As a necessary corollary to its study on the treaty power, the committee on peace and law of the American Bar Association studied the subject of executive agreements.

Senator SMITH. Is there any doubt about the power of the Congress by enactment to abrogate a treaty made under the United Nations as we did before we ratified the United Nations Charter?

Mr. SCHWEPPE. There is no doubt about that power. That power has been affirmed in a number of Supreme Court decisions. A treaty has a constitutional status which parallels that of the statute. As the Supreme Court has put it in several cases, where a treaty and an act of Congress conflict, the test is which one was first in time. If the act of Congress was first in time, the subsequent treaty will supersede it. If the treaty was first in time and Congress passes a subsequent conflicting act of Congres, then the act of Congress supersedes the treaty.

Senator SMITH. Assuming the act of Congress becomes law by the President signing or by passage over his veto?

Mr. SCHWEPPE. Yes.

Now, we have no doubt and the argument has been made by some who oppose the position of the American Bar Association, that an act of Congress can set aside a treaty. That has been put forward by some opponents of Senator Bricker's and our program as being an adequate defense for the legal situation of the United States. We do not think that for the United States Congress to come along and engage wholesale in the revocation and repudiation of treaties, even though that power does exist, is a wise national policy for this Government to pursue and we think a much better remedy is to prevent bad treaties from being made in advance rather than trying to repeal bad treaties after they have been made and invite the enmity of the rest of the nations of the world.

Senator SMITH. If it was done by statutory enactment it would mean that the tables would be reversed, so to speak, and you would have to have an act of both Houses plus the President's signature, or his veto, you would have to have two-thirds.

Mr. SCHWEPPE. That is right.

Senator SMITH. Which turns the whole thing around.

Mr. SCHWEPPE. That is an excellent point. As against the Chief Executive who is in favor of maintaining the treaty it would take a two-thirds vote of Congress to set aside what Congress might deem a bad treaty.

Senator SMITH. And what had been put in effect by the Executive negotiating the treaty and the Senate ratifying it.

Mr. SCHWEPPE. Yes.

Senator SMITH. The Senate might ratify by two-thirds of those present, which could be a handful of Senators.

Mr. SCHWEPPE. Right.

Senator SMITH. Yet it would take two-thirds of both Houses to set it aside.

Mr. SCHWEPPE. Yes. The treaty could be made when negotiated with the President by two-thirds of the Senators present, which certainly would require only two-thirds of a quorum under some interpretations. But to undo it afterward would take a two-thirds. majority of both Houses.

Mr. SMITHEY. Mr. Schweppe, in connection with your answer to Senator Smith's question, you were answering as to the domestic effect of the treaty, were you not?

Mr. SCHWEPPE. That is right.

Mr. SMITHEY. In other words, we could not by statute disregard the international obligation that has been placed in the treaty.

Mr. SCHWEPPE. That is right. Under international law we would be bound by the treaty. We could set aside the domestic effect, but the international complication of doing it would be just as serious as if we actually repudiated the treaty itself as an international engagement.

Senator BRICKER. It would also endanger us with all sorts of reprisals from other nations of the world.

Mr. SCHWEPPE. Yes. We have had experience on that now. I notice some of the other nations are engaging in some reprisals because they do not like what we are doing in the tariff field. So we open ourselves up. In other words, the United Nations program, instead of being one that will make the nations more cohesive and friendly with one another, could, if this goes forward, actually result in a lot of clashes and creation of bad feelings which, with a constitutional amendment such as you propose and the American bar, would not occur.

Senator BRICKER. Thank you, Mr. Chairman.

Mr. SCHWEPPE. There are some gentlemen, as you know-Dr. Wallace McClure, for many years with the State Department, is one, and Mr. McDougal, of the Yale law faculty is another-who speak of treaties and executive agreements as interchangeable instruments of national policy, as though the President, at his option, could do anything by executive agreement that also could otherwise be done by treaty, a concept with which we do not agree That argument was very sharply, and I think effectively, answered by Professor Borchard of Yale in an article in a Yale Law Journal in 1945 and in the American Political Science Review in 1946.

I trust we may be pardoned if we at the grassroots say we are startled by the following brazen advocacy of bypassing the constitutional function of the Senate in making international agreements. Mr. Wallace McClure wrote a book entitled "International Executive Agreements," published by the Columbia University Press in 1941, and this is what he 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.

Now, that is the most brazen statement that I have seen anywhere for bypassing the United States Senate in its constitutional exercise of the treaty power by an official of the United States Government for years in the State Department. He says for international matters. which are controversial the Senate method should quietly be aban

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doned and the instruments handled as executive agreements. routine matters which do not mean anything, about which no public opinion exists and no question as to their acceptability arises, the present method is desirable.

So the place of the United States Senate, under the opinion of Dr. McClure, who was for many years an officer in the State Department, is that you will be favored by the executive branch of the Government with a lot of minor and unimportant agreements about which no public policy exists. But on great public international controversies there the Executive will do it alone.

Now, we say at the grassroots we are always startled at the kind of constitutional law practiced by some people on the payroll of the United States.

Senator SMITH. Was Dr. McClure ever elected by the people to anything?

Mr. SCHWEPPE. He was not. But that is in print at page 378 of his book, which has wide currency thoughout the United States, entitled "International Executive Agreements," published by the Columbia University Press.

If the Founding Fathers had intended that an executive agreement should be an interchangeable instrument of national policy with a treaty, then, of course, what was the point of putting anything in the Constitution about the treaty-making power at all? We would be brought right back to the proposition, which the Founding Fathers rejected, namely, the President should not alone have the power to make treaties. They rejected that idea. They finally arrived at the solution that the treaties should be made by the President and the Senate.

The idea that an executive agreement is interchangeable with a treaty, I think, was repudiated from the day the Constitution was written. I do not think there is any question about it whatsover. However, power grows by what it feeds on. The executive-agreement problem was not a serious problem until relatively recent times. In past times I think the executive department in Washington-and this can be historically established-took the position that all major policies between us and foreign countries should be governed by treaty. The constitutional provision was put in there for that purpose. It was also simultaneously recognized that there are many, what you might call, ministerial day-today situations, not important policy situations, where agreements have to be made on this, that and the other subject, by the State Department and the President, because they do not involve matters of permanent national policy and need not approach the dignity of the treaty. Of course, when Dr. McClure wrote his thesis on executive agreements and first put forward this idea of interchangeability, which, I say, repudiates the idea of the Founding Fathers and asserted that the President could ignore the Senate by making executive agreements in lieu of treaties on matters of international importance, the danger of one-man government signally increased, and we have lived to witness some of the disastrous results of this doctrine.

As I say, we think that that concept of interchangeability is wrong. It is our view that executive agreements can and should be controlled by Congress. We do not think that executive agreements should rise or were ever intended to rise to the dignity of treaties;

we think that there is a legitimate area for executive agreements, but executive agreements should not be used to bypass the treaty power, and it should be within the power of Congress to determine what those areas are.

As a result of its studies, our committee recommended to the house of delegates of the American Bar Association, a corollary to the treaty-amendment proposal, on executive agreements. The house of delegates accepted our view and on September 18, 1952, at the annual convention of the American Bar Association at San Francisco adopted the following resolution:

Resolved, That the American Bar Association recommends to the Congress of the United States, for consideration, an amendment to the Constitution of the United States in respect of executive agreements, reading 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."

Your committee since that time, and wholly within the principles approved by the house of delegates, but on its own responsibility, shortened the text to read as follows:

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

This text is embodied in Senator Arthur Watkins' Senate Joint Resolution 43.

To date almost no objection has been voiced to the section proposed by us on executive agreements, 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, clause 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.

Our committee believes that both Senator McCarran in Senate Joint Resolution 2 and Senator Bricker in Senate Joint Resolution 1 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, as well as the American Bar Association proposal, would remove any conceivable doubt on 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.

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 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 (Youngstown Sheet & Tube Co. v. Sawyer (decided June 2, 1952, 343 U. S. 579, 72 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 Constittuion "in the Government of the United States, or any department or officer therof."

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."

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 relating to treaties along the general lines proposed by Senator Bricker and by the American Bar Association.

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 longrange and far-reaching policy commitments on the part of the United States, such as those at Teheran and Yalta, have so disturbed the