(The reported referred to follows:)

REPORT OF THE SECTION OF INTERNATIONAL AND COMPARATIVE LAW OF THE HOUSE OF DELEGATES ON SENATE JOINT RESOLUTION 1 (83:1) (THE BRICKER AMENDMENT)

(No recommendation)

INTRODUCTION

Senate Joint Resolution 1, a copy of which is attached, was offered in the Senate on January 7, 1953, to amend the Federal Constitution (a) to restrict the treatymaking power, and (b) to restrict, or perhaps eliminate, the separate power of the President to make executive or other international agreements.

In February 1952, Senator Bricker had introduced Senate Joint Resolution 130 (82:2) for the same purposes. A few weeks later the house of delegates, over the opposition of this section, adopted a substantially different proposal, which had been made by the committee on peace and law through United Nations, to limit only the treatymaking power. In September 1952, the House of delegates, again over the opposition of this section, adopted a proposal by the same committee to restrict the use of executive agreements but differing from the portions of the 1952 Bricker proposal (S. J. Res. 130) dealing with executive agreements. A subcommittee of the Senate Judiciary Committee now has before it Senate Joint Resolution 1 (83:1), the new proposal by Senator Brickler which is briefly described above. While embracing the same subject matter and having the same objectives as Senate Joint Resolution 130 (82:2), it is very different not only from Senate Joint Resolution 130 but also from the two proposals by the house of delegates in 1952, and the section believes that, especially in view of the past interest shown by the house in this subject, it should report to the house on this new approach even though no recommendation is being made at this time.

II. THE RESTRICTIONS ON THE TREATY MAKING POWER

These restrictions are in sections 1, 2, and 3 of Senate Joint Resolution 1 which read as follows:

"SECTION 1. A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect.

"SEC. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States. "SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress."

Although a year of debate, writings and hearings has resulted in substantially better draftsmanship, the foregoing proposed restrictions are still subject to two fundamental objections and still contain serious ambiguities.

Fundamental objections.-Section 3 leaves the principle of Missouri v. Holland (252 U. S. 416 (1920)) untouched because it would permit a treaty to authorize legislation otherwise unconstitutional as within exclusively State jurisdiction. This is contrary to the effect of the proposal adopted by the house of delegates last February, but is in accord with Senate Joint Resolution 130 and with the position taken by this section at that time. However, section 3 still contemplates that a treaty which would by its terms be "effective as internal law" could become so only if supplemented by an appropriate act of Congress. This would prevent any treaty from becoming self-executing as "internal law," and, in a large and usual area of treaty-making (i. e., the conventional treaties of friendship, commerce, and navigation provided for nondiscriminatory treatment of our citizens abroad and aliens while here, tax treaties, etc.) might embarrass our Government in the negotiation of treaties with other countries. In view of the wellrecognized power of Congress to supersede a treaty's internal effect by subsequent legislation and, especially, in view of the Senate's historic reluctance to ratify treaties without extremely critical analysis, it is not understood why the burdens of our Government in dealing with foreign nations should be thus increased. The present Senate is, in fact, certain to act on proposed treaties very cautiously.

The second fundamental objection lies in section 2. Is it really desirable to prohibit, by constitutional amendment, any treaty that provides for arbitration by an international organization of "any *** matter essentially within the domestic jurisdiction of the United States"? Under the Convention on

International Civil Aviation, signed at Chicago in 1944 (61 Stat. 1180), which deals largely with international flights and aviation services and practices, certain disputes are subject to decision by international bodies (Sutherland op. cit. supra, p. 1330). Without analyzing any particular aspect of that convention, is it really desirable to prohibit, by constitutional amendment, any treaty that contains such a provision? If such an amendment were adopted, just how do we work out with foreign countries, under law, disputes or differences with regard to the practical problems of international communications, transportation, fisheries, and the like? Also, in order to get exclusive jurisdiction of our Armed Forces in a foreign country, we should, it would seem, be in a position to grant similar jurisdiction over its troops in the United States. But is not this latter a "matter essentially within the domestic jurisdiction of the United States"? Ambiguities.-Even if there were determined to be no fundamental objections to these proposed restrictions on the treaty-making power, the new draft should be clarified in certain respects, including

1. In sections 1 and 2, what is meant by any right "enumerated" in the Constitution? For example, are rights under the due-process clause of the fourteenth amendment enumerated? In attempting to restate in the Constitution the generally accepted rule that treaties are subject to the Constitution, the risk is thus run of narrowing the rule. That is certainly not to be desired.

2. In view of the specific reference in section 2 to "rights of citizens of the United States within the United States," does section 1 relate to rights of citizens and aliens? Does it relate to citizens outside of the Unied States? If it does, the usual treaties which provide for reciprocal nondiscrimination against citizens of one country when in another would be invalid in certain cases.

3. In section 2, what is the meaning of "any other matter essentially within the domestic jurisdiction of the United States"?

4. In section 3, what does "effective as internal law" mean? If, pursuant to treaty (or executive agreement) the United States and Great Britain agreed on a blockade of a third country and an American steamship company asserted the blockade as a defense in a court in the United States for nonperformance of a contract, would the defense be unavailable if the treaty (or executive agreement) had not been supplemented by act of Congress?

III. EXECUTIVE AND OTHER AGREEMENTS MADE BY THE PRESIDENT

Section 4 of Senate Joint Resolution 1 deals with such agreements as follows: "Section 4. All executive or other agreements between the President and any international organization, foreign power, or official thereof, shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article."

the last sentence makes sections 1, 2, and 3, discussed above, applicable to executive agreements as well as treaties.

As stated to the House both in February and Sepember of last year, this section has been seriously concerned over the extent to which Presidents have on some occasions fixed long-term national policy by secret executive agreements. The section has been trying to determine whether there is a practicable and realistic way of controlling the President's power to make such agreements. The section opposed the proposal adopted by the House in September because it did not find it satisfactory, and neither Senate Joint Resolution 130 in the last Congress nor Senate Joint Resolution 1 in this one appears acceptable. The problem is extremely complicated and deserves further study.

It should be recalled that the large majority of agreements between the President and foreign powers or international organizations that are not in the form of treaties, and ratified by the Senate as such, are, under existing practice, either pursuant to act of Congress or subsequently approved by Congress. These are called "statutory executive agreements" for the purpose of this report. The relatively small number of such agreements in which Congress now plays no part are the ones which have created concern. To keep this small category in focus, such executive agreements are herein called "nonstatutory executive agreements."

The practical difficulty in limiting the President's power to make nonstatutory executive agreements is that someone in our Government must have the power to deal with foreign nations quickly or secretly when, on occasion, such action is necessary. It is understood that most nonstatutory executive agreements have been made either under such circumstances or in connection with so trivial a matter that reference to Congress would be absurd.

With this background, what does section 4 of Senate Joint Resolution 1 do? The first sentence is mandatory. No executive agreement, either statutory or nonstatuory, could be made until Congress prescribed the permissible manner of making such agreements and their nature. Bearing in mind the above-mentioned fact that nonstatutory executive agreements are generally made because of practical demands of speed or secrecy, Congress would have either to confer on the President broad powers to proceed on his own or require him in some manner to obtain outside approval, presumably from Congress or its representatives, in the case of each nonstatutory executive agreement. Not knowing what sort of implementing statute is contemplated, it cannot be said whether some practical and satisfactory procedure has been, or could be, devised.

It is frequently contended that the Constitution should be amended to provide for ratification of a treaty by a majority of both Houses of Congress rather than by two-thirds of the Senate present. Under section 4, Congress, especially a subservient one, could by majority vote authorize the President to make executive agreements in lieu of treaties. Barring a Supreme Court holding of unconstitutionality, who could prevent such a consequence? Yet, if that were to be the result, it would be far better to present a proposed amendment along the lines mentioned at the beginning of this paragraph than an amendment like section 4.

Congress has already exercised for many years the power to control executive agreements. It has thus, in general, prohibited the Executive from participating in any international congress or conference without previous specific authority of law (37 Stat. 913, Mar. 4, 1913). It has gone so far, in detail, as to spell out the terms of a proposed executive agreement (the Philippine Trade Act of 1946, 60 Stat. 151). Rather than bar all executive agreements by constitutional amendment until Congress has regulated them by a future law whose terms are not known, would it not be better for Congress to continue, to the extent deemed desirable, to control executive agreements by legislation, which could be carefully considered before adoption, rather than to have a generalized constitutional amendment on the subject?

Sections 1, 2, and 3 of Senate Joint Resolution 1 apply to executive agreements as well as to treaties, as previously pointed out. This report will not be lengthened to consider their separate effect on executive agreements, except to mention that under section 4 Congress would have to authorize executive agreements in advance and then, under section 3, would have to enact further laws in order to make them effective as internal law.

IV. CONCLUSION

As mentioned at the outset, Senate Joint Resolution 1 (83:1) is far better drafted than was its predecessor, Senate Joint Resolution 130 (82:2). Many pitfalls that were shown during last year's discussions have been avoided.

Refinement has not, however, overcome the two fundamental objections to restricting the treatymaking power that are mentioned in point II and, as discussed in point III, the answer to the problem in limiting the power of the President to make nonstatutory executive agreements does not yet seem to have been found.

Respectfully submitted.

LYMAN M. TONDEL, Jr., Chairman.
WILDER LUCAS, Secretary.

JOHN J. PARKER, Section Delegate.

83D CONGRESS, 1ST SESSION

Mr. Bricker 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:

"SECTION 1. A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect.

"SEC. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States.

"SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.

"SEC. 4. All executive or other agreements between the President and any international organization, foreign power, or official thereof, shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this Article.

"SEC. 5. The 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."

Mr. HOLMAN. I would also like to file the action of the house of delegates of the American Bar Association, its official voice, which showed there were only four members of the section there who made up this report and the House in permitting it to be filed did so by the proviso that nothing therein should bind the house of delegates of the American Bar Association or the American bar. So this is a report by four men. Mr. Rhyne says three.

Mr. PERLMAN. I have the names here. I mention them in my statement. It is a report by three men who represented the section which

Mr. HOLMAN. No. That was brought out. They admitted they did not represent the section. They only represented the council of the section and three men acted for the council. That was all brought out in debate. We can have several of us here to testify under oath. Mr. PERLMAN. There is no need to.

Mr. HOLMAN. You were not present out there.

Mr. PERLMAN. No.

Senator DIRKSEN. It is important at this point that we be quite clear whether this is a report by three individuals who are really speaking for themselves.

Mr. PERLMAN. No, sir; these spoke for the council; at least the section. The section has a thousand members in it.

Senator DIRKSEN. Can we not get an agreed statement here for the record as to just what this report does represent?

Mr. PERLMAN. As Mr. Holman says, these three were authorized, I suppose, to make the report by the council of the section.

Mr. HOLMAN. They were the only ones of the council present and the house received it only as a matter of courtesy and put on the proviso that it should not be construed as action of the house in any respect, confirming their former action.

Mr. PERLMAN. You said they were the only ones present. Nobody is present at a meeting of the house of delegates except those that happen to be delegates.

Mr. HOLMAN. There were only three men of your section there. Mr. PERLMAN. The only ones who can attend those meetings. Mr. HOLMAN. You made the statement many times, you made it at an international conference in London. Judge Florence Allen, of the sixth circuit, said it was an improper statement to say that you had a section of a thousand people against this. You debated genocide at

St. Louis. Your contentions were overruled by a large majority

vote.

Mr. PERLMAN. Mr. Holman, if you want to bring up that matter, let me tell you that I am a member of that section. I attended the meeting at which the report was approved, that I think Mr. Charley Rhyne, who is in the room here, had a hand in writing. I think he was chairman of the section at the time. At the meeting of the section that report was approved.

Mr. HOLMAN. Which report?

Mr. PERLMAN. You brought in genocide. I am telling you about genocide.

Senator DIRKSEN. I just want to point out, Mr. Perlman, that when the record of this hearing is read, youngsters in high school will be adducing evidence and saying, "Here is a statement representing the views of a thousand lawyers." Now, if it is not a thousand, how many is it?

Mr. PERLMAN. I think it is a thousand, if Your Honor please, because of the reason that this committee was authorized by the council of the section, the council of the section is authorized to speak for the membership of that section.

Senator WATKINS. How many in the council?

Mr. HOLMAN. Usually about six. There were three present. There was no meeting of the section at all of any kind on this report. It was made up by three men and three produced it. There was an objection to its even being filed. As a matter of courtesy it was allowed to be filed, but the reservation was put on it that it did not represent the views of the American Bar Association at all. Is that right, Mr. Rhyne?

Mr. RHYNE. Yes, it is.

Mr. PERLMAN. It was sent out by the American Bar Association as the report of the section. That is all I know.

Senator DIRKSEN. Mr. Holman said that the House of Delegates admitted the filing of the report.

Mr. HOLMAN. They always admit a report as a matter of courtesy. Mr. PERLMAN. That is right, but the council is the council of the section. It acts for the section.

Senator WATKINS. How many men compose this council?

Mr. PERLMAN. Six.

Senator WATKINS. How many were present when this report was authorized by the council?

Mr. PERLMAN. I don't know.

Mr. HOLMAN. Three.

Mr. PERLMAN. I am surprised that three would be there.

Senator WATKINS. Three authorized the report?

Mr. PERLMAN. One of them, by the way, is the chairman of the whole section that contains a thousand members. Now, you are not going to assume he acted without authority.

Senator DIRKSEN. I do not know about that.

Mr. HOLMAN. He did act without authority. You see, the difficulty is never at midyear meeting is the section present because that is a meeting of a few lawyers and the house of delegates, all the house of delegates. So Mr. Schweppe asked the chairman of the section whether this was a report of the section. He said no, this was a report