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While it is true that these cases are not binding upon me, the reasons given in each case commend themselves to me and with respect I shall adopt them in this case. ...
The Customs Court also rejected the argument that the relevant provisions of article III were commercial in nature and, at the most, only suspended by the War of 1812. Cf. The Sophie Rickmers, 45 F.2d 413 (1930). It said the duty exemption referred to the personal goods and effects of Indians" and was therefore not commercial, but personal in character; it did not remove the possibility of "treasonable intercourse," as discussed in Karnuth, supra.
The opinion, without the necessity to consider further issues, nevertheless discussed the relationship between a self-executing treaty and a subsequent expression of Congress evidencing an inconsistent provision. Recognizing that the one later in time will control, Chae Chan Ping v. United States, 130 U.S.581 (1889), it noted that, since the year 1897, neither the statutes nor tariff schedules of the United States have provided an exemption from the payment of duty by Indians passing or repassing the Canadian border with their personal belongings or their own proper goods. On the contrary, it said, articles of personal property such as hunting boots are the subject of duty (item 700.45, TSUS). In these circumstances, the Court perceived a congressional intent to nullify the personal privilege which originally had been granted by article III of the Jay Treaty. It concluded:
It is the opinion of this court that the provisions of article III of the Jay Treaty of 1794 have been abrogated and are no longer in force and effect, nor constitute “the supreme law of the land” as they may relate to the plaintiff and the issues raised by him in his motion for summary judgment ...
The Defense Cooperation Agreement between the United States and Turkey, signed on March 26, 1976, provides in article XXI that the agreement will come into effect on the date of an exchange of notes indicating the approval of both parties in accordance with their respective legal procedures. President Ford transmitted the agreement to the Congress on June 16, 1976, with a request for approval of its entry into force. His message of transmittal stated:
The United States and Turkey have long enjoyed a close mutual security relationship under the North Atlantic Treaty, as well as bilateral cooperation in accordance with article III of that treaty. The new agreement, like its predecessor, the Defense Cooperation Agreement of 1969 which this agreement would supersede, implements the treaty. It has been signed as an executive agreement. The agreement was negotiated with the understanding that it would be subject to congressional approval and expressly provides that it shall not enter into force until the parties exchange notes indicating approval of the agreement in accordance with their respective legal procedures. Full congressional endorsement of this agreement will give new strength and stability to continuing U.S.-Turkish security cooperation which has served as a vital buttress on NATO's southeast flank for more than two decades.
The President also transmitted to Congress a draft joint resolution for approval of the agreement and authorization to the President to implement its provisions. See H. Doc. 94-531, 94th Cong., 2d Sess. See post, Ch. 14, § 9, pp. 776-777, for a summary of the agreement. The 94th Cong. did not act on the proposed legislation.
A congressional statement of Middle East policy, delimiting the authority contained in the joint resolution approved October 13, 1975, which implemented the U.S. proposal for an early warning system in Sinai, was set forth in section 401 of the International Security Assistance and Arms Export Control Act of 1976 (P.L. 94-329; 90 Stat. 756), approved June 30, 1976. Section 401 of the Act amended section 901 of the Foreign Assistance Act of 1961 (22 U.S.C. 2441) by adding the following new paragraph:
It is the sense of Congress that the United States will continue to determine Middle East Policy as circumstances may require and that the authority contained in the joint resolution entitled “Joint resolution to implement the United States proposal for the early warning system in Sinai," approved October 13,1975 (Public Law 94-110), and the authorizations contained in the amendments made by the International Security Assistance and Arms Export Control Act of 1976 do not, and shall not in any way be construed to, constitute congressional approval, acceptance, or endorsement (1) of any oral or written commitment, understanding, assurance, promise, or agreement, whether expressed or implied, or any other expression, oral or written (other than the “United States Proposal for the Early Warning System in Sinai”, made by any official of the United States which Israel, Egypt, or any other nation or organization might construe or interpret as a basis on which it could rely or act, or (2) of any characterization of any such commitment, understanding, assurance, promise, or agreement, or other expression, as constituting a "codification" of existing, congressionally approved United States policy. The joint resolution to implement the U.S. proposal for an early warning system in Sinai, approved Oct. 13, 1975 (P.L. 94-110; 89 Stat. 572; 22 U.S.C.2441 note), provided in sec. 5 that the authority contained therein "does not signify approval of the Congress of any other agreement, understanding, or commitment made by the executive branch."
Proposed Legislation Morgan-Zablocki Bill
The Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations held hearings, between June 22 and July 22, 1976, on H.R. 4438, 94th Congress (the Morgan-Zablocki bill). The bill would have required transmittal to the Congress for its review of all executive agreements concerning the establishment, renewal, continuance, or revision of a "national commitment," defined as including any agreement or promise (1) “regarding the introduction, basing or deployment” of U.S. Armed Forces on foreign territory, or (2) “regarding the provision to a foreign country, government or people any military training or equipment including component parts and technology, any nuclear technology, or any financial or material resources.” The bill would require that such agreements enter into force only after a 60-day waiting period from the date of transmittal and, even after 60 days, not take effect if, during that period, both Houses agreed to a concurrent resolution stating their disapproval of the agreement. Agreements made necessary by emergency situations, and certified as such by the President, would not be subject to the 60-day rule, but would still have to be submitted to the Congress and might be suspended by concurrent resolution within ten days after transmittal.
Monroe Leigh, Legal Adviser of the Department of State, testified on the last day of the hearings, stating the Department of State's opposition to the bill, again on constitutional and practical grounds. Mr. Leigh summarized his objections to the Morgan-Zablocki bill as follows:
1. The bill is too broad, in that as presently drafted it would apply in time of declared war as well as in time of peace. We think it most unwise as a matter of policy to subject the President's conduct of war, which necessarily involves the making of scores of agreements in the field, to the approval scheme contemplated by this bill.
2. If the bill is interpreted as applicable to agreements made pursuant to the President's independent constitutional power, such as the Commander in Chief power, it is plainly unconstitutional.
3. The central feature of the bill—the legislative veto-is unconstitutional because it violates article I, section 7, clause 3, which requires that all acts intended to have legislative effect be submitted to the President for approval or veto.
4. The enactment of this bill would create enormous practical confusion and conflict by virtue of the fact that it would superimpose an additional and a different scheme of cooperation between the President and the legislature in important areas where existing statutory enactments prescribe detailed patterns for cooperation between the President and the Congress in the carrying out of international agreements.
5. The emergency procedure established by section 4 of the bill as presently drafted is too narrow, in that it does not cover genuine emergencies which happen not to be national security emergencies.
Finally, ... if the Congress wishes to make changes of the scope and profundity of those contemplated by this bill, it would need to move by means of a constitutional amendment.
With respect to the apparent applicability of H. R. 4438 in war as well as in peace, Mr. Leigh explained in part:
in the past the President, as Commander in Chief, has made hundreds of agreements, many on very short notice, necessary to the conduct of war or hostilities. At such times, it is not practical for the President to submit every such agreement to the Congress for its consideration and possible rejection, nor does it appear that such a submission is necessary or required once the Congress has approved a declaration of war. In addition, armistice or cease-fire agreements appear to fall within the coverage of the bill. Clearly such agreements must be timed precisely to the hour and minute, and cannot wait upon a sixty-day period or even a ten-day period during which the Congress may disapprove them. Such encroachments upon the powers of the President as Commander in Chief are unacceptable from the standpoint of the national security and raise the most serious constitutional questions. Let us take as an example the Korean Armistice Agreement, which became effective, pursuant to article V of the Agreement, at 2200 hours on July 27, 1953. Under this bill, even if the emergency provisions were invoked, the President would not know for at least 10 days after the planned cease-fire whether the Congress was going to suspend the effect of the armistice agreement. Should Congress have the power to disapprove such an agreement by resolution during a 10-day waiting period?
[T]hat Agreement necessarily did more than fix the time of the cessation of hostilities. Among other things, it established a Military Demarcation Line and a Demilitarized Zone between the two sides. Like nearly all armistice agreements, it set forth detailed rules on the deployment or withdrawal of forces and equipment from that Zone and from other areas of Korea. It included regulations with respect to the reintroduction of military units and equipment by both sides into the peninsula. It established a Military Armistice Commission and a Neutral Nations Supervisory Commission to supervise the implementation of the Agreement. It included provisions for the release and repatriation of prisoners of war. None of this would have been possible without agreement on the precise time that hostilities should cease, and that precise time cannot prudently be left subject to a legislative veto.
If H. R. 4438 applies to agreements of this kind, as seems to be the case, ... then it is our judgment that the bill is seriously defective on constitutional grounds. The Congress may not, by resolution or statute, invalidate an agreement authorized by the Constitution
To overcome this constitutional objection it would be necessary for this committee to exclude from the coverage of this bill all executive agreements which the Constitution independently empowers the President to make. In this category are recognition agreements, armistice agreements, and any of a large category of agreements which the President is empowered by the Constitution to make as Commander in Chief. Thus, this committee must in our view exclude from this bill “commitments” and “promises” made pursuant to these powers.
On the legislative veto provision of the bill, Mr. Leigh reiterated objections made in Senate hearings in May 1975 on the Bentsen and Glenn bills (S. 632 and S. 1251). See the 1975 Digest, pp. 297-299, 302-305. He noted, however, that a legislative role for Congress in approving or disapproving executive agreements does not necessarily require a legislative veto by a one House or two House resolution. He said, “Executive agreements on subjects within the competence of Congress may be invalidated by a joint resolution, and with this procedure the executive branch has no quarrel whatever. Further, the power of the purse enables Congress to refuse funding for any executive agreement, and of course most significant agreements require funding."
As a practical problem, Mr. Leigh cited the confusion the bill could create in the administration of existing laws under which the President has been administering programs of national importance. He cited as examples the Atomic Energy Act (42 U.S.C. 2151 et seq.) and the Arms Export Control Act of 1976 (P.L. 94-329; 22 U.S.C. 2776), which contain legislative veto provisions at variance with that of H. R. 4438. He stated:
carefully structured statutes have for many years regulated several areas of national commitment, including military assistance, arms control, atomic energy, and foreign economic assistance as well as reciprocal reduction of tariffs. Much of what would constitute a national commitment under H. R. 4438 is already separately regulated. In most cases these statutes provide a specific framework for cooperation between the President and the Congress in the carrying out of particular international agreements. . . . the effect of H. R. 4438 would be to superimpose an additional and different regime for all commitments hereafter undertaken. ... the potential for overlap, and duplication, and administrative confusion is enormous.
the confusion is most obvious with the administration of existing statutes that contain legislative veto provisions. For