The power to appoint and receive ambassadors and other public ministers, found in Article II, §§ 2 and 3, has been recognized by the Supreme Court, in the Belmont and Pink cases, as a basis for executive agreements incident to the recognition of foreign governments, such as the settlement of claims against foreign governments.

.. if there is one issue upon which all observers agree, it would be recognition of the President's authority to conclude certain executive agreements, even if within a narrow category, under the powers granted him by the Constitution and without congressional interference or limitation. While the range of such agreements is narrow, and the total number thereof is no more than 2 to 3 percent of all United States executive agreements, it is nevertheless an important aspect of Presidential powers. There is no method short of constitutional amendment whereby the President's independent constitutional authority to conclude executive agreements may be limited. For this reason alone, the Glenn bill as it now reads, and the Bentsen bill without Section 5, would be unconstitutional if enacted.

Legislative Veto Provisions

There is another feature of these bills which renders them defective on constitutional grounds. In those areas of foreign policy in which both the President and the Congress share responsibility, the President is frequently authorized by treaty or statute to conclude executive agreements. In my opinion such treaty or statutory authority to enter into executive agreements may not constitutionally be overridden or amended either by means of a concurrent resolution as provided in the Bentsen bill, or by the Senate acting alone, as envisaged by the Glenn bill. Such procedure would be contrary to Article I, § 7 of the Constitution, which requires that:

Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

In my view, this mandatory language of the Constitution was intended to apply to any congressional action having legislative effect, or having the force of law. . one of the primary purposes of the provision was to ensure that Congress could not, through the technique of characterizing particular enactments having legal force as "orders" or "resolutions," evade the necessity of Presidential participation in the legislative process.

It is true that legislative veto provisions have been enacted into law on many occasions since the early 1930's. But there are several factors that render these enactments of little value as legal precedent to support the Bentsen and Glenn bills.

First, such laws as do exist providing for a legislative veto have been attacked on constitutional grounds by many authorities on constitutional law. There have been no court tests of the validity of any of these acts, and the constitutional law questions they raise are not settled. The Bentsen and Glenn bills would raise these questions in a very new and disturbing way. Let us take one example.

Congress has granted the President specific authority to enter into P.L. 480 executive agreements: " . . . the President is authorized to negotiate and carry out agreements with friendly countries to provide for the sale of agricultural commodities for dollars on credit terms or for foreign currencies." (7 U.S.C. 1701.) Now suppose that Congress, in a shift of policy having nothing to do with the merits of any particular executive agreement, decides it no longer approves of this P.L. 480 policy, but does not wish to repeal the statute directly. It would have the option, if the Bentsen or Glenn bills were constitutionally valid, of automatically passing resolutions of disapproval of each and every P.L. 480 executive agreement thereafter entered into by the President. If the option is exercised, is there any doubt that the original statutory authority has been effectively repealed without the Presidential participation required by Article I, § 7?

Or suppose that the Congress decides that it no longer approves of the phrase "or for foreign currencies" in Public Law 480. The Bentsen and Glenn bills would give the Congress the option of disapproving by concurrent resolution all P.L. 480 agreements in which agricultural commodities are agreed to be sold for foreign currencies. If Congress has power to exercise such an option, the clear effect is to amend the original statutory authority without Presidential participation.

In the most formalistic sense, the original statute still stands. But in substantive effect, the original legislative authority has been rendered unusable.

Second, the legislative precedents that do exist date only from the 1930's, and are inconsistent with the practice in force from the beginning of the Republic until the 1930's. Given the specificity of the constitutional provision and the long years of practice in accordance therewith, the recent and legally controversial examples of congressional lawmaking by concurrent resolution are hardly persuasive to support an even more questionable example as set forth in the Bentsen and Glenn proposals.

Third, the Bentsen and Glenn bills would carry the legislative veto far beyond those areas for which any constitutional justification has ever been advanced to date.

For example, among the first legislative vetoes by congressional resolution were those of the Reorganization Acts of the 1930's and 1940's. In justifying the constitutionality of the 1939 Act, the House committee which reported the bill proceeded on the constitutional theory that the power conferred upon the President by the Act was "legislative in character." H. Report No. 120, 76th Cong., 1st Sess., at 4-6 (1939). In delegating the legislative power of reorganization to the President, Congress

retained a veto to make certain that the President's ultimate reorganization plan conformed with both the letter and intent of the delegated authority.

In subsequent reorganization acts, the inclusion of a legislative veto procedure was similarly justified under this "delegation" theory. See e.g., S. Report No. 638, 79th Cong., 1st Sess., at 3 (1945). The same has also been the case in other types of legislation. In trade acts, for example, Congress has delegated to the President the power to determine tariffs, duties and import quotas a power initially vested in the legislative branch-but Congress at the same time has retained supervision over this delegated authority through the legislative veto procedure.

With the Bentsen and Glenn bills, however, this constitutional argument vanishes. The conduct of foreign relations is not a legislative power. While Congress may, as a practical matter in some cases, restrict by statute the substantive concessions that the President can make to a foreign power, nonetheless the actual drafting, initiation, and negotiation of the terms of an executive agreement belong entirely to the President. As the Supreme Court stated in the Curtiss Wright case:

[The President] alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. [299 U.S. at 319.]

Moreover, unlike prior vehicles for legislative vetoes, the bills by Senators Bentsen and Glenn do not involve the delegation by Congress of any powers. The substantive concessions which the President could make in negotiating an agreement would not be at all expanded by these two bills. Thus, the constitutional theory which has been raised in support of other legislative vetoes, is inapplicable here. This means that if Congress wishes to disapprove an executive agreement, Congress' only constitutional recourse is to enact an appropriate statute under Article 1, § 7. Even then, such a statute would apply only to an executive agreement not concluded and implemented under the exclusive powers of the President.

Practical Problems Created by the Bills

The bills present a serious national security problem in that they appear to be applicable in periods of declared war as well as in time of peace. Yet in World War II, for example, the President, under his powers as Commander in Chief, made hundreds of agreements necessary to the actual conduct of the war. Among these were agreements on deployment of forces, as well as armistice and cease-fire agreements whose delicate timing could not await a 60-day review period. Interference with the President's power to make such agreements as Commander in Chief would frequently be unacceptable from the standpoint of national security, and it naturally raises the most serious questions with respect to constitutional validity. This is a core area of the President's ability to make agreements solely on the

basis of his authority as Commander in Chief under the Constitution.

Even in time of peace, the 60-day waiting period would make a rapid resolution of everyday practical problems impossible. Some of these are of a routine nature that require only a simple exchange of notes, perhaps to compose a small difference by adopting a minor amendment to a previously concluded executive agreement itself of a routine nature. On occasion a disaster or other emergency requires extremely rapid action. Surely an emergency agreement providing for assistance to earthquake victims, to take but one example, cannot be subjected to a 60-day delay. These bills, if valid, would substantially undermine the utility of the United Nations Participation Act, to take one specific example.

In addition, neither bill, but particularly the Glenn draft with its extraordinarily broad definition of executive agreements, distinguishes between important agreements of interest to the Congress, and minor or routine items such as postal contracts, standing orders with the Government Printing Office, and educational exchanges. The efficiency of the executive, and its ability to conduct the multiple aspects of relations in a complicated world, would be significantly diminished, while the large majority of agreements transmitted would be of little or no interest whatever to the Congress. There is no benefit in this either to the executive or legislative branch.

Notwithstanding that Congress is interested in only a small number of such agreements, the Bentsen and Glenn bills would, if enacted, result in a substantial interference with the President's authority as negotiator of almost all executive agreements. Because of the 60-day waiting period and the possibility of congressional disapproval, the United States would frequently be unable to obtain definite concessions from other governments because the President would be unable to give firm commitments on short notice even on minor matters. And there would be a far greater risk of delicate compromises coming unravelled during the sixty days before the agreement could enter into

force.

At the present time, the great majority of our executive agreements enter into force upon signature. Every foreign country enters into most of their agreements with us upon signature. Were either the Bentsen or Glenn bill to become law, the United States would be the only nation in the world unable to enter into any international agreement whatsoever either on signature or on short notice.

At best, the procedure would result in a great degree of uncertainty. In view of the congressional option procedure, the President would never be quite certain, even assuming prior consultation with Congress or prior statutory authorization, just what authority he possessed to negotiate and conclude agreements in a particular area. The uncertainty introduced into the negotiating process would clearly not be conducive to the effective conduct of U.S. foreign policy.

The Bentsen and Glenn approaches are also unnecessary and wasteful even from a congressional point of view. Any agreements involving an expenditure of funds (and most of those agreements of interest to the Congress involve such expenditures) are already subject to congressional review because Congress must authorize and appropriate the funds. This is important, for example, in the area of military base agreements. No military base can be constructed without congressional approval. Congress is intimately involved in the overwhelming majority of executive agreements on defense matters, either through authorizing legislation, such as the foreign aid legislation, or through review of programs by authorizing and appropriating committees. Status of forces agreements are closely monitored by a subcommittee of the Senate Committee on Armed Services. Atomic energy agreements are reviewed by the Joint Congressional Committee on Atomic Energy.

Finally, ... there are a number of important areas in which these bills, if enacted, would have a serious adverse impact. The bills would create confusion in the administration of existing legislative authorizations under which the President has administered programs of national importance. For example, the military assistance programs are implemented country by country under the terms of a bilateral military assistance agreement entered into pursuant to prior statute. The present bills would substitute a new procedure for formalizing the international agreements between the United States and other countries with respect to these programs.

if further legislative regulation of executive agreements is needed, which is a question requiring further study, it is our view that it would be wiser to treat directly, through legislation, particular substantive areas of agreement making, rather than attempting to control the entire range of executive agreements through a procedural device that fails in large measure because it both attempts to do too much and is constitutionally defective.

Alternative Possibilities

I think it is clear that great improvements have been made in increasing the flow of information to the Congress for purposes of enhancing its capacity to perform its functions in foreign policy. There are further ways of developing executive-legislative cooperation, and some ideas in this area have already been suggested to the subcommittee.

Perhaps building on the Circular 175 Procedure, we might explore the possibility of having the several Assistant Secretaries of State provide the relevant committees of Congress with regular and detailed briefings on developments in their areas of responsibility. This idea was put forward by Secretary of State Rogers in 1971 and repeated to this subcommittee by the then Legal Adviser, John Stevenson, in 1972.

Perhaps most important . . . is the necessity to recognize that our constitutional framework concerning foreign affairs establishes, as one scholar put it, "a government of interdepend