constitutional law and procedure in the past, that matters of gravity being intended to be submitted to the Senate for ratification.

Dr. CASPER. You are certainly quite right. The notion of a treaty was that an important matter would be dealt with through this mechanism, and trivia would be dealt with by executive agreements and not, as you suggest, the other way around.

Senator CHURCH. It is the other way around.

RELATIONSHIPS BEING RECONSIDERED

Dr. CASPER. But, Senator, I think it is valuable to follow up the suggestion of Senator Pearson, to look at the executive agreements in this context because the subject matter of your committee really has to be seen as being part of a continuum of problems. On the one hand, emergency powers of the President, on the other hand executive agreements, executive privilege, impoundment and so on. That is, we are living in exciting times: basic institutional questions about the relationship between the Congress and the executive are now being reconsidered. They all hang together.

Senator PEARSON. Professor, they are exciting for you and frustrating for us.

Dr. CASPER. Yes, I make my living this way, you see. [Laughter.] As to the foreign affairs power of the President it does not give him any power over internal, including economic affairs. United States v. Curtiss-Wright is not a case to the contrary, since the Court limited it to its facts which involved "a situation entirely external to the United States". There are two cases which are relied upon all the time: one is Steel Seizure which is invoked by those critical of "inherent" executive powers; the other is Curtiss-Wright which is cited by those who favor extensive administrative power. As you know, legal principles tends to come in pairs. The problem with the Curtiss-Wright part of the pair is that it is not much of an authority for executive power.

Justice Sutherland's extravagant dicta in that case about "the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations [299 U.S. 304, 320] are irrelevant precisely because they are dicta. The President in that case, in Curtiss-Wright, had acted in accordance with a very specific and narrow Joint Resolution of Congress which would meet anybody's standards for delegation of powers.

There must be grave doubts, for example, about the constitutionality of the surcharge imposed by President Nixon on August 15, 1971 and apparently justified by his declaration of a national emergency, since in that situation statutory authority was insufficient. That is, the Presidential proclamation did indeed invoke statutory authority but I find that authority insufficient. The Administration must also have had doubts about it, since otherwise it hardly needed to add the national

emergency.

Senator CHURCH. Is it not also true, bearing out your theory, that yesterday when the President sent up his bill he asked for the statutory authority?

Dr. CASPER. Precisely, Senator.

Senator CHURCH. Which is an admission that he previously had not.

Dr. CASPER. I was just going to say exactly that. I quite agree. I think the Administration yesterday admitted that much, unless, that is, one were to draw a very artificial distinction between emergency conditions in 1971 and the present request. We should remember that the balance of payments emergency which the President set out to resolve on August 15, 1971 had been in the making for about 20 years. It was not exactly a fresh emergency.

Senator CHURCH. And it has not been resolved.

Dr. CASPER. And it has not been resolved either, most certainly not.

"EMERGENCY" NOT CONSTITUTIONAL AUTHORITY

The President has no constitutional authority to engage in regulation of the economy by mere incantation of the word "emergency".1 Here, as elsewhere, the Congress, of course, bears responsibility. Since it generally applauded the measures of August 15, 1971, it apparently considered itself relieved of institutional constraints. In the end, the Congress neither ratified nor removed the surcharge. The President did so when he thought it had accomplished its goal.

Whatever emergency powers are to be given the President by the Congress ought to be circumscribed as to the specific circumstances

Senator CHURCH. Before you go on, are you saying here that, in your judgment, if the Presidential action in imposing the surtax had been subjected to a constitutional test that it may well have been held unconstitutional?

Dr. CASPER. Yes, I think that would have been very possible. Let me perhaps elaborate on the point a little bit, Senator.

The Administration invoked the Tariff Act and the Trade Expansion Act as justifying the surcharge. Later on, that is after the proclamation of August 15, I think the Administration also cited the Trading with the Enemy Act as support. As we heard earlier from Dean Fisher that has become the catch-all provision.

Now, my difficulty with use of the Tariff Act and the Trade Expansion Act as authority for the surcharge, has to do with my opinion that whatever authority has been given in those statutes is essentially authority for the President to engage in selective retaliation against countries burdening the trade of the United States.

However, there was no authority to impose an across the board surcharge on all countries regardless of circumstances. As you remember, the surcharge applied to all countries. Take for example Sierra Leone. As far as I know, Sierra Leone had done nothing to burden United States trade.

Furthermore, as concerns the Trade Expansion Act the authority, essentially consists of revoking benefits given under trade agreements. That is to revoke those trade agreements. But the President did not revoke any trade agreements in imposing the surcharge, he imposed an additional tariff. The agreements remained in force.

The Trading with the Enemy Act, Dean Fisher proposed that the title be changed. I am not sure I like that. The title after all correctly suggests, that it is an emergency statute. It came as a surprise to me that the Administration was willing to use the act to justify

1 [Comment, The United States Response to Common Market Trade Preferences and the Legality of the Import Surcharge, 39 The University of Chicago Law Review 177, 234 (1971)].

measures imposed on for instance, Great Britain. But let me turn to the main topic.

Whatever emergency powers are to be given the President by the Congress ought to be circumscribed as to the specific circumstances in which they may be invoked must include standards for their exercise and must, in any event, never amount to transfer of legislative powers to the executive or to abdication on the part of the Congress.1 This principle does not exclude delegation of somewhat broader rule-making powers for and during emergencies than would be permitted under delegation of powers standards for ordinary times. As Justice Jackson wrote in the Youngstown Steel seizure case:

In the practical working of Government, we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. [343 U.S. 579, 652].

ARE WE IN A STATE OF WAR?

Senator PEARSON. May I interrupt at this point in time, are we still in a state of war with any country today, are we in, legally in. a state of war with Germany?

Dr. CASPER. The state of war has been terminated but we have no peace.

Senator PEARSON. Do we have a peace agreement?

Dr. CASPER. No, we have no peace agreement with Germany and I think the major explanation for that is that the Soviet Union would never have agreed to a peace which would have permitted unification and since the west insisted on reunification

Senator PEARSON. What is the significance of not being in a state of war but not being subject to a peace agreement?

Dr. CASPER. Well, I wonder whether there is any. As far as international law is concerned, I think the difference between ending the state of war and having no peace is at present absolutely nil. It is, of course, a kind of symbol of the times that we do not tidy things up afterwards.

Senator PEARSON. But they leave the national emergencies existing, do they not?

Dr. CASPER. No, I would not say so. I would assume that once the state of war has been ended the war powers exercised under it, and especially emergency powers, have also ended.

Senator PEARSON. Does the signing of an armistice end a state of war?

Dr. CASPER. That might be a little tougher because armistices apparently do not last very long these days. In any event, when two nations have gotten around to formally ending the state of war in their relationship with one another then at the least should we assume that war powers have been exhausted.

I was a little bothered by part of the earlier discussion when Dean Fisher testified about what is indeed a very peculiar state of affairs.

1 [Schechter Poultry Corp. v. United States, 295 C.S. 495, 529 (1935)].

The idea is that once an emergency has been invoked, let us say, once we are at war with a particular country, as long as the emergency lasts presidents apparently believe that they can do almost anything under that emergency power that is, there is a nonspecificity of the emergency powers, and

Senator CHURCH. We find ourselves now in that sea of nonspecificity.

Dr. CASPER. Precisely.

Senator CHURCH. Because there are at least three declarations of emergency still extant.

Dr. CASPER. Right.

Senator CHURCH. One of which dates back to 1933 when the President invoked it for purposes of dealing with the internal depression; the second being that of President Truman, relating to the Korean War; and the third being that of President Nixon and relating to a fiscal crisis.

Dr. CASPER. Yes.

Senator CHURCH. Yet, these three declarations have never been terminated, and presumably they give rise to the whole range of emergency powers conferred on the President by no less than 580 different clauses in the U.S. Code. That seems to be our predicament at the

moment.

Dr. CASPER. Senator, later on, in my written statement, I call this a surrealistic nightmare and it is indeed exactly that. It also fosters, of course, a mentality which suggests that we live in a garrison state, we have to be, we are in a state of alertness at all times. There is no such thing as normal times any more.

Senator MATHIAS. If I can interrupt you to just underscore what you are saying against the historical background which Dean Fisher gave us from his own experience, that the 1950 proclamation of emergency was not intended to marshal any legal powers, that it was purely a public relations gesture because we were then still in a state of war with Japan, and the President had all the powers which would be generated by being in a state of war, the United States then being in a state of war, and so there is a very cynical, not to say dangerous, aspect of having taken what was a public relations proclamation intended to increase the pulse beat of the nation, and using it as the generative force for very serious legal powers, and I think it also, your colloquy with Senator Church, now raises very serious questions, about what statutes mean when they say in wartime or in time of war, because those words are words of art which are employed in statutes, and the twilight seems to be spreading.

Dr. CASPER. I might suggest that with respect to your proposed legislation, which I read just this morning, indeed one might want to ask whether the notion of specificity should not be considered more fully, that is, to further narrow down the emergency powers to apply only to those problems for which they were designed.

Senator Church, if it comes as a consolation to you I should like to call your attention to the fact that in the case of Pike v. United States in 1965, the United States Court of Appeals for the 9th Circuit noted in its opinion that the Government had conceded in its argu

ment that the 1933 emergency probably was over. Now let us hope the Government attorney spoke with authorization. I do not know, maybe this was a major policy question for which he had no authority to commit the Government, but there is some concession, as you can see.

ANOTHER ASPECT OF PROBLEM

I should like to turn to another aspect of the problem. It seems to me that the most important conclusion which follows from the prohibition of transfer of legislative powers and abdication in that it is generally the obligation of Congress to determine when an emergency begins and when it ends. While fixing the beginning may be very difficult, since abstract language has to be used to define future events never exactly foreseeable, determination of the end of an emergency is considerably less difficult, since the Congress will have or should have all the necessary information.

The point of the matter is that it would be unrealistic not to view rule-making powers of the President during emergencies as essentially legislative in nature. Delegation under these circumstances will give the President not just discretion as to details, but often will be openended as to content and scope of the authorization. To make this state of affairs constitutionally proper, it has to be put under severe constraints in terms of congressional oversight and termination. If this argument has any power, those laws presently on the books must be considered unconstitutional which give the executive extraordinary powers without providing for termination of a presidentially invoked emergency. They constitute an unchecked transfer of legislative powers. In this context Senator Church, I should like to respond to your questioning of Dean Fisher about the difficulty of getting the President to relinquish the powers he now has.

I think there is another aspect which was not mentioned earlier and that is that some of these statutes may well be unconstitutional. Senator CHURCH. Yes.

Dr. CASPER. And I believe that in publicly arguing the case of this committee one should keep that in mind. Now, it is quite true, of course. that it would probably be very difficult to get a court determination of their unconstitutionality because courts have been treating emergencies essentially as political questions and have often yielded to the higher wisdom of the Executive or the Congress in evaluating them constitutionally.

However, it is very important, I think, to remember that the Constitution, contrary to popular beliefs, widespread among lawyers in this country, is not just what the Supreme Court says it is. The Constitution is generally obligatory and we should rely on constitutional arguments and should invoke them even if we cannot get court determinations. The courts are of secondary importance as far as I am concerned. Neglect of the Constitution outside litigation is a very unfortunate development which I think is due to that school known as legal realism which took hold in the early twenties among law professors who tried to take a behavorial approach to law. The legal realists' theoretical fascination with prediction made them concentrate on the courts, which were also those governmental agencies they knew best. Unfortunately, here too Justice Holmes provided an easy formula: "The prophecies of what the courts will do in fact and nothing more