Section 3 of Senate Joint Resolution 130 is substantially the same except that Congress, in implementing the provisions of a treaty, could enact legislation which, in the absence of a treaty, would be invalid as infringing upon the powers reserved to the States by the tenth amendSection 3 of my proposed amendment confirms the doctrine of Missouri v. Holland (252 U. S. 416). In that case, the taking of migratory game was assumed to be a State rather than a Federal problem in the absence of a treaty.

At the same time, the protection of migratory birds spending part of the year in Canada and part in the United States was certainly an appropriate subject for a treaty calling for implementation by national legislation. However, I would be more than happy to accept the second sentence of the ABA proposal as a substitute for section 3 of Senate Joint Resolution 130 if it can be demonstrated that the treaty power would not be unduly restricted.

I feel there are certain fields in which the treaty power must be protected in the interest of the integrity of our country, and the very sovereignty of our country. I would like to have members of the American Bar give particular attention to that particular provision. I will not explain why all treaties should be made non-self-executing in their effect on internal law. Witnesses representing the American Bar Association will testify on this important point. They will also explain to you, I am sure, why many provisions of the draft Covenant are self-executing despite claims to the contrary.

I do wish to point out the danger of placing undue reliance on the protection afforded by federal-state clauses in international agree

ments.

The federal-state clause in article 71 of the draft covenant is similar to that written into the ILO Constitution. These federal-state clauses, it is argued, prevent treaties from upsetting the division of power between federal and state governments. I shall cite only one of many possible examples to indicate their inadequacy. The distinguished chairman of this committee-and I refer to Senator McCarran, of the full Judiciary Committee-was shocked, as I was, when the Supreme Court in the Southeastern Underwriters case, 322 U. S. 533, scuttled 75 years of judicial precedent to reach the conclusion that the business of insurance was interstate commerce. This decision gave Congress the power to regulate the business of insurance. But by the McCarran Act of the Seventy-ninth Congress, Congress decided to let the States continue to regulate insurance except in a few special cases. Now what happens when a treaty with a federal-state clause involves the regulation of insurance?

Article 6 of the ILO draft Convention on Minimum Standards of Social Security abolishes private insurance unless it is subsidized by the Government to the extent of 25 percent of the cost of premiums and benefits. If that treaty were to become effective, Congress could not decline to exercise its constitutional power to subsidize and to regulate insurance companies. We could not say, without breaking our international promise, that we prefer to leave the regulation of insurance companies to the several States.

Section four of Senate Joint Resolution 130 attempts to solve the treaty-executive agreement problem.

This is the very serious problem of the whole matter in my judg ment, not of national import, but I mean in the working out of the

details of it. I think that is the most serious problem that confronts this committee at the present time.

The other question is the question of whether we do or whether we do not, but this is the question of the best way.

We must deal with this problem in any amendment which limits. the scope of the treaty power. Otherwise, we provide the President with an additional incentive to evade constitutional provisions relative to the making of treaties. In addition, the lack of demarcation between subjects appropriate for a treaty and those appropriate for less formal agreements is a tremendously important issue in its own right.

I will concede that the language used in section 4 must be revised considerably. In drafting section 4, I attempted to distinguish between treaties and executive agreements from the standpoint of durability of obligation.

That is one of the tests certainly.

However, some agreements, even though they may have very serious consequences for the safety of the Nation and the liberty of its citizens, may be completely executed at the time they are made or within a few years thereafter. Agreements of such importance should be ratified as treaties. However, section 4 would not compel that result. In addition, you should weigh carefully the danger involved in distinguishing between treaties and executive agreements in a constitutional amendment. Should the executive branch be unduly restricted one of two things would happen. Observance of an unduly rigid constitutional provision might seriously interfere with the conduct of the Nation's foreign affairs.

This fact would tend to place a high premium on evasion of the fundamental law.

The more I study this problem the more I am inclined to believe that the McCarran resolution, Senate Joint Resolution 122, represents a sounder approach. With respect to Senate Joint Resolution. 122, I have two suggestions. First, I do not believe that the President, either Mr. Truman or his successor, would recognize the power of Congress to control executive agreements. I believe that the substance of the McCarran resolution should be incorporated in an amendment to the Constitution to achieve its intended effect.

And, secondly, executive or other agreements entered into with foreign governments should be subject to all the limitations which are proposed to be placed on the treaty-making power.

During the past 12 years we have seen the State Department take the position that treaties and executive or other agreements are completely interchangeable. It has generally followed the theory advanced by Dr. Wallace McClure when he was in the Department. Dr. McClure said:

The President, acting with Congress, where simple majorities prevail, can, in the matter of international acts, legally accomplish under the Constitution anything that can be legally accomplished by the treaty-making power as specifically defined in the Constitution (McClure, International Executive Agreeinents (1941), p. 364).

Dr. McClure also said:

The result is that for controversial international acts the Senate method may well be quietly abandoned, and the instruments handled as executive agree22984-52-3

ments. But for large numbers of purely routine acts, about which no public opinion exists and no question as to their acceptability arises, the present (treaty) method is desirable as saving the time of the House of Representatives (McClure, op. cit., p. 378).

In the light of certain past experience, rejection of the Human Rights Covenant by the Senate might cause it to be submitted in the form of a joint resolution. And failing approval by a majority of both Houses, we might expect a partial adherence to the draft covenant by the President invoking his so-called inherent powers in the field of foreign affairs.

The Supreme Court has already confirmed to a dangerous degree the existence of inherent Federal powers in foreign affairs. The Supreme Court in the Curtiss-Wright case (299 U. S. 304), said that the Federal Government's powers with respect to external affairs exceeded those delegated in the Constitution. Later decisions have indicated that an executive agreement, not approved by the Congress, may become internal law, even to the extent that of overriding State laws or policies to the contrary.

We are told that American foreign policy vitally affects the life and liberty of the American people. That is true. It will continue to be true for generations to come. Because foreign policy does have an unprecedented effect on all phases of domestic policy it should be made subject to the same checks and balances. By bringing executive and other agreements under legislative control, I see no danger of hamstringing the conduct of foreign policy. One of the first acts of Congress would no doubt be a general authorization for the Secretary of State to conclude without further congressional approval current diplomatic business of a routine nature.

On the other hand, should the President be permitted to agree with other U. N. members that the United States will go to war to halt aggression when two-thirds of General Assembly so recommend? Is such an agreement now under consideration? If so, will the Senate or the Congress be asked to approve it? These are some of the questions which I would ask the State Department witnesses who testify in these hearings.

The most glaring weakness in the conduct of American foreign policy has been the assumption of international obligations by the President which the Congress has not approved and which it is reluctant to implement. Members of the Congress charge that the President has usurped power, or has suppressed information, or has failed to consult them in advance.

The President charges that Congress seeks to invade his constitutional prerogatives or that it is welshing on a valid international commitment. We can look forward to this perennial dog fight, no matter who the occupant of the White House may be, until such time as all the elected representatives of the people are given clear-cut responsibilities in formulation of foreign policy.

The pending resolution raises extremely complex issues of international and constitutional law. My hope is that these hearings will provide the information necessary to perfect its language. If I may be of any help to you in that connection, please do not hesitate to call on me.

We have been working on this in our office now for 2 years. We have explored many facets of it and the more we work at it the more

complex it becomes; and the more we analyze it the more dangerous the present trend seems to me to be to the liberties of the American people and to our constitutional structure.

I presented, as you well know, on the floor of the Senate many times various phases of this issue, and too often there are too few Senators on the floor and too few of us have the time to read the Congressional Record. At the fear of maybe putting too much in the record, I am going to suggest, though, that those presentations, along with the one or two others, be copied into this record so it will be available to the committee and for distribution to the members of the bar throughout the country.

I think it is justified, Mr. Chairman, on the basis that this is in my mind most of the most critical problems that we have in this country, and ought to have as thorough and widespread publicity of the educational advantage of this committee's research work as possible.

Senator O'CONOR. May I just inquire at this time if you will identify that?

Senator BRICKER. Yes. The first one I wanted to submit-and I give these in reverse order-is on the proposal to amend the Constitution of the United States that I presented on February 7, 1952, at the time I presented this Resolution 130. I might ask that be marked "Exhibit A" and placed in the record.

(This exhibit and succeeding exhibits appear in the Appendix and are marked with the exhibit designations placed upon them at the time they were offered for the record.)

Senator BRICKER. Then, I have here-this is outside of the Congressional Record—an article which was published in the Freeman, entitled, "The United Nations Blueprint for Tyranny" [exhibit B].

Then, I have another one, dated May 15, 1952, which was presented on the floor of the Senate, and is entitled "America's Greatest Danger: Domestic Legislation by Treaty." Possibly that could be marked "Exhibit C."

Another one here, dated April 22, 1952, "Dealing With the Problem of Socialism By Treaty," was not presented on the floor of the Senate, but was given before the Conference of Small Business Organizations here in Washington on that day. We could mark that "Exhibit D."

I am doing this so I will not have to go into details of the various phases of this matter. I wanted to save that much time with the limited time of the committee that I know exists for the members of the American Bar who have been working on this for a period of 2 or 3 years.

Another one is entitled, "Meaning of Freedom." This particularly applies to the freedom of the press and was given in New York before the Silurians-that is, a group of newspapermen who have been in the service for 50 years or more-on the 12th of November 1951 [exhibit E].

I have another one dealing with one special phase of this treaty and of the possibilities of an international court. It deals with the subject, Revival of the Star Chamber, and doing away with the trial by jury. That was delivered on September 18, 1951, to the Senate [exhibit F]. Another one, dealing particularly with the freedom of the press, was delivered on July 17, 1951, on the floor of the Senate [exhibit G]. Last Sunday we had a meeting at Ohio State University of the

rewrite people in the press of the State, called the "Blue Pencil Club.” It dealt with another phase of this matter at that time. I would like to have that made a part of the record also [exhibit H].

Then, I would like to call attention at this time in regard to the freedom of the press and the attitude of the press generally toward these matters, to pages 50, 51, and 52, marked in red pencil, which is only a page and a half, of the report of the sixty-sixth annual convention of the American Newspaper Publishers Association, which was held at the Hotel Waldorf-Astoria in New York on April 22, 23, and 24. I ask that that page and a half be made a part of the record [exhibit I].

I have endless resolutions from various organizations. One just came to my desk. I do not want it made a part of the record particularly. However, it is from the National Society of New England Women. This meeting was held at Virginia Beach on May 12 and 13. That just came to my desk this morning. We have dozens of those and also editorials from various newspapers throughout the country, practically all of which support our position in this, or at least the spirit or intent of the amendment. Some of them might favor the American Bar amendment, and others might favor the details of the amendment which the 58 Senators submitted.

I do not want to burden the record with all of those. Many of them I have put in the Congressional Record, however, and in the interest of saving time I have submitted these and have limited my discussion to the matters which I have presented so that the American Bar members, which are not always with us, will be able to have all the time possible.

Senator O'CONOR. If Senator Hendrickson concurs, I would suggest that they all be considered as received and accepted by the committee in connection with the hearing. The committee has under consideration the suggestion, and to the extent they will be published because it has been proposed that certain of the testimony will be circularized, so if agreeable to you, they will be considered as accepted, and the entire committee then will pass on the question of whether to incorporate them at this point in the record or at another part as a supplement.

Senator BRICKER. I appreciate that very much, Mr. Chairman. (The documents referred to were filed for the record and appear in the appendix.)

Senator BRICKER. We are working in our office now on getting up a similar pamphlet, and I wished that our office could keep in touch with the staff of this committee in regard to that. It might be put out as a committee document. We have sought to eliminate any duplication and extraneous matters and get down to the very heart of the problem in that pamphlet. It is in sort of booklet form and may be 100, 150, or 200 pages. We shall be very happy to cooperate. Senator O'CONOR. We are grateful to you for the comprehensive and very splendid statement that you have presented.

Have you any questions, Senator Hendrickson?

Senator HENDRICKSON. No.

Senator BRICKER. We are going into it very thoroughly on the floor, but, as I said, your audience is a bit limited.

Senator HENDRICKSON. I would like to say I have heard all your speeches.