Page 165 - Law of Peace, Volume ,

obligations of the United States. 103 "separation of power" doctrine prevents Congressional
$ More generally, and under the authority of the Ex- encroachment upon any powers exclusively reserved to
ecutive power clause, the President acts as "the sole organ the President.
of the nation in its external relations and its sole repre- 8-22. Modern Developments. a. In 1972, as a result of
sentative with foreign nations." 104 This role is not insig- the heightened controversy surrounding the precise con-
nificant in nature, as the normal conduct of foreign rela- stitutional authority of the President and Congress con-
tions continually requires the conclusion of agreements of cerning Executive agreements, Congress passed the Case
various sorts to settle differences with other governments Act. 108 Under this Act, the Secretary of State is required
or regulate matters of mutual concern, thus insuring the to transmit to the Congress the text of any international
satisfactory continuation of diplomatic relations. 105 agreement other than a treaty, to which the United States
g. With respect to agreements concerning militarymat- has become a party, no later than 60 days after its entry
ters, such as those under which rights are acquired to use into force. As of May, 1975, the Department of State had
defense-related facilities abroad, the agreement-making transmitted the texts of 657 Executive agreements to the
authority of the President flows at least in part from his Congress. Although not required by law to do so, the
powers as Commander-in-Chief. 106 At the same time, Department of State had also transmitted with each agree-
however, Congress also has extensive powers in the ment a background statement setting forth in some detail
defense area. In particular, under Article I, Section 8, of the context of the agreement, its purpose, negotiating
the Constitution, the Congress is given the explicit history, and effect. 109
powers: b. The Case Act makes special provision for the
To declare War, grant Letters of Marque and Reprisal, and make transmittal of agreements ". . . the immediate public dis-
Rules concerning Capture on Land and Water; closure of which would, in the opinion of the President, be
To raise and support Armies, but no Appropriation of Money to that prejudicial to the national security of the United States.
Use shall be for a longer Term than two years; . .." These agreements are transmitted to the Senate
To provide and maintain a Navy; Committee on Foreign Relations and the House Cornrnit-
To make Rules for the Government and Regulation of the land and
naval Forces; tee on International Relations under ". . .an appropriate
injunction of secrecy to be removed only upon due notice
In addition, of course, Congress has the general power:
from the President." As of May, 1975, the Executive
To make all Laws which shall be necessary and proper for carrying branch had entered into and the Department of State had
into Execution the foregoing Powers and all other Powers vested by this transmitted to the Congress 29 agreements under this
Constitution in the Government of the United States, or in any Depart-
ment or offices thereof. category. 1 10
c. A second recent development of major importance
Agreements relating to military and defense matters thus in the area of executive agreements has been the revision
involve a broad area of responsibility in which certaincon-
of the Department of State's circular 175 procedure. 111
stitutional powers are shared between the Chief Executive This revised procedure has two objectives: (1) to meet re-
&d Congress. This results in a rather complex legal situa- quests by members of the Senate Committee on Foreign
tion in which the lines of constitutional authority are Relations for clarification of the guidelines to be con-
somewhat unclear. Congress undoubtedly has the con- sidered in determining whether a particular international
stitutional autaority to legislate on any subject which is a agreement should be concluded as a treaty or as another
genuine condm of foreign affairs and which is not form of an international agreement; and (2) to strengthen
smcally granted to the President. Thus, this means provisions on consultation with the Congress. With
Congress can terminate a prior delegation of Congres- respect to the consultation provisions, Section 723.1(a) of
sional authority to the President to conclude Executive the Circular 175 procedure now requires those responsi-
agreements and can also terminate either treaties or Ex- ble for negotiating significant new international agree-
ecutive agreements by enacting subsequent inconsistent ments to advise appropriate congressional leaders and
legislation. 107 Finally, Congress is always in a position to committees of the President's intention to negotiate such
substantially effect executive agreements through the ap- agreements, to consult during the course of any negotia-
propriation process. As has been noted, however, the tions, and to keep Congress informed of developments
affecting them, including whether any legislation is con-
,, , 103. 1 Op. Am. Gen. 566, 570-71 (1822); McDougal and Lans, sidered necessary or desirable for the implementation of
supra, note 99 at 248; Convin, supra, note 101, 1952 ed. at 441-45,
1964 ed. at 492-97.
104. U.S. V. Curtiss-Wright Export Corp., supra, note 100 at 319. 108. 1.U.S.C.A. 1126.
105. McDougal and Lans, supra, note 99 at 247-252; CORWIN, 109. Testimony of Momoe Lei, Legal Adviser of the Depart-
supra, note 101, 1952 ed. at 433, 1964 ed. at 484-85. ment of State before the Subcommittee on the Separation of Powers of
106. See 39 Op. Am. Gen. 484, 486 (1940). the Senate Committee on the Judiciary, 13 May 1975, reprinted in 69
107. This action might well run afoul of international law, of Am. I. Int? L. 865 (1975).
course, especially in the areas of treaty obligations and state respon- 110. Id.
sibility. 111. This procedure is outlined on p. 8-12, supra.