ont attracting public notice; the governments directly concerned exchange views and reach a conclusion by which the difference is disposed of. They have entered into an international ‘agreement,' and to assert that the Secretary of State of the United States, when he has engaged in routine transactions of this kind, as he has constantly done since the foundation of the Government, has violated the Constitution because he did not make a treaty, would be to invite ridicule. Without the exercise of such power it would be impossible to conduct the business of his office." (20 Political Science Quarterly pp. 385, 389–390.)

Such powers as the President may possess to make these types of executive agreements under the law or custom of the Constitution are properly safeguarded by the third sentnce of the proposed amendment on executive agreements, which, it will be noted, preserves "the existing power of Congress to regulate executive agreements under the provisions of this Constitution."

It may be that Congress will conclude that the present constitutional provision (art. I, sec. 8, clause 18, discussed above) is an adequate basis for legislative regulation of executive agreements and will decide that no constitutional amendment respecting executive agreements is necessary. However, if one is proposed, your committee's suggested text appears worthy of consideration.

We recognize that a shorter text of an amendment could in this instance be prepared, such as: "Congress shall have power to regulate executive agreements." But it was thought that since the power in all probability already exists, it was undesirable to draw a text which might imply a legislative determination that the power does not presently exist.

It is believed that the committee's suggested text, which embodies the basic idea of the Bricker amendment on executive agreements, adequately covers the situation; and that the other procedural provisions of the Bricker amendment, such as publication and automatic termination, are proper subjects of legislation under the text of the amendment as proposed by your committee.

Your committee believes that the text suggested by your committee on executive agreements should be recommended to Congress by the house of delegates.

Mr. SCHWEPPE. I also offer from the February 1, 1953, Report of the Committee on Peace and Law of the American Bar Association, pages 5-11, and appendix A thereto, pages 19-21, dealing with treaties and executive agreements.

(The information referred to is as follows:)

REPORT OF STANDING COMMITTEE ON PEACE AND LAW, FEBRUARY 1, 1953

I. TREATIES AND EXECUTIVE AGREEMENTS

Mr. John Foster Dulles, now Secretary of State, before the regional meeting, American Bar Association, Louisville, Ky., April 12, 1952, made an address entitled "The Negotiation of Treaties" (American Bar Association Journal, June 1952, p. 487). In the course of this address he made the following remarks:

"The treatymaking power is an extraordinary power liable to abuse. Treaties make international law and also they make domestic law. Under our Constitution treaties become the supreme law of the land. They are indeed more supreme than ordinary laws, for congressional laws are invalid if they do not conform to the Constitution, whereas treaty law can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the State and give them to the Federal Government or to some international body and they can cut across the rights given the people by the constitutional Bill of Rights."

The foregoing remarks of Mr. Dulles succinctly point up the problem with which your committee on peace and law has been dealing since 1948, and the study of which has resulted in the recommendations of your committee to the house of delegates of the American Bar Association.

At the midwinter meeting of the American Bar Association held at Chicago on February 25-26, 1952, the house of delegates, on suggestion of the committee on peace and law, recommended to the Congress of the United States for consideration an amendment to the Constitution of the United States in respect to the treatymaking power, reading 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 treaty." (See proceedings of house of delegates, 38 Am. Bar Jour. 435, May 1952.)

In due course, this action of the house of delegates was brought to the attention of Congress.

At the annual meeting of the American Bar Association held at San Francisco September 15 to 19, 1952, the house of delegates, on suggestion of the committee on peace and law, recommended to the Congress of the United States for consideration an amendment to the Constitution of the United States in respect to executive agreements, reading as follows:

Congress shall Nothing herein

"Executive agreements shall not be made in lieu of treaties. have power to enforce this provision by apprpriate legislation. shall be construed to restrict the existing power of Congress to regulate executive agreements under the provisions of the Constitution." (See proceedings of house of delegates, 38 Am. Bar Jour. 1069, December 1952.) In due course, this action of the house of delegates was brought to the attention of Congress.

In November of 1952 a subcommittee of the Judiciary Committee of the United States Senate, consisting of Senators Pat McCarran, Nevada, chairman; Herbert R. O'Conor, Maryland; Willis Smith, North Carolina; Homer Ferguson, Michigan, and Robert C. Hendrickson, New Jersey, caused to be published the hearings on Treaties and Executive Agreements held between May 21 and June 9, 1952. The volume of hearings on Treaties and Executive Agreements published by the Government Printing Office, Washington, D. C., consists of 540 pages, and contains statements pro and con on these important subjects. The hearing volume contains statements by each member of the committee on peace and law; and pages 517-540 set forth a memorandum of your committee in reply to the memorandum of the Department of Justice, which was in substance published by Mr. Philip Perlman, former Solicitor General, in the November 1952 issue of the Columbia Law Review.

The great interest aroused on the subject matter is illustrated by the fact that. with the commencement of the new 83d Congress, Senator John W. Bricker, of Ohio, joined by 61 other Senators, introduced Senate Joint Resolution 1, a proposed constitutional amendinent designed to regulate both treaties and executive agreements (Senator Bricker's S. J. Res. 130, introduced in the 82d Congress, expired with that Congress); that Senator McCarran of Nevada introduced Senate Joint Resolution 2, calling for immediate regulation of executive agreements by congressional action; and that there were introduced in the House of Representatives 10 resolutions dealing with both treaties and executive agreements as follows:

House Joint Resolution 7, introduced by Representative Auchincloss, Republican, New Jersey

House Joint Resolution 12, introduced by Representative Burdick, Republican, North Dakota

House Joint Resolution 25, introduced by Representative Dolliver, Republican, Iowa

House Joint Resolution 28, introduced by Representative Dondero, Republican, Michigan

House Joint Resolution 32, introduced by Representative Fisher, Democrat, Texas House Joint Resolution 57, introduced by Representative McDonough, Republican, California

House Joint Resolution 65, introduced by Representative Mills, Democrat, Arkansas

House Joint Resolution 79, introduced by Representative Smith, Republican, Wisconsin

House Joint Resolution 84, introduced by Representative Wilson, Democrat, Texas

House Joint Resolution 141, introduced by Representative Pelly, Republican, Washington

The texts recommended to Congress for consideration by the house of delegates of the American Bar Association are embodied in House Joint Resolution 141, introduced by Congressman Pelly of the State of Washington.

For the information of the house of delegates, the Association of Attorneys General of the United States and also many bar associations and other organizations have recommended to Congress a constitutional amendment regulating both treaties and executive agreements. That there should be some opposition is, of course, understandable. Aside from some opposition voiced in the hearings

before the Senate subcommittee, certain literature in opposition was referred to in the September 1, 1952, report of your committee. Your committee's position is set forth in its February 1, 1952, and September 1, 1952 reports, in the MayJune, 1952, hearings before the Senate subcommittee, and in two articles in the June and September issues of the American Bar Association Journal, respectively, by Mr. George A. Finch and Eberhard P. Deutsch, both members of your committee.

Reference is also made to the book by Federal Circuit Judge Florence Allen, entitled "The Treaty as an Instrument of Legislation" (McMillan, 1952).

Accompanied by a large etching of a Trojan horse, an informative summary giving the pros and cons on the question was published by the Christian Science Monitor, January 26, 1953, entitled “Primer on the Treaty Debate: Is There a Trojan Horse?"

Most of the opposition agrees with much of the legal reasoning of your committee in support of a constitutional amendment, but disagrees as to the present necessity of doing anything about the problem, suggesting that the people of the United States should rely on the President and the United States Senate. In this connection it seems pertinent to refer to the quotations from Woodrow Wilson and Thomas Jefferson (recenly quoted by Mr. John W. Davis in his argument in the Steel Seizure cases) set forth at the beginning of this report. The argument made by the opposition is a negation of the theory of constitutional limitations on which our Government rests. The American people have confidence in constitutional restraints above all confidence in individuals. The first 10 amendments were added to the Constitution in 1791, to prevent in advance abuses of power. The house of delegates has expressed its view that the abuse of the treaty power should be prevented now.

The principal opposition along these lines mentioned above comes from the Association of the Bar of the City of New York, which approved a resolution adopting conclusions condemnatory of amendment in this field generally and of the so-called Bricker amendment (S. J. Res. 130, introduced in the 82d Cong.) specifically, although it did not center its attack upon the proposal recommended by the house of delegates of the American Bar Association.

The New York State Bar Association on January 30, 1953, had a debate on the subject predicated in part upon a report dated June 6, 1952, by its committee on amendments to the Federal Constitution, consisting of William D. Mitchell, chairman; John W. Davis, Lewis R. Gulick, John J. Mackrell, and Harrison Tweed. The committee had recommended "that proposals, including the Bricker resolution, for amending the constitutional provisions as to treaties be laid aside for the time being and the efforts of the association directed, *** at preventing the acceptance or ratification of the Covenant on Human Rights in its present form." At the January 30, 1953, meeting of the New York State Bar Association, Mr. Vallance moved the following resolution.

"Resolved, That the New York State Bar Association opposes the adoption of the proposed constitutional amendment limiting the powers of the President to make treaties and executive agreements known as Senate Joint Resolution 130, 82d Congress, 2d session."

Mr. John W. Davis moved to amend the resolution by extending it to Senate Joint Resolution 1 (83d Cong.). After extended debate the resolution so amended was tabled. (Mr. Tweed's views, separately recorded, while not agreeing in toto with the report on other matters, concurred in the conclusion opposing the Bricker proposals.)

Certain portions of the Mitchell report are in such complete agreement with the legal views of your committee, that they are set forth in appendix A hereto. The fears of the New York State Bar Association committee that the Supreme Court would sustain the proposed International Covenant on Human Rights in reality constitute a strong argument for a constitutional amendment. Your committee has examined all of the proposals now pending in Congress. While your committee believes that the text previously recommended by it fully and adequately covers all of the constitutional principles which are involved, and which were approved by the house of delegates, an even shorter version, wholly within those principles, could appropriately read as follows: "SECTION 1. 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 which would be valid in the absence of treaty.

"SEC. 2. Executive agreements shall be subject to regulation by the Congress and to the limitations imposed on treaties by this article."

Because the final text of any proposed constitutional amendment will be drawn by the Judiciary Committees of Congress, your committee is not recommending any text changes to the house of delegates.

By way of brief comment on the text, no objection has been offered to the first sentence rendering void all treaties in conflict with the Constitution, except that such a statement is "unobjectionable in itself but unnecessary" (Zechariah Chafee, Jr., Harvard Law School Record, February 21, 1952; see American Bar Association Journal, September 1952, p. 794). Nor has much substantial opposition been expressed to the first clause of the second sentence which renders all treaties non-self-executing until Congress acts by implementing legislation, thus putting the United States in this respect on a parity with the great majority of nations. In virtually all of the countries of the world a treaty, while effective as an international obligation upon ratification, does not become domestic law unless and until made so by parliamentary action (see American Bar Association Journal, September 1952, pp. 794, 795; ibid., June 1952, pp. 468, 469; Report of Committee on Peace and Law, September 1, 1950).

The principal attack on the treaty amendment recommended by the American Bar Association centers on the last clause of the second sentence, usually referred to as the "which clause." That clause provides that implementing legislation by Congress intended to make treaties effective as internal law must be legislation by Congress "which it could enact under its delegated powers in the absence of treaty." The "which clause" is intended to set aside the rule of Missouri v. Holland (252 U. S. 416), which establishes the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it would not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the States. That decision makes possible the complete upsetting of the constitutional balance between Federal and State power through the exercise of the treaty power by the President and two-thirds of the Senators present (American Bar Association Journal, September 1952, p. 795). The objection to the American Bar Association draft was stated in the committee report to the New York State Bar Association above referred to, as follows:

"The result would be that even if a treaty deals with an appropriate subject of international agreement, the Congress would have no power to implement it or make it effective in the United States, unless the subject matter were one on which Congress could legislate in the absence of a treaty" (p. 12).

Among the examples mentioned in the report are "treaties giving the right to do business or own or inherit land, with reciprocal rights for our citizens abroad" (p. 12).

The objection is founded upon the untenable assumption that the President and the Senate acting as the treaty-making power have broader legislative power over the people of the United States than the Congress itself, in which the people by express grant in the first part of the Constitution vested "all legislative power." This notion flies in the face of Jefferson's concept, expressed in his Manual of Parliamentary Practice as follows:

"By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaties, and cannot be otherwise regulated.

"It must have meant to except out all those rights reserved to the States; for surely the President and the Senate cannot do by treaty what the whole Government is interdicted from doing in any way." [Italics supplied.] (Quoted from American Bar Association Journal, September 1952, p. 736.)

So far as concerns the specific objection respecting aliens in this country, in return for reciprocal rights for our citizens abroad, such concessions have been a well-established part of the commercial policy of the United States from the beginning of the Republic. They have been identified particularly with the treaty-making powers because treaties are usually the form in which reciprocal agreements between nations are made. To urge that Congress is incapable of exercising its constitutional power to regulate commerce with foreign nations, and that such regulation cannot be had except through the exercise of the treatymaking power constitutes a confusion of constiutional power; it creates limitations upon congressional power in the interest of enlarging the treaty power. By virtue of its power to regulate foreign commerce, to define and punish offenses against the law of nations, to declare war, etc., the Congress now has delegated power to legislate with respect to all of the important subjects in the legitimate treaty field. (See American Bar Association Journal, June 1952, p. 470.) Insofar as Congress does not have power under the Constitution to

legislate, the consent of the several States must be appropriately obtained; such is the case, for example, in Canada, which is also a federal state. (See American Bar Association Journal, September 1952, p. 794; ibid., June 1952, p. 459.)

Those who object to the so-called which clause in the American Bar Association treaty proposal fail to appreciate the real significance of this clause to the preservation of our form of government against the abuse of the treaty power, originating in the type of agreements which the executive arm of the Government has been negotiating in the last few years in the name of human rights and in other areas. Without such a constitutional limitation, and within the recent State Department concept that "there is no longer any real distinction between 'domestic' and 'foreign' affairs" (see American Bar Association Journal, September 1952, p. 737, the President and two-thirds of the Senators present could take over the entire area of internal law now reserved to the States.

"Supporters of the association's amendment have been challenged to point to any ratified treaty raising questions that show the need for a constitutional limitation on the treaty-making power. The only treaty which has actually been ratified is the United Nations Charter itself, which has undoubtedly, under Missouri v. Holland already conferred on Congress the unlimited power to implement by legislation treaties on all matters, including individual rights, covered by that instrument" (American Bar Association Journal, September 1952, p. 796).

Your committee has for several years given constant and serious study as to the most effective means of dealing with these real and potential extensions of the treaty-making power. After considering all alternatives, it concluded that the only sure safeguard against present and future risk is a constitutional amendment, which while preserving the treaty-making power in all its effectiveness in matters which are genuine subjects of international agreement, will close the gap for such distortions as those just mentioned. The house of delegates agreed. To date almost no objection has been voiced to the second section, designed to make it clear and unequivocal that Congress has the power "to make all laws which shall be necessary and proper" to control executive agreements (Constitution, art. I, sec. 8, cl. 18; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (June 2, 1952); Ex parte Quirin, 317 U. S. 1, 25-27, 29; Report of Committee on Peace and Law, September 1, 1952). Congress and the public seem unanimous that Executive agreements should be controlled by law within the Constitution.

A hearing has been set on treaties and Executive agreements commencing February 18, 1952, before a subcommittee of the Judiciary Committee of the United States Senate. The subcommittee consists of Senator William Langer, Republican, of North Dakota, chairman; Everett M. Dirksen, Republican of Illinois; John M. Butler, Republican, of Maryland; Estes Kefauver, Democrat, of Tennessee; and Harley M. Kilgore, Democrat, of West Virginia. Having been invited by the Senate subcommittee, members of the committee on peace and law, by authorization of a committee of the board of governors pursuant to the resolution of the house of delegates on September 20, 1951, will appear and testify.

The house of delegates will be kept advised with regard to further developments. APPENDIX A-NEW YORK STATE BAR ASSOCIATION COMMITTEE ON AMENDMENTS TO THE FEDERAL CONSTITUTION

(William D. Mitchell, chairman; John W. Davis; Lewis R. Gulick; John J. Mackrell; Harrison Tweed)

EXCERPTS FROM REPORT ON PROPOSED CONSTITUTIONAL AMENDMENTS RELATING TO THE MAKING OF TREATIES AND THEIR EFFECT, PRESENTED JUNE 1952

"That case [Missouri v. Holland, 252 U. S. 416] thus established the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it might not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the States" (p. 4).

"If the Covenant on Human Rights deals 'with an appropriate subject of international agreement' and is thus within the treaty power, the rule announced in Missouri v. Holland would operate to give the Congress power to implement the treaty by legislation which it could not enact in the absence of a treaty and thus enter a field heretofore reserved to the States" (p. 5).