Senator DIRKSEN. That is when the trouble arises. Senator SMITH. That is the purpose of the second look. Senator SMITH. Yes, I think so, to see what details are included. Mr. PEARSON. Frankly, I should think it would be a mess, but I am not familiar with government; I am just a Wall Street lawyer, and I do not know how these things work. I should think it would be chaos, or at least could be. You gentlemen know about such things, and you hear the testimony of people in government about such things. It sounds to me unfortunate. Senator DIRKSEN. Going to the field of treaties for a moment, but with this thought in mind, I think the Japanese treaty is an excellent illustration. If you were to ask me today to what extent we are going to pick up the check in Japan, whether it is going to be $100 million or $500 million or $1 billion, there is not a Member of the Senate who can tell you today. Mr. PEARSON. That about concludes what I have to say, Mr. Chairman. The CHAIRMAN. Senator Smith, any questions? Senator SMITH. I have not heard enough of this really to advance questions that I might otherwise want to put. Mr. SMITHEY. This may be taking a little unfair advantage of you since you may not have had an opportunity to examine the resolution, but the first section of Senate Joint Resolution 43 is the American Bar proposal? Mr. PEARSON. Yes. Mr. SMITHEY. You may have had a chance to examine that. They say in their third sentence of that section: Executive agreements shall be subject to regulation by the Congress and to limitations imposed on treaties by this article. Would it be your understanding that executive agreements would include such instruments as protocols, conventions, modi vivendi, or do you think that those would have to be encompassed under another term such as "other agreements"? Mr. PEARSON. I would guess the latter. I am not familiar with all the literature on the subject, but we have a quotation here from some gentleman who knew about these things, and he seemed to assume that there was a fairly well recognized line of distinction. Well, not line, but there were at least two different kinds of animals, so that if you write executive agreement in, there is a perfectly good argument open that other agreements are not included within the phrase. By the same token, in Senate Joint Resolution 1 when it says executive or other, it is perfectly plain that it means everything under the sun. My guess would be that the answer to your question would be that there would be some kind of lower level day-to-day protocol, what not, that would not be covered by that. But as to whether this is sufficiently well recognized so that you could be sure, I do not know. Henry S. Fraser, Treaties and Executive Agreements, Senate Document 244. Mr. Fraser says: Generically the term "executive agreement" would embrace every agreement and understanding, formal and informal, made by the executive branch and a foreign power and not submitted to the Senate for its advice and consent as a treaty. Strictly the term would thus include current diplomatic business and disposing of matters such as the treatment of vessels, a matter of ceremonial or some other routine subject. Up to that point he says generically: Ordinarily, however, the term "executive agreement" is intended to denote a term more informal such as protocol, modi vivendi, a postal conventionand so forth. Mr. Fraser knows what he is talking about; I do not. I would think there was at least a question on the problem that you raised, but probably the answer would be that it would not include these lesser things. It is perfectly clear that this one does, and it was so intended. Senator BRICKER. Just one question, Mr. Chairman? The CHAIRMAN. Surely. Senator BRICKER. In the Steel seizure case three Justices of the Supreme Court said that the President has power above and beyond that which is given in the Constitution or that delegated by the Congress because we had entered into the U. N. with a treaty, because we had gone into the pact. If two more had agreed with him, we would then have wiped out entirely the constitutional protection of property; would we not? Mr. PEARSON. May I say, sir, that I have heard that analysis of the dissent in the Steel case. After I read it, I did not find that there at all. The dissenting opinions mentioned the things you just mentioned the United Nations Charter, and what was the other one? Senator BRICKER. The pact. Mr. PEARSON. The dissents begin by mentioning those. The citations of those with brief explanations are followed by a sentence, "Before considering the action taken by the President, we must consider the times in which it was taken." Then they cite the United Nations Charter and the pact. Then they go on. Certainly it is clear that in the two or three paragraphs of named treaties, it nowhere says that there was any power derived from those treaties. Then there are 2 or 3 pages of subsequent dissent, and I felt absolutely clear that there was absolutely no suggestion of that, that they are testing anything by powers derived from those treaties-that is, any extra powers. The sole purpose of the dissent is to look at this statute and the other statute, and so forth, to find the action they did. Senator BRICKER. They say definitely he had no power under the Constitution to do what he had done. Mr. PEARSON. We are speaking about the dissents; are we not? Senator BRICKER. That is right. They definitely said that in the dissents there was no power under the Constitution or under the law to do what the President did, but in the light, as you say, of present conditions and considering these treaties that the President has the power. You cannot come to any other conclusion. Mr. PEARSON. I do not read it that way. I read the citation of the treaties to show what is going on in the world. My feeling was that they found sufficient congressional sanction for what they did. Senator BRICKER. There is no congressional sanction. Mr. PEARSON. That was not my reading. My understanding was that they thought from the accumulation of the congressional action that Congress said it wanted wage controls preserved and Congress said it wanted production and supplies for the Armed Forces, and Congress had done this and that, and the President was carrying out the will of the Congress. The CHAIRMAN. Senator Dirksen? Senator DIRKSEN. No questions. The CHAIRMAN. Thank you very much. Mr. PEARSON. Thank you, gentlemen. (The following material was submitted by Mr. Pearson to be incorporated in the record:) THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK-COMMITTEE ON FEDERAL LEGISLATION AND COMMITTEE ON INTERNATIONAL LAW REPORT ON JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS (S. J. RES. 130) ACTION TAKEN BY THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK At the annual meeting of the Association of the Bar of the City of New York on May 13, 1952, this report was presented and, on the recommendation of its committee on Federal legislation and committee on international law, the association adopted the following resolution: Resolved, That the Association of the Bar of the City of New York approves the report of its committee on Federal legislation and committee on international law dated April 28, 1952, and entitled "Report on Joint Resolution Proposing an Amendment to the Constitution of the United States Relative to the Making of Treaties and Executive Agreements," and opposes said proposed constitutional amendment known as Senate Joint Resolution 130. THE JOINT RESOLUTION Senate Joint Resolution 130, introduced February 7, 1952, by Senator Bricker on behalf of himself and 58 other Senators, proposes a constitutional amendment which would drastically alter the treaty-making procedures, in some fields prohibit treaties entirely, and place limitations upon the power of the President to enter into executive agreements with foreign countries.' Broadly speaking, the proposed constitutional amendment raises major issues of constitutional policy which have been the subject of consideration and debate since the initial steps of the formation of the Union. This report concerns the four substantive sections of Senate Joint Resolution 130, which read as follows: "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." The resolution is unusual in that some of its sponsors disavow any firm opinion that all of the provisions should be included. They agree that the proposed 1 Identical resolutions were introduced in the House as H. J. Res. 376, 379, and 390 by Messrs. Smith of Wisconsin, Hébert, and Auchincloss. The resolutions were referred to the respective Committees on the Judiciary. Hearings have not yet been held. A copy of the full text of S. J. Res. 130, including the names of the sponsors, appears in the appendix hereto. 30572-53--16 amendment raises problems worthy of serious consideration, and tender it as a basis for study. The fears at which the proposals are directed appear to be: (1) that our freedoms will be abridged through use of the treaty power or executive power in dealings with foreign countries; (2) that some authority which our Government now has wil be harmfully delegated abroad by use of such powers; (3) that those powers will be used to change or abridge Federal and State laws without approval of both Houses of Congress; and (4) that the President by use of the executive power will make executive agreements with foreign countries which the Senate would not approve if submitted as treaties. For the reasons set forth hereafter, it is our view that, under the existing Constitution, the prospect of such fears being materially realized is sufficiently remote to make it unwise to tinker with the existing safeguards lest the cure should prove worse than the disease. Furthermore, we believe that the language used in the resolution is so broad and indefinite that, if enacted, it would place unnecessary and ill-advised limitations on our Chief Executive in handling the delicate and urgent problems of diplomacy that occur with increasing frequency in a shrinking world. Our two committees oppose the proposed amend ment Senate Joint Resolution 130. Before considering the sections of the resolution in detail, it is advisable to outline with broad strokes the origin and present scope of, and limitations on, the treaty-making power. THE TREATY-MAKING POWER A primary weakness of the Articles of Confederation was that, although Congress had the power to enter into treaties and alliances, it could not compel their observance by the States. The veto power which each State thus enjoyed operated as an effective deterrent to the establishment of satisfactory relations with foreign countries for the national good. As James Madison expressed it, "the necessity of some adequate mode of preventing the States in their individual characters, from defeating the constitutional authority of the States in their united character, *** had been decided by a past experience." The Constitution, therefore, was so framed that the central government alone would have the power to deal with foreign countries on the treaty-making level. The several States were not to enter into any treaty, alliance or confederation, nor were they, without the consent of Congress, to enter into any agreement or compact with another State or with a foreign power." The first question then posed was: if the central government is to have the treaty-making power, who shall exercise it? It was recognized that it would be too unwieldy to delegate this power to Congress; and the choice narrowed to the President or the Senate. Reasons of secrecy and dispatch and the universal custom of nations in having the executive negotiate treaties favored placing the responsibility for this power in the executive-yet there were those who felt that this power should reside in the legislative branch of the Government. A reasonable solution was to empower the President to negotiate, and the Senate to ratify. Hence, the inclusion of the provision: 6 298 Congressional Record 921, Senator Bricker, and 923, Senators Saltonstall and Taft (Feb. 7, 1952). The Treaty of Peace with Great Britain (1783), ratified in 1784, provided among other things that creditors should meet with no lawful impediment to the recovery of the value of debts, and that there should be no future confiscations or prosecutions for the part taken by any person in the Revolutionary War. Notwithstanding these provisions, prosecution of persons who had not supported the Revolution was frequent and thousands of British sympathizers escaped persecution by emigrating to Canada. States passed laws obstructing the collection of British debts. On their side, the British in retaliation continued to occupy the fortresses along the western frontier of the Northwest Territory, notwithstanding the treaty provision for the withdrawal of armies from the United States. The American Minister to London had presented a memorial on these matters in 1785 and received a reply in 1786 which was reported to the Continental Congress. The Congress on March 21, 1787 (2 months before the Constitutional Convention convened), had unanimously adopted a resolution to the effect that all State acts interpreting a national treaty or restraining the execution thereof "ought to be forthwih repealed.' (See Journals of the Continental Congress, 1774–89, XXXII, pp. 124, 181-182. Treaty and Law Under the Constitution, by Denys P. Myers, Department of State Bulletin, Mar. 10, 1952. p. 371.) Farrand, The Records of the Federal Convention, 1911 ed., vol. 3, p. 523. James Wilson to Pennsylvania Convention December 4 and 11, 1787; Charles Pinckney to South Carolina Legislature January 16, 1788; Mr. Davie to North Carolina Convention July 28, 1788; Farrand, The Records of the Federal Convention, 1911 ed., vol. 3, pp. 162, 166 (Wilson); pp. 251-252 (Pinckney); and pp. 347-349 (Davie). "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.” “ Another problem arose: If a treaty should be inconsistent with an act of Congress, or a State constitution or law, which should have precedence? This was resolved by the inclusion of the so-called supremacy clause, article VI, paragraph 2, which reads: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Under its terms, treaties, and acts of Congress were placed on a parity, with each of them having primacy over the constitutions of and laws of the several States. The intent of this arrangement has been reaffirmed by the courts. Insofar as the internal law of the United States is concerned, a later act of Congress will override a treaty and a later treaty will supplant an act of Congress, to the extent that they are inconsistent. Of course, the other party to a treaty superseded by a later Federal law may claim that the treaty has been violated, but that is a matter between it and the United States as a nation. Some persons opposed the ratification of the Constitution because treaties would override State constitutions and laws, but the Constitution was ratified despite this opposition. Following out the logic of the supremacy clause, it was held as early as 1796 that treaties supersede inconsistent State law. In Ware v. Hylton (3 Dall. 199), it was held that certain provisions of the treaty ending the Revolutionary War were self-executing, and being inconsistent with a Virginia State law, had superseded it. This principle of treaty supremacy was reaffirmed in Asakura v. City of Seattle (265 U. S. 332 (1924)), wherein a treaty with Japan was held to have overridden a city ordinance.10 The inclusion of the so-called necessary and proper clause (Constitution, art. I, sec. 8)," was a recognition that the subject matters of treaties might well transcend the specific powers delegated to Congress, and that it was in the national interest that Congress be able to enact legislation implementing a treaty which it would be unable to enact in the absence of a treaty. It followed as a corollary that the Supreme Court would hold, as it did in Missouri v. Holland (252 U. S. 416 (1920)), that Congress in implementing treaties might enact legislation which was beyond its ordinary delegated powers. Standing at the apex of this pyramid of supremacy is the Constitution of the United States, which overrides treaties, acts of Congress and the constitutions and laws of the several States (see pp. 13-16 below). We shall now consider the provisions of the proposed resolution in detail. As its four substantive sections deal with four distinct subject matters, we shall use a section-by-section analysis. 6a Art. II, sec. 2. par. 2, clause 1. The Cherokee Tobacco (11 Wall. 616 (1870))-United States tax law applied to tobacco which earlier treaty with Cherokees had exempted from tax. Botiller v. Dominiquez (130 U. S. 238 (1889) )-Mexican treaty required recognition of Mexican title to California land. Later congressional law barred such recognition after 2-year period. The claimant failed because of the statute, although the court said the treaty might still subsist in international law. Chae Chan Ping v. United States (130 U. S. 581 (1889))-later Federal Chinese Exclusion Act superseded earlier Chinese treaty; Whitney v. Robertson (124 U. S. 190 (1888))most-favored-nation treaty construed not to conflict with later Federal law but, if it did, later Federal law prevailed. Both these cases stated that in the reverse situation of a treaty superseding an earlier Federal law, the treaty would control. "In either case the last expression of the sovereign will must control" (130 U. S. 581 at 600). Luther Martin of Maryland-Farrand, The Records of the Federal Convention (1911 ed., vol. 3. p. 287); Patrick Henry of Virginia-Henry, Patrick Henry, Life, Correspondence, and Speeches (vol. 3, p. 557). A treaty recognizing the right of British subjects to own American land was held to nullify a State confiscation decree. Fairfax's Devisee v. Hunter's Lessee (7 Cranch 603 (1813)), as interpreted by the Court in Martin v. Hunter's Lessee (1 Wheaton 304 (1816)). A State statute restricting inheritance to citizens was held superseded by a treaty recog nizing Swiss aliens to have such a right. Hauenstein v. Lynham (100 U. S. 483 (1880)); see also Clark v. Allen (331 U. S. 503 (1947)). 10 A moment's reflection will show that the principle of Asakura v. Seattle (treaty overriding municipal ordinance on pawnbrokers) is necessary to the treaty making power. Unless we could override the police power of the States to protect foreign nationals, we could not expect foreign nations to curb their police power in favor of our citizens abroad. 11 "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 in any department or officer thereof." |