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Senator FERGUSON. That is true, but suppose we make a treaty? Judge PHILLIPS. If we make a treaty, I do not think you can deprive a citizen of the right against self-incrimination and the right to counsel.

Senator FERGUSON. Then there is a limitation on the power to make treaties?

Judge Phillips. It is limited that way. I think that is contrary to an express provision of the Constitution. I think that limitation is there.

Senator FERGUSON. Is that the test, that if there is no express limitation we can make a treaty?

Judge PHILLIPS. We say emphatically what the Supreme Court has said by dicta that it shall not be of any force and effect. We put that in. That removes any debate whether or not the dicta of the Supreme Court is law.

Senator FERGUSON. That would alter the Curtiss-Wright case enough to say that the Constitution was the controlling power rather than the fact that we were a sovereign nation was the controlling power?

Judge PHILLIPS. That is right. Then we say under its delegated powers.

Senator O'CONOR. May I go one step further in that regard? Yesterday the representatives of the bar of the city of New York admitted that under present circumstances and by the exercise of the treaty-making power rights presently reserved to the States may be invaded and there may be the treaty provisions which would bring about a diminution in the rights of the States. Do you agree with that?

Judge PHILLIPS. Absolutely.

Senator O'CONOR. Would it not be true then that if that could be done in a single instance that gradually there could be by the cumulative effect of treaties added one on the other little by little the rights which presently are safeguarded in the States, they could be certainly taken away in toto?

Judge PHILLIPS. That is my fundamental premise, that this is necessary to protect and reserve the rights of the States against encroachment through the treaty-making power. I tried to state that in the beginning.

The CHAIRMAN. Let me show you how far that is now in the course of being accomplished. I have here in my hand a treaty that is now before the Foreign Relations Committee of the Senate. Article VIII, and remember this applies equally under the favored-nation clause to all

Nationals of either party shall not be barred from practicing the professions within the territories of the other party merely by reason of their alienage, but they shall be permitted to engage in professional activities therein upon compliance with the requirements regarding qualifications, residence, and competence that are applicable to nationals of such other party.

I just wanted to show you how far that is going down into the municipal life.

Judge PHILLIPS. That would of course encroach upon the power of the States to regulate the learned professions.

Mr. SCHWEPPE. I am Alfred J. Schweppe, chairman of the committee on peace and law through the United Nations of the American

Bar Association. The important thing about that is this: We have had provisions in other treaties relating to certain of the professions where on a reciprocal basis citizenship was not required.

This is the first time in which they have included the practice of law.

Senator FERGUSON. And made all professions eligible.

Mr. SCHWEPPE. And made all professions eligible to practice in the United States regardless of alienage. I think it is important as to doctors. In the State of Washington where I come from, and I have already sent letters to all the bar associations of the United States and have had reactions.

The first requirement is that you be a citizen of the United States, every lawyer must take the oath that he will support the Constitution of the United States. That is the number one requirement. Where are we going if we are going to make treaties where the professions of this country can be manned by people who cannot swear to uphold the Constitution of the United States because that is not their primary allegiance?

The CHAIRMAN. They are not required to.

Mr. SCHWEPPE. That is right. We have a requirement in our State covering the teachers in the common schools and high schools. Certainly at the common and high school level they should be. This treaty would apply to all teachers and would eliminate that. Where are we going?

Senator FERGUSON. With the favorable nation clause that the Senator has read, it would make this treaty applicable to other nations?

Mr. SCHWEPPE. To 35 nations. According to Senator Hickenlooper we have 35 nations to which the more favorable nation clause would apply.

Senator FERGUSON. If they can do it piecemeal, Judge, there is no reason why they could not do it in one swoop, is there?

Judge PHILLIPS. That is right.

Senator FERGUSON. Not necessarily limited to the creeping paralysis. Judge PHILLIPS. The only thing, the approach might be more insidious and the danger might be less appreciated. But if you take a good many chops at the apple, it would be the same thing.

Senator FERGUSON. We get one bite here, but then we have another provision that makes the bite go to 35 nations.

Judge PHILLIPS. Yes.

I think, gentlemen, that the amendment which is proposed, to reiterate, will prevent the self-executing terms. It will modify the holding of Missouri v. Holland, which I think is extremely important, and restrict the power of Congress in enacting legislation to implement a treaty to the legislative powers that it would have in the absence of such treaty.

First, the treaty itself does not become internal, it cannot be made internal law of Congress unless Congress could pass the legislation under constitutional legislative powers and absent the treaty. It will negative, I think, the inherent power theory laid down by the broad language of U. S. v. Curtiss-Wright.

Senator FERGUSON. You knew, did you not, that in effect they argued in the Supreme Court that because of NATO, the treaty, that that

22984-52 -10

TREATIES AND EXECUTIVE AGREEMENTS

would give to the President the power to seize property to fulfill the terms of NATO?

Judge PHILLIPS. No; I did not.

Senator FERGUSON. Mr. Perlman argued that. If you look at the argument you will find that that is one of the things which came up. Judge PHILLIPS. It is the basis of the contention of many people that we have a treaty, here is a treaty and we can implement it, and we can fulfill the treaty. The opponents say that that would place unreasonable limits on the Federal Government. Congress can conclude peace, and it customarily does so by joint resolution.

Under its power "to regulate commerce with foreign nations," Congress can implement treaties of friendship, commerce, and navigation-a field which embraces a large portion of the treaties negotiated between the nations. We all know the extent of the commerce clause as presently construed, it is extremely broad.

Congress has the power to define and punish piracies and offenses on the high seas and offenses against the law of nations. Under that power Congress can implement treaties dealing with such offenses or can define and provide for the punishment of such offenses without any antecedent treaty. It is my concept that they have to do that in our own domestic courts, and I am fearful that Senator Bricker's provision does not go far enough.

Senator FERGUSON. So that is one point that ought to be given consideration?

Judge PHILLIPS. That is correct. Under that power Congress can implement treaties dealing with such offenses or can define and provide for the punishment of such offenses without any antecedent treaty. The foregoing are but illustrations which could be multiplied in other fields such as extradition, judicial assistance, and the like, and such treaties will become the supreme law of the land to the extent that they are made so by act of Congress legislating within its delegated

powers.

It has been further asserted that the treaty-making power as it now exists is essential in a dual or Federal-State governmental system such as ours. That argument, in my opinion, is untenable. It may be that the proposed amendment would exclude some areas in which treaties are now made or proposed, but that presents no insoluble problem if occasion arises where such a treaty is desirable because as was pointed. out by the Judicial Committee of the Privy Council in Canada versus Ontario, a treaty to the effect that when a treaty embraces provincial classes of subjects they must be dealt with by the totality of powers, dominion and provincial legislatures together, in other words, by cooperation between the Dominion and the several Provinces.

Here, the same end can be attained by cooperation between the Federal Government and the States. Such a procedure would give due recognition to the reserved powers of the States.

Now it is also suggested by many who oppose our views on this subject that such a limitation on the power of the Federal Government is quite unnecessary because the Senate will never approve a bad treaty. I hope that is true. I express no lack of confidence in the judgment and fitness on that score.

The CHAIRMAN. I am not ready to go along with that.
Senator FERGUSON. You are very charitable.

Judge PHILLIPS. In the first place, we should not enter into a treaty if it is a treaty that ought not to be confirmed by the Senate. In the second place, and perhaps this will be more in line with the reaction I got, the lesson of history tells us that unlimited power in the agents of government is dangerous, and it is liable to be abused. It is my firm conviction, gentlemen, that after careful and painstaking consideration of the problem that only by proper restriction of the treaty-making power, through constitutional amendment, can we be sure that the rights of the States and the people and the precious liberties and fundamental freedoms of the individual citizen will be safeguarded and preserved.

Now Senator O'Conor suggested that I indicate what I would do with these two proposals.

Senator O'CONOR. Judge, we view that as very important because while assuming that we are in agreement on the purposes you will appreciate so well the difficulties that might tend as to the phraseology.

Judge PHILLIPS. I will make my suggestion. In the first place I want to say this: I was chairman of the subcommittee on the draft of this constitutional amendment. We started out with the hope of carving out an area in which we would limit the treaty-making power. We struggled and struggled, and we thought it was not practically possible to do that, and we finally came around to where we said we would leave the Federal Government free to make any international contract it wanted to, but before it could affect the rights of the citizens of the United States and become internal law, imposing civil and criminal liability, it would have to be done by an act of Congress which the Congress could enact if there was not any treaty as the basis for congressional action.

So we made it broad. Now I respectfully suggest this for consideration, that for sections 1, 2, and 3 of Senator Bricker's draft the substitute the bar association proposes is that we believe that executive agreements can be dealt with under proper constitutional provisions by legislative action. In other words, we would substitute our draft for sections 1, 2, and 3 and for section 4 we would leave in the first sentence, "Executive agreements shall not be made in lieu of treaties," and strike the balance.

Senator FERGUSON. May I interrupt you there a moment, Judge? Judge PHILLIPS. Yes.

Senator FERGUSON. Who is going to determine what an executive agreement is? What does it mean?

Judge PHILLIPS. I would then add section 5. The fifth section would read:

Executive agreements shall not be made in lieu of treaties, and Congress shall have power to enforce this article by appropriate legislation.

Then I would add that Congress could deal with executive agreements by legislation and by such a grant of power.

Senator FERGUSON. But you know the present policy is that executive agreements are made without the knowledge of Congress and are kept secret.

Senator O'CONOR. If such an amendment were adopted by the Congress, the Congress would have abundant power to legislate and prevent secret agreements or agreements open or secret which transcended or were in excess; is that not so?

Judge PHILLIPS. Yes.

Senator FERGUSON. Would you read that section?

Judge PHILLIPS (reading):

Executive agreements shall not be made in lieu of treaties, and Congress shall have power to enforce this article by appropriate legislation.

Senator FERGUSON. Could we go further than to say that they have to be treaties? Then we would say that all matters have to be treaties. By that manner we could control it. You can say to the President you define your powers by the executive in this field, but all others must be by treaty.

Judge PHILLIPS. At least that conveys the thought, and of course the phraseology.

Senator FERGUSON. But you think the question of executive agreements is a grave problem?

Judge PHILLIPS. I do. I think the best way to handle it is to consider putting in at this time an interpretation of the Constitution. Senator FERGUSON. You do not subscribe to the belief that an executive agreement becomes the law of the land?

Judge PHILLIPS. No, I do not subscribe to it, it is not a treaty. Senator HENDRICKSON. Judge, last year when I was in Germany on a brief military mission I learned that Mr. McCloy was negotiating an executive agreement with the Government of Western Germany which would give the Government of Western Germany criminal and civil jurisdiction over our troops in Germany. Do you think that sort of executive agreement should be allowed at all?

Judge PHILLIPS. No; I do not think it should be allowed. I do not think it is a proper subject of an executive agreement.

Senator HENDRICKSON. That is a subject for treaty?

Judge PHILLIPS. It is a subject for treaty. I think executive agreements should be on matters of commerce and things like that. One great trouble is that in the old days the State Department with great care went into the treaties which we were going to propose and which the President entered into. Today these treaties are not being drafted by the State Department. It is true they have representatives. They are being drafted by a cosmopolitan group of many nations. We could not find out what genocide was, where it was, or what it was for a long time.

In fact, we were in favor of adopting a resolution saying that we were in favor and then we learned about it. We are not against genocide, but we are against provisions of this sort of treaty.

The CHAIRMAN. Thank you very much, Judge, for a very enlightening discourse.

Judge PHILLIPS. Thank you, gentlemen.

The CHAIRMAN. We will be glad at this time to hear from Mr. Frank Holman, past President of the American Bar Association.

STATEMENT OF FRANK E. HOLMAN, PAST PRESIDENT OF THE AMERICAN BAR ASSOCIATION, SEATTLE, WASH.

The CHAIRMAN. Will you state your full name, your residence, and official position, business, and occupation?

Mr. HOLMAN. Yes, sir.

The CHAIRMAN. I want to say that the committee is grateful for your patience and diligence and your kind act of coming here to help. us in the solution of this problem.

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