Dr. Finch indicated in that portion of our report which is incorporated in the record that Congress would probably proceed in the field of regulation of executive agreements carefully, gradually; you would see to it right off, for example, that problems of major policy with foreign governments would not be done by executive agreements but would have to be done by the treaty method, so that the Senate of the United States which was deliberately put in as part of the treatymaking power by the founding fathers, will have an opportunity to examine the question from the standpoint of the American public. That is to us the most important field that Congress ought to regulate. The report itself spells out a number of areas in which executive agreements might be regulated. On the other hand, there are a lot of day-to-day agreements about sending somebody here or sending somebody there, the Secretary of State or the President will have to make, with which the Senate of the United States has no concern. Regulation by Congress should make it thoroughly clear that matters of important international policy should be done by the treaty method and subjected to the Senate approval.

Senator WATKINS. How would you bring that about?

Mr. HOLMAN. It is a day-to-day matter of monitoring what is going on.

Senator WATKINS. Undoubtedly we are making agreements now. Mr. SCHWEPPE. A bill would have to be drawn by the United States Congress in which you tell the executive department what it shall do in the area of executive agreements, what areas it can make executive agreements in, No. 1, what areas must be reserved to treaties, and then you can probably break it down in some detail.

Mr. HOLMAN. There should be a code of executive agreements adopted just like a code of anything else.

Senator WATKINS. That may be true, but we have a situation now existing at the time that Potsdam agreement was entered into. It is an executive agreement. I maintained all the time it was in effect a treaty. But at least it was called by the President an executive agreement. He made it and we have never been able to get at it, at least we have never been able to get enough strength in Congress to do anything about that. Now, under the President's proposal about secret agreements, we are not getting anywhere.

Mr. HOLMAN. You can't write that kind of restrictions in a constitutional amendment or you would have a constitutional amendment which would get clear out of hand.

Senator WATKINS. In other words, you cannot get executive agreements by definition.

Mr. SCHWEPPE. No.

Senator WATKINS. There are lots of things happening we don't want to happen right now. I thought this would take care of it.

Mr. HOLMAN. You would have a constitutional amendment which gets completely out of hand, which is something you cannot do very well in a constitutional provision.

Mr. SCHWEPPE. The place to handle it is to have Congress regulate it. They can meet the situations as they develop. I can read you that portion of the report, which I think is unnecessary because it is in your record. If you want a verbal answer right at this juncture as to what you think the field of initial regulation ought to be of execu

tive agreements, I suggest you put the question to Mr. Finch, who is sitting at the end of the table.

Senator WATKINS. Could you prohibit certain types of executive agreements?

Mr. SCHWEPPE. Yes.

Senator WATKINS. Have you considered that in drafting this amendment?

Mr. SCHWEPPE. Yes.

Senator WATKINS. What is your answer?

Mr. SCHWEPPE. Our answer is that under the power to regulate, you could prohibit. The Supreme Court has held that many times. Senator WATKINS. That is probably an explanation.

But regulation seems to indicate, imply at least, that you have the right to do something but it has to be regulated.

Mr. SCHWEPPE. Under the power to regulate commerce, the Congress has excluded many things, has prohibited the transportation of many things in interstate commerce, and the Supreme Court has held time and again the power to regulate includes the power to prohibit and it was done under the commerce clause.

You cannot transport lottery tickets or the objects of white slavery, or stolen automobiles, in interstate commerce. They are prohibited. Yet the power is to regulate commerce.

Senator WATKINS. Why do you not say "prohibit or regulate," make it clear?

Mr. SCHEIN. You get into trouble.

Senator WATKINS. You are going to leave a lot of troubles unsolved if we do not get at it. That is one of the worst abuses we have. Agreements all over the world are entered into by the President under his claim of right to make executive agreements. We discover them some time later and they are "in effect" treaties.

Mr. SCHWEPPE. Speaking solely as an individual, I would have no objection to the word "prohibit." I will say that we considered it at great length in view of the interpretation put by the Supreme Court on the power to regulate commerce, including the power to prohibit things in interstate commerce. We concluded the same interpretation where we used the word "regulate," which already has been given constitutional and judicial meaning by the Supreme Court, that we werə on safe ground to use the word "regulate" as including the concept prohibit.

Senator WATKINS. Our experience indicated you have to spell it out in terms so that even a child can understand it so that you get an effect out of it.

Mr. SMITHEY. Mr. Schweppe, one question of form before we leave the subject of executive agreement. As I understand and read the report which you have referred to several times as the 1952 report of the committee on peace and law through the United Nations of the American bar, there is a statement there which says, "If executive agreements are to be dealt with, they should be considered in a separate section which delineates the appropriate field of executive agreement as distinguished from treaties and which provides for appropriate control."

I notice as a matter of form you have in Senate Joint Resolution 43 the sentence on an executive agreement included with that relating to treaties.

Mr. SCHWEPPE. That is right.

Mr. SMITHEY. Would you prefer now that it be set up as a separate section?

Mr. SCHWEPPE. We think it should be. May I say you are reading there, I think, from the February 1952 report, at which time we had not yet completed our study on executive agreements. We completed that and made our recommendation to the house of delegates in our September report. At that time we recommended that the clause on executive agreements be included in any amendment relating to the treaty power so that we would have a complete package.

Mr. SMITHEY. You are still of the opinion that ought to be included in a separate section of the same amendment?

Mr. HOLMAN. I think so, yes.

Senator WATKINS. May I say that is probably draftsmanship that I was responsible for? I took the body of your draft, it was all in one group. I did not want to spoil it so I put it in just as you had it. Mr. SCHWEPPE. If you will look at our February 1, 1953, report, the one of which we have copies here, and the ones which we are presenting to the house of delegates next week, you will see we are putting it in two sections.

Mr. SMITHEY. You don't want to give executive agreements the same sanctity as treaties by including them in the same section of the article. Mr. SCHWEPPE. Right.

The CHAIRMAN. Thank you very much, Mr. Schweppe.

Mr. SCHWEPPE. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Rix

STATEMENT OF CARL B. RIX, MILWAUKEE, WIS., MEMBER OF THE COMMITTEE ON PEACE AND LAW THROUGH THE UNITED NATIONS

Mr. Rix. My name is Carl B. Rix, Milwaukee, Wis. I am a member of the committee on peace and law through the United Nations. When we appeared I addressed myself particularly to the question as to the preservation of our form of government of delegated powers and the situation in which we find ourselves today. May I ask that a short article entitled "Beyond the Administration of Justice," which now appears in the Congressional Record of February 12, 1953, at page 642, on this subject be included in this record?

The CHAIRMAN. It will be incorporated.

Mr. Rix. It was a reprint of an editorial in the Journal of the Judicature Society which I wrote a short time ago in which I considered these questions as I have stated.

(The article referred to follows:)

BEYOND THE ADMINISTRATION OF JUSTICE

(By Carl B. Rix)

In the great argument of John W. Davis in the Steel case he quoted these words that Jefferson wrote in the Kentucky resolution:

"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."

The greatness and strength of the United States, its capacities for its people and for the world, are dependent on its form of government and its foundation, the Constitution of the United States. If there is to be any change in that

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form of government of delegated powers to the branches of government, the people of the United States should make that change by amendment of the Constitution. Such change without such amendment may be made, however, by means of treaties and treaty law. It is incredible but true. Here are four postulates:

1. An international treaty cannot be safeguarded by a clause in the treaty or by reservation or understanding against the expansion of the limited power of the Federal Congress in the United States to such extent as necessary to fulfill the obligation under the treaty if Congress determines to exercise such power. No action of the parties or of the Senate and the President at the time of ratification of a treaty can take away the constitutional power of Congress to execute the treaty and to fulfill the national obligation under the treaty if Congress decides to do so.

2. A ratified and approved treaty in executed form becomes supreme law and domestic law of the United States. An executory treaty, or parts thereof, becomes domestic law when implemented by Congress.

3. Domestic law created by a treaty or by implementation by act of Congress supersedes State constitutions, laws, and decisions of the States. The Federal jurisdiction is then exclusive.

4. The Charter of the United Nations, as a ratified treaty, has conferred on Congress the exclusive authority under articles 55 and 56 of the charter to legislate on civil, political, economic, social, and cultural rights, unless specifically prohibited by the Constitution.

We shall let these statements speak for themselves. recently that "power granted is seldom neglected."

Justice Douglas said

The effect of the charter of the United Nations has been stated. In its report on the Lesinski comprehensive civil-rights bill to the House of Representatives, the Labor Committee said that no constitutional authority for the enactment of the bill was necessary because it was based on the power of Congress to implement the charter of the United Nations.

The Civil Rights Commission said in its report that a covenant of human rights, if ratified and approved, would afford an enlarged opportunity for a comprehensive Federal civil-rights bill.

When first migratory bird law was held invalid, on the advice of lawyers for the Government, action was taken to secure a treaty with Great Britain under which the present migratory bird law was passed and upheld by the Supreme Court.

A treaty is now before the Senate for ratification which provides that alienage shall not be a bar to the admission of a member of a profession to practice. If ratified and approved, this treaty will supersede every State law which provides that only citizens shall be admitted to the practice of law.

If laws may be made by the Senate and the President without limit except for a direct prohibition of the Constitution, if Congress and the President are to have the power to legislate under a treaty without any constitutional delegated power, unless prohibited by the Constitution, can the independence of the judiciary be maintained? What protection can minorities have under a government with unlimited powers?

Beyond the campaign for the betterment of the administration of justice lies the maintenance of our constitutional form of government. That is our anchor and the anchor of the world. Shall we join Thomas Jefferson and John W. Davis in saying again:

"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."

Mr. Rix. I desire to read two sections of a sort of condensation which I made of the principles which we were dealing with in this whole subject of constitutional amendment.

The CHAIRMAN. Dr. Finch, can you hear the witness?

Mr. FINCH. Yes, sir.

The CHAIRMAN. Speak a trifle louder.

Mr. Rix. One, an international treaty cannot be safeguarded by a clause in the treaty or by reservation or understanding against the expansion of the limited power of the Congress of the United States to such extent as necessary to fulfill the obligation under the treaty if Congress determines to exercise such a power.

Now, that means that while the treaty is in existence the subject matter of that treaty may be legislated on by Congress in such manner as Congress determines without any other constitutional limits whatsoever unless possibly the prohibition in the Constitution would keep Congress from acting. No action of the parties or the Senate or the President at the time of ratification of the treaty can take away the constitutional power of Congress to execute the treaty and to fulfill the national obligation under the treaty if Congress decides to do so. It is popularly supposed that we can do by reservation nearly anything we want to preserve the rights of this country. But it is agreed by all of us and by Mr. Mitchell and Mr. Davis and others that no reservation or no action of Congress or no action of the parties to the treaty can deprive the Congress of the United States of a power which exists under the Constitution.

And if as a result of the decision of the Supreme Court of the United States in the Migratory Bird case Congress has the unlimited power to legislate on the subject of a treaty, nothing you can do at the time of the drawing of the treaty or its ratification can take away that power.

Senator WATKINS. You mean by that we can go ahead and amend the treaty later or denounce it and get out from under it completely? Mr. Rix. That is the only way you can get out from under it. Senator WATKINS. You think Congress has that power?

Mr. Rix. It has undoubted power to repudiate any treaty. There are various methods by which you can repudiate a treaty, but it may precipitate an international situation, particularly in the case of these multilateral treaties where we have so many obligations such as Charter of the United Nations. It is almost impossible to assume you can get out of those without a great deal of difficulty or without incurring foreign retaliation all over the world.

Senator WATKINS. I take it for granted you are extending that same theory, same power, to Congress, saying Congress shall have full powers to regulate or completely abrogate any agreement.

Mr. Rix. I do not think that is necessary because that is a wellknown principle of international law.

Senator WATKINS. I am talking about Congress, not international law. I mean Congress itself would have the power, for instance, to abrogate the Yalta agreement.

Mr. Rix. No question about it, by any subsequent legislation which Congress desires to pass or by direct repudiation.

Senator WATKINS. And by direct repudiation could do so on the ground that the President exceeded his powers to enter into it?

Mr. Rix. That is a question of international law, because it has always been held that a government which enters into the treaty has no power to repudiate its own power to enter into it.

Senator WATKINS. Suppose the President enters into it, can the Congress repudiate it on the ground that he exceeded his powers? Mr. Rix. If the Senate and the President ratify a treaty, it is a principle of international law and it has recently been restated in a committee or a commission of the United Nations that no government, no state, has the right to set up its own lack of power to enter into a treaty.

Senator WATKINS. I notice you said the President and the Senate. I am talking about when the President acts on his own and makes an