of Commerce commenting upon the validity of President Ford's action. Mr. Scalia wrote:

"As a result of continuing interplay between the Executive and the Congress, Section 5(b) has been the statutory foundation for control of domestic as well as international financial transactions and is not restricted to 'trading with the enemy.'*** We know of no indication of Congressional disagreement with the legality of this practice or criticism of it." 19

Thus today, Sec. 5(b) and executive activities under it fall squarely within Justice Jackson's first category-the President's constitutional authority is at its maximum "pursuant to an express or implied authorization of Congress. In other words, the combination of legislative permissiveness and executive assertiveness over the past forty years has created a significant shift in the functional constitutional allocations of power to regulate foreign commerce from the legislative to the executive branches. Except in the case of a most serious abuse of this "emergency" power by the executive branch, this shift in authority will be upheld by the courts.20

Congress now is setting out to consider whether this constitutional shift is one which should be left in place or whether the legislative branch should reassert itself in this legislative process. Often questions of this kind are stated in terms of reclamation of lost power or of returning to the original intent of the framers or even, sometimes, in language which seems to indicate a desire to "punish" the executive branch for the results of a development in which both the legislature and the executive have participated. Rather, I would suggest, a slightly different characterization of the issue. The issue is how can the two political branches constitutionally coordinate their governmental powers so that each bears not only a share of the decision-making power but a share of the responsibility and accountability as well for the decisions which are made. The answer is not, I think, to continue the present system under Sec. 5(b). That would result only in a further diminution of the role of Congress in important policy decisions in which it should serve as one conduit for the people's voice. On the other hand, a total repeal of Sec. 5(b) and a reclamation of all power by the legislative branch, except the purely administrative power, would also not accord with the constitutional scheme. Rather, the search is for workable governance by the combined efforts of the two branches and a continuous involvement by both in the basic policy decisions which energize the law-making process.

In amending or supplementing Sec. 5(b) there are two separate but equally important issues. One involves the extent to which the Congress wishes to participate in the continued creation of powers in the executive branch to deal with true emergency situations. Even though some "inherent power" exists in the President to respond to emergency situations, it is clearly better statutory and constitutional policy for the Congress to set forth in advance those general policies which should control executive activity in emergency situations, especially in time of military hostilities. A well thought out congressional policy including reporting requirements and effective limits not only preserves congressional oversight but combines the sanction of both political branches to strengthen the government's hand in dealing with emergency situations. In addition, a preordained policy would go far toward preventing the kind of piece-meal expansion of "emergency" power which we have witnessed brought on by necessarily hasty action in response to difficult current circumstances. The National Emergencies Act clearly applies to emergency situations. The powers currently conferred by Sec. 5 (b) seem to be appropriate ones when true emergencies exist. Therefore, to the extent that Sec. 5(b) powers are not conferred for general use, they should be continued as residual powers which can be called into operation when the need arises.

It may, however, be wise to authorize the executive branch to continue to exercise certain of these powers without regard to emergency situations. To the extent that this is done, I think new legislation should emphasize the coordinated nature of the constitutional powers, rather than their separation. In this connection, I conclude with some observations concerning H.R. 2382. If

19 Letter from Antonin Scalia, Asst. Atty. Gen., Office of Legal Counsel, to J. T. Smith, General Counsel, Dept. of Commerce, Sept. 29, 1976, in BNA, International Trade Rep., U.S. Export Weekly No. 128, Oct. 19, 1976.

20 See e.g. United States v. Yoshida International Corp., supra note 9; Teague v. Regional Commissioner of Customs, 404 F. 2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977 ( ); Sardino v. Federal Reserve Bank, 361 F. 2d 106 (2d Cir. 1966), cert. denied, 385 U.S. 898 (1966).

Sec. 5(b) is either repealed or limited to "true" emergency situations, legislation such as H.R. 2382 is not only appropriate but necessary to continue effective powers of government in this field. I would suggest, however, that substantial doubts correctly exist concerning the constitutional validity of one of the mechanisms of this proposal-the proposed use of the concurrent resolution as a law-making device to bind the executive branch once the general trade embargo power is conferred. Several constitutional legal scholars have suggested various reasons why the use of the concurrent resolution technique as a form of legislative veto over executive action may be unconstitutional. The principal constitutional problem with the device, to my mind however, is that it denies that coordination of governmental powers which the constitution clearly envisions.

Under the plain language of the constitutional text, set forth in Article I, there are only two procedures by which legislation becomes law. The first is by vote of a majority of both Houses of Congress plus the consent, tacit or express, of the President; the second is by two-thirds vote of both Houses of Congress without Presidential consent. The wisdom of this constitutional procedure is that it coordinates political activity by requiring the consent of both of those branches elected by the people to create law, or the overwhelming consent of the legislative branch if it acts alone. That the combined activity of both branches is the desired form is made clear by the constitution's requirement that a joint approval be sought first before a special legislative majority may enact law on its own. Of course, constitutional change can take place by customary development, accepted by both branches as an integral part of the governmental system. The relatively recent rise of the concurrent resolution technique and the series of legislative-executive disputes over its constitutional validity demonstrate, I believe, that as a customary legal device it has not yet supplanted the clear textual requirement of coordination in law-making activity. Especially in the field of foreign affairs in which the executive branch has both a functional and historic primacy, I think it would be unwise to adopt a constitutionally questionable procedure when a much simpler and less controversial approach can accomplish the needed purpose.

The principal problem with trade embargoes is not that the executive imposes them arbitrarily or unnecessarily, but that they tend to be carried on by the inertia of government without periodic review and continued rejustification. I would suggest that an effective substitute for the attempt to bind the executive branch by concurrent resolution, would be a requirement that trade embargoes could be imposed by the executive branch under stipulated conditions for no more than six months or perhaps one year at a time without a reexamination and rejustification of the need to continue each embargo. By forcing the executive to take the administrative step of reexamining the existing embargoes and the political step of stating why they should be continued, the Congress would succeed in keeping the existence of the embargoes before the public eye and before its own eyes, for that matter. To adopt a device such as the concurrent resolution technique which the executive has strong constitutional grounds for ignoring could only lead to a further diminution of the influence of Congress in the foreign policy field in the long run and is especially dangerous in a situation in which a popular chief executive could combine his personal political strength with a strong constitutional argument.

Mr. BINGHAM. Thank you very much for a most interesting state

ment.

Professor Metzger.

STATEMENT OF PROF. STANLEY D. METZGER, GEORGETOWN

UNIVERSITY LAW CENTER, WASHINGTON, D.C.

Stanley D. Metzger received his law degree from Cornell University. He was admitted to the New York Bar and served as an attorney for the New York State Labor Relations Board. He served as the assistant legal adviser for economic

21 See e.g. R. W. Ginnane, "The Control of Federal Administration by Congressional Resolutions and Committees," 66 Harv. L. Rev. 569 (1953); H. L. Watson, Congress Steps Out: A Look at Congressional Control of the Executive," 63 Cal. L. Rev. 983 (1975); J. Harris, "Congressional Control of Administration" (1964), at 204-48.

affairs for the Department of State from 1946 to 1960, and then as a professor of law at the Georgetown University Law Center, which position he still holds. From 1967 to 1969 he served as the Chairman of the U.S. Tariff Commission. Professor Metzger is the author of International Law, Trade and Finance, 1962; Trade Agreements and the Kennedy Round, 1964; and Law of International Trade, 1966.

Mr. METZGER. Thank you, Mr. Chairman. Thank you very much for inviting me to make a statement to you on section 5(b).

My experience with section 5 (b), my personal and daily experience was from the period 1946 to 1960 when I served in the State Department as Assistant Legal Adviser for Economic Affairs. It fell to me to deal with the Treasury Department on an almost constant basis.

I have followed the matter since then and I have, as everybody does who has been working with a statute for a long time, some ideas about it which I would like to share with you.

USE OF SECTION 5(b) TO BLOCK FOREIGN ASSETS

As has been mentioned, section 5 (b) is a very broad grant of power by the Congress to the President. It has been used generally for purposes related to the national security and the conduct of the foreign relations of the United States. By that, I include the economic foreign relations, with the exception of the bank holiday matter referred to by Professor Lowenfeld. Every one of the examples, one way or the other, relates to foreign relations if you include economic foreign relations.

Available to be used in time of war or emergency declared by the President, with no time limitation on the power granted, it authorizes the President to block the assets subject to U.S. jurisdiction of any designated foreign country or resident, and to block any transactions by any person subject to U.S. jurisdiction with any designated foreign country or resident or anyone acting for or on behalf of such a country or resident. The President can do this across the board, as in the China and Cuba controls, or ad hoc, as in the case of the Czech Steel Mill; or he may order a partial asset blocking, as in the case of Egyptian Government assets in 1956.

Because the timing trigger-time or war or Presidentially declared emergency-is so broad and because of the circumstances of the past four decades, in its older pre-World War II form and in its present version, section 5(b) has been continually available for use for the past 44 years without a break. No statement of findings and policy, and no standards to guide its administration are set forth in section 5(b). There is no provision for congressional participation in the decisions to engage in blocking the assets of, or transactions with, a foreign country or countries. There is no provision for congressional consideration whether a particular action remains provident after it is taken, and to terminate it if not. There is no provision for Presidential reporting at intervals concerning actions he has taken under section 5(b), with reasons for his actions. Above all, there is no fixed duration, such as 3 or 4 years, for the existence of the power in order that, in the course of renewal authorization hearings, detailed explanations of actions can be sought and supplied, and amendments that seem to be called for can be made.

BAREBONES STATUTE

Since barebones statutes of this kind in the foreign relations area, and even some in the domestic field, do not run afoul of the "unconstitutional delegation of legislative powers" doctrine of Panama Refining Co. v. Ryan, these omissions raise no constitutional problem. But they do raise a problem of the wisdom of the decisions implicitly taken which have led to their omission, decisions taken many years ago and only now being seriously reconsidered.

I cannot think of a comparable barebones law in the foreign relations area of the importance of section 5 (b). Certainly the trade agreements legislation in force over the past 43 years contains detailed provisions in each of the respects mentioned. Indeed, the Trade Act of 1974, the current law, is so detailed and circumscribed in substantive, procedural, reporting, congressional veto and duration provisions, as to have raised questions of wisdom the other way. Foreign aid legislation, foreign military sales laws, the Public Law 480 surplus agricultural disposal legislation, and many others with which this subcommittee is familiar, also clothe the authority they grant with a full wardrobe of safeguards against arbitrary action.

Now just because something is unique doesn't necessarily make it unwise; circumstances conceivably could justify a standardless, nolimitation, no-reporting, perpetual delegation of great power. I will state my conclusion here and then try to justify it, that circumstances do not justify that kind of a grant of power in section 5(b), despite my belief in the necessity of having a broad grant of power in 5(b) and my opinion that on the whole, the present act has been responsibly employed during the past decades.

The basic security and foreign relations uses of section, 5(b) in World War II were to preserve the assets of friendly foreign nations and peoples who were attacked, subjugated and occupied, for their use after liberation and to deny the use of those assets to the enemy, or putative enemy. You needed 5(b) for that purpose and you need 5(b) in the future, if I may say so, because these kinds of things can happen any time. I think it is bootless to say one suddenly relies on inherent authority. I think you ought to have a statute that gives that authority, because these kinds of things can happen tomorrow, next week.

The blocking of assets of neutral countries and the blocking of transactions with occupied and enemy countries served to deny the advantages of trade to the enemy. In addition, the blocked enemy assets could be used for reparation purposes after the war was over. Once the fighting stopped in World War II, a decontrol program for nonenemy assets was undertaken. A certification procedure was worked out with the liberated countries and the neutrals to root out hidden enemy interests in their blocked assets and, importantly, to marshall the dollar assets of the residents of the liberated countries so that the amount of U.S. foreign aid to assist those countries in meeting their balance-of-payments deficits caused by reconstruction efforts could be diminished.

This aspect of the program, the marshaling of assets so the dollars could accrue to the central banks of France, Belgium and the like was the result of Senate initiative-to reduce the burden of Marshall aid.

BLOCKING OF YUGOSLAVIAN ASSETS: 1946-47

The original purposes of the World War II assets and transactions blocking under 5 (b) were further expanded in 1946-47. United StatesYugoslav relations were then at a low ebb, consequent upon the dispute concerning Trieste, the downing of some American planes and the nationalization of private American-owned property in Yugoslavia without any realistic prospect of compensation. Section 5(b) was used to continue the blocking of Yugoslav assets in the United States, particularly Yugoslav Government-owned gold valued at about $40 million, in order that the United States would be in a position to use such assets to satisfy American nationalization claims should that prove to be necessary.

As it turned out, it was not necessary. In 1948, there was a major falling out between the U.S.S.R. and Yugoslavia, resulting in the severing of trade and financial links between them. Yugoslavia immediately entered into serious negotiations which resulted in what the U.S. Government considered to be a satisfactory settlement of the claims issue.

CZECH STEEL MILL BLOCKING: 1948

Section 5(b) was used in still another way, connected with foreign relations but much more tangentially, in the Czech steel mill blocking following the 1948 coup.

After the Communist coup of 1948 in Czechoslovakia, relations quickly worsened between the United States and Czechoslovakia. During this process, Czechoslovakia arrested on spying charges an American wire service reporter named William Oatis. As is often the case, this newspaperman's arrest resulted in newspaper headlines and extensive story coverage, and the State Department felt great pressure. It ought to "do something, not just stand there." Not finding a bristling arsenal of usable weapons at hand, thoughts of political officers turned to economic retaliatory measures-section 5(b). Blocking all Czech assets against-they had been decontrolled in agreement with the Benes regime earlier-seemed to be an overresponse.

It happened that Czechoslovakia, prior to the coup, had contracted for the construction of equipment in the United States which would comprise a steel mill, for which they had paid $16 million. That equipment could not be exported to the Communist regime under the Commerce Department's export control orders. But there was nothing to prevent Czechoslovakia from selling the mill to Americans or others to whom it could be exported, thus getting back its $16 million and using the money for whatever purposes it might wish.

The State Department prevailed upon the Treasury Department to ad hoc block the steel mill so that Czechoslovakia could not so secure the proceeds of a sale. The case turned out to be a headache. Treasury had to license the sale of parts in order to defray the storage expenses of warehousemen who became impatient.

After a time this could not be continued without cannibalizing the equipment and thereby rendering it junk. Treasury then, after travail and concern about whether it was lawful, issued a "directive license" to sell the remainder under sealed bids. Argentina was the high bidder-$9 million-and the mill can now be seen at San Nicolas, 150 miles the River Plate from Buenos Aires. The Czechs took account of

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