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American people that it would be fitting to remove any conceivable doubt on the question by constitutional amendment.

Conclusion: The foregoing covers the general presentation of the committee on peace and law of the American Bar Association. It was intended that I should make a general introductory statement of the position of our committee and a general outline of its work. Other members of the committee are here who will stress specific phases of the problem which in their judgment need further emphasis or elaboration. The other members present are: Carl B. Rix, vice chairman; Vermont Hatch; Eberhard P. Deutsch; Frank B. Ober; George A. Finch.

I conclude with the comment that 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 of the American Bar Association has expressed its view that the abuse of the treaty power should be prevented now.

I close with two pertinent quotations, the first from Woodrow Wilson and the second from Thomas Jefferson, recently quoted by Mr. John W. Davis, of New York, in his great argument in the Steel Seizure cases last May.

Woodrow Wilson said: The history of liberty is a history of the limitation of governmental power, not the increase of it.

Thomas Jefferson said:

In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Schweppe, can you tell me how long you worked on this very excellent statement?

Mr. SCHWEPPE. This is a product of 4 years of study.

Senator SMITH. Mr. Schweppe, I assume there is no doubt in your mind by the way you have that second provision about “Regulation shall be provided for” that that would take care of the necessity for such investigation as might be desired by Congress on agreements already made by the Executive.


Senator Smith. You see, one of the complaints we have had from time to time is to get at the information to see what has been done, having all due regard for the necessity of secrecy in many matters.

Mr. SCHWEPPE. It is our opinion, Senator Smith, that the language as drawn that Congress shall have power to regulate executive agreement in substance will authorize Congress to make any regulation necessary to control executive agreements. We feel that taking the analogy of the commerce laws which the Supreme Court has many times construed-Congress shall have the power to regulate commerce—you will remember under the power to regulate commerce the Supreme Court has sustained in a long series of cases, the right to exclude certain things from interstate commerce.

Senator SMITH. And the right to investigate.

Mr. SCHWEPPE. The right to investigate, all those things are included in the power to regulate.

Senator SMITH. I assumed that it was.

The CHAIRMAN. Has the staff any questions they would like to ask? Mr. SMITHEY. Yes.

Mr. Schweppe, in some measure this will cover points which you have already made in your statement but I think it is necessary as a preliminary question:

Would the second sentence of the American bar proposal render virtually impossible the conclusion of treaties which conferred the right to own land on a foreign national in the United States in exchange for a conference of similar right on American nationals in a foreign nation?

Mr. SCHWEPPE. No. Let me repeat and give you a full answer. The American Bar Association proposal does not prevent the State Department from making a treaty with any country on any subject whatsoever, including the ownership of land. Treaties can be made. They become binding as international engagements. Now, what their impact will be on domestic law is another question. If, as we have suggested in this argument-and the idea is not original with me but comes from Mr. George Finch sitting at the head of the table, who is one of the greatest international lawyers in the country--editor in chief of the American Journal on International Law-if his view is correct, which is embodied in our report, that the right to do business and including the ownership of land has historically been part of the traditional commercial policy of the United States, then Congress would have power to implement treaties in that field, including the ownership of land.

If that view should not be correct, if that view should not be correct about the power of Congress in the field under the power to regulate interstate commerce, then the alternative result will be that such a treaty can be made, will be perfectly binding as an international agreement, but land ownership in the States cannot take place without the consent of the individual States involved.

Now, it is rather interesting, and one of my associates, I think, will amplify it rather fully, that our Government thought for a long time that was the right way to approach this land-holding business. If you gentlemen will take a look at Geofroy v. Riggs, which is frequently cited in this field, you will find there was before the Supreme Court in that case a treaty with France which included among other things the right of French citizens to own land in the United States and of American citizens to own land in France provided what? In such States of the United States in which the individual States consented.

Now, that was the treaty as our State Deparment drew it in those days. In the days of Geofroy v. Riggs the Federal Government did not have the concept that it was all-powerful and it could forget about the States. They say this is a fair deal between us and the French in such States as consent thereto.

Now, coming back to wind up my answer to your question, if Dr. Finch is right in the concept that the doing of business, including the ownership of land, is broadly within the commercial policy of the United States in foreign nations, then Congress could implement it alone.

If we are wrong about that concept, then the consent of the individual States would be required, with which I can see nothing wrong. I think the State of Washington should have the right to determine


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whether Frenchmen or Russians or anybody else can own land in the State of Washington and not the State Department with the consent of the Senate. I believe that that ownership of land is so important that that should be a matter of State policy unless Dr. Finch's approach to this question of national commercial policy is a correct one. I see nothing the matter with it. And I point to Geofroy v. Riggs to show that was for a long time the prevailing thinking in the State Department of the United States and treaties were negotiated in that form.

Mr. HOLMAN. And still is the situation in Canada today. The treaty that Canada makes does not entitle an American to own land in Ontario.

Mr. SMITHEY. Do you think if the limitation of the "which clause" in the second sentence of the American Bar proposal becomes a part of the Constitution that courts might seek to validate treaties by stretching constitutional provisions such as the commerce clause and in so doing make possible further encroachment by the Federal Government on the rights of States?

Mr. SCHWEPPE. I give you this answer: The Supreme Court held in the License cases many years ago, cited as the License cases, that the power to regulate foreign commerce is given in exactly the same clause that gives the right to regulate interstate commerce. We have witnessed in recent years a very substantial judicial enlargement of the concept of interstate commerce, to the point where some of us think perhaps it has gone too far. We think, however, those decisions being in the books, that the Court will adopt probably as liberal an interpretation of the power to regulate foreign commerce as it has interstate commerce, and that at least gives a judicial control of the problem with which American people are accustomed to live and accustomed to work.

Those matters will come up case by case as the treaty power is extended into fields and Congress makes implementing legislation, as I say, in fields that otherwise would be within the area of State control. I have no reason to believe, I do not think anybody has, that the Court would not expand and develop case by case the concept of foreign commerce just as it has the concept of interstate commerce. To that I see no objection, as we have adequate judicial control of those concepts. If they go too far, maybe sometime we will have to amend the Constitution again. But I do look for that sort of expansion.

Mr. SMITHEY. Further along that line, I am sure you are familiar with the case of the United States v. the Curtiss Wright Corporation.

Mr. SCHWEPPE. Very well.

Mr. SMITHEY. There is a statement in that case at page 318 (299 U.S. 318) in which the Court stated :

As a member of the family of nations, the right and power of the United States in that fieldand they are speaking of treaty powerare equal to the right and power of the other nations of the international family, otherwise the United States is not completely sovereign.

Would the amendment which you propose render the United States Government "not completely sovereign”?

Mr. SCHWEPPE. In no particular whatsoever. The United States under the American Bar Association proposal remains just as sovereign in the international field as it has ever been. It can make any kinds of deals and any kinds of negotiations that it wants to, but it cannot make those deals domestic law in the United States and put State constitutions and statutes and Federal statutes out of the way. The position of the United States in the international field is not affected at all. We can make international agreements.

Now, the Congress on some propositions, if it is outside the ordinary power of Congress to legislate, may have to go to the States to get their consent, but the power of the sovereign nation is not affected at all.

May I get one commentary in the record about the Curtiss Wright case! This case is largely dictum. We made a sharp attack on the Curtiss Wright case in our February 1952 report. We pointed out that the Supreme Court in that case confused the position of the United States Government under international law in which it is completely sovereign, with its status under the Constitution under which our Government is a government of delegated powers. We made that sharp attack on the decision. We said it was largely dictum; and much to our pleasure, Mr. Justice Jackson, who concurred in the majority opinion in the Steel Seizure cases, writes a footnote in which the says almost the identical language, referring to the Curtiss Wright case, well, that case was largely dictum.

At any rate, it does not stand for the doctrine that the President of the United States can do anything in an area where Congress has already legislated. Whatever may be his powers in the absence of congressional legislation, he is subject to congressional legislation if there is a law that applies to the subject matter.

Mr. SMITHEY. May we switch for a moment to the third sentence of Senate Joint Resolution 43 dealing with executive agreements ?

Now, in your mind does the term "executive agreements” include modi vivendi, protocols, conventions, and so forth, or should the bar proposal be amended to include those ?

Mr. SCHWEPPE. We think it includes them all. We spent some considerable discussion on that subject and we are fortunate in having as members of our committee Dr. Finch, who is as great an expert in this field as anybody I know of, who was in the State Department and who deals in that field regularly. In his opinion the term "executive agreements” is a broad concept which embodies all engagements of the type you described and would be so interpreted.

Senator WATKINS. Would it not be true that to attempt to name them, if you overlook them you then exclude them?

Mr. SCHWEPPE. That is right. Mr. SMITHEY. I might quote the resolution of Senator Bricker which attempts to do it not by specifically naming them but by saying all executive and other agreements between the President and


international organization, foreign power or official thereof, which would, I think, encompass all of them.

Mr. HOLMAN. May I direct myself to that for a moment? Mr. SMITHEY. I have no objection. Mr. Holman. I am going to cover that in mine. There are some other agreements so to speak that are highly important, not exactly executive agreements. For instance, we made an agreement with

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Canada in connection with the damage to farms in the northern part of my State from a smelter. Those farmers could not sue in Canada so we made an agreement whereby a certain lump sum of money would be paid over into the United States and an international commission was set up to adjust that. When you say

all other agreements, you are going to catch in your hopper, as Dr. Finch will point out to you, many things here, and it would require an analysis of every kind of agreement.

Take postal agreements that have been made in this country, to be sure by the term "other agreements” you weren't catching in the hopper other things you should not catch. We have tried to draft an amendment here on the basis of doing the specific thing we are interested in and the American people are interested in without incapacitating our Government from doing some of the things which they ought to continue to do.

So you are going to be in a bad situation, I am afraid, if you put in "other agreements" there. You would then have to define those other agreements.

Mr. SMITHEY. That of course would be within the province of Congress under the Bricker amendment.

Mr. SCHWEPPE. That is why we like this form of text, because Congress can deal with those questions as they come up and need regulation.

Mr. SMITHEY. They could likewise under the Bricker proposal, as I understand it.

Mr. SCHWEPPE. That is right. We are in complete agreement on that point.

Mr. HOLMAN. We do not object to having a phrase in there if it is not going to be shot at when we come to getting the States to ratify on the theory that it encompasses too much, and therefore we are vulnerable.

Senator WATKINS. Otherwise, you are in agreement with Senator Bricker's ?

Mr. HOLMAN. Sure.

Mr. SCHWEPPE. It is purely a matter of form, expressing what we both have in mind.

Mr. SMITHEY. You may have answered this in your discussion with Senator Smith of North Carolina. However, I was not able to overhear that, so even if this is repetitious, I wish you would give the answer nevertheless,

Would you give the committee the benefit of your opinion concerning the extent to which Congress might regulate executive agreements under Senate Joint Resolution 43? You used the term “regulation" and that is why I ask it in that form.

Mr. SCHWEPPE. We did in our September 1, 1952, report, the pertinent portion of which has been incorporated in the record this morning, outline the possible areas of congressional regulation of the field of executive agreements. That particular contribution to our report was made by Dr. Finch, who has spent a great portion of his life in dealing with that field, and of course the power to regulate includes the power not to regulate, it includes the power to regulate those areas which the Congress feels should be regulated. It may leave other areas of executive agreements unregulated.

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