In the field of preventing war, and even in peace-whether we like it or notthe need of any nation for freedom to contract with others is becoming increasingly important. As the world shrinks, nations and peoples cross paths with each other more often. And to get what we think we need, we must give up what others think they need-we must be in a position to make promises and to perform them. Again in a crisscrossed world, administration cannot always be joint and often must be delegated. The proposed section 2 prohibits contracts of delegation, and thereby in our opinions stamps itself as bad policy for all of us.

If section 2 were adopted, the only way in which a need for any such treaty or executive agreement could be met would be a further constitutional amendment. Senator Bricker states (and we think quite properly) that an amendment would be required before the United States could join a world government or the Atlantic Union or other regional government." But section 2 would force the necessity of a constitutional amendment in order for us to make even many normal types of treaties. Such a method of doing business seems to us as impractical as it is unwarranted.

Nor is the idea free from immediate practical conflict with our foreign policy. We have written into the Mutual Security Act of 1951 our policy to encourage West European unification.** This requires in these countries processes which Senator Bricker would oppose in this country." When the matter arose in the Dutch Parliament, the Communists opposed European unification and they got some ammunition from Senator Bricker's move in the opposite direction in his proposed constitutional amendment.35

In the field of foreign relations the problems of delegated action which present conditions are forcing on all nations are puzzling and novel. We would be only prudent to feel our way with caution. But section 2 would not even let us try— unless we sought a constitutional amendment each time.

To tie our own hands with section 2 would be to turn our backs on the experience which the Constitution itself has taught us. This document is still guiding us-165 years after it was written--because it spoke in terms which intentionally permitted experimentation and growth. Its words of absolute prohibition are few and mostly specific. Whatever may have been the problems of liquor which the 18th amendment sought to solve, the people decided that a constitutional prohibition was not the way to do it, and 15 years later adopted repeal in the 21st amendment.

Should the people be asked to write out of the Constitution any power in anyone to make any delegatory treaty or executive agreement no matter how advantageous it may be? We believe not. The Constitution already gives us protection by checks and balances. As to executive agreements, the discussion of section 4 on page 38 below is applicable here. If a bad treaty is proposed to us, the President can refuse to sign. If he does sign, its ratification can be killed by the votes of one-third of the Senators present plus one. Or if a treaty is considered desirable in certain respects but not in others, it can be ratified by the Senate with safeguarding reservations. The Senate has shown no diffidence in rejecting treaties or in adopting them with reservations," to such an extent that it has been accused of being the graveyard of treaties.

In conclusion as to the proposed section 2: It would have prevented our making various treaties and international arrangements which in the past we have considered it advantageous to make. It would in the future prevent our joining international courts for the settlement of disputes by peaceful methods, and our delegating power to international commands for the most effective conduct of wars. We believe that section 2 is unnecessary, and against the best interests of all of us.

2 98 Congressional Record 924 (February 7, 1952). Mutual Security Act of 1951, 65 Stat. 373, sec. 101 (a) (1). 498 Congressional Record 924 (February 7, 1952). a The New York Times, March 20, 1952, p. 9. The Lower House of the Dutch Parliament approved a constitutional amendment that a treaty in conflict with basic Dutch law shall take precedence when it serves to promote "the development of the international legal order.'

Some important examples are the Hague [international arbitration] Conventions I and II of 1907, ratification of which was consented to by the Senate subject to reservations reasserting the Monroe Doctrine and providing against compulsory jurisdiction, 36 Stat. 2199, 2240, 2 Treaties, etc. (Malloy, 1910), 2220, 2247-2248; the statute of the Permanent Court of International Justice of 1920, the protocol of signature of which was first consented to with reservations but finally rejected by the Senate after renegotiation, 5 Hackworth, Digest of International Law, 141-142; and the restrictive reservations which prevented our entry into the League of Nations.

PROPOSED AMENDMENT-SECTION 3

"No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that Congress shall so provide by act or joint resolution."

So far as treaties are concerned, this requirement would be superimposed upon the existing constitutional provision that a treaty must be ratified by two-thirds of the Senate in order to take effect (art. II, sec. 2). Thus, insofar as a treaty conflicted with existing law, whether State or Federal, it would be without internal force or effect until the treaty had been ratified by two-thirds of the Senate and implemented by a congressional enactment by a majority of each House.

So far as executive agreements are concerned, the effect of section 3 would be to impose a prohibition of the same nature as that imposed in the case of treaties, except that there is no requirement in the Constitution necessitating Senate ratification of executive agreements.

Section 3, in dealing with treaties, is similar to a proposal which was made in the Constitutional Convention and defeated by a vote of 8 to 1. That proposal was that the Constitution provide that "no treaty shall be binding on the United States which is not ratified by law." The history of the intervening 165 years suggests nothing which would justify reversing this decision now, or adding the approval of the House of Representatives to the requirements for the exercise of the treatymaking power.

In a federal system of government, such as ours, it is essential not only that the control of foreign affairs be lodged in the Central Government, but that there be provided some effective means of enforcing such control. The chaotic situation which existed under the Articles of Confederation is a sufficient example of the result of failing to provide the Central Government with a means of giving internal effect to its treatymaking power.

38

Section 3 ostensibly recognizes the need for federal supremacy in foreign affairs and does not in terms purport to abolish it. However, the requirement of a congressional enabling act in order to make a treaty or executive agreement supersede conflicting State laws would have a crippling impact upon the treatymaking power.

The contention that the "change would place the United States on a parity with other nations in the treatymaking process" " does not withstand analysis. The situation in the United States is in no way comparable to that existing in countries like Great Britain, France, Holland, or Belgium, for example, where the executive is chosen by the majority of the Parliament or legislative body. In those countries the government in power controlling both the executive and the legislative branch must necessarily be in a position to implement any treaty or agreement negotiated by it with a legislative act-otherwise the government which negotiated the treaty or agreement would itself fall.

In the United States the executive is not chosen by the Congress and the President may not be in a position to obtain a congressional majority in favor of a treaty. This is true even where a treaty has been ratified by two-thirds of the Senate, as local interests may cause a subsequent adverse vote in the House or even the Senate. Even if such a majority could be obtained, the treaty would remain ineffective, insofar as it conflicted with existing State or

37 The sole proponent of this idea argued that treaties should be made difficult. It was pointed out, however, that a minister negotiating a treaty would get his credentials from one body but his work would depend for ratification on another body. Farrand, The Records of the Federal Convention (1911 edition, vol. 2, pp. 392–394).

38 An amendment to the Constitution recently proposed by the house of delegates of the American Bar Association over the opposition of its section of international and comparative law reads as follows:

"A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty," (Emphasis supplied.)

The italicized words would prevent enforcement of a treaty against an inconsistent State law unless the subject matter of the treaty happened to fall within a power delegated to Congress in the domestic field. The amendment sponsored by Senator Bricker (S. J. Res. 130) does not go so far and would not have this result if the Congress enacted a supporting law. Under the American Bar Association house of delegates' proposal, for example, the decision in Ware v. Hylton (3 Dal!. 199 (1796)) (treaty with Great Britain overrides inconsistent State law on debts), would thus be reversed although the result there reached was one which the Constitution was definitely designed to insure. See pp. 3. 6, and 12. above.

Senator Bricker, 98 Congressional Record 925 (February 7, 1952).

Federal law, during the process attendant upon the enactment of a congressional enabling act. During that period any State could disregard the treaty insofar as it conflicted with State law and indeed could enact conflicting State laws even after the treaty had been ratified.

Fujii v. State of California (- Pac. (2d) —), decided April 17, 1952, involved a Japanese national, who attacked as invalid the California alien land law prohibiting (except as specifically prescribed by treaty) ownership of lands by aliens ineligible to citizenship. The Supreme Court of California in a 4 to 3 decision held that the statute was invalid because it conflicted with the 14th amendment. While differing as to the effect of the 14th amendment on the validity of the statute, both the majority and minority opinions rejected the ground upon which the District Court of Appeals (217 Pac. [2d] 481 [1950], rehearing denied 218 Pac. [2d] 595 [1950]) had held the statute invalid, i. e., that it violated the provisions of the United Nations Charter pledging the member nations to promote the observance of human rights and fundamental freedoms without distinction as to race." Both the majority and minority epinions stated that the charter provisions relied upon by the plaintiff were not intended to be self-executing or to supersede existing domestic legislation and that therefore they did not operate to invalidate the alien land law." The opinions should remove any doubt as to the non-self-executing character of the United Nations Charter provisions there involved.“

In any event, it would be unwise to incorporate into the Constitution a provision which would prevent any treaty from becoming self-executing with respect to conflicting State laws. Many treaties are intended to be self-executing and would lose their effectiveness if their operation were suspended even temporarily.

Any treaty can provide that it is not to be self-executing, and no constitutional amendment is needed to sanction a provision to that effect.“

Insofar as section 3 relates to a conflict between a treaty and a law of the United States, it is unnecessary. The Supreme Court has held that a law of the United States and a treaty are on a parity and that in case of a conflict the later one prevails." Thus, if a treaty is in conflict with an existing law of the United States, Congress can assure the supremacy of the law simply by reenacting it.

This lower court decision was referred to by Senator Bricker (before the California Supreme Court had spoken) as justifying the bar imposed by sec. 3 against a treaty being self-executing with respect to conflicting State laws (98 Congressional Record 925, Feb. 7, 1952).

United Nations Charter, preamble, arts. 1, 55, and 56.

42 The majority consisted of 4 judges, 3 of whom joined in 1 opinion (referred to in the text as "the majority opinion") and 1 who concurred in the result with a separate opinion. The concurring opinion expresses the view that the statute is invalid under the 14th amendment and mentions the United Nations Charter but does not discuss the question as to whether its provisions were self-executing or their effect on the validity of the statute. 43 The decision of the Supreme Court of California in the Fujii case had been anticipated by a body of authority to the effect that the case was wrongly decided on the self-executing point in the District Court of Appeals. Zechariah Chafee, Jr., Federal and State Powers Under the U. N. Covenant on Human Rights (1951 Wis. L. R. 389, 399); Judge Manley Hudson. Charter Provisions on Human Rights in American Law (44 American Journal of International Law 543 (1950)); Senator Bricker (98 Congressional Record 925 (Feb. 7, 1952)).

The McCarran-Walter bill (S. 2550: H. R. 5678), which has passed the House and has been reported out by the Senate Judiciary Committee, proposes to enact an Immigration and Nationality Act which would provide that the right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race. This would make Japanese nationals eligible for citizenship, thus rendering academic in the future the precise question presented in the Fujii case. This pending legislation was mentioned in the concurring opinion but is not referred to in the majority or minority opinions.

Treaties can be self-executing, that is, be operative in local law without further legislation. Ware v. Hylton (3 Dall. 199 (1796)). But treaties may be non-self-executing by their terms. Foster and Elam v. Neilson (2 Pet. 253 (1829)) (alternative ground of decision but treaty later held self-executing U. S. v. Percheman (7 Pet. 51 (1833)). Cameron Septic Tank Company v. Knoxville (227 U. S. 39 (1913)).

Or it would he possible for the Senate's concurrence to a treaty to be conditioned upon its being inoperative to change domestic law without further legislation--Memorandum of Parliamentarian of Senate (98 Congressional Record 2602 (Mar. 20, 1952)). In the case of a treaty originally intended to be self-executing, this would amount to a counter offer.

There has never been any doubt cast in the decisions of either municipal or international courts as to the efficiency of reservations made in the ratification of a treaty. The advisory opinion of the International Court of Justice of May 28, 1951, Reservations to the Convention of Genocide (I. C. J. Reports (1951), p. 15: 45 Am. J. of Int. Law 579 (1951)), does not suggest that ratification may bind a nation to an obligation excepted from ratification by reservation. The sole concern of the case is whether a nation which ratifies with reservations may be considered by other parties to a treaty as though it had not ratified at all.

45 See p. 5 above.

47

So far as section 3 deals with executive agreements we believe that it is also unnecessary. An executive agreement is an essential instrument in the conduct of foreign affairs" and must, like a treaty, be able to override conflicting State laws in a proper case. If it were otherwise national policy could be rendered ineffective by conflicting local interests." Executive agreements are themselves subject to various checks and balances by Congress. Since an executive agreement cannot have any greater force than a treaty, it must follow that an executive agreement can likewise be superseded by a later congressional enactment." An executive agreement does not supersede a prior Federal law."

We should point out that the reference in section 3 to "the Constitution" " is at least susceptible of the construction of meaning the Federal Constitution. So construed the provision would have the clearly undesirable effect of permitting a treaty or executive agreement to "alter *** the Constitution" when supplemented merely by an act of Congress.

PROPOSED AMENDMENT-SECTION 4

"Executive agreements shall not be made in lieu of treaties.

"Executive agreements shall, if not sooner terminated, expire automatically one year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding presidential term. "The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication."

This amendment would forbid the making of executive agreements in lieu of treaties; would limit the term of all executive agreements to a sliding maximum of 1 to 5 years unless renewed by Congress; and would require the disclosure of all executive agreements at least to congressional committees. It thus differs materially in nature from the first two proposals, as they limit the constitutional powers of the Nation, whereas this would limit only the constitutional powers of the President. To the extent this proposal would effect any change in the existing situation, it would accomplish the result by increasing the powers or prerogatives of the Senate or Congress. The basic danger which this proposal obviously seeks to guard against is that the President by use of the executive power will make executive agreements which the Senate would not approve if submitted to it as treaties."

We should like to consider first section 4 on its own merits, and then the broader question of whether there should be any amendment of the Constitution in this field. Before so doing, we shall make a few preliminary observations on the general nature of executive agreements.

The Constitution does not mention executive agreements. It provides that "The executive power shall be vested in a President," and "He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." 52 No definite meaning has as yet generally been given to the term "executive agreement." 53 As regards defining the subject matter appropriate for an executive agreement, we agree that "it is probably impossible to draw a satisfactory line of demarcation even in a statute. It would be unwise to make the attempt in a constitutional amendment."

40 See pp. 30-31 and 34-35 below.

47 See p. 6 above, footnote 3, and p. 32 below.

48 Recently an executive agreement was superseded by the Japanese Peace Treaty which failed to impose reparations although an earlier decision of the Far Eastern Commission, concurred in by the United States representatives, had earmarked certain gold for ultimate use by way of reparations (2d Report of Far Eastern Commission, App. 5, par. 16.c). 49 See p. 31 below.

The phrase may have been adapted from the words of the supremacy clause-"anything in the constitution or laws of any State"-by changing "State" from singular to plural but leaving "constitution" in the singular.

51 In Senator Bricker's discussions with other Senators during the course of his speech, reference was made to agreements reached at Yalta. Teheran, and Potsdam (98 Congressional Record 926, 927 (February 7, 1952)). Varying views have been expressed thereon. For a legal analysis of the Yalta agreement, see Stephen C. Y. Pan. Legal Aspects of the Yalta Agreement (46 American Journal of International Law 40 (Jan. 1952)). See also James F. Byrnes, Agreements With Russia (34 American Bar Association Journal 979 (1948)); McGeorge Bundy, The Test of Yalta (27 Foreign Affairs 618 (July 1949)). 62 Art. II, sec. 1.

5342 Columbia Law Review 832 (1942).

54 Senator Bricker (98 Congressional Record 927 (February 7, 1952)).

55

Executive agreements have played a long and important role in the history of our Nation. The first executive agreement was made during the administration of President Washington, who had presided over the Constitutional Convention and signed the Constitution. Certain types of international arrangements have been traditionally (but not always) negotiated by executive agreements, e. g., the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trade-marks and copyrights, etc. Others have been effected sometimes through treaties and sometimes through executive agreements.

An executive agreement may not override a Federal law while a treaty may." If the executive agreement requires appropriations or new Federal laws for implementation, as is commonly the case, the only thing the President can do is to make a recommendation to Congress.5

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Vis-a-vis a State, which does not have power to act in foreign affairs, the executive agreement dealing with a subject within the President's power 59 bas been held to override contrary State policy. Otherwise, the Nation as a whole would have to answer if a State created difficulties with a foreign power." Through the years the executive agreement under constitutional authority has been remarkably free from litigation, and in the only Supreme Court cases dealing with the problem an executive agreement incident to the recognition of Russia by the United States was held to override the former New York State policy.1

As to the effect of the proposed section 4:

Though executive agreements are a necessary concomitant of the power of any nation to conduct its foreign affairs, section 4 imposes drastic restrictions on executive agreements and indeed might well operate (particularly by its first sentence) to eliminate them from practical use.

This was a postal agreement negotiated in 1792 between Timothy Pickering, Postmaster General of the United States (not then a member of the Cabinet) and Hugh Finlay, Deputy Postmaster General of Canada. The agreement was negotiated pursuant to a statute (1 Stat. 239) authorizing the Postmaster General to make arrangements with foreign countries for the reciprocal receipt and delivery of mail. See McClure, International Executive Agreements. pp. 38-39, for a discussion of this agreement.

545 Hackworth, Digest of International Law 397.

Of the 169 executive agreements entered into during 1951 which we have spot checked, it obviously appears that about 85 percent were made directly pursuant to legislative authorization. Almost all the remaining 15 percent appear to have been related to some measure of congressional action or were of such a character that implementing congressional appropriations would be vital to the performance of the agreement. Of the total, 25 related to mutual defense or other military assistance, 69 were under the point 4 technical cooperation plan or provided for similar assistance in fields of education, agriculture, health, and sanitation, etc.; 23 provided for economic cooperation: 5 related to the fixing of routes for commercial air carriers; 3 provided for Fulbright scholarships; 4 related to tariff concessions or other matters with regard to interantional trade; 40 had to do with a variety of other subjects, such as exchange of official publications, occupation of Germany, disposal of surplus property, establishment of weather stations, etc. Sources: Department of State press releases, and Treaties and Other International Acts series. $7 See p. 5 above and see McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy (54 Yale Law Journal 181, 317); Borchard, Treaties and Executive Agreements (54 Yale Law Journal 616 (1945)). The power to make executive agreements is merely a branch of executive power created by art. II of the Constitution. While the President may veto a proposed law (subject to the veto being overridden), he cannot repeal an existing law validly enacted with his approval or over his veto (art. I of the Constitution, sec. 7).

Executive agreements under the Presidential power are often merely companions to congressional action. For example, appropriaions to be used for economic purposes, to forestall disease and unrest in occupied Germany or Japan, supported the implementation of executive agreements concerning the government of these occupied countries. Congressional action followed the Litvinov assignment discussed in the Pink and Belmont cases. See footnote 61 below.

Such as the diplomatic power and power as Commander in Chief. See Henry S. Fraser, Treaties and Executive Agreements (S. Doc. 244, 78th Cong., 2d sess.).

United States v. Pink (315 U. S. 203, 232 (1942)).

United States v. Belmont (301 U. S. 324 (1939) ) and United States v. Pink (315 U. S. 203 (1942)), held that the United States was entitled to assets in the United States of Russian corporations, which assets the Russian Government had confiscated and had subsequently assigned to the United States by the Litvinov assignment in connection with the recognition of and establishment of diplomatic relations with Russia. The Court held that the resulting "international compact" established an overriding national policy of giving effect to Soviet confiscation decrees respecting this property, despite the holding of the New York courts that such recognition was contrary to State policy. No claims of United States creditors of these corporations were involved. Congress after the assignment enacted a joint resolution authorizing the appointment of a Commissioner to determine claims of American nationals against the Soviet Government (joint resolution of August 4. 1939, 53 Stat. 1199) in anticipation of such claims being satisfied out of the proceeds of such assignment.