It is a matter of speculation, but it is reasonable to believe that if this provision had been in effect during the late war, blanket authority would have been granted to the President to make agreements.

The proponents of this provision no doubt did not intend to put limitations upon the constitutional authority of the President as Commander in Chief, but this would be the result of the amendment. Agreements with foreign nations for bases, for the disposition of troops, for joint diplomatic action, and for a multitude of other matters would then be impossible except with congressional authority.

EXAMPLES OF EXECUTIVE AGREEMENTS

In the exercise of his power as Commander in Chief in time of war, the President is called upon to make agreements of the greatest importance promptly, and in many cases without immediate publicity. Where we have allies, as appears necessary in this modern world, effective operations require an almost constant succession of agreements and understandings. This is the case not only during the progress of an actual war, but in anticipation of war, or during a "cold war."

The Japanese surrender and the creation of the Far Eastern Commission, the German surrender, the agreements with our allies for the occupation of Western Germany, the arrangement for the conduct of our operations in connection with the Boxer Rebellion and its settlement, the arrangements made with Mexico in 1882 covering the passage of troops of either country over the border in connection with Indian depredations, are all examples of the exercise of the Executive power to make agreements in the foreign field.

The "gentleman's agreement" with Japan covering immigration of laborers, and the agreement which protected us against a flood of Canadian potatoes during the maintenance of our price-support program, are examples of the exercise of the Executive power during peacetime. Some agreements of this general character would be impossible if an attempt were made to formulate them as treaties, others must be made immediately operative to be effective, and others continue only so long as they appear mutually advantageous. The restrictions proposed would appear to make it difficult or impracticable to conduct our foreign affairs successfully.

REQUIREMENTS FOR DOUBLE AUTHORIZATION

Section 4, requires in the case of executive agreements which are to have internal effect, not only authorization before the agreement is made but also implementation by act of Congress after it is made-in effect, a double authorization. Such would appear to be the result from the inclusion in section 4 of the provision that executive agreements shall be subject to the limitation on treaties, i. e., that to be effective as internal law they must be implemented by congressional act.

Thus it would appear that in various fields the action of the Executive pursuant to prior legislation would be severely hampered in its effectiveness by the requirement for subsequent legislation to implement his action. Such would seem to be the case in action under the Recriprocal Trade Agreements Act (19 U. S. C. 1351) and in such matters as civil aviation and communication.

EXISTING SAFEGUARDS AGAINST ABUSE OF EXECUTIVE POWER

Legitimate fears with respect to abuse of Executive power in the field of foreign affairs would seem not to justify (1) the permanent shift of the Executive's constitutional power to Congress, (2) the hampering of the Executive's authority to deal promptly and effectively with the problems which confront our country in the foreign field.

This is particularly the case when it is realized that curbs now exist against the improper exercise of Executive authority, including the following:

1. The internal effect of an executive agreement can be overcome by an act of Congress.

2. Most executive agreements require implementation by Congress to be effective.

3. Congress possesses the power of the purse and of investigation, and the Senate must confirm Presidential appointments.

V

Senate Joint Resolution 43 includes the following: "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty."

The latter part of this provision reading "which would be valid in the absence of treaty" does not appear in Senate Joint Resolution 1. It is referred to popularly as the "which clause" and has its origin in a proposal formulated by the committee on peace and law of the American Bar Association.

This provision would prevent a treaty from being self-executing as internal law and in addition would limit its effect as internal law, even if implemented by an act of Congress, to subjects and areas in which Congress could legislate under its delegated powers absent a treaty. It would cut down the treaty power to the limits of powers already vested in Congress.

One of the primary objects of our Constitution is to permit the United States to speak as a sovereign state with one voice in foreign affairs. This proposal would destroy this; it would create a no-man's land in foreign affairs. It would require in certain broad fields of foreign relations not only a treaty consented to by the Senate but an act of Congress and legislation by each of the 48 States. Our Nation would thus, instead of speaking with a single voice in foreign affairs, speak with 49.

12

SOURCES OF OUR TREATY PROVISIONS

One of the chief reasons for calling the Constitutional Convention was the difficulty experienced in security compliance with treaties made under the Articles of Confederation." Three treaties with France, besides making her our ally, provided that nationals of both counries should have the right of inheritance. The treaty with the Netherlands of October 8, 1782," provided for reciprocal rights of inheritance and freedom to worship. The Treaty of Peace of 1783 with Great Britain, which ended the Revolutionary War, provided that creditors of both nations should meet no lawful impediment in the collection of debts theretofore contracted."

Great difficulty was experienced in securing observance of these provisions by the various States. Virginia in 1777 enacted a law which interfered with the collection of debts owed British nationals.

Madison speaks of disregard of the authority of the Confederation by violation of all of these treaties" and when the supremacy clause was being formulated insisted on the insertion of phraseology to make clear that eixsting as well as future treaties were to be the supreme law of the land.

In Ware v. Hylton (3 Dall. 199), the Supreme Court held that the Treaty of Peace of 1783 with England prevailed over the laws which Virginia had enacted interfering with the collection of debts owed the British.

Thus the very questions posed by this proposal were considered and decided by the Constitutional Convention, and the supremacy clause was adopted to make impossible the situation which this proposal seeks to create.

Nobody in the published debates of the Constitutional Convention ever suggested that the scope of the treatymaking power should be cut down to the domestic powers of Congress. It was always assumed that the United States had the same powers in foreign affairs as were possessed by the other nations with whom it might negotiate.

The treaty power if it cannot reach certain areas denied to Congress under the 10th amendment will be only a partial treaty power, incapable of assuring to a nation with which we have made a bargain the consideration we have promised to it, unless and until 48 States shall individually decide that they wish to acquiesce. This turns back the clock to the Articles of Confederation.

TYPES OF TREATIES AFFECTED

An example of the type of treaty that will be affected by this proposal is the familiar type of treaty of friendship and commerce, of which there are more than 30 now in effect. Such treaties customarily grant to the citizens of each of the contracting countries the same rights as citizens of the other country, to engage

11 See Annex A: Historical Background of the Treaty Clauses of the Constitution. 12 8 Stat. 6, 12; 17 Stat. 795.

12 8 Stat. 32.

14 8 Stat. 80.

153 Farrand, The Records of the Federal Convention, 1911 edition, 548.

in business, inherit property, and the like. The rights thus assured are local; they are not matters as to which Congress absent a treaty can legislate. There fore, to be effective, each State would have to enact implementing legislation, a matter obviously impossible of effective accomplishment.

The same results would obtain in the case of extradition treaties, of which there are more than 80, treaties covering reciprocal inheritance taxation, migratory birds, collection of debts, and the status of foreign troops.

This particular proposal would reverse Missouri v. Holland (252 U. S. 416), the Migratory Bird case, and make it impossible for a treaty, implemented by an act of Congress, to provide for the protection of migratory birds without legislative action by the several States.

So also with Asakura v. Seattle (265 U. S. 332, 341). Despite a treaty of friendship and commerce, assuring a foreigner the privilege of engaging in business in the United States in consideration of a similar privilege granted United States citizens in the foreign country, any State with impunity deny the foreigner the rights granted him by the United States by such a treaty.

CONCLUSION

In this shrinking world, it is more than ever necessary that our country be able to act promptly and effectively in the field of foreign affairs.

As we have enemies, so must we have friends. We must be able to give promises in return for promises, and we must be able to perform on those promises.

So, also, we must be able to deal with our enemies, and to give assurances to them, as we may demand assurances from them: assurances the fulfillment of which we can guarantee, as we may exact guaranties from them.

Treatymaking is a two-way street. We cannot expect nations to grant us rights and privileges unless we not only promise them rights and privileges in return but actually deliver them in return.

We must be able to continue to speak as one nation in foreign affairs; we cannot bargain effectively if we speak with 49 tongues.

Our existing treaty provisions have operated effectively and without abuse for more than 164 years despite the changes that have occurred, again testifying to the genius of those who framed our Constitution.

We should not now change them to meet hypothetical dangers, for the damage thus caused outweighs any possible advantage. The changes are designed to make it impossible to make a bad treaty or a bad executive agreement: in the process it will be made almost impossible to make good ones.

It is always possible to abuse power or to exercise powers unwisely; but the remedy does not lie in denying the power entirely, or so shackling it as to make its effective exercise impossible. Rather, the safeguard lies in a vigilant public and an alert and able Executive and Senate. Never before in our history has it been so necessary that our treaty power be not hampered or diluted, for on its wise and prompt exercise our very national safety may depend. Must we not consider our successors to be as patriotic and responsible as their predecessors, and are we entitled to deprive them of the very powers that may be necessary for their preservation?

Finally, we must be sure indeed of our ground before we alter our Constitution, which has been described by Bryce in the following terms:

"Yet, after all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definiteness in principle with elasticity in details" (Bryce, The American Commonwealth, 1889 edition, vol. 1, ch. III, p. 25).

ANNEX A

HISTORICAL BACKGROUND OF THE TREATY CLAUSES OF THE CONSTITUTION

CRITICAL PERIOD IN FOREIGN AFFAIRS

The treaty clauses of the Constitution, like the Constitution as a whole, were the product of a time of national crisis. They represent a significant part of what the delegates to the Philadelphia Convention deemed essential if the great objects of the new Nation were to be attained (I Farrand Records of the Federal Convention 18, 24, 133, 316). Although domestic instability contributed

heavily, the most pressing issues confronting them arose primarily from foreign causes. Gravest of these was the threat to the national security presented by British hostility, manifested in many ways, but most menacingly by "cold war" tactics along the Canadian border. Others were the Spanish threat to the southwest frontier, inability to protect American shipping on the high seas, and the depressed condition of the foreign commerce on which the economic well-being of the country largely depended. Compounding and aggravating these difficulties was the inability of the existing Government to act with force and vigor in the conduct of foreign affairs and to make the States honor the treaty obligations it assumed on behalf of the Nation.

The remedy the delegates sought was what they termed a "more perfect union." What they expected from such a union was perhaps best expressed by Alexander Hamilton, who wrote in the Federalist Papers: "The principal purposes to be answered by union are these-the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries" (the Federalist No. 23). It will be noted that the essential elements, if these purposes were to be achieved, were an adequate military establishment and a strong foreign affairs power, of which a strong and effective treaty power was an indispensable part. If the country's foreign difficulties were to be overcome, a settlement had to be reached with Great Britain in particular, for in that direction lay the greatest potential danger. Such a settlement could be had only by war or by negotiation (VII Burnett Letters of Members of the Continental Congress 637-638). It is noteworthy that among the earliest acts of Wash ington's administration, after the new Constitution had been ratified, were the sending of troops to chastise thte Indians of the Northwest Territory and the dispatch of an agent to London to seek a negotiated settlement of the sources of dispute between the United States and Great Britain.

Great Britain persistently refused to enter into formal diplomatic relations, treating American emissaries with aggravating correctness and question. ing whether they represented 1 one state or 13 (VIII Adams, C. F., Works of John Adams 243). It continued military occupation of the frontier forts it had promised in the Treaty of Peace to evacuate. It tampered with the Indians of the Northwest Territory, circulating its special agents among tribes deep within United States territory, supplying them with arms and ammunition and encouraging them to keep the frontier regions in constant dread of an outbreak of savage warfare. It intrigued with malcontents in the new settlements of Ohio and Kentucky. It precipitated a dispute over the Maine boundary and connived with separatist elements in Vermont, using special trade privileges as bait for the secession of that area from the Union. From Maine to the line of the Mississippi British "forest" diplomacy pursued a policy well calculated to take advantage of American weakness and of the dissolution of the Union which the British believed to be imminent. Along the southwest frontier there were disturbing parallels to the situation on the Canadian border. The Spanish claimed large areas east of the Mississippi River by right of conquest, and garrisoned fortified posts within the disputed territory. They continually stirred up the Indians of the region, encouraging them in forays against the frontier settlements. Spain closed the Mississippi to the trade of the Kentucky and Tennessee settlers, threat ening them with economic strangulation, and set about intriguing with discon tented factions among them, hoping to detach the whole area from the Union as a buffer between the United States and the Spanish dominions to the south and west.

The effects of national weakness in foreign affairs were felt also on the high seas. America's sea-borne commerce, in which every section of the country had a large stake, was in difficulties. Not yet recovered from postwar depression, it was seriously hampered by foreign discriminations. The government under the Confederation was unable to remove these discriminations either by treaty or by retaliatory action, and failed to give adequate protection to such commerce as the United States did have. It concluded commercial treaties, which the States did not always observe scrupulously (XXIX Journals of the Continental Congress, 817-820, 847; XXXIII : 676), with France, the Netherlands, Prussia, and Sweden, but failed with Great Britain and Spain, where such treaties were most needed. Great Britain, confident that it was secure against American retaliation, refused outright. Spain was more amenable, but its price was American acceptance of closure of the Mississippi River, which aroused such opposition in the Southern States that negotiations had to be broken off. American traders had access to the

most profitable European markets only on disadvantageous terms and were virtually shut out of the lucrative West Indies trade. Their situation in the Mediterranean was even worse, for Barbary corsairs preyed upon American shipping at will, and the Government could neither buy them off nor fight them off (XXIX Writings of Washington 185).

STATE VIOLATIONS OF TREATIES

Great Britain was able to cite serious treaty violations by the United States as justification for its own behavior. The enactment by various States of laws impeding the recovery of debts pursuant to article IV of the Treaty of Peace and the inability of the National Government to enforce compliance with the treaty obligation placed the United States in a difficult and potentially dangerous position. Its most implacable enemy was given what the authors of the Federalist Papers hold to be one of the "just causes of war" (the Federalist No. 3), and at the very least a valid excuse for its own deliberate violation of the Treaty of Peace. Great Britain was not loath to take advantage of the situation. John Adams, the American Minister in London, was told bluntly that Great Britain was prepared to honor the treaty by returning the frontier posts as soon as the United States compelled the States to observe the treaty provisions on the collection of debts (XXXI Journals 784). John Jay, as Secretary of Foreign Affairs, presented a report to Congress stressing the need for observing the treaty obligation (XXXI Journals 781-874), and Washington was moved to write to him "what a misfortune it is, that Britain should have so well founded a pretext for its palpable infractions" (III Correspondence and Public Papers of John Jay 207). The dangers arising from treaty violations were emphasized again and again during the Convention, during the debates in the ratifying conventions, and in contemporary writings.

FRAMING OF TREATY CLAUSES

It was against the background of this international situation that the treatymaking power of the Constitution was framed, and the framers were careful to assure that the power would be capable of effective use in times of stress. Its principal features: absence of specific limitations as to scope or subject matter, status as part of the supreme law, and retroactive effect, reflect the exigencies of the time as well as considerations of political theory. No serious effort was made during the Convention, apparently, to limit the scope or subject matter of treaties. Treaties were regarded as a basic instrument of national policy, and it was recognized that, if treaties were to achieve the results desired, they would have to deal with subjects that were vital to State and sectional interests, such as fisheries, the West Indies trade, navigation of the Mississippi, debts owed to foreigners, territorial limits, and the like. Otherwise, the negotiated settle ment of outstanding differences with Great Britain and Spain would be frustrated.

The supreme law clause likewise was regarded as indispensable and was agreed to unanimously by the Convention (II Farrand 22). The experiences of the past 4 years with the Treaty of Peace with Great Britain had demonstrated the futility of even the broadest power to assume treaty commitments that were binding as international law unless, as had not been possible under the Confederation, such commitments could be made binding also as domestic law. In view of the special importance of assuring that treaties entered into under the Articles of Confederation, particularly the Treaty of Peace with Great Britain, would not be impaired, the supreme law clause was made retroactive (II Farrand 417). This is why it was necessary to refer to treaties made "under the authority of the United States." Simple reference to treaties made "in pursuance" of the new Constitution was not sufficient to cover treaties concluded previously.

LIMITATION ON TREATYMAKING

It was only after the establishment of a treaty power both broad and effective that the delegates turned to consideration of possible limitations on the exercise of that power. Here sectional interests came into play, particularly those of New England, which was alarmed at the possibility of treaty impairment of its hardwon right to participate in the Newfoundland fisheries, and of the Southern States which, mindful of the Jay-Gardoqui negotiations, were fearful of possible treaty impediments to the navigation of the Mississippi River. Less than a year before, the proposed Jay-Gardoqui treaty had forcefully demonstrated how impor