position. He adduced as support for the proposition that the President's veto power may in some circumstances be avoided the fact that regulations of independent regulatory agencies are not subject to Presidential review, even though they may be substantive in character and have the force of law. 96 S. Ct. at 757. The fact is unquestionable, but it does not support the asserted proposition, since it is not the power of the President to veto actions of an agency which is here at issue, but rather his power to veto action of the Congress. It is one thing to establish a system in which the executive power can be somewhat fragmented, so that the actions of some agencies are not subject to Presidential review and veto; it is quite another to eliminate the constitutionally prescribed Presidential check upon action by the Congress.

Mr. Justice White then turns his attention to overcoming the clear language of the constitutional text. He observes that when a regulation which is subject to a one-House veto provision becomes effective by congressional nonaction, there has been no "Order, Resolution or Vote" of the Senate or House and hence the veto provision is inapplicable; and the Presidential powers have no more been invaded than they are by a regulation which is not required to be laid before the Congress. One must of course agree. But what if there is congressional disapproval? Mr. Justice White disposes of this possibility in a footnote, to the effect that when a regulation has been rejected there has been no change in the law, and nothing remains on which the veto power could operate." 96 S. Ct. at 757, note 30. Surely this is a contrived and hypertechnical interpretation of the constitutional prohibition, making its applicability depend upon whether the requirements for congressional approval is phrased in the statute as a condition precedent to the regulation's becoming effective or, on the other hand, as a condition subsequent which strikes down valid Executive action. Surely a decision bearing so closely upon the very structure of our Government does not depend upon such hair-splitting refinements, reminiscent of the analysis of medieval estates in land. Moreover, even as an exercise in hair-splitting the effort fails, since, as I have noted above, the Presidential veto power was set forth in two separate clauses precisely in order to avoid the argument that it is applicable only, as Mr. Justice White suggests, when the Congress "changes a law." Preventing the issuance of a regulation, no less than destroying a regulation already in existence, comes within the language of clause 3 of section 7, so long as it is done by a congressional "Order, Resolution or Vote."

Finally, let me address the argument that the disapproval of Executive action by congressional resolution must be recognized as valid because it is an established constitutional practice. This is met at the threshold by the dual warnings in Powell v. McCormack, 395 U.S. 486, 546-547 (1969), that an action is not any less unconstitutional because it has been taken before, and that the precedential value of a constitutional practice diminishes in proportion to its distance from the Constitutional Convention. The practice here involved is of very recent origin. The use of concurrent resolutions for the control of some types of Executive action goes back only to the 1930's. The earlier constitutional practice, starting with the earliest years of the Republic, was carefully analyzed in 1897 by

the Senate Judiciary Committee, which concluded that a distinction must be made between two types of congressional resolutions: those in which both Houses have a common interest, but which are peculiarly within the province of Congress alone; and those which are of a legislative nature or of concern to the President. The former need not be presented to the President, the latter are subject to his veto power. S. Rept. 1335, 54th Cong., 2d Sess., pp. 6, 8. A more concise formulation of that traditional test may be found in the statement that a concurrent resolution not presented to the President has "no force beyond the confines of the Capitol." 42 Cong. Rec. 2661 (1908) (remarks of Rep. Mann).

This older tradition is obviously entitled to far greater weight than the recent departure from it. In addition, it is well-established that resort may be had to constitutional usage only where the constitutional text is in doubt. United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915); Inland Waterways Corp. v. Young, 309 U.S. 517, 525 (1940). Here the text of article I, section 7, clauses 2 and 3, is unambiguous. Lastly, reliance on a practice to establish constitutional validity presupposes that the practice has been generally accepted as legitimate. E.g., United States v. Midwest Oil Co., supra. This description can assuredly not be applied to the concurrent resolution or one-House veto. On those occasions in which their inclusion in a measure otherwise essential has required Presidential acquiescence, Chief Executives have repeatedly expressed doubts concerning their validity. For the strong views of President Franklin Roosevelt on this point, see R. Jackson, A Presidential Legal Opinion, 66 Harv. Law Rev. 1353, 1357-58 (1953). Recent examples of formal Presidential protests can be found in the signing statements relating to the Social Security Amendments of 1973, Pub. Law 93-66, the Education Amendments of 1974, Pub. Law 93-380, the Amtrak Improvement Act of 1975, Pub. Law 94-25, and the Child Support Amendments of 1975, Pub. Law 94-88; and in President Ford's veto, on May 7 of this year, of S. 2662, a foreign aid authorization bill which contained six provisions subjecting Presidential action in the foreign affairs field to review by concurrent resolution, 12 Weekly Comp. Pres. Doc. 828 (1976). For all of the foregoing reasons, it is impossible to regard the control of agency action by congressional resolution not submitted to the President as an established constitutional practice entitled to respect.

I would next like to discuss very briefly two suggestions which have been made to you in these hearings as to minor modifications of H. R. 4438 which would assertedly eliminate all constitutional doubts. The first is that the Presentation Clauses can be avoided by providing for a simple rather than concurrent resolution—that is, a one-House veto-sínce by its language section 7, clause 3 applies only to resolutions "to which the Concurrence of the Senate and House of Representatives may be necessary." I believe, however, that this change would compound the problem rather than avoid it. In addition to the Presidential veto, another of the checks and balances established by the Framers was a bicameral legislature, in which each House, elected in a different way, would restrain the other. See The Federalist No. 51; H.L. Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif. L. Rev.

983, 1034-37 (1975). The omission of specific reference to a oneHouse resolution in the Presentation Clause was assuredly not meant to sanction avoidance of the Presidential veto by that process. To the contrary, the Framers probably never even envisioned that a single House would purport to take legally effective action on behalf of the entire Congress. In other words, a one-House resolution in derogation of Executive action is not in literal violation of section 7, clause 3 only because it contains, in addition to the defect which that provision addresses, the defect of being an unlawful delegation of congressional power to one of its Houses. As one scholar recently stated:

It verges on irrationality to maintain that action by concurrent resolution, whereby Congress is at least held in check by its own structure, is invalid because the veto clause so states, but that the invalidity of a simple resolution, wherein a single House acts without check, is more in doubt. H.L. Watson, supra, 63 Calif. L. Rev. at 1066, note 428.

Another suggestion which has been made to you for avoiding the constitutional problem we have been discussing is the amendment of H. R. 4438 to establish as the condition precedent to the effectiveness of any agreement, the passage of a concurrent resolution of approval rather than (as the bill now provides) the nonpassage, within 60 days, of a concurrent resolution of disapproval. This would, of course, still violate the language of section 7, clause 3-and it would again, in my view, compound rather than eliminate the separation of powers problem. As H. R. 4438 is now written, Congress can decline to use its veto power and maintain an essentially passive role. Under the suggested amendment, however, the active participation of Congress would be required for the consummation of each and every covered agreement. If the meaning of the term "national commitment" is construed broadly, this requirement might be so onerous that it would be an unconstitutional impairment of the ability of the President to conduct foreign relations.

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. 182-200.

Other Congressional Bills

Thomas E. Morgan, Chairman of the Committee on International Relations, House of Representatives, requested the Department of State's comments on a number of bills introduced in the 94th Congress which would have required congressional review or approval of international executive agreements. These included H.R. 1268, 1273, 5489, 5826, 6358, 6744, and 7745, all calling for transmittal to the Congress for its review of all executive agreements as defined in the bills, such agreements to enter into force only after a 60-day waiting period. All the bills would have provided a mechanism, varying from one to another, under which the agreements would not enter into force if Congress or one House of Congress were to so decide.

The first two numbered bills would have applied to "any executive agreement" that is not specifically authorized by an act of Congress or by treaty or, under H.R. 1273, by the Constitution as well. The remaining bills all defined the term executive agreement to mean "any bilateral or multilateral international agreement or understanding, formal or informal, written or verbal, other than a treaty, which involves, or the intent is to leave the impression of, a commitment of manpower, funds, information, or other resources of the United States, and which is made by the President or any officer, employee, or representative of the executive branch of the United States Government."

On June 2, 1976, Ambassador Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, transmitted to the Chairman of the House Committee on International Relations the Department of State's views on the pending bills. His letter stated that, in the Department's judgment, the bills raised substantial questions based on constitutional and practical considerations of the utmost importance. He set out those considerations as follows:

CONSTITUTIONAL DEFICIENCIES

Except for H.R. 1273, which specifically exempts from its coverage executive agreements entered into pursuant to a specific provision of the Constitution, the bills appear to rest upon an assumption that there is no independent legal authority in the executive branch to conclude executive agreements solely upon the authority of the Constitution. While the conclusion of the vast majority of executive agreements is authorized by statute or treaty, there are some agreements that are concluded solely under the President's independent constitutional authority. With these the Congress may not constitutionally interfere. This view has long been accepted in United States law. It is reflected in longstanding practices and traditions of both the legislative and executive branches as well as holdings of the judicial branch, including the Supreme Court. It is supported by legal scholars. Many executive agreements which the United States has entered into over the years, such as agreements with respect to recognition of governments, claims settlements, armistices, and control of occupied areas, among others, have been authorized not by statute or treaty, but solely by the President on the basis of his constitutional powers. Thus we are constrained to say that the assumption upon which the bills rest is constitutionally invalid.

There is another basic element of all of the bills which renders them defective on constitutional grounds. In those areas of foreign policy in which the President and the Congress share responsibility, the President is frequently authorized by treaty or statute to conclude executive agreements. In our view, such treaty or statutory authority to enter into executive agreements may not constitutionally be overridden or amended by means of a concurrent or one-House resolution of approval or disapproval. Such a

procedure would be contrary to article I, § 7 of the Constitution, which requires that:

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.

In our view, this mandatory language of the Constitution was intended to apply to any congressional action having legislative effect, or having the force of law. Existing examples of the so-called legislative veto are, in constitutional terms, relatively recent, have been attacked on constitutional grounds by authorities on constitutional law, and have not been judicially sanctioned.

PRACTICAL PROBLEMS

The bills are excessively broad in that they are applicable in war as well as in peace. This is objectionable on both national security and constitutional grounds. In the past, the President, as Commander in Chief, has made hundreds of executive agreements, many on very short notice, necessary to the conduct of war or hostilities. At such time, it is not practical for the President to submit every such executive 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 these bills. Clearly such agreements must be timed precisely to the hour and minute, and cannot wait upon a sixty-day period during which the Congress may disapprove or fail to approve them. Such incursions into the powers of the President as Commander in Chief are unacceptable from the standpoint of the national security and raise serious constitutional questions.

Beyond the questions of applicability in periods of war or hostilities, the fact remains that any of the bills, if enacted, would create considerable confusion in the administration of the existing legislative authorizations under which the President has until now administered programs of national importance. For example, military assistance programs are implemented country by country under the terms of a bilateral military assistance agreement. The present bills would substitute a new procedure for bringing into force the international agreements between the United States and other countries made in pursuance of these congressionally authorized programs.

This problem is further compounded by the extremely broad definition of executive agreement set forth in all but the first two numbered bills, and the lack of any definition in those two bills. Even the most trivial provision of assistance, or the most insignificant agreements would fall within the ambit of the proposed legislation. The bills would not distinguish between those agreements of substantial interest to the Congress, and the great number of minor, routine, technical agreements, the vast bulk of