The proposed amendment refers to executive agreements but intentionally does not attempt to define them. However, the meeting of minds in an executive agreement, no matter how unimportant, could also be expressed in a treaty. Since there is no clear line of demarcation between the possible subject matter of executive agreements and treaties, it could be claimed that almost any executive agreement was invalid because it had been made in lieu of a treaty. In short, the first sentence of section 4 would subject almost any executive agreement to attack on this score." The presumption thus set up by the amendmentthat all agreements are treaties-might be made conclusive by a statutory definition of "treaty" passed under section 5 of the joint resolution, providing that "Congress shall have power to enforce this article by appropriate legislation.” A hostile Congress could thus deprive the President of any power to make executive agreements in the field of foreign affairs.

Moreover, while Senator Bricker disclaims any such intent," section 4 as now worded would be equally applicable to execute agreements approved or authorized by Congress as well as those entered into by the President without congressional action.

Assuming that an executive agreement survived the ban of the first sentence of section 4, it would be subjected to the time limitations imposed by the second paragraph of section 4. At the end of each presidential term there would have to be a reexamination of all executive agreements to see which should be extended. It is not clear whether this limitation would apply to past executive agreements or only to those hereafter negotiated. Even if only to the latter, the task thus imposed on the Congress would be a heavy interference with its current business. The time limitation would require congressional approval for extension of an executive agreement made during a prior presidential term, even though the incumbent President (including a reelected President) could enter into the identical agreement without submitting it to Congress. The logic of such a distinction is not apparent.

The restrictive effect of section 4, if adopted, can be illustrated by considering it in relation to some recent executive agreements. For example, the Japanese Instrument of Surrender, dated September 2, 1945, was an executive agreement signed by representatives of Japan, the United States, China, Russia, Australia, Canada, France, the Netherlands, and New Zealand, and was the legal basis of General MacArthur's successful occupation. Again, the Far Eastern Commission was set up pursuant to an executive agreement of the Foreign Ministers of the United States, Russia, and the United Kingdom entered into at Moscow on December 27, 1945, and under it we had the veto working in reverse against Russia so occupation policies in Japan could not be thwarted. Had these agreements expired at our option in 1949, as the Bricker amendment would have had them, they would presumably have been subject to renewal only with the approval of the other parties, who would reciprocally have had the same option. With our armies demobilized and the intransigence of Russia, we could hardly have renegotiated these agreements on as favorable terms, if at all.

The occupation of Germany in cooperation with our allies would not have been possible without the device of the executive agreement. The Byrnes-Bevin agreement of December 2, 1946, later revised and extended by the Lovett-Strang agreement of December 17, 1947, provided for the economic integration of the United States and United Kingdom zones of occupation in Germany and set up various agencies, such as the Joint Export-Import Agency and the Joint Foreign Exchange Agency. Also the Charter of the Allied High Commission of Germany was established by an executive agreement between the United States, the United Kingdom, and France entered into force September 21, 1949.

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

For example, an agreement negotiated by William Howard Taft. then Secretary of War, in 1904, defining the boundary limitations of the Canal Zone as embodied in the Hay-Varilla Treaty between the United States and Panama was, in Taft's own words, "attacked vigorously in the Senate as a usurpation of the treaty making power. but the modus vivendi continued is the practical agreement * * * and * * * is still in force" (William Howard Taft, Our Chief Magistrate and His Powers ((1916), p. 112). 6498 Congressional Record 925 (February 7. 1952).

For example, Mutual Defense Assistance Agreements entered into force in 1951 between the United States and China (T. I. A. S. 2293. February 9, 1951), Australia (T. I. A. S. 2217, February 20, 1951), India (T. I. A. S. 2241, March 16. 1951), Yugoslavia (T. I. A. S. 2245, April 17, 1951), and Saudi-Arabia (T. I. A. S. 2289, June 18, 1951) pursuant to Mutual Defense Assistance Act of 1949 (Public Law 329, 81st Cong., as amended by Public Law 621, 81st Cong.; 22 U. S. C., sec. 1571, et seq.).

If section 4 had been in effect, the validity of each one of these important agreements would have been open to attack on the ground that it had been made in lieu of a treaty. And in any event each one of these agreements would have required approval in order to remain in effect more than 1 year after the expiration of the term of the President during whose administration the agreements had been negotiated. The uncertainties attendant upon obtaining congressional approval for an extension would have lessened the effectiveness of such agreements. Moreover, a right on the part of the United States not to extend an agreement after the advent of a new Presidential term would furnish a corresponding right to the other contracting parties. The reopening of the bargaining process, whenever a Presidetnial term expired, could lead only to instability in the field of foreign relations.

The requirement in the last paragraph of section 4, that executive agreements shall be published except for those which in the judgment of the President require secrecy, is in accord with existing practice as to agreements of general interest. The further requirement-that those which in the judgment of the President require secrecy shall be submitted to appropriate committees of Congress in lieu of publication-seems far too rigid for a constitutional provision. Turning now from section 4 itself, and to the problem at which it is directed, the broader question thus raised is: Should "any agreement with a foreign power or powers which involves obligations of a permenent and continuing nature" be, by constitutional amendment, excluded as a proper subject of executive agreement and be made to require approval by the Senate as a treaty? We recognize the belief of many persons that on various occasions Presidents have encroached on the powers of the Senate by making executive agreements and not submitting them for Senate treaty approval. We also recognize that the fear of the effect of such executive action is accentuated by the fact that an executive agreement has been held superior to state policy." We recognize that there may have been bad executive agreements as well as good ones, and that there will be in the future. Whether a particular agreement is bad or good can depend on the point of view. And we assume that the persons who fear encroachment by the executive would not support a constitutional amendment by claiming that every treaty ratified by the Senate has been and will be good." But the question is not whether the Senate would at the time have rejected, as a treaty, any executive agreement which may have turned out to be unwise.

As it is probably impossible to draw a satisfactory line of demarcation to define the subject matter appropriate for executive agreements and treaties" the determination of whether to have any constitutional amendment in this field narrows down to a choice between no amendment and an amendment which would in some form have the effect of specifying limitations on the executive power in making executive agreements. Proponents of having some amendment would presumably argue that faced with such a choice they would rather eliminate too many executive agreements by requiring some kind of legislative concurrence, than run the risk of presidential action without such a check. Those who believe that the present relationship of constitutional powers should be left alone argue that they would rather run the risk of the President's having too great power to act than run the risk of his having too little.

Those who believe that some amendment in the field of executive agreements might be desirable argue that since the treatymaking power requires the advice and concurrence of two-thirds of the Senate, whereas executive agreements do not, and since treaties and executive agreements can overlap in such matter, and are identical in some of their consequences, we can only permit the existing constitutional situation to continue unchanged if we are prepared to discount the necessity and desirability of the advice and concurrence of two-thirds of the Senate--which they are unprepared to do.

The making of these particular agreements involved at least in part an exercise of the Executive's power as Commander in Chief, but as the term "executive agreement" in S. J. Res. 130 is in no way limited, all such agreements would presumably be included within its scope.

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

es See p. 32 above.

Similarly, if it were conceded that Congress has passed bad legislation over a Presidential veto, even this could not seriously be urged as a ground for amending the Constitution to eliminate the congressional power to override vetoes. Power to act includes power to act unwisely.

To See p. 30 above.

The problem of delimiting or changing the present relationship between the executive and legislative powers is one of degree and judgment. It should, we believe, be approached not solely in the light of what may happen under any particular executive agreement, however important. There must be taken into consideration the effect of the continuing day-to-day relationship of the two branches on the chances of the President's thereby flouting the Congress. The Congress has the power of the purse and the power of investigation, and the Senate has the power to reject appointments. Specifically, Congress has power to legislate against an undesirable executive agreement to the same extent that it can against a treaty. In the case of most executive agreements, later appropriations will be necessary to carry on governmental functions incident thereto. In view of the wide variety of proposals which could be made for amendments in the field of executive agreements, we would indeed be bold to assert that everything that could conceivably be devised would be found undesirable. We all agree that serious public consideration of the problems at which the proposed section 4 is directed will in itself be healthy and useful. Most of our members are of the opinion that no restriction on the use of executive agreements should be incorporated into the Constitution.

As to section 4 of the proposed amendment as it stands, we all consider it undesirable.

CONCLUSION

We do not wish to confine ourselves to the words of Senate Joint Resolution 130 or to avoid meeting fairly its spirit, particularly when the resolution is expressly tendered as a basis for study. The resolution clearly reflects a distrust of the treaty power, and of the executive power in the foreign field. The broad issue thus raised by the resolution is whether it is desirable to amend the Constitution now by either shrinking or codifying the treaty power and the executive power-for the sake of guarding against a future realization of present fears in circumstances yet unknown-as compared with standing on the grants of power which the Constitution now provides.

Is it desirable to amend the Constitution to meet these present fears? Most of what we have already said is adequate to express our views on this broader issue as well as on Senate Joint Resolution 130 itself, but a few brief comments may be added as to the several apprehensions which evidently provide the basis of the resolution.

(1) The fear that our freedoms will be abridged by use of the treaty power or executive power in dealings with foreign countries. The main problem here seems to be whether there is any reasonable cause to believe that the Constitution as it stands permits any such abridgment. Believing as we do that there is not, an amendment merely declaring that the law is what it is would not seem objectionable on that ground. The problem of codification would remain. Should the observations in the Supreme Court's opinion in Geofroy v. Riggs" be transcribed into the Constitution? All things considered, and bearing in mind that declaratory statements of law often have an illusory simplicity and turn out to defeat their objectives, we believe that such an amendment would be undesirable.

(2) The fear that some power which our Government now has will be harmfully delegated abroad by use of the treaty power. We know we have made delegations in the past which have not been harmful but helpful, and we can be sure that we shall want to be free to do so again-and very likely to some greater degree than before. At the other extreme is joining a world or regional government, which apparently all agree would require a constitutional amendment. So the answer is going to be sometimes "Yes" and sometimes "No," depending on the particular delegation proposed. We cannot imagine any assemblage of words in a constitutional amendment that would provide all the answers in advance. We are content to entrust these practical decisions to the practical judgments of the President and two-thirds of the Senate, subject only to the restraints of the ballot box which elects and defeats them.

(3) The fear that by use of the treaty power the President and Senate will change or abridge Federal and State laws in a way that the Senate and House would not approve. This concern is adequately met now, since Congress can legislate against undesired effects of a treaty of which it disapproves, and can nullify all agreements whose operation depends on funds by declining to make

71 Quoted at p. 15 above.

appropriations. Further, no treaty need be self-executing if not desired to be. No constitutional amendment is needed to afford protection in this field.

(4) The fear that the President, by use of the executive power, will make executive agreements with foreign countries which the Senate would not approve if submitted to it as treaties-including the fears that executive agreements will make harmful delegations abroad (2) and change or abridge domestic law (3). In appraising these problems, we must recognize that broadly speaking an executive agreement can accomplish much that a treaty can, but that on the other hand an executive agreement cannot nullify Federal law, and Congress can override executive agreements by legislation as it can treaties, and can frustrate most executive agreements because they require either implementing legislation or appropriations. If there is a real danger of leaving the President too much power, there is also a real danger of taking too much away. In the field of delegation, the common command of allied forces is an essential tool in war, in occupation, and in keeping the peace. The executive agreement is an indispensable aid in our race to keep the atomic forces of destruction from overwhelming civilization and in the military alliances formed to keep the Communists within bounds. The change in this field proposed by Senate Joint Resolution 130 appears to us to do more harm than good.

Thus it seems to us all that there are adequate answers to the first three of these fears without amending the Constitution. In dealing with the fear of executive agreements, the problem of changing or delimiting the relative positions of the executive and the legislature is one of degree and judgment; most of our members believe it unwise to incorporate into the Constitution a provision specifically dealing with this subject, and we are all satisfied that the answer does not lie in the adoption of Senate Joint Resolution 130. Reluctance to tinker with the constitutional machinery does not reflect desire to depart from the concept of a government of laws and not of men. Rather, in the face of possible new circumstances, the choice of most of us is of preferring uncodified law to codified prohibitions of preferring to rely not on shrinking the powers of our Government but on the careful balance of the present broad powers.

For the reasons expressed in this report, the Committee on Federal Legislation and the Committee on International Law oppose the proposed constitutional amendment Senate Joint Resolution 130, and recommend that the Association do likewise.

APPENDIX

[S. J. Res. 130, 82d Cong., 2d sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE

"SECTION 1. No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof.

"SEC. 2. No treaty or executive agreement shall vest in any international organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively.

"SEC. 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. "SEC. 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.

"SEC. 5. Congress shall have power to enforce this article by appropriate legislation.

"SEC. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission."

The CHAIRMAN. At this point in the record we will incorporate the statement of Senator Price Daniel of Texas.

(The statement referred to is as follows:)

STATEMENT TO SENATE JUDICIARY COMMITTEE ON SENATE JOINT RESOLUTION 1 BY SENATOR PRICE DANIEL OF TEXAS

Mr. Chairman, members of the committee, Senate Joint Resolution 1, now before your committee for consideration, is a most important proposal for safeguarding the rights and liberties of American citizens as promised, protected, and perpetuated by our Constitution.

The amendment, which Senate Joint Resolution 1 would submit to the States for ratification, would prevent any international treaty or agreement from superseding the Constitution as the basic law of the land.

We, as a nation, have, over the past decade, assumed grave new responsibilities of world leadership. From these responsibilities we neither shirk nor contemplate precipitate retreat. The assumption of such responsibilities, however, in no wise lessens our prime responsibility to protect and defend the rights conferred upon the Nation by our Constitution.

In the course of recent years, our courts have been unable to reconcile the commitments of certain treaties with the language of the Constitution. On certain occasions, the treaties and agreements have been held to be superior in effect. Furthermore, certain executive actions-notably the seizure of the steel industry by Presidential order-have been predicated upon the authority of treaties as a superior authority to the Constitution.

The result is confusion which can be mitigated solely by an affirmative declaration clearly reasserting the superiority of the Constitution in such conflicts. This is necessary for the guidance of the courts, the executive branch, and the legislative branch. More importantly, it is necessary to allay the uncertainty