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suunity. Rapid and necessarily secret troop mobilizations, for example, muat sequently be accomplished for the common defense. In order to tapedite the treaty process, the Founders are said to have favored the Senate rather than the full Congress as treaty concomitant to the President, in part, at least, because its size aided speed and secrecy.140 Nevertheless, military necessities have required that several thousand private executive agreements be reached under NATO alone without public disclosure or Senate confirmation. 141

Certainly Congress or even the Senate would soon lose any semblance of efficiency if required to act as a clearing house for the plethora of daily details and minor changes related to the administration of every existing treaty. This burden is usually obviated by revision clauses within the treaty itself which, when approved by the Senate, allow the President considerable latitude, 142 Even if the treaty does not expressly provide for revision, the President should perhaps be able to implement minor changes as new conditions demand. But independent executive action in treaty arrangements should be strictly confined to situations where speed is necessary or where the routine nature of the change make consultation inappropriate.

Regardless of the advantages inherent in the executive branch, the image of an omniscient President faithfully executing the laws and personally attending to executive duties with discipline, foreknowledge, and expertise is generally a myth. In reality, the President does little by himself. He is surrounded by non-elected staff members, agencies, bureaus, advisors, and councils numbering over 1500 persons. As a result, it is argued that decision-making in the executive branch closely parallels crowd behavior 144 and often involves more individuals than when similar issues are resolved by Congress. It is possible that more persons occupy themselves with executive than with legislative policy and for longer periods of time. For example, proposed Warsaw Convention improvements were before committees in Congress for less than three years whereas they were entrusted with various executive agencies for more than twice that period, eventually emerging under the guise of studied proposals which were, at least in part, admittedly arbitrary.145 Despite presidential permanency, so much of the Chief Executive's time is occupied by the many menial tasks of office—such as naming ships, greeting foreign potentates, signing letters and docu


140 See, e.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320–21 (1936); THE FEDERALIST No. 64 (Jay) ; 1 Richardson, MESSAGES AND PAPERS OF THE PRESIDENTS 194-95 (1900), BYRD, op. citsupra note 133, at 25–28: McLaughlin, The Scope of the Treaty Power in the United States, 42 MINN. L. Rev. 709. 738-39 (1958). Even though Senate membership has measurably increased since 1789, still it is far easier for 100 Senators to hold a closed session than it is for 435 Representatives.

141 Colloquy between Secretary of State Dulles and Senator Watkins in Hearings on 8.J. Res. i and 8.J. Res. 43 Before a Subcommittee of the Senate Committee on the Judiciary, 83d Cong., 1st Sess., 881 887 (1953); BYRD, Jop. cit. supra note 133, at 132 n. 23.

143 For types of revision clauses commonly inserted to update treaties, see WILLOUGHBY op. cit. supra note 112, at 543; McLaughlin, 8upra note 140, at 767; Wilson, supra note 120 at 901409.

143 DE GRAZIA, REPUBLIC IN CRISIS 70 (1965); Somers, The President as Administrator, in THE PRESIDENT : ROLES AND POWERS 160, 166 (Haight & Johnson eds. 1965).

144 DE GRAZIA, op. cit. supra note 143, at 71 ; Somers, supra note 143, at 161-62.

145 In addition to the unresolved issue of absolute liability imposed upon carriers, the liability limitation was changed three times within a matter of weeks by the Admnistration. Before Congress, State Department witnesses first proposed insurance of $50,000, admittin, that this amount was "arbitrary, of course---as any such figure must be." 1965 Senate Hearings 5. To justify the next figure of $100,000 proposed to the carriers and at Montreal, the Administration reasoned that the claimant must "gross” that amount in order to "net" $66,600 after attorney's fees were deducted. Kreindler, supra note 134, at 301. There was similar lack of supporting evidence for the eventual $75,000 imposed by carrier accession. As a matter of fact, CAB studies on file indicate that the average nonWarsaw death award is considerably below the Government's predictions. 1965 Senate Hearings 29–38.

ments, and appointing minor officials that his opportunity closely to supervise the countless activities of his appointed subordinates is manifestly impossible. Thus, headlined "executive programs" affecting broad segments of society may be bureau-born and executed without more than bare and superficial knowledge of the President. 146

Congress is the constitutionally designated body to restrain or redirect executive action. From this role emerges the popular image of that body as recalcitrant, obstructive, and reactionary. By exposing its complicated and often irrational operations to public scrutiny, Congress incurs a reputation as a cumbersome, time-consuming, and inefficient body.147 The President, on the other hand, usually enjoys the image of action, speed, and dispatch: “the power to get things done.” 148 But even the presidential office, though it has frequently been occupied by skillful practitioners, cannot be declared categorically one of inherent expertise 149 or even ordinary efficiency in its daily operations. Nevertheless, this government has been structured so that the actions of one fallible branch may be reviewed in public by another.150 If efficiency is judged in terms of longevity, stability, and flexibility of institutions in promoting progress through preservation of individual liberties, history should vindicate this constitutional structure as one of true long-range efficiency.151 Its degeneration will come only, as Mr. Justice Frankfurter stressed, from "unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” 162

Of particular concern in view of the increasing interdependence between foreign and domestic affairs is the President's expanding control over commercial treaties. During the constitutional debates, delegates noted that the treaty process could easily determine the extent of domestic as well as foreign policies. John Rutledge, for example, spoke of "an obvious difference between treaties of peace and those of commerce.” 153 To prevent interference in local matters, some delegates proposed more stringent limitations on federal power than a two-thirds majority of those Senators present to enact treaties regulating commerce. Some preferred a two-thirds vote of all Senators, and others a vote by that margin in both Houses of Congress as a means of procuring greater public discussion where private interests are involved.184

148 CJ DE GRAZIA, op cit. supra note 143, at 75.

147 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952) (Douglas, J, concurring).

148 De Grazia, op. cit. supra note 143, at 72. The President, with a multitude of "emergency, ," "crash." and "crisis" programs with high-flown slogans formed to meet foreign aggression or domestic crises, conveys the impression of creativity, energy, and progress. But with regard to the innovation and implementation of measures "in the public interest," the survey in Chamberlain, The President, congress and Legislation, 61 Pol. Sci. Q. 42-60 (1946), reprinted in The President: Roles and Powers, at 297–310 (Haight & Johnson eds.' 1965), shows that the Congress over a period of half a century was the source of many more important laws than was the Presidency. Furthermore, many executive ideas such as the Peace Corps originate or are developed by congressmen. See De Grazia, op. cit. supra note 143, at 92. Thus, it is clear that Congress' role is not only to block or approve executive proposals, but also to evolve measures of reform, meet emergencies and oversee social well-being.

140 Comparing the occupants of both the legislative and executive branches so far as knowledge and expertise is concerned, the Second Hoover Commission reported : “Much of the activity of government noncareer executives involves the Congress, and in these relationships the Congressmen easily outweigh the government executives in federal polltical evnerience The vast task of taking command of departments and agencies, developing policies and programs and defending these before the Congress and public as well as before presidential staff_arms overwhelms the noncareer executives." Commission on Organization of the Executive Branch of the Government, Personnel and Civil Service, Report 26–27 (1955). See also De Grazia, op. cit. supra note 143, at 89.

150 Myers v. United States, 272 U.S. 52, 293 (1926) (Brandels, J., dissenting): "The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments. to save the people from autocracy."

151 See Byrd, op. cit. supra note 133, at 193: "A political theorist who equates good government with efficient government and efficient government with simplicity would condemn this system as outrageously complex. But efficient government must be judged in terms of the time element. A government may be highly inefficient over a short-term interval, get highly efficient over a longterm interval. ii stability combined with orderly change is deemed to be the criteria of efficiency, then the United States Government is very generally considered to be the most efficient on earth."

153 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J. concurring).

It has been suggested that restraints upon the President's power to terminate or modify treaties may hamper national bargaining power at the conference table.165 But consider the position of Dean Roscoe Pound:

I have no patience with the argument so often made that the exigencies of international relations in the unifying world of today require that the national executive be free from constitutional restraints in bargaining with foreign nations. I agree that the executive ought not to be subjected to too much participation by legislative bodies. But all the powers of government in our polity must be exercised within the limits of the Constitution, and the increased importance of international relations in the world of the time only calls for the more insistence upon keeping the national executive

within those limits in this domain also. 156 Certainly, a requirement that all threats, tactics, or propositions advanced during treaty negotiations must be approved by the legislature would so fetter the President as to render him ineffective in conducting foreign relations. But there is no proof that any such approval of those terms which survive negotiation and which are intended as permanent and binding would import that same effect. The Department of State, for example, was able to extract major concessions from other countries at the Hague in 1955 even though the agreed revision could not become effective in the United States until the Senate approved. Similarly, while it is true that the threat to denounce a treaty is an important negotiation tactic, the requirement of Senate consent should not reduce its effectiveness. On the contrary, had the Executive before going to Montreal first obtained legislative assent to termination of the Warsaw Convention,157 the display of national unity may have gained results equally as impressive—though perhaps less hasty and arbitrary-while at the same time assuring better representation of affected interests by public airing of the issues. When presented to the Legislature, executive proposals for new treaties or their termination or amendment have seldom been unduly delayed or dismissed unless of a distinctly controversial nature,158 in which case the legitimate function of that branch is to brake hasty action until the controversy is resolved. But this history of Senate cooperation should not be mistaken for subservience. The constitutional requirement of legislative approval has provided a permanent opportunity to examine executive proposals before binding private interests by law.

168 Byrd, op. cit. supra note 133, at 32. Fearful that Senate consideration of treaty proposals would not afford sufficient public discussion, both Madison and Jefferson purportedly took the position during the mid-1790's that commercial arrangements with other nations should be made only by majority vote of both Houses of Congress. McDougal & Lans, Treaties and Congressional-Executive or Presidential Agreements Interchangeable Instruments of National Policy, 54 Yale L.J. 534, 542 (1945).

154 See Byrd, op. cit. supra note 133, at 31-33.

155 See, e.g., Nelson, The Termination of Treaties and Executive Agreement: by the United State8s Theory and Practice, 42 Minn. L. Rev. 879, 887 (1958).

156 Pound, Introduction to Levitt, The President and the International Affairs of the United States at vi (1954).

167 Earlier at The Hague, when the United States had difficulty obtaining Its goal of $25,000 liability limits, "the United States delegation 'banged its fists on the table,' (and) talked of possible denunciation," Lowenfeld & Mendelsohn, supra note 129, at 506–07. When the delegation went to Montreal in 1966, this time after having tendered presi. dential denunciation, again many delegates from other nations "failed to grasp the fact that the United States was really serious. Many of the delegates thought the denunciation was a bluff, and that the $100,000 figure was simply an opening for a horse-trading session. When the United States did not quickly reduce its demands, as it had done at The Hague, some delegates thought the United States did not really want agreement at all and was merely seeking an allbi for unilateral action.” Id. at 564.

As for the Warsaw Convention changes, the Congress may yet play a positive role by demanding that the President submit the "interim arrangement” to open debate in the form of a treaty protocol before becoming permanent law.159 A subservient course would be dangerous, for, while independent executive action may not legally divest Congress of its powers unless sanctioned by long-continued acquiescence, congressional inaction tends to encourage the executive to act unilaterally. 160 As Mr. Justice Jackson noted:

Just prior to executive denunciation, there was a noted temper in Congress of dissatisfaction with United States membership in the Warsaw convention, see note 27 supra, which the President could have employed to denounce the Convention more impressively in the eyes of other nations and, perhaps, obtain improved terms by direct amendment to the Warsaw Conventiton at Montreal.

158 It was calculated that until 1945 only seven to ten treaties had been directly vetoed by the Senate, the most notable being the Versailles Peace Treaty, which would hare organized the League of Nations. Some 20 percent were abandoned by the President and Executive Agreements-4 Reply, 54 YALE L.J. 616, 657 (1945); Wright, The United States and International Agreements, 38 AM. J. Int'. L. 341, 353 (1945).

158 The Administration itself has promised to submit the arrangement to the Senate at some future date. Mr. Leonard K. Meeker, Legal Adviser for the Department of State, in the Dep't of State Letter, supra note 124, at 246, said: “[I]t should be emphasized that the arrangement will be in effect for an interim period only. It will be the subject of a diplomatic conference at some_future date, at which time appropriate modifications to the arrangement can be made. Prior to the conference, all interested parties will be invited to present their views on all aspects of the issue. If the diplomatic conference reaches agreement on a new convention, that convention will be submitted for the advice and consent of the Senate, at which time public hearings will again be held."

180 With his initiative in the field of foreign affairs, the President “is consequently able to confront the other departments, and Congress in particular, with faits accomplis at will, although, on the other hand, Congress is under no constitutional obligation to back up such faits accomplis or to support the policies giving rise to them.” CORWIN, op. cit. supra note 131, at 180.

Congress in the past has exerted its prerogative to re-examine executive arrangements which it deemed proper subjects for treaties, and in several cases revised or terminated such arrangements. Through the Secretary of State, the President repeatedly justified the conclusion of the Chicago Air Transport Agreements (often referred to as the “Two Freedoms” and “Five Freedoms” agreements) without reference to the Senate. See_Letter by Acting Secretary of State Grew to Senator Bilbo of the Senate Committee on Foreign Relations, June 9, 1945, in 7 DOCUMENTS ON AMERICAN FOREIGN RELATIONS 622 (Goodrich & Carroll eds. 1945). Nonetheless, lively criticism of the action by the Senate led to denunciation of the agreements by the United States in 1946. See Lissitzyn, The Legal Status of Executive Agreements on Air Transportation, 17 J. AIR. L. & Com. 436, 443 (1950). Part of the controversy centered upon the complaint that, while bilateral executive agreements have been entered into for temporary purposes as modus vivendi, multilateral agreements should be incorporated into treaty form, particularly where they purport to change prior legislative enactments. Borchard, supra note 158, at 642-43 (1945).

The proposed treaty regulating administration of the oil industry was submitted to the Senate for approval only after members of the Foreign Relations Committee decided that the previously concluded Oil Agreement of August 8, 1944, with Great Britain, was a proper subject for treaty alone. Id. at 634–35. Finally, the Aiken "St. Lawrence Waterway" Bill embodied an independent executive agreement with practically the same commitments with Canada which the Senate had rejected as a treaty proposal on March 14, 1934. by a 46-42 vote. The Commerce Committee, however, resisted the effort to pass a rejected treaty provision in the form of Joint Resolution, and the Senate defeated the bill on December 12, 1944, by a vote of 25–56. Id. at 619, 653-55.

I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there is worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. 161


The “Montreal Agreement," signed by private beneficiaries of the Warsaw Convention as a means of preventing denunciation of that treaty by the President of the United States, represents a new approach to executive legislation by treaty. Neither the Constitution nor the courts have indicated that the President has authority to terminate a binding, viable treaty obligation without the consent of Congress or the Senate. When exercise of the termination power to reconstruct major treaty provisions affects private rights and the regulation of domestic and foreign commerce, legislative sanction should be required. Absent special factors requiring speed and secrecy to amend or revoke a treaty, the need for full debate and representation of affected interests demands congressional consideration. The Warsaw Convention is a commercial treaty directed primarily toward private interests and

thus should not have been denounced or revised without approval by Congress or the Senate. In circumventing that procedure, the President exceeded the authority of his office.

101 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Jackson, J., concurring). Professor Kurland similarly views the challenge to Congress : "In the course of this century, the states have surrendered their role as meanginful components in our system of government by failing to recognize that the necessary concomitant of power is responsibility. In the words of Patrick Henry, Congress may profit from their example. Seven hundred and fifty years ago, at Runnymede, began a chain of events that eventually resulted in the supremacy of legislative over executive power in Anglo-American government. Somewhere in the recent past, perhaps with the Great Depression, perhaps at Pearl Harbor, perhaps at Los Alamos, the United States crossed the watershed and started moving toward a restoration of the supremacy of the executive power. How far we have traveled is hard to say. The success or failure of presidential price and wage controls (or, perhaps, legislation by treaty) may give us some basis for judgment.” Kurland, Guidelines and the Constitution: Some Random Observations on Presidential Power to Control Prices and Wages, in GUIDELINES, INFORMAL CONTROLS AND THE MARKET PLACE 240 (Shultz and Aliber eds. 1966).

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