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example, would an atomic energy agreement be subject to veto by Congress under the terms of the Atomic Energy Act or under the terms of H. R. 4438? Which is the governing law? The differences between existing statutes and H. R. 4438 may be quite significant. Under the Arms Export Control Act of 1976, foreign military sales over $25 million may be vetoed by Congress within 30 days. P.L. 94-329, 22 U.S.C. 2776. But H. Ř. 4438 provides for 60 days in which Congress may veto. Which period is applicable? Even more anomalous, Congress has 30 days to consider and possibly veto sales in excess of $25 million pursuant to the Arm3 Export Control Act of 1976, but 60 days to consider and perhaps veto sales of less than $25 million under H. R. 4438. Logic would allow a longer time for Congress to consider the larger sale.

... what I see flowing from the enactment of H. R. 4438, is an enormous additional potential for disagreement and dispute between the Executive and the Congress and among different committees of the Congress on jurisdictional grounds. No one can contemplate this result without being concerned at the stultification which may result in the conduct of the business of the government.

This is not a simple problem ... of coordinating H.R. 4438 with every other statute now regulating one or another aspect of our foreign commitments. A decision will have to be made either to achieve such coordination, difficult as that may be, or to have H.R. 4438 supersede a massive set of statutory enactments governing foreign commitments of the United States

. . Congress has already regulated in great detail most areas of national commitment, and by treating each area separately, has been able to establish meaningful and effective rules. In our view, it is far better to proceed as Congress has done to date-that is, study each area carefully, and write detailed, specific regulations for its governance. That is a far better approach than an across-the-board attempt to reach everything in one law. Hearings on Congressional Review of International Agreements before the Subcommittee on International Security and Scientific Affairs of the Committee on International Relations, House of Representatives, 94th Cong., 2d Sess., June-July 1976, pp. 163–182.

Assistant Attorney General Antonin Scalia testified in opposition to H. R. 4438 (the Morgan-Zablocki bill) on July 22, 1976, before the International Security and Scientific Affairs Subcommittee of the House Committee on International Relations. His statement, entitled "Nonlegislative Control over Executive Agreements," stated the Department of Justice view that the bill presented serious constitutional problems in (1) purporting to give Congress the power to prohibit agreements which are “not constitutionally subject to legislative control, even under the most limited Presidential power," citing United States v. Belmont, 301 U.S. 324 (1937), United States v. Pink, 315 U.S. 203, 229 (1942), and Ex parte Milligan, 71 U.S. 2, 139 (1866); and (2) attempting "to restrict through concurrent resolution the exercise of powers conferred upon the President by statute."

Mr. Scalia devoted the major portion of his testimony to the constitutional problem presented by the concurrent resolution method of congressional veto of executive agreements. On this, he said:

. It is our view that such a device is unconstitutional for two reasons: first, because it violates the general principle of separation of powers, and second, because it contravenes the specific provisions of the Presentation Clauses, article I, section 7, clauses 2 and 3, of the Constitution.

The principle of the separation of powers provides in essence that each of the three branches of our Government must restrict itself to its allocated sphere of activity: legislating, executing the law, or seeing to its interpretation. With respect to an extremely broad category of matters, the Congress may, if it wishes, preserve all responsibility within itself, requiring action to be taken, if at all,

hrough the process of legislation; or may, on the other hand, commit responsibility to one of the other two branches of Government. If it chooses the latter course, however, the very essence of the doctrine of separation of powers requires that Congress cannot control the exercise of the responsibility which it has thus delegated except through the plenary legislative process of statutory amendment or repeal.

The Congress might, for example, have reserved to itself the power to establish in great detail what action constitutes an unlawful, monopolistic business practice. It has, however, chosen the other course, by enacting a statute, the Sherman Act, which contains a very broad standard prohibiting “every contract, combination ... or conspiracy, in restraint of trade” -in effect delegating to the courts the power to give this phrase precise content. 15 U.S.C. 1. Surely, no one would assert that if Congress disagrees with the judicial use of this power, it can “correct” Supreme Court decisions by the mere passage of concurrent resolutions establishing different rules. Similarly, with respect to delegation to the Executive: the Congress may withhold the delegation if it so desires; but once it makes it, the Executive must

left to exercise the power on its own, subject only to the controls which the Congress exercises through the process of oversight and legislative enactment.

This principle has been understood since the beginning of the Republic. Beginning with a statement by James Madison during the Great Debate of 1789 concerning the statutes establishing offices, it has been recognized that the power of Congress over the execution and implementation of a statute comes to an end with its enactment. See Annals of Congress, 1st Cong., col. 582. This principle, which is so fundamental as infrequently to find need for expression, was stated as follows in a Senate debate in 1866:

When Congress has passed a law, their jurisdiction over the subject matter of the law is functus officio. It then passes into the hands of another department of the Government, and it becomes a function of the President, or the Chief Executive of the Government of the United States to see that the law is executed. Cong. Globe, 39th Cong., 1st Sess., p. 186 (1866) (remarks of Senator Davis).

If the doctrine of separation of powers does not mean this-if it does not prevent unilateral congressional control over the execution of laws which it has passed-then it is difficult to see how it means anything at all.

Let me now turn to the text of the Constitution, where we find a provision-the Presidential veto clause-which quite specifically forbids the congressional review device here involved. Indeed, one can hardly conceive of language and history which would forbid it more explicitly. The pertinent provisions are the second and third clauses of article I, section 7. The Constitution provides, first, that every bill which passes the House of Representatives and the Senate shall, before it becomes a law, be presented to the President for his approval or disapproval; if disapproved, it does not become law unless repassed by a two-thirds vote of each House. (Article I, section 7, clause 2.) At the constitutional convention, it was realized that Congress might attempt to evade the requirement that "bills" be presented to the President by passing "resolutions" rather than bills. During the debate on this clause, James Madison observed that

if the negative of the President was confined to bills; it would be evaded by acts under the form and name of Resolutions, votes & Madison believed that additional language was necessary to pin this point down and therefore


proposed that "or resolve" should be added after "bill" . . . with an exception as to votes of adjournment & c.

Madison's notes show that "after a short and rather confused conversation on the subject," his proposal was at first rejected. However, at the commencement of the following day's session, Mr. Randolph, "having thrown into a new form" Madison's proposal, renewed it. It passed by a vote of 9-1. 2 M. Farrand, The Records of the Federal Convention of 1787 (1937 Rev. Ed.) 301-305. ("Farrand"). Thus, the Constitution today provides-not in clause 2 of section 7, dealing with the passage of legislation (as first proposed by Madison), but as an entirely separate clause 3 (Randolph's "new form")-the following:

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.

It should be apparent from the wording of this provision, and from its formulation as a separate clause apart from the clause dealing with legislation, that it was intended to protect the President against all congressional evasions of his veto power, and not merely those that were formally connected with the legislative process. The purpose of the veto was not merely to prevent bad laws but to protect against inroads by Congress of the kind represented by H. R. 4438. Leading participants in the Convention of 1787, such as James Madison, Gouverneur Morris and James Wilson, pointed out that the veto would protect the Office of President against

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"encroachments of the popular branch” and guard against the legislature "swallowing up all the other powers." 2 Farrand 299-300, 586-87. In The Federalist (No. 73), Hamilton states that the primary purpose of conferring the veto power on the President is “to enable him to defend himself.” Otherwise he “might be gradually stripped of his authorities by successive resolutions, or annihilated by a single vote.” Recent legislative proposals have given an air of prophecy to Hamilton's analysis.

I would next like to address, one by one, the principal legal arguments which have been made, in these and other hearings, in opposition to the principles which I have discussed above. You have heard, first of all, the argument that although the Framers intended to prohibit the use of concurrent resolutions in isolation, they did not mean to prevent Congress from passing statutes which, by their terms, establish such a device as part of a legislative scheme. See Report of Senate Foreign Relations Committee, 122 Cong. Rec. S 1273, Feb. 4, 1976 (daily ed.). There is nothing in the legislative history of the Constitutional Convention or in past practice which would support this distinction. Nor would it make any sense, since it would enable the serious constitutional prohibition to be nullified by the incredibly simple device of including a provision for defeasance of Presidential action by concurrent resolution in every statute which is passed. This argument is sometimes justified by the rationale that, when a concurrent resolution feature is contained in a statute, the President has the opportunity to veto the statute itself-and if he does not do so, or if his veto is overridden, he cannot claim that subsequent use of the concurrent resolution has deprived him of any veto power. This ingenious logic would lead, of course, to the conclusion that even the constitutionally prescribed bill veto power of the President (section 7, clause 2) could be eliminated by a single statute stating that henceforth legislation will become effective without presentation to the President. The President would, after all, have his opportunity to veto that initial bill. The argument is obviously absurd. Both the ordinary meaning of language and common sense dictate that when the Constitution states that “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary” must be presented to the President, it means precisely every such order, resolution or vote, and not merely the first one which authorizes an unending series of subsequent evasions.

You have also been told at these hearings that the Necessary and Proper Clause furnishes a basis for this feature of the legislation. There is, however, no authority whatever for the proposition that the Necessary and Proper Clause permits violation of other provisions of the Constitution. Such a claim was effectively dispatched quite recently in Buckley v. Valeo, 96 S. Ct. 612 (1976), in which the Supreme Court rejected in the following terms the contention that the Necessary and Proper Clause justified congressional appointment of the members of the Federal Election Commission:

(T]he claim that Congress may provide for this manner of appointment under the Necessary and Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of appointment because of its substantive authority to regulate Federal elections. Congress could not, merely because it concluded that such a measure was “necessary and proper" to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in § 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so. 96 S. Ct. at 689-670.

Another argument you have heard is that since Congress has the power to withhold from the President entirely the authority to enter into certain types of agreements over which it has legislative jurisdiction, it can a fortiori condition the grant of that authority upon congressional approval or disapproval by concurrent resolution. This ignores the fundamental principle which I discussed in the early part of this testimony, that a system of separation of powers permits both delegation and nondelegation, but not everything in between. To put the point another way, under any constitutional system the power to do the greater does not include the power to do the lesser by any means whatever. It is well settled law that Congress cannot attach an unconstitutional condition to a benefit or a power merely because it has authority to withhold the benefit or the power entirely. See, generally, Note, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968). In what is the classic case on this subject, the Supreme Court pointed out that Congress could, if it chose, bar aliens from our shores, but could not admit them under conditions which deprive them of constitutional rights such as the right to a fair trial. Wong Wing v. United States, 163 U.S. 228, 237 (1896). Similarly, Congress cannot use its power of withholding authority for certain types of agreements to extract a waiver from the President of either the Presentation Clauses or the protections of the doctrine of separation of powers.

You have also been informed in these hearings about the separate concurring and dissenting opinion of Mr.Justice White in Buckley v. Valeo, supra, which expressed approval of a congressional veto device as applied to regulations adopted by the Federal Election Commission. (For present purposes, we can assume that a one-House veto provision is the same as the concurrent resolution device contained in the present bill, though I will address that point specifically later on.) I must note at the outset two points: First, the Government neither briefed nor argued this issue before the Court, since we did not believe it had to be reached; so we harbor some hope that Mr. Justice White can be induced to reconsider his position when he hears our side of the case. Second, Mr. Justice White made it very clear that he was limiting his approval of the device to its use in connection with the actions of an independent regulatory agency; and since the present bill is not directed to such an agency but to the very core of the President's own foreign affairs authority, it cannot really be said that Mr.Justice White has spoken with respect to the precise issue here presented.

With that prologue, let me address the principal arguments not already discussed above which Mr. Justice White presented for his

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