that can be used in lieu of treaty power.

Mr. PEARSON. Sure, there is no problem about that. Still, my great problem is, first, should there be any limitations outside of the ones made merely declaratory, as Mr. Backus says. If you can phrase the thing, the law says what it is; nobody can change the law.

Mr. SMITHEY. Mr. Backus testified at page 820 of the printed hearings on Senate Joint Resolution 130 that in a survey, and I do not know whether the two of you prepared it or he prepared it, 85 percent of the agreements entered into during the period were directly authorized by statute. So actually we are discussing 15 percent.

Mr. PEARSON. It is the small area, but it is the impossible area. There is a more authoritative statement on percentage than anything we could do by spot checking, and it is cited in our statement here, one by the State Department. There they say, and the study goes back to 1928, that two-thirds of them were followed by statutory implementation.

Senator DIRKSEN. The only trouble is the mischief always comes in that smaller orbit.

Mr. PEARSON. That is right; that is the interesting area.

Mr. SMITHEY. As far as the 85 percent are concerned, the system that would be set up by the first sentence of section 4 has been established and is now in use, is that not true?

Mr. PEARSON. That is right. You are saying that to the extent that you continue to do what you are doing I should not object, and that is true. If you could say that, I would not object, but I do not see how you can draw a line between the 85 and the 15. If nothing else, it is a baffling intellectual problem, and my own judgment is that it is probably insuperable. You cannot write any bunch of words that is going to say how do we want this thing run for the next 100 years. What should go to the Senate and what is the sphere of day-to-day operations that the President should decide by himself. Senator BRICKER. But we can take that power out of the hands of the President to use that indiscriminately regardless of what Congress may want. The policymaking power of the Government Congress ought to be able to lay down the rules under which the President acts in negotiating executive agreements. The Congress can be trusted as well as the President, and I think in recent years better trusted to protect the interests of the American people.

Mr. PEARSON. In present company I am not trying to draw personal reference. As I was saying before you came in, as I understand it the present section 4 solves the drawing of the line problem by saying he cannot have any power except what Congress gives him. That is a solution, and speaking in just the way a lawyer talks to a client when he draws a contract, certainly a more clear-cut legal job; at least you know where you are at.

I think you felt in lieu of treaties it still left the problem there. My own feeling is that that is going too far, and I do not wish to dwell on the Commander in Chief problems, but it seems to me that granted that maybe policy decisions should be made by the legislative or at least with the subjects in lieu of veto, but the trouble is that we are getting into the field of action where you are telling a general running an army that he canont agree with a general running a army from another country anything unless he has a statute in advance. The CHAIRMAN. Do you think that the American people, after Abraham Lincoln freed the slaves, would have ratified the Potsdam agreement selling 5 or 6 million people into slavery, white people? Mr. PEARSON. Certainly if you put that particular question on a referendum you know how they will act.

Senator DIRKSEN. I want to comment about what you say now. It goes right back to what Senator Bricker said. I want to make this distinction with reference to the powers of the Commander in Chief. Congress gives to the President the sword that makes him the Commander in Chief, but the authority to use the sword is quite another thing.

Mr. PEARSON. That is, the declaration of war?

Senator DIRKSEN. That is the very issue in Korea, not that the President is running that show as Commander in Chief, but the authority to do so. So seldom is the distinction made. Certainly the State Department does not make it, and when they sent up that memorandum in connection with the troops to Europe issue, I think anybody who has regard for the Constitution, Senator Bricker, was simply astonished to hear them say, "Constitutional changes are dictated by circumstances and times."

For instance, the memo from the State Department said there was no declaration of war because wars are no longer declared in advance, period. As much as to say that that which is solemnly recited in the Constitution is out. Where do you place a limit?

Mr. PEARSON. May I say, sir, I guess it is obvious I do not agree with everything the State Department has said. I think Senator Langer, sir, before lunch also mentioned sending troops into Korea. I think it is fair to point out that that is really not directly raised by this resolution.

Senator DIRKSEN. That is right.

Mr. PEARSON. Let us say it is another thing that feeds the flame of uncertainty to say, "If he can do that there, maybe I can do that here, and I will stop him anyhow." Obviously I am not a historian, but there must have been plenty of times in our history when the President dispatched troops and there has been no formal war, and it has been the sensible thing to do, and we want to have the kind of government where when necessary you can do that thing. How you can say in advance what places you are going to send troops to on the President's initiative I do not know.

I think the best thing you can do is to have this machinery of divided powers. We have been talking largely in terms of executive versus legislative, but there are the nine young men, too, and they serve a function. I think it is a good arrangement. It was novel how those fellows dreamed it up between them in 1777. I was just suggesting to you gentlemen at least proceed with caution before you make wait is to my mind a definite shift in power in, let's say, the Comman for in Chief field at least.

The diplomatic power is a more amorphous thing, because i part he receives on his own hook, but he dispatches with the consent of the Senate. Uncertainty does not shock me. I think, thinking in longrange terms, it is not horrible to have areas where you do not exactly know what the executive can do and what the legislative can do. Beaing on that, as we say in our statement here, of course, there is the definite legal restraint that if the President makes an executive agresment and Congress does not like it, Congress can repudiate it. There is no doubt about that.

As a matter of fact, Congress can repudiate a treaty.

I fully appreciate the difficulties that you mentioned earlier of the fait accompli; that is, the people's emissary goes out and does something, and then are you going to kick him in the pants when he gets home. You do not like to do that, and after all, if he is any kind of emissary, he has brought home some bacon, although there may be something else he has brought home that you do not like, so you are sort of stuck with taking it or leaving it. That is just a legal protection after the event, to be sure, but I think there are other protections,

I will not say the duties of the Constitution, but it is to provide checks and balances. It is not as though the man in the White House was free to run hog wild on anything he wanted to in the way of agreements. He is going to be coming to you gentlemen for money; maybe implementing legislation on this matter, on other matters; he is going to be coming to you from time to time on appointments.

The leverage is there. The Senate and the House are not at his mercy. I think all those things have to be taken into account in considering: Is there really too much power in the President in the field of executive agreements as the situation now stands?

Senator DIRKSEN. Of course, speaking of the possibility of erratic action, I need only remind you that the man who deserves the presumption that he is a good lawyer because once he was Attorney General and is on the Supreme Court of the United States, advanced a strange doctrine of inherent powers, and in pursuance of that the President seized a whole industry in this country.

You cannot tell what will happen when you are dealing with human mentality.

Mr. PEARSON. That is right.

Senator DIRKSEN. Jefferson would not have subscribed to that view; he would have said, "Nail it down; I know the human mischief that human personality makes in the world. You have to write it down."

Mr. PEARSON. It is a problem, and yet you can write it down too far. Stagnation is an evil, too.

Senator DIRKSEN. We hope that there is both enough wisdom and enough facility with the English language to be able to get it down on a piece of paper where you say what it means, and it means what it says. I think we can do it.

Mr. PEARSON. Sir, I have a few other things I would like to say about section 4, and then I think I am about through.

The CHAIRMAN. Surely.

Mr. PEARSON. We have in here some examples as to instances of executive agreements, arrangements when there was trouble on the border of Mexico, and the President quickly arranged that our Army could chase Indians over there, and they could chase Indians over here. Then there was the instance of a flood of potatoes coming over from Canada and knocking the socks out of our price supports, and he at once arranged to stop the Canadian potatoes from being imported here.

I do not wish to labor too much the importance of speed. There would be some cases where it would be pretty bad, particularly with war, but if Congress does not happen to be in session, well, is any given thing important enough to reconvene it to get the congressional sanction? To my mind, it is clear that if you are to have an Executive worthy of his name, you have to give him some kind of power, and the problem is how much.

Just one other point. I really do not know whether this was intended or not, but I would like to bring this to your attention; it is spelled out in the statement here. The effect of the second sentence of section 4 as it incorporates section 3-I am now speaking about the second sentence that says all the restrictions of the articles that apply to the Executive. I am now talking about that section.