Executive agreements limited to the term of the President making them The proposed constitutional amendment (S. J. Res. 130) provides that executive agreements shall expire automatically 1 year after the end of the term of office of the President making the agreement unless Congress at the request of the succeeding President extends the life of the agreement another Presidential term. Senate Joint Resolution 122 states that executive agreements "shall be deemed to terminate" 6 months after the end of the term of the President negotiating them unless extended by proclamation of the succeeding President. Both of these provisions operate to limit the power of a President to commit the United States to any arrangement short of a treaty beyond his own selected term of office. For example, the proposed constitution amendment would prohibit a President from adopting an agreement of his predecessor (apparently even though he were his own predecessor) without congressional approval, although he could, no doubt, negotiate a new agreement on the same subject which would be good for the length of his term. One of the fundamental difficulties of this approach is well illustrated by the agreements which were negotiated in 1948 under the Economic Cooperation Act, pursuant to section 115 (b) (6) of that act, and which are still in force and effect. These agreements commit the recipients of United States assistance, as a condition of assistance, to undertake courses of corrective and other action. As described above, they give the United States certain rights incident to carrying out the assistance program, including rights for the benefit of individual citizens of the United States. Even though the United States has reserved a right to terminate these agreements at any time upon the giving of 6 months' notice, the countries receiving the assistance cannot so terminate with respect to the following important provisions. (a) The article giving the United States access to materials deficient to its needs remains in effect for 2 years after notice of any intention to terminate. (b) The obligations with respect to counterpart deposits and use remain in effect until all sums have been disposed of as provided in the agreement. The proposed resolutions would cast doubt upon the validity of these valuable obligations. Even if the resolutions are really intended (though not worded) to apply only to the assumption of obligations or duties by the United States, and thus not intended to prohibit the executive branch from obtaining commitments from foreign governments extending as long as may be desirable, serious problems remain. Although countries may possibly be willing to undertake longer term irrevocable obligations in return for dollar assistance, it is difficult to see why they should be willing to do so in any number of other highly important situations (involving mutual obligations of the same kind) if the United States could offer only a promise good until the end of the Presidential term. Indeed under these resolutions, as the end of a Presidential term approaches, the President would be unable to make agreements of the most urgent nature, although the conditions may have been explicitly set forth in laws approved by both Houses of Congress and notwithstanding the fact that the President may have already successfully run for reelection. Publication of executive agreements in the Federal Register required Senate Joint Resolution 122 provides that executive agreements other than treaties will have no force or effect unless published in full in the Federal Register. Although the Mutual Security Agency would have no particular problem with this requirement, it would serve no useful purpose and would largely duplicate existing legislation already requiring publication of international agreements other than treaties. (a) Under the act of March 9, 1868, as amended (5 U. S. C. 165; 44 U. S. C. 192, 193), the international agreements negotiated under the Mutual Security Program, as well as treaties and postal conventions specifically mentioned, are published in pamphlet form and made available to the public. Likewise, Public Law 821, Eighty-first Congress, approved September 23, 1950, provides that the Secretary of State shall cause to be published, beginning as of January 1, 1950, a compilation entitled "United States Treaties and Other International Agreements," which shall contain all treaties to which the United States is a party, proclaimed during each calendar year, and all international agreements other than treaties to which the United States is a party, executed during each calendar year. (b) Article 102 of the Charter of United Nations requires that every international agreement entered into by a member shall be registered with the Secretariat and published by it. The international agreements entered into under the Mutual Security Program have been and will continue to be registered with the Secretariat published in the United Nations Treaty Series in accordance with this provision. (c) Finally, section 123 of the Economic Cooperation Act, as amended, requires the President to submit to Congress all texts of bilateral and multilateral agreements entered into in carrying out the provisions of that act. This requirement has been fulfilled by supplements to the Reports to Congress of the Economic Cooperation Administration and now the Mutual Security Agency. RECONSTRUCTION FINANCE CORPORATION, OFFICE OF THE ADMINISTRATOR, Re Senate Joint Resolution 130 (joint resolution proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements). Hon. PAT MCCARRAN, Chairman, Committee on the Judiciary, United States Senate, Washington, D. C. DEAR SENATOR MCCARRAN: I understand that captioned joint resolution is now being considered by your committee. Senate Joint Resolution 130 proposes a constitutional amendment limiting the power to make treaties and executive agreements. Although our comments on this measure have not been requested, there are certain matters which we feel should be brought to the attention of the committee. The only part of the proposed constitutional amendment which would affect the operations of Reconstruction Finance Corporation are those portions of section 4 which read as follows: "Executive agreements shall, if not sooner terminated, expire automatically 1 year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding Presidential term. "The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication.” The proposed joint resolution would affect only our production activities. All loans currently being made are confined to enterprises organized or operating under the laws of a State or Territory or of the United States. Our production activities may, for these purposes, be grouped into three categories: (a) Synthetic rubber production, (b) abacá production, and (c) tin purchasing and the operation of the Texas City tin smelter. All plants producing synthetic rubber are within the continental limits of the United States, and their operations would not be affected by the amendment. In connection with this program, however, large quantities of materials (particularly alcohol and petroleum products) are obtained from time to time from foreign sources, including foreign governments. It is unlikely that a contract for the purchase of materials on a straight sale basis comes within the meaning of executive agreement as used in the resolution (the term is not, however, defined). We, therefore, conclude that synthetic rubber production operations would not be affected by the amendment. This is the major portion of our total production activities. Our abacá activities illustrate the effect that the proposed constitutional amendment could have upon a program probably not contemplated as involved by its drafters. Abacá production, to be practicable at all, must be a long-range program (our present authorization is effective until 1960 unless specifically earlier terminated). The program was authorized by the Congress in the Abacá Production Act of 1950, approved August 10, 1950. Contracts presently being negotiated with the Government of Ecuador are examples of the problems raised by the resolution. We are currently seeking to place all abacá contracts upon a government-to-government basis in order to gain exemption from the tax laws of the producing countries. Under the constitutional amendment contemplated by Senate Joint Resolution 130, the agreements would ordinarily expire 1 year after the end of term of office for which the President making the agreement shall have been elected. Production of abacá under the Ecuadorian contracts cannot be expected for at least 3 years after their execution. Certainly the contracts, to be worth entering into at all, must run substantially longer than 1 year from the end of the current Presidential term, although it is possible that extension by congressional action at the request of the incoming President could be secured. The short potential duration of contracts toward the end of a Presidential term would place Government contract negotiators in a difficult, if not untenable, position in their negotiations with foreign governments. TREATIES AND EXECUTIVE AGREEMENTS Our The tin smelter is located at Texas City, Tex., and its operation would not, of course, be affected by the resolution. Incident, however, to our tin production, and by reason of our special familiarity with the field, we have been authorized under the Defense Production Act to make all tin purchases for the United States or for import into the United States. The major purchases of tin concentrates are from four separate locations which illustrate four different degrees of relationship with the foreign government involved. Purchases in Thailand are direct on-the-spot open-market purchases which appear not to involve a relation between Reconstruction Finance Corporation and the Government of Thailad at all. purchases from the Belgian Congo are with a general marketing corporation which may be considered a quasi-governmental instrumentality. Tin from Bolivia is bought from several producing companies including one government bank under contracts which require the concurrence of the Government. Our present contract for the purchase of Indonesian tin was made directly with the Indonesian Government. In many respects the proposed amendment would create complexities comparable to those set out above with respect to abacá production. Earlier this year, we made firm 2-year contracts for the purchase of Indonesian and Belgian Congo concentrates. We have as yet no contract for Bolivian tin. Negotiations which were suspended prior to the recognition of the new governIn all of these cases the advisability of at ment there are now being resumed. least a 2-year contract must be apparent, and it is considered absolutely essential for our representatives to have the power to enter into firm commitments for these essential purchases in order to be able to deal at all effectively with the representatives of the sources of production. I have no substantial objection to the publication of our agreements with foreign countries, except to question whether the administrative expense incident to such publication is warranted. Certainly we are content that full publicity be given to any agreements which have been or may hereafter be made. I suspect, however, that no portion of our operations are really intended by the drafters of the resolution to be affected by it. Each of these programs was studied by the Congress in connection with its authorization, and each of them contemplated that firm contracts for definite durations would be entered into on behalf of the United States or an agency thereof. It is not believed that the Congress desires to maintain as detailed surveillance of such operations as the resolution would impose. It is, therefore, my considered opinion that the proposed constitutional amendment would seriously hamper Federal agencies in carrying out programs for the production or acquisition of strategic or critical materials specifically authorized by the Congress itself. Because of the need to act promptly if our views on this measure are to reach your committee in time to receive consideration, our report is being trasmitted prior to clearance with the Bureau of the Budget to which copies are being sent. We have, however, been informed that the passage of this proposed legislation would not be in accord with the President's program. Sincerely, HARRY A. McDONALD, Administrator. DEPARTMENT OF AGRICULTURE, OFFICE OF THE SECRETARY, Hon. PAT MCCARRAN, Chairman, Judiciary Committee, United States Senate. DEAR SENATOR MCCARRAN: This is in response to your letter of June 5 suggesting that a written statement on Senate Joint Resolution 130 might be submitted by the Department of Agriculture in lieu of oral testimony as requested in my letter of June 4. In that letter I stated that this Department is vitally interested in the role which executive agreements and treaties play in effectuating policies and aims of this Government with significant influence on American agriculture. We are concerned about the inference that executive agreements have been used in lieu of treaties and that in consequence the authority to make executive agreements should be curtailed. With the accelerated pace of world events and the necessity for decisive action in government-to-government relations it is the judgment of this Department that the effect of Senate Joint Resolution 130 would be to make these processes so uncertain and so unnecessarily cumbersome as to substantially weaken the efforts of this Government in the conduct of its international affairs. It is our judgment that such authority as exists for the making of executive agreements is sufficiently safeguarded under existing legislation. The interpretative problems raised by Senate Joint Resolution 130 would introduce an undesirable and unnecessary element of uncertainty in the authority of representatives of this Government in negotiating arrangements with foreign governments, and would at the same time undermine the confidence of the representatives of foreign governments regarding our ability to make binding commitments without prior specific legislative authority in areas of an executive or administrative character believed necessary to safeguard national interests already recognized by the Congress. We feel that enactment of the proposed amendment would therefore prejudice the conduct of operations of this Government in dealing with foreign governments and their agencies, substantially reducing our effectiveness in times of crisis, and thereby weakening our ability to safeguard the interests of American agriculture. The following selected examples will, I believe, illustrate the grounds for our misgivings: The outbreak of foot-and-mouth disease in Mexico in late 1946 created an immediate and grave threat not only to the American livestock industry but to the American economy as a whole. This Department through its Bureau of Animal Industry moved into that situation with utmost speed. Under general authority of the act of February 28, 1947 (Public Law 8, 80th Cong.; 21 U. S. C. 114b-114d), an exchange of letters was effected between the Bureau of Animal Industry of this Department and the Mexican Ministry of Agriculture, arranging for the establishment of a joint commission to work out the problem. This exchange of letters constituted an executive agreement. On this basis, we were able to convince the Mexican authorities it was in their interest as well as ours to undertake a program of control through eradication which would require the slaughter of Mexican livestock. This program requiring compensation to the owners of the livestock was far beyond the apparent capacity of the Mexican Government to finance. By reason of our authority to commit United States funds for this purpose we were able to initiate speedy action in Mexico and thus to prevent the introduction of foot-and-mouth disease into livestock herds in the United States with the tremendously increased costs and disturbances to our economy which that would have involved. The point I wish to make is that the ability of this Department to move promptly into that situation which so gravely threatened the American economy depended entirely upon the power and authority of the executive branch of the Government to enter into an executive agreement with Mexico. It is my conviction that if Senate Joint Resolution 130 had been in effect at that time, it would not only have curtailed our ability to move promptly and with confidence but would likewise have prevented the establishment of the necessary confidence among the Mexican authorities in our ability to commit the funds, personnel, and facilities to do the job. The automatic expiration provisions of section 4 would have seriously handicapped the American authorities both in the initial negotiations and in the conduct of the program and would have seriously undermined the confidence of the Mexican authorities in embarking upon an effort which obviously was to require several years for its successful completion. Under the same general authority, memorandums of understanding were exchanged by the Bureau of Animal Industry of this Department and the Government of the Netherlands, the Danish Ministry of Agriculture, and the British Foot-and-Mouth Disease Research Committee providing for cooperative research on foot-and-mouth disease in Europe. Operations under these agreements have represented important steps in meeting a major threat to the American livestock industry and the American economy as a whole. The current existence of foot-and-mouth disease in Canada creates a somewhat similar situation. TREATIES AND EXECUTIVE AGREEMENTS A less dramatic but nevertheless significant example of the importance of the present authority to enter into agreements developed in connection with the heavy potato surplus in the fall of 1948. During that year both this country and Canada had very substantial surpluses. At that time, as you will recall, we were supporting prices of potatoes but Canada was not; and it became apparent that unless some type of informal agreement could be effectuated, this country would be flooded by imports of Canadian potatoes with very costly We were able, however, under existing results to our price-support program. authority, to enter in executive agreements whereby the Government of Canada in effect embargoed the exports of table stocks of potatoes to the United States and placed limits on exports of certified seed potatoes to certain designated States and during limited periods to coincide with our planting periods. Canada also agreed to institute a price-support program which helped to eliminate the threat. This situation required prompt Executive action, which might not have been feasible if Senate Joint Resolution 130 had then been in effect. Another example, in a somewhat technical field, is the current arrangement between this Department's Bureau of Entomology and Plant Quarantine with authorities of the Government of the Netherlands. One of the major exports of Holland to this country consists of flower bulbs, such as tulips, narcissus, etc. With the dollar exchange thus earned, Holland takes very substantial quantities of American tobacco, cotton, grains, and fruits. Until very recently, the quarantine inspection of these bulbs was performed on the docks in the port of New York and other ports of arrival. We have recently, however, under executive agreement, arranged for preinspection in the Netherlands by inspectors from the Bureau of Entomology and Plant Quarantine. This agreement, which has been extended to April 1953, provides for the services of five American inspectors to work at shipping points in the Netherlands in cooperation with the Netherlands Phytopathological Service for the purpose of inspecting and clearing flower bulbs for shipment to the United States. The major part of the expenses of this operation is met by the Holland Bulb Exporters' Association. This procedure, which enables close observation of the bulbs during cleaning, grading, and packing, assures greater protection at less cost for American agriculture against the possibility of introduction of nematodes and other pests which constitute a grave threat to American agriculture, and, if once introduced, would involve very costly programs of eradication and control for the future. As the success of this program has become evident, Belgian interests have now approached us with the view to making similar arrangements with Belgium. Again I wish to point out that under Senate Joint Resolution 130, the problem would be so cumbersome and uncertain that it would seriously hamper our ability to enter into such arrangements. I would like to mention also the use of direct agreements under the general authority given in the Commodity Credit Corporation Charter Act (Public Law 806, 80th Cong.; 15 U. S. C. 714-714a). The Commodity Credit Corporation acts as the representative of this Government when the governments of other countries request the United States to act as a purchasing agent for them in procuring commodities available in the United States. Through such agreements, the Government has been able, under a tight supply situation, to meet the needs of friendly countries with the least inflationary impact on the domestic economy, and, under a surplus supply situation, to hold and expand markets for American agricultural commodities. Similarly, direct agreements are necessary in order to implement the authority of the Secretary of Agriculture, under the act of June 7, 1949, (Public Law 85, 81st Cong.; 15 U. S. C. 714b), to barter agricultural commodities acquired by the Commodity Credit Corporation under its price-support program for strategic and critical materials for the national stockpile. I wish also to mention the reciprocal trade agreements program in which this In 1934, the Congress amended the Tariff Department has an important stake. Act of 1930 to authorize the executive branch to enter into foreign trade agreements "for the purpose of expanding foreign markets for the products of the This authority has been used to United States" (19 U. S. C. 1351 et seq.) obtain reductions in foreign tariffs affecting most of our foreign markets for farm products. Producers of wheat, cotton, rice, tobacco, fruits, lard, soybeans, winter vegetables and many other important farm products depend on these foreign markets as outlets for a substantial proportion of their output. It is important that in reestablishing commercial channels of trade the means be kept open for negotiat |