Sheet & Tube Company v. Sawyer, decided June 2, 1952, 72 Sup. Ct. 863). Your committee in its February 1, 1952, report (pp. 7-8, 9-10) sharply criticized the Curtiss-Wright case as being largely broad and erroneous dicta. It is believed (and the decisions based on the law of nations cited by the court confirm that belief) that the Curtiss-Wright decision confuses the position of the United States as viewed under international law by foreign nations with the position of the United States in international relations as a matter of domestic constitutional law, under which the treaty power is delegated expressly. Despite the sweeping language, the case dealt only with an express congressional delegation of power to the President authorizing him in certain circumstances to forbid the sale of arms to foreign countries. Mr. Justice Jackson says (footnote 2 of this concurring opinion) that "much of the court's opinion is dicta"; and that it involved "but the question of his [the President's] right to act under and in accord with an act of Congress." And he concludes with the following statement:

"*** It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an act of Congress." [Emphasis supplied.]

It should be noted particularly that the American Bar Association's proposed amendment does not prevent the President and the Senate from making a treaty, otherwise valid under the Constitution, on any subject whatsoever, and that all such treaties are effective externally. But the proposal prevents such a treaty from becoming effective as internal law in the United States, except to the extent that Congress legislates within its delegated powers in the absence of such treaty. Your committee will keep the house of delegates advised of further developments on the proposed treaty-power amendment.

II. EXECUTIVE AGREEMENTS

Immediately following the midwinter meeting of the association in Chicago in February 1952, at which time your committee's recommendation of a proposed constitutional amendment with respect to the treaty power was adopted, your committee determined to make a study of the subject of executive agreements.

A subcommittee of your committee studied and analyzed the leading literature and decisions on the subject, including, among others, the following: McClure, International Executive Agreements (1941); Borchard, Shall the Executive Agreement Replace the Treaty?, 53 Yale L. J. 664 (1944); McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements; Interchangeable Instruments of National Policy, 54 Yale L. J. 181 and 534 (1945); Borchard, Treaties and Executive Agreements-A Reply, 54 Yale L. J. 616 (1945); Borchard, Treaties and Executive Agreements, 50 Am. Pol. Sci. Rev. 729 (1946); Arthur E. Sutherland, Jr.. Restricting the Treaty Power, 65 Harvard L. Rev. 1305, pp. 1320-1324; McCarran, Congressional Power Respecting Treaties and Executive Agreements, Cong. Rec. Jan. 21, 1952, pp. 301-2; Hearings, Senate Committee on Commerce, entitled "Civil Aviation Agreements" April 6 and April 10, 1946, pp. 311-334, for a distinction between treaties and executive agreements; United States v. Pink, 315 U. S. 203 (1942); United States v. Belmont, 301 U. S. 324 (1937); Guaranty Trust Company v. United States, 304 U. S. 126 (1938); Moscow Fire Insurance Company v. Bank of New York, 280 N. Y. 686, 20 N. E. (2d) 758 (1939); affirmed without opinion by an equally divided court, sub nom. United States v. Moscow Fire Insurance Company, 305 U. S. 624 (1940).

On January 21, 1952, Senator McCarran, of Nevada, chairman of the Senate Judiciary Committee, introduced Senate Joint Resolution 122, which would undertake to regulate executive agreements by congressional action (Congressional Record, Jan. 21, 1952, p. 301). A copy of Senate Joint Resolution is hereto attached as appendix A.

On February 7, 1952, Senator John W. Bricker, of Ohio, introduced Senate Joint Resolution 130 as a proposed constitutional amendment, which, in addition to regulating the treaty power, also regulates executive agreements. (See Congressional Record, Feb. 7, 1952, pp. 920-928.) A copy of Senate Joint Resolution 130 is hereto attached as appendix B.

Senator McCarran in Senate Joint Resolution 122 recommends immediate statutory control of executive agreements. Senator Bricker in Senate Joint Resolution 130 recommends that, in any event, the subject should be dealt with by constitutional amendment. At the time of introducing his proposed constitutional amendment in the form of Senate Joint Resolution 130, Senator Bricker said:

"In my judgment there is nothing inconsistent between section 4 of the proposed amendment and Senate Joint Resolution 122, recently introduced by the distinguished chairman of the Senate Judiciary Committee, the Senator from Nevada, Mr. McCarran. After we find out what can be done with executive agreements by legislation, we will have a clearer idea of what must be accomplished, if at all, by constitutional amendment" (Congressional Record, Feb. 7, 1952, p. 923).

When the members of your committee appeared in May of this year to testify at the Senate Judiciary Subcommittee hearings on Senate Joint Resolution 130 (the Bricker amendment), they were asked to express their opinions on the provisions of the Bricker amendment relating to executive agreements. In answering such questions, your committee members stated that neither the American Bar Association nor your committee had taken action on the subject of executive agreements, and that anything an individual member might say expressed only his personal opinion and was in no way binding on the committee or on the American Bar Association. Individual members of the committee called attention to article I, section 8, clause 18, of the Constitution and to Er parte Quirin (317 U. S. 1, 25-26, 29), and expressed their opinion that under the clause of the Constitution just cited executive agreements were subject to congressional control; that both the statutory and constitutional amendment approach seemed sound; and that any doubt on the subject raised by broad dicta in such (cases as U. S. v. Curtiss-Wright Corporation (299 U. S. 304 and U. S. v. Pink (315 U. S. 203) should, in any event, be removed by constitutional amendment. Tentatively, individual members of the committee were of the view that all the purposes of Senate Joint Resolution 130 might be accomplished by combining two sentences from that resolution, as follows: "Executive agreements shall not be made in lieu of treaties" (sec. 4 of S. J. Res. 130), and “Congress shall have power to enforce this article by appropriate legislation" (sec. 5 of S. J. Res. 130). Several members of your committee made that suggestion when questioned by Senators during the hearing.

The full membership of your committee on peace and law has, since the Senate subcommittee hearings, made additional studies of, and given further extended consideration to, executive agreements. As a result of a meeting of the full committee in July, devoted almost exclusively to this subject, your committee believes that both Senator McCarran in Senate Joint Resolution 122 and Senator Bricker in Senate Joint Resolution 130 have the right approach; namely, that executive agreements should be subjected to regulation by Congress. Senator McCarran's proposal would, if adopted, appear to be of immediate efficacy under the Constitution as it now exists; and Senator Bricker's proposal of incorporating the congressional control principle in his proposed constitutional amendment would remove any conceivable doubt in the subject.

Your committee directs attention to article I, section 8, clause 18, of the Constitution of the United States, which provides that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or any department or officer thereof." [Emphasis supplied.]

It seems clear that the foregoing clause vests Congress with the power to make all laws "necessary and proper" to carry the executive power into effect; and that Congress can, therefore, under the existing Constitution, regulate executive agreements.

This view is supported by the principles announced in Ex parte Quirin (317 U. S. 1, 25-27, 29), in which Chief Justice Stone, in a unanimous opinion, makes it unequivocally clear that "Congress and the President, like the courts, possess no power not derived from the Constitution"; that, under article I, section 8, clause 18, Congress has all legislative power "necessary and proper" for carrying the executive power into execution; and that where there is congressional legislation on any subject it is unnecessary to determine to what extent the President might act in the absence of legislation.

This view of the Constitution was strongly emphasized by the Supreme Court in the Steel Seizure cases (Youngtown Sheet & Tube Co. v. Sawyer, decided June 2, 1952, 2 Sup. Ct. 863) in which the majority of the Court twice emphasizes article I, section 8, clause 18, and concludes with a statement, as follows:

"Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper, to carry out the powers vested by the Constitution in the Government of the United States, or any department or officer thereof.'” And, of course, it is the President's constitutional duty to "take care that the

laws be faithfully executed," including any law that Congress may make regulating executive agreements.

This view was further emphasized by Mr. Justice Jackson in his concurring opinion in the Steel Seizure cases, in which he says (footnote 2 of his opinion) that the Court has "intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an act of Congress." [Emphasis supplied.]

This statement of Mr. Justice Jackson not only supports the affirmative position, as does the main opinion of the court, that Congress can regulate the manner of exercising the executive power, including, of course, executive agreements, but conversely states that the President may not "act contrary to an act of Congress" passed within its delegated powers.

It therefore seems reasonably clear that under article I, section 8, clause 18, Congress now has power to regulate executive agreements. Since Congress has the power to make all laws necessary and proper to carry into execution the powers vested by the Constitution in the executive department or the President, it becomes the duty of the President faithfully to execute such laws as Congress may pass regulating executive agreements.

Though believing that present constitutional power appears to exist in Congress to regulate executive agreements, your committee is of the opinion that to remove any doubts engendered by dicta in decisions above referred to it is desirable to incorporate the congressional control principle with respect to executive agreements in a constitutional amendment along the general lines proposed by Senator Bricker.

Your committee recognizes, as does Senator Bricker's proposal, that one of the strong criticisms currently made of executive agreements is that there has been a tendency on the part of the executive department to make executive agreements and not submit them to the Senate for approval, instead of covering the subject by treaties, which require Senate approval. Certain executive agreements, embodying long-range and far-reaching policy commitments on the part of the United States, such as those at Tehran and Yalta, have so disturbed the American people that it would be fitting to remove any conceivable doubt on the question by constitutional amendment.

While "executive agreements, sometimes authorized by Congress in advance, and sometimes not, have been used by the United States throughout its history," (see Sutherland, supra, 65 Harvard L. Rev. at p. 1321), your committee believes that it was never intended that executive agreements and treaties should be interchangeable, as contended by some proponents of broad executive power; otherwise, the treaty clause was, and is, surplusage.

Based upon the foregoing views and considerations, your committee now proposes that the American Bar Association recommend to the Congress of the United States, for consideration, an amendment to the Constitution of the United States in respect of executive agreements, identical with individual opinions already expressed before the subcommittee of the Senate Judiciary Committee, with the addition of a sentence preserving intact existing constitutional power to regulate executive agreements. The full text of the suggested amendment reads as follows:

"Executive agreements shall not be made in lieu of treaties. Congress shall have power to enforce this provision by appropriate legislation. Nothing herein shall be construed to restrict the existing power of Congress to regulate executive agreements under the provisions of this Constitution."

The purpose and effect of the draft constitutional amendment proposed by your committee in respect of executive agreements may be stated as follows: The first sentence of this proposed constitutional amendment is a necessary corollary to the constitutional amendment with respect to the treaty-making power adopted by the house of delegates of the American Bar Association on February 26, 1952. That proposed amendment would deny force and effect to a provision of a treaty which conflicts with the Constitution. It would require legislation by Congress under its delegated powers in the absence of a treaty, before a treaty shall become effective as internal law in the United States. The corrective value of that amendment would be greatly weakened if nothing were done about international agreements which are made by the executive alone, and which have been used increasingly in recent years as an alternative method of reaching understandings with foreign governments.

It has been held by the Supreme Court that executive agreements may have the force of law within the United States and supersede State law. United States v. Pink, 315 v. 3, 203, 230-1. Doubtless, if treaties which are expressly

recognized in the Constitution and which are negotiated by the President and approved by the Senate, can be set aside or modified by subsequent congressional legislation a principle recognized in Ware v. Hylton (3 Dall. 190, 261 (1796)) and since often reaffirmed, as for example, in Head Money Cases, 112 U. S. 580, 597-99 (1884)); Hijo v. United States, (194 U. S. 315, 324 (1904))—then certainly an executive agreement, which has no express recognition in the Constitution and is made by the President alone, must be subject to such subsequent congressional action. In fact, your committee believes as stated above, that Congress has, or should have, power to regulate them in advance and to control their effect as domestic law.

It is historically demonstrable that executive agreements have been increasingly used in lieu of treaties largely as a matter of growing executive usurpation. There has recently prevailed in the State Department the theory that the President has in his discretion the choice of resorting either to treaties or executive agreements in his dealings with foreign nations. Thus, it is said:

"For controversial international acts the Senate method may well be quietly abandoned, and the instruments handled as executive agreements. But for large numbers of purely routine acts, about which no public opinion exists and no question as to their acceptability arises, the present method is desirable (International Executive Agreements, by Wallace McClure, New York, Columbia University Press, 1941, p. 378).

From 1920 to his retirement last year, Mr. McClure, the author of the foregoing quotation, was an officer of the Department of State. Among other positions he held was that of Assistant Chief of the Treaty Division.

Contra this position was that of Dr. Charles Cheney Hyde, author of the outstanding modern American treatise on international law, Solicitor for the Department of State under Secretary Charles Evans Hughes, and from 1925 to 1945 Hamilton Fish professor of international law and diplomacy at Columbia University. Speaking before the American Society of International Law on April 30, 1937, Dr. Hyde said:

"From examination of the various permitted modes of agreement-making to which the United States has had recourse, it will be found that in practice the test of whether it is obligatory for the President to work with the Senate, or, to put it differently, whether there has been imposed through the Constitution a duty to make use of a treaty as the instrumentality of agreement, has in the particular case usually been deemed to rest upon the character of the objectives sought to be accomplished. It has not been supposed, for example, that the Executive, with or without the aid of Congress, was free to dispense with treatymaking whenever he might desire to avoid difficulties to be encountered in obtaining the senatorial approval of a desired compact. Deference for the constitutional privilege of the Senate has been constantly manifested in the making of certain well-defined classes of international arrangements; and that deference has revealed a seeming acknowledgment that the constitutional provisions in relation to treatymaking were far more than indicia of a procedure to be followed in case the Executive chose to employ a treaty as a pleasing setting for an agreement, and that the provisions in that instrument were rather to be regarded as declaratory of a constitutional duty on the part of the Executive invariably to submit agreements within a broad and fairly well-defined field to the Senate for its approval. The practice of the United States throughout its life reveals respect for this idea." (Constitutional Procedures for International Agreement by the United States, Proceedings of American Society of International Law, 1937, p. 45).

The first sentence of the proposed executive-agreement amendment would admonish the Executive that such discretionary power does not exist, and that the Congress has the power to regulate the use of executive agreements by appropriate legislation.

It is not deemed feasible or desirable to attempt initially a rigid distinction between what may be properly done by treaties, on the one hand, and executive agreements, on the other. That should be left to be determined by Congress over the years from experience when and as it, from time to time, decides to pass regulatory legislation in the field of executive agreements.

It may, for example, be enacted that all agreements by the Executive pledging or requiring an appropriation by Congress, or disposing of property of the United States, shall take the form of a treaty. Likewise, agreements for the alienating or leasing of territory, or assuming jurisdiction thereof on the part of the United States, agreements concerning assets and property rights such as were included in the so-called Litvinov assignment (United States v. Pink (315 U. S. 203)), and

agreements with other nations pledging or implying the adoption of a long-range national foreign policy on the part of the United States might also be required to be entered into with the formality of a treaty. As to the last-mentioned category of executive agreements, some 30 years ago Dr. Charles Cheney Hyde published the following admonition:

"Under the Constitution there appears to be no way in which to deter the political department of the Government from giving expression to a view as to policy or law, which, regardless of the form it assumes, may present a grave obstacle when subsequently, in the course of diplomatic negotiation, or of an arbitral adjudication, the United States deems it of highest importance to pursue a different course. For that reason, it may be fairly doubted whether the present practice whereby the President agrees without the approval of the Senate to understandings or declarations of vast import, serving both to further the political aspirations of other States or to weaken proportionally the subsequent influence of the United States as a deterrent, is to be regarded as advantageous to the Nation." (International Law Chiefly as Applied by the United States, 1922,

vol. II, p. 33, note).

An armistice is but a suspension of military operations, and hostilities may be resumed if a peace treaty does not result (Hague Convention and Regulations Respecting the Laws and Customs of War on Land, art. 36); an occupying state is regarded only as an administrator and usufructuary (ibid., art. 55); belligerent military occupation being essentially provisional does not serve to transfer sovereignty over the territory controlled (Hyde, International Law, vol. II, p. 362); territory and property in the possession of the victorious belligerents at the end of hostilities are held subject to the terms of the treaty of peace terminating the war (Hyde, op. cit., and Oppenheim, International Law, 1916, vol. II, pp. 280– 282); the President of the United States has no power to terminate war without the advice and consent of the Senate (Hijo v. United States, 194 U. S. 315 (1904)). These rules might be the subject of legislation by Congress as to the power of the President to make permanent commitments for the Nation during temporary war periods in the exercise of his powers as "Commander in Chief of the Army and Navy of the United States" (United States Constitution, art. II)-a power far more limited than commonly believed, even by Presidents. See ex parte Milligan (4 Wall. 2 (1866)); ex parte Quirin (317 U. S. 1, 25-26, 29 (1942)); Steel Seizure cases (72 Sup. Ct. 863) (June 2, 1952).

In general, it might be prescribed that all agreements by the Executive with foreign nations in the field of legislation delegated to the Federal Congress shall be in the form of treaties made conformably to the provisions of the proposed amendment on the treaty-making power.

The proposed amendment regarding executive agreements would naturally not affect so-called executive agreements which are made pursuant to prior specific congressional authorization given to the President, or which are made specifically subject to subsequent approval or implementation by such legislation before becoming effective.

In order that the first two sentences of the proposed amendment on executive agreements may not be construed as exhausting congressional power to regulate such agreements, the last sentence has been added, expressly stating that "nothing herein shall be construed to restrict the existing powers of Congress to regulate executive agreements under the provisions of this Constitution." This clause is intended to preserve what is now believed to be the full authority of Congress to regulate executive agreements under article I, section 8, clause 18, granting to the Congress the power "to make all laws which shall be necessary and proper for carrying into execution *** all other powers vested by this Constitution in the Government of the United States and in any department or officer thereof."

Finally, there are certain types of purely executive agreements made by the President in his conduct of the foreign relations of the United States which are necessary for the proper administration of the Department of State. These types of executive agreements have been described by John Bassett Moore, who served for many years as an Assistant Secretary of State and later as counsel for the State Department, and is regarded as one of the leading authorities on international law, as follows:

"The conclusion of agreements between governments, with more or less formality, is in reality a matter of constant practice, without which current diplomatic business could not be carried on. A question arises as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices with