8 S.J. Res. 130, 82d Cong., 2d sess. (1952); S.J. Res. 1, 83d Cong., 1st sess. (1953); S.J. Res. 1, 84th Cong., 1st sess. (1955); S.J. Res. 3, 85th Cong., 1st sess. (1957).

9 Section 4 of the amendment as contained in S.J. Res. 130 (1952), would have prohibited the use of executive agreements “in lieu of treaties” and provided that all executive agreements would terminate automatically 1 year after the end of the term of office of the President making the agreement unless extended by Congress. Section 4 of the amendment as set forth in S.J. Res. 1 (1953) as originally introduced would have provided in part that “All executive or other agreements between the President and any international organization, foreign power, or official thereof shall be made only in the manner and to the extent prescribed by law.”

Section 3 of the version reported by the Senate Judiciary Committee (S. Rept. 412, 83d Cong., 1st sess. (1953)) provided in part that “Congress shall have the power to regulate all executive and other agreements with any foreign power or international organization.”

No such provisions were contained in S.J. Res. 1 (1955), either as originally proposed or as reported by the Senate Judiciary Committee (S. Rept. 1716, 84th Cong., 2d sess. (1956)), or in S.J. Res. 3 (1957).

10 S. 3447, 92d Cong., 2d sess. (1972).

11 See generally Hearing before the Senate Committee on Foreign Relations on the Agreement of Friendship and Cooperation between the United States of America and Spain, 91st Cong., 2d sess. (1970), hereinafter referred to as Hearing on the Spanish Base Agreement.

12 Hearing on the Spanish Base Agreement, at 9–49; Hearings before the Senate Committee on Foreign Relations on S. Res. 214 Relative to the Submission of Any Portuguese Base Agreement as a Treaty, 92d Cong., 2d sess., 5–68 (1972), hereinafter referred to as Hearings on Executive Agreements with Portugal and Bahrain.

13 The following discussion of various types of agreements in terms of specific powers is drawn largely from McDougal, and Lans, , “Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy,” 54 Yale L. J. 181, 244–252 (1945)Google Scholar. This breakdown is unquestionably somewhat arbitrary, since most, if not all, of the types of agreement referred to are at least arguably based on a conjunction of two or more of the President’s enumerated powers.

14 See Opinion of the Attorney General regarding the Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Atty. Gen. 484, 486 (1940); McDougal and Lans, supra note 13, at 245–247; Borchard, , “Treaties and Executive Agreements— A Reply,” 54 Yale L. ]. 616, 649 (1945)Google Scholar; 1 Willoughby, The Constitutional Law of the United States, sec. 298, pp. 540–541 (2d. ed., 1929); Corwin, ed., The Constitution of the United States of America, Analysis and Interpretation, S. Doc. 170, 82d Cong., 1st sess., 433 (1952), repeated in 1964 ed., S. Doc. 39, 88th Cong., 1st sess., 484 (1964).

15 McDougal and Lans, supra note 13, at 246–247; Corwin, supra note 14, 1953 ed. at 434–435, 1964 ed. at 485–486.

16 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

17 Corwin, supra note 14, 1952 ed. at 433, 1964 ed. at 485.

18 United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942); McDougal and Lans, supra note 13, at 247–248.

19 1 Op. Atty. Gen. 566, 570–571 (1822); McDougal and Lans, supra note 13, at 248; Corwin, supra note 14, 1952 ed. at 441–445, 1964 ed. at 492–497.

20 United States v. Curtiss-Wright Export Corp., supra note 16, at 319.

20a Quoted in Corwin, , The President, Office and Powers 425, n. 28 (1957)Google Scholar.

21 McDougal and Lans, supra note 13, at 248–252; Corwin, supra note 14, 1952 ed. at 433, 1964 ed. at 484–485.

22 See 39 Op. Atty. Gen. 484, 486 (1940).

23 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

24 Ibid., at 635–638.

25 For similar analyses see Association of the Bar of the City of New York, “A Continued Defense of the Constitution Against the Bricker Proposals,” 11–16 (1955); reprinted from 10 Record of the Association of the Bar of the City of New York, No. 3, pp. 114–142 (1955); and testimony of Alexander M. Bickel in Hearings before the Senate Committee on Foreign Relations on S. 596, to Require that International Agreements other than Treaties, Hereafter Entered into by the United States, be Transmitted to the Congress within Sixty Days after the Execution Thereof, 92d Cong., 1st sess., 26–27 (1972), hereinafter referred to as Hearings on Transmittal of Executive Agreements to Congress.

26 See United States v. Guy W. Capps, Inc., 204 F. 2d. 655, 658–660 (4th Cir. 1953), aff’d on other grounds, 348 U.S. 296 (1955); Opinion of the Attorney General regarding the Acquisition of Naval and Air Bases in Exchange for Over-Age Destroyers, 39 Op. Atty. Gen. 484, 494–496 (1940); Sutherland, “The Bricker Amendment, Executive Agreements, and Imported Potatoes,” 67 Harv. L. Rev. 281, 285–291 (1953).

27 See testimony of Alexander M. Bickel, Hearings on Transmittal of Executive Agreements to Congress 31, 41–42. There are relatively few court cases on the question of the extent to which Congress is constitutionally precluded from interfering with the exercise by the President of his independent constitutional powers. In Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), a case which involved the war powers of Congress, the opinion of four concurring Supreme Court Justices stated that “Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief.” (71 U.S. at 139).

Other cases relating to congressional limitation on powers vested exclusively in the President include Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866), and United States v. Klein, 80 U;S. (13 Wall.) 128 (1871), which held unconstitutional attempts by Congress to limit the effect of pardons granted by the President in exercise of his power to do so under article II, section 2, of the Constitution; and Myers v. United States, 272 U.S. 52 (1926), which declared invalid a provision of an 1876 statute restricting the power of the President as Chief Executive to remove from office those officers of the government appointed by and with the advice and consent of the Senate.

28 Supra note 10.

29 See, e.g., testimony of Under Secretary of State for Political Affairs Johnson, Hearing on the Spanish Base Agreement, at 19, and Hearings on Executive Agreements with Portugal and Bahrain, at 31.

30 See Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–572 (1840). Corwin states that executive agreements become of constitutional significance when they constitute a determinative factor of foreign policy and hence of the country’s destiny. Op. cit., supra note 14, 1952 ed. at 433, 1964 ed. at 485.

31 Hearing on the Spanish Base Agreement, at 12; Hearings on Executive Agreements with Portugal and Bahrain, at 8, 14.

32 Ibid.

33 In connection with the so-called “Destroyers-for-Bases” agreement, Jackson ruled that “The Executive agreement obtains an opportunity to establish naval and air bases for the protection of our coastline but it imposes no obligation upon the Congress to appropriate money to improve the opportunity. It is not necessary for the Senate to ratify an opportunity that entails no obligation.” 39 Op. Atty. Gen. 484, 487 (1940).

34 Hearing on Spanish Base Agreement, at 21, 27, 34–35, 38–39; Hearings on Executive Agreements with Portugal and Bahrain, at 3–4, 34–35, 43, 71–72, 74.

35 S. Rept. 91–129, 91st Cong., 1st sess., 28 (1969).

36 Res. 85, 91st Cong., 1st sess. (1969).

37 S. Rept. 91–129, 91st Cong., 1st sess., 32 (1969).

38 Hearings before the Senate Committee on Foreign Relations on S. 731, S.J. Res. 18 and S.J. Res. 59, 92d Cong., 1st sess., 501 (1971), hereinafter cited as Hearings on War Powers Legislation.

39 S. 3475, 92d Cong., 2d sess. (1972).

40 Ginnane, , “The Control of Federal Administration By Congressional Resolutions and Committees,” 66 Haw. L. Rev. 569, 573 (1953)Google Scholar.

41 See Section 123(d) of the Atomic Energy Act of 1954, as amended (42 U.S.C. §2153(d) (1970)). See also Ginnane, supra note 40, at 575–592.

42 Ibid., at 593–599. Ginnane argues as follows:

“The result—and, indeed, the frankly stated purpose—of such provisions is to exclude the President from decisions of Congress which in their legal consequences are indistinguishable from statutes and which are seemingly the type of policy decisions which Article I, Section 7 requires to be submitted to the President. In brief, it is difficult to avoid the conclusion that the express purpose of the third paragraph of that section to insure that the President’s role in the legislative process should not be eliminated merely by giving legislative decisions another name would be thwarted by statutes which reserve final governmental decisions for determination as ‘events’ by Congress alone.” (Ibid., at 595).

“The constitutional separation of powers reflects a purpose to prevent undue concentration of governmental powerin either Congress or the President. It is at least arguable that to the extent that the administration of statutes is . . . made subject to approval or disapproval by congressional resolutions or committees, such an undue concentration of power in Congress is created.” (Ibid., at 611).