"emergency" agreements, as set forth in . . . the bills. Congressional suspension within ten days of a national commitment portion of an "emergency" agreement could cause a whole host of intractable separability problems-legal, practical, and diplomatic.

In short, congressional rights of approval over a category of agreements, or portions thereof, characterized as "national commitments," would inevitably result in congressional involvement in non-national commitment obligations as well. Uncertainty, dissension, possible litigation, and reduced effectiveness in the conduct of foreign policy are far more likely results than a productive relationship between the Congress and the executive branch in the development and conclusion of executive agree

ments.

The letter pointed out the adverse effect on the conduct of foreign relations of legislation that would delay the effectiveness of executive agreements and, in the case of congressional disapproval of such agreements, could place the United States in violation of international legal obligations. It restated the Department's view that voluntary and systematic cooperation between the executive and legislative branches is preferable to "attempted controls by one branch over another in ways that are hazardous to our ability to deal effectively with other nations and appear to be constitutionally unsound."

Dept. of State File No. P76 0001-1762.

Constitutional Powers of the President

On October 31, 1975, Monroe Leigh, Legal Adviser of the Department of State, transmitted a memorandum of law to Senator James Abourezk on the subject of the authority of the President to enter into executive agreements pursuant to his independent constitutional powers. Senator Abourezk had requested such a memorandum at hearings on bills introduced by Senators Lloyd Bentsen and John Glenn for congressional review of executive agreements. Mr. Leigh's memorandum follows:

This memorandum is in response to a request from the Chairman of the Subcommittee on the Separation of Powers of the Senate Committee on the Judiciary for a Department of State analysis of the President's authority to enter into executive agreements pursuant to his independent constitutional powers.

All executive agreements entered into by the United States are authorized by law, whether statute, treaty, the Constitution, or some combination of those sources. Department of State records indicate that only 2 to 3 percent of all executive agree

ments are authorized solely by the President's independent powers under the Constitution.

I.

The legal right of the President to enter into executive agreements pursuant solely to his independent constitutional powers is not open to question. That right has been recognized by the United States Supreme Court, the Congress, innumerable scholars, and by a constant practice dating from the early days of the Republic.

The two leading cases on this point are US. v. Belmont, 301 U.S. 324 (1937), and U.S. v. Pink, 315 U.S. 203 (1942). Both cases dealt with the effect of an executive agreement entered into with the Soviet Union for the settlement of certain claims by an assignment of assets. The agreement, known as the Litvinov Assignment, was concluded solely pursuant to the President's independent powers under the Constitution, and was made in conjunction with U.S. recognition of the Government of the Soviet Union. The question before the Supreme Court in both cases was whether the agreement could override the inconsistent State law of New York. The answer in both cases was yes.

In Belmont, Justice Sutherland, speaking for the Supreme Court, said that "We do not pause to inquire whether in fact there was a policy of the State of New York to be infringed, since we are of opinion that no state policy can prevail against the international compact here involved." (301 U.S. 327.) Justice Sutherland went on to say:

A treaty signifies "a compact made between two or more independent nations with a view to the public welfare." Altman & Co. v. United States, 224 U.S. 583, 600 (1912). But an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations. (301 U.S. 330-331.)

Justice Sutherland held that both treaties and executive agreements, including the Litvinov Assignment (which as noted was not previously authorized by statute or treaty) could override inconsistent State law. He stated:

while this rule in respect of treaties is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several States. United States v. CurtissWright Corp., 299 U.S. 304 (1936). In respect of all international negotiations and compacts, and in respect of our foreign relations generally, State lines disappear. As to such purposes the State of New York does not exist ....

In the Pink case, Justice Douglas, for the Supreme Court, quoted from the Federalist, No. 64, stating that

All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature

Justice Douglas then continued: "A treaty is a 'Law of the Land' under the supremacy clause (Art. VI, cl. 2) of the Constitution. Such international compacts and agreements as the Litvinov Assignment have a similar dignity." Thus for the Supreme Court, the Litvinov Assignment, an executive agreement not previously authorized by statute or treaty, but entered into by the President pursuant solely to his independent constitutional powers, had "as much legal validity and obligation as if [it] proceeded from the legislature" and was as much a "Law of the Land" as a treaty. It should be noted here that there has never been a judicial decision holding that the President may not conclude executive agreements pursuant to his independent constitutional powers.

That such agreements are perfectly proper is also supported by other authorities. The American Law Institute, for example, in Section 121 of the 1965 Restatement (Second) of the Foreign Relations Law of the United States, states that

An international agreement made by the United States as an executive agreement without reference to a treaty or act of Congress may, subject to the limitations indicated in § 117, deal with any matter that under the Constitution falls within the independent powers of the President.

Section 117 requires that such an international agreement must deal with a matter "of international concern" and must not contravene any constitutional limitations applicable to all powers of the United States.

The Restatement, in Section 144, also sets forth the effect on domestic law of executive agreements concluded pursuant to the President's constitutional authority. Section 144 (1) provides:

An executive agreement, made by the United States without reference to a treaty or act of Congress, conforming to the constitutional limitations stated in § 121, and manifesting an intention that it shall become effective as domestic law of the United States at the time it becomes binding on the United States

(a) supersedes inconsistent provisions of the law of the several States, but

(b) does not supersede inconsistent provisions of earlier acts of Congress.

Scholars in this field have also supported the right of the President to negotiate and conclude on behalf of the United States executive agreements pursuant solely to his independent constitutional powers. McDougal, to take but one example, has written that

Under his own powers the President may conduct negotiations with other governments upon all subject matters, and upon a subject matter within the scope of his own powers he may conclude agreement, in accordance with his own policies, and

make these agreements the law of the land, implementing them to the full extent that his powers permit. (McDougal and Lans, "Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy," 54 Yale Law Journal 181, at 245-246 (March 1945, No. 2)).

Corwin, in The Constitution of the United States of America (1964), also recognizes the legal right of the President to enter into executive agreements pursuant to his independent constitutional powers. In an introductory section under the heading "International Agreements without Senate Approval," Corwin writes:

The President's power to enter into agreements or compacts with other governments without consulting the Senate must be referred to his powers as organ of foreign relations and as Commander in Chief. From an early date, moreover, Congress has authorized executive agreements within the field of its powers, postal agreements, trademark and copyright agreements, reciprocal trade agreements. Executive agreements may also stem from treaties. (at p. 484)

Corwin then sets out numerous examples of executive agreements entered into under each of the three sources of authority. Many scholars simply assume the right of the President to conclude such agreements. Bishop, for example, states simply that "Executive agreements made by the President alone are those falling within his power as Commander in Chief, or his power to conduct foreign relations " (International Law,

Cases and Materials, 3rd ed., 1971, p. 102.)

Even some of the most severe critics of the executive branch practice of entering into such agreements do not question the legal validity of at least certain types among them. For example, during the Hearings before the Senate Committee on Foreign Relations on the Case bill (later the Case Act), Senator Case of New Jersey, in a discussion of armistice agreements made by the President pursuant to his independent constitutional powers, said

I don't question that it is within the President's authority. (Hearings on S. 596, October 21, 1971, p. 74.)

Practice over the years is . . . indicative of a very general acceptance of the right of the President to negotiate and conclude such agreements. Practice does not normally define a rule of law with any precision, but in the absence of other more authoritative norms, practice does assume significant legal weight. In this case the practice dates from the early days of the Republic and has not been legally challenged throughout the Nation's history by any judicial or legislative rulings.

In light of the above, it is the view of the Department of State that the right of the President to negotiate and conclude international agreements pursuant to his independent constitutional powers is established and is not open to question.

II.

There are several provisions of the Constitution which empower the President to negotiate and conclude executive agreements without reference to treaty or statutory authority. These provisions, which separately and together comprise the bases for the foreign relations power of the President, are as follows:

The executive Power shall be vested in a President of the United States of America. (Art. II, § 1)

The President shall be Commander in Chief of the Army and Navy . . . . (Art. II, § 2)

[H]e shall receive Ambassadors and other public Ministers. ... (Art. II, § 3)

[H]e shall take Care that the Laws be faithfully executed. . . . (Art. II, § 3)

It is true that there are no Supreme Court cases or other equally authoritative rulings which list the above constitutional provisions as empowering the President to enter into international agreements. Indeed, the question of the full listing of the constitutional sources for such international agreements has never been addressed by the Federal courts. However, the provisions listed above have long been accepted, by authorities such as the American Law Institute in its Restatement,* by scholars, and by a long and unchallenged practice, as authorizing international agreement-making by the President.

The American Law Institute, for example, in its commentary to Section 121 of the 1965 Restatement (Second) of the Foreign Relations Law of the United States, lists these constitutional provisions and states that "These expressed powers afford the President a broad area in which to make international agreements. Under the 'executive power,' the President has authority to conduct the foreign relations of the United States; that power provides a broad constitutional basis for the making of executive agreements." (at p. 379). McDougal and Lans list precisely the same articles of the Constitution (54 Yale Law Journal, op. cit., pp. 246-248), as does McClure (International Executive Agreements, 1941, Chs. 9 and 10).

The Department of State has consistently referred to these provisions as authorizing the President to conclude international agreements on any subject within his constitutional

*The American Law Institute citation of relevant constitutional provisions lists the following clause: “[H]e shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls..." (Art. II, § 2). Whether one refers to the President's right to appoint Ambassadors, as above, or the right to receive Ambassadors, as cited by the Department of State in its Circular 175 and by McDougal and Lans, the result is the same. The two clauses each confer foreign relations powers upon the President which include the power of recognition. Arthur Dean refers simply to the President's "power to appoint and receive Ambassadors and other public Ministers...." ("The Bricker Amendment and Authority Over Foreign Affairs," 32 Foreign Affairs (1958), 1-2, 11.)