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 anyng we could do by spot checking, and it is cited in our statement re one by the State Department. There they say, and the study es back to 1928, that two-thirds of them were followed by staty implementation.

Senator DIRKSEN. The only trouble is the mischief always comes 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 at would be set up by the first sentence of section 4 has been estabed and is now in use, is that not true?

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

Mr. PEARSON. In present company I am not trying to draw personal ference. As I was saying before you came in, as I understand it present section 4 solves the drawing of the line problem by saying cannot have any power except what Congress gives him. That is 1 solution, and speaking in just the way a lawyer talks to a client The draws a contract, certainly a more clear-cut legal job; at as you know where you are at.

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

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

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

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

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

Mr. PEARSON. May I say, sir, I guess it is obvious I do not agre with everything the State Department has said. I think Senato 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 b this resolution.

Senator DIRKSEN. That is right.

Mr. PEARSON. Let us say it is another thing that feeds the flame o 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, bu there must have been plenty of times in our history when the Presiden dispatched troops and there has been no formal war, and it has been th sensible thing to do, and we want to have the kind of government wher when necessary you can do that thing. How you can say in advanc what places you are going to send troops to on the President's initiativ I do not know.

I think the best thing you can do is to have this machinery of divide powers. We have been talking largely in terms of executive versu legislative, but there are the nine young men, too, and they serve function. I think it is a good arrangement. It was novel how thos fellows dreamed it up between them in 1777. I was just suggesting t you gentlemen at least proceed with caution before you make want i to my mind a definite shift in power in, let's say, the Comman ler i Chief field at least.

The diplomatic power is a more amorphous thing, because in par he receives on his own hook, but he dispatches with the consent of th Senate. Uncertainty does not shock me. I think, thinking in long range terms, it is not horrible to have areas where you do not exacti know what the executive can do and what the legislative can do. Bea ing on that, as we say in our statement here, of course, there is th definite legal restraint that if the President makes an executive agre ment and Congress does not like it, Congress can repudiate it. Ther 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 th fait accompli; that is, the people's emissary goes out and does some thing, and then are you going to kick him in the pants when he get home. You do not like to do that, and after all, if he is any kind o emissary, he has brought home some bacon, although there may b something else he has brought home that you do not like, so you ar sort of stuck with taking it or leaving it. That is just a legal protec tion after the event, to be sure, but I think there are other protections

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

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

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

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

Mr. PEARSON. That is right.

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

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

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

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

T CHAIRMAN. Surely.

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

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

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

Of course, those are the limitations on the Nation's power and should apply equally to the legislature, whatever they may be. But when you also incorporate section 3, I think you get a peculiar resul here. The language is such that it seems to say that if you want to have an executive agreement that affects or may affect internal law then you have to have this sequence. You have to have a statute passed by both Houses and signed by the President which authorizes the President to make the executive agreement. That is the first sentence Then he goes ahead and makes the executive agreement, and ther before it can become effective as internal law, he has to go back to Congress and get it enacted by a majority of the Congress, the execu tive agreement that he has made. Maybe it was thought that the third step-that is, the section 3 step-could be done at the same time as the President is authorized to make the agreement under section 4 I do not know. If that is true, it is not too bad if you buy this philoso phy at all. If it was not meant that way, if it was really meant tha you had to do this thing all over again, first the Congress, then the President, and then the Congress again, I would think that that was the most unfortunate redundancy, and I do not see any useful purpose Senator DIRKSEN. That goes back to what you call the second loo or the stuttering process.

Mr. PEARSON. It is even worse here, because it is in exactly th same forum, same body. He may make an executive agreement in the field of so-and-so, and he does so, and then it happens it is involved in the field of law, and he has to go to Congress to get the whole thing Senator DIRKSEN. That is the first time you really become familia with it, when you get the second look.

The CHAIRMAN. Do they not do that in every civilized country ex cept the United States?

Mr. PEARSON. In the case of executive agreements?

The CHAIRMAN. Yes.

Mr. PEARSON. I do not know, sir. I am speaking of executive agree ments, not treaties.

Mr. SMITHEY. Could it not be contemplated by that section that th original authorization would be a general one?

Senator SMITH. That is what I had in mind.

Mr. SMITHEY. Say in the field of the President's powers as Com mander in Chief, and then they would want to take a closer look so fa as it pertains to internal law?

Mr. PEARSON. It seems to me it would be a lot of action.

Senator SMITH. Would it not be true that the second look woul really be for the purpose of examining the details as a result of th agreement made?

Mr. PEARSON. That is assuming that the first power was very broad Senator SMITH. Yes.

Yo

Senator DIRKSEN. Senator Smith, there would be no better illus tration than something relating to the St. Lawrence seaway. can imagine an executive agreement that would commit, let us sa authority, plus $100 million.

Senator SMITH. Right.

Senator DIRKSEN. You would spell out nothing as to power facil ties or ports, but it would be the second look when you discovere how these were apportioned in committee.

Senator SMITH. Right.