If this provision is construed to mean that a treaty or executive agreement may not deprive citizens of "life, liberty, or property, without due process of law," or of other constitutional rights of the individual, it is redundant, since that doctrine is already firmly established in our constitutional law.

But the provision may be read to have a far more restrictive effect. If every international agreement affecting property rights or economic liberty is considered to be one "respecting the rights of citizens of the United States protected by this Constitution," even if it enlarges rather than abridges such rights, even if it is consistent with established substantive conceptions of "due process of law," or even if adopted in full compliance with procedures accepted as “due process," the provision would have a crippling effect on our foreign economic relations. If so construed, tax treaties, international agreements with respect to trade controls against aggressor nations, treaties to control the traffic in narcotics, agreements respecting navigation and safety at sea, and treaties designed to protect American investors in foreign countries, all would fall under the ban of the amendment, because they can be construed to be agreements “respecting the rights of citizens of the United States" to life, liberty, or property. Under such a broad construction, the United States would be rendered powerless, in large part, to enter into international obligations of an economic character.

"SEC. 2. No treaty or executive agreement shall vest in any international organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively."

It is difficult to foretell how this language would be applied to the practical situations we have in international relationships today. Thus, to take an example in a field which is of primary interest to the Treasury Department, the several member governments have bound themselves, under the articles of agreement of the International Monetary Fund, not to change the par values of their respective currencies, except under a specified procedure, and under certain circumstances, only with the prior approval of the International Monetary Fund. The President was explicitly authorized by the Congress to accept these articles of agreement on behalf of the United States. By joining the fund, the United States thus agreed not to exercise one of its powers without the concurrence, under certain circumstances, of an international organization. While the Congress retains its constitutional power "to coin money, [and to] regulate the value thereof," the good faith of the United States is pledged internationally to a measure of forbearance in the exercise of this power.

The

Two other instances can be cited from the work of the Coast Guard. International Conventions for the Safety of Life at Sea (1914, 1929, 1948), and the International Civil Aviation Convention (signed 1944, effective 1947), call for many international gatherings, some regional, that are absolutely essential to the implementation of the basic conventions. They deal with technical and regional matters which could not possibly be dealt with at the time the basic conventions were adopted.

The language of section 2 would not be applicable to our obligations under the fund agreement or under the international conventions dealing with safety at sea, or with civil aviation, in the judgment of this Department, since no constitutional powers have been delegated. Nor does there appear to have been any other instance where it can be said that legislative, executive, or judicial powers have been delegated to any international body or to any foreign government. But if the effect of the proposed amendment should be read differently, if action such as joining the International Monetary Fund or participating in and accepting international decisions on questions of sea and air traffic should be held to be beyond the constitutional powers of the President and of the Congress, the United States would be unable to join with other nations in seeking international cooperation in economic or technical matters, the complexity of which almost invariably requires some international channel for dealing with the multitude of detailed problems which cannot be foreseen.

"SEC. 3. No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by act or joint resolution.” Efforts to secure protection of the interests of citizens of the United States in other countries can obviously be most effective if the United States is in a position to offer protection to citizens of foreign countries under a treaty or executive agreement. Thus, treaties to avoid double taxation or to assure American investors in foreign countries the right to manage their

investments and to protection of their title to property required reciprocal obligations on the part of the United States, which may involve modification of Federal or State law.

In some instances, the protection of our own people at home requires international regulation, to which we must subject ourselves if we expect others to do likewise. An outstanding example is the control of international traffic in narcotics. Sections 1 and 3 of the proposed amendment, in the judgment of the Commissioner of Narcotics, "would nullify progress made, and have a paralyzing effect on the achievement of future progress, in the field of national and international control of the narcotic-drug traffic." A detailed analysis of the effects of sections 1 and 3 on narcotics control, submitted by the Commissioner of Narcotics, is annexed to this letter.

The effects of proposed treaties on Federal and State law can be and are exhaustively explored during Senate committee hearings which precede ratification of such treaties. Executive agreements which involve any regulatory effects have, so far as we have been able to determine, been made under express prior congressional authorization (e. g., reciprocal trade agreements) or have been submitted to the Congress for approval (e. g., articles of agreement of the International Monetary Fund). Thus, executive agreements, as well as treaties, which might raise questions of inconsistency with Federal or State law have, in fact, already been subject to review in the Congress.

Various provisions of the Internal Revenue Code provide for tax treatment, under treaty provisions, of items of income in a manner or at a rate otherwise than that provided in the code. Similarly, provisions of the code basing tax treatment upon reciprocal treatment of Americans by foreign countries are frequently made effective by treaties or executive agreements assuring the requisite treatment of the incomes of Americans under foreign tax laws. The interrelationships of our tax laws with a network of international agreements is described in a statement by the Commissioner of Internal Revenue annexed to this letter. Would each of these treaties and agreements have to be submitted for fresh consideration by the Congress, after it had already authorized them? To require that treaties already ratified by the Senate and executive agreements already authorized or approved by the Congress be scrutinized anew through new legislative procedures, in which it would be open to the Congress to withhold or qualify effective measures to meet international obligations already incurred with its or the Senate's approval, would cripple the conduct of the foreign affairs of the United States. Our leadership in world affairs, and our efforts to secure benefits for American citizens, would be subjected in each case to double congressional ratification, while the hoped-for gains would be postponed again and again.

"SEC. 4. Executive agreements shall not be made in lieu of treaties. "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 first paragraph of this section would raise a host of new legal questions. What does it mean to say that "executive agreements shall not be made in lieu of treaties"? Does it mean that no executive agreement can ever be entered into if the subject matter could have been the subject of a treaty?

Treaties are now in effect with 10 foreign countries dealing with income taxation. Each of these treaties covers, in addition to many other matters, the reciprocal aspects of sections 212 (b) and 231 (d) of the Internal Revenue Code, which provide for the exclusion from gross income of earnings of a nonresident alien or nonresident foreign corporation derived from the operation of any ship documented under the laws of a foreign country or from the operation of aircraft registered under the laws of a foreign country granting an equivalent exemption to United States citizens and corporations. At least eight additional executive agreements cover these sections of the Internal Revenue Code, but not as part of any comprehensive double-taxation convention. While these agreements are simply a practical way of carrying out an express statutory provision, they might be regarded as "in lieu of treaties," since the subject matter has been covered by treaties with other countries. Would they have to be replaced by formal treaties under section 4?

Are the courts, with no other guide than the words "in lieu of" to distinguish between subjects which are proper for one form of international undertaking rather than another? How could any executive agreements be made if the constitutional validity of each would be in doubt until a final court ruling had been secured? The most probable result of this provision would be to compel the exclusive use of treaties, with consequent burden to the Senate (or to both Houses, if sec. 3 were adopted) to pass on a mass of housekeeping arrangements for our diplomatic and military overseas personnel.

The requirement of the second paragraph, that executive agreements terminate 1 year after the President's term expires, unless extended by a new Congress, would hamstring the conduct of our foreign relations. To foreign countries it could only mean that the United States Government is so unstable that international engagements can only be personal undertakings of the Executive at the time in office. When, by executive agreement, with the express approval of the Congress, we undertook with other governments to establish an International Bank for Reconstruction and Development, designed primarily to grant long-term loans, would we have had to limit our participation in such an institution by reference to the term of office of the incumbent President? Since the International Bank must depend for most of its loanable funds upon issuing securities in the financial markets, what possibility would there be of long-term borrowing if the continued participation of the United States must be reviewed after each election? Suppose that other governments entering into executive agreements with us introduced the same qualifications. In many other countries of the world changes of administration are much more frequent than in this country. Would every international agreement be subject to the political fortunes of the incumbent government in both countries parties to it? And what would be the status of a multilateral agreement when it is almost a certainty that in any given year there will be many changes of administration among the governments of the signatory countries?

The requirement of the third paragraph, that executive agreements be published, is, as the State Department has pointed out to your committee, quite unnecessary, since there is already ample provision for publication. The exception permitting secrecy would itself suggest a violation of our obligations to the United Nations, since its charter requires that all international agreements be made public: a policy of "open covenants openly arrived at," long regarded as one of the tenets of American foreign policy.

A major difficulty which pervades the entire text of the proposed constitutional amendment is its ambiguity as to retrospective effect. Thus, section 1 and the first sentence of section 4 seem to be only prospective in effect; the second sentence of section 4 would appear to have retroactive effect, operating to cancel existing executive agreements, regardless of the terms of the agreements and whether or not made with express authority from the Congress; sections 2 and 3 are quite ambiguous as to their effects on outstanding international engagements. The extent and diversity of international arrangements which might be thrown open to review, both legislative and judicial, by the proposed amendment is illustrated by a list, annexed to this letter, of treaties and executive agreements affecting operations of the Coast Guard, some of which have been in effect for a great many years, including one executive agreement which has remained in effect since 1817.

The analysis of the provisions of the proposed amendment set forth above leads this Department to conclude that its adoption would seriously hamper the conduct of the foreign relations of the United States, would interfere with efforts to serve the interests of the United States and its citizens in international economic relationships, would render the United States powerless to cooperate with other countries in certain fields, and would create a vast area of uncertainty which could only be resolved over the course of many years by judicial decision. Very truly yours,

E. H. FOLEY, Acting Secretary of the Treasury.

ANALYSIS BY THE COMMISSIONER OF NARCOTICS OF THE EFFECTS OF SENATE JOINT RESOLUTION 130 ON THE CONTROL OF NARCOTICS

This Bureau is deeply interested in Senate Joint Resolution 130 which, if enacted and subsequently adopted as a constitutional amendment, would nullify progress made, and have a paralyzing effect on the achievement of future progress, in the field of national and international control of the narcotic drug traffic.

Senate Joint Resolution 130 proposes a constitutional amendment under which (sec. 1) "no treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof," and (sec. 3) "no treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that Congress shall so provide by act or joint resolution."

As early as 1909, when a conference was called, on the initiative of the United States, of the International Opium Commission which convened at Shanghai, it was recognized that the solution of the narcotics problem necessitated concerted international action. Three years later, the International Opium Convention of 1912 was drafted by another conference as the first step in concerted international action against the illicit narcotic drug traffic. The American delegation to this conference, in its official report, stated, in part:

that the convention illustrates that the most powerful nations in the world are now agreed that an evil, such as the opium evil, is never wholly national in its incidence, can never be suppressed by two nations alone-as was supposed to be the case in regard to the Indochinese opium traffic-but that such an evil as it appears in one state is a concomitant or reflex of a similar evil in other states and is, therefore, international in its moral, humanitarian, economic, and diplomatic effect, that this being so, few evils can be eradicated by national action alone; and, therefore, only by the cooperation of all the states, directly or indirectly interested, can such an evil be mitigated or suppressed The United States, with some 65 other world powers, ratified or acceded to the International Opium Convention of 1912, which obligated the contracting powers to take such steps as the enactment of laws for control of production and distribution of raw opium, and to limit exclusively to medical and legitimate purposes the manufacture, sale, and use of morphine, cocaine, and their respective salts. In 1932, the United States ratified the convention, concluded at Geneva July 13, 1931, for limiting the manufacture and regulating the distribution of narcotic drugs, and some 67 other world powers are parties to this convention. The principal obligations assumed by the parties under the 1931 convention were (a) limitation of the total manufacture of the dangerous narcotic drugs to that quantity necessary to supply the world's medical and scientific needs, and (b) the application of certain provisions of the Geneva Narcotic Convention of 1925 (not theretofore ratified by the United States) relating to control of persons and establishments involved in manufacture, sale, and distribution of the drugs, and control of international trade in the drugs. Later, with the discovery and development of synthetic analgesic drugs, not derived from opium, as substitutes for morphine, it became necessary to supplement the 1931 convention by the protocol of 1948, which provides an international procedure for prompt application by all the parties of manufacturing limitation to such of the new synthetic drugs as are determined to be dangerous from the standpoint of addiction liability, thus avoiding overproduction, beyond medical and scientific needs, which would spread drug addiction. The 1948 protocol was ratified or acceded to by the United States and 30 other world powers.

From the time the first international conference of the International Opium Commission was called at Shanghai in 1909 at the invitation of the President of the United States, our country has taken and continues to take the initiative in securing international agreements which bind all parties to adopt increasingly specific measures to suppress the illicit traffic in these dangerous drugs. The agreements already in effect, as briefly described above, obligate the several parties not only to control the international movement of these drugs but to impose controls over the drugs within their respective territories, particularly through a continuing restriction upon manufacture, that are probably more drastic than in the case of any other commodity. The obligations to impose such controls have been assumed voluntarily by the parties because the serious nature of the evil requires it, and the assumption of the obligations has not been regarded by the United States or by any of the other contracting parties as an abdication of sovereignty.

For the past few years, the Commission on Narcotic Drugs of the United Nations, at the instance of the Commisioner of Narcotics of this Department who is the United States representative on the Commission, has been engaged in the work of formulating a unified convention, which will be an international codification of all existing narcotic conventions and protocols, appropriately revised and extended in the light of experience gained in enforcement and application of the existing agreements. The most encouraging feature of this work

has been the progress made toward adoption of a plan, already accepted in principle, of limiting the world production of opium to the quantity requisite only for medical and scientific requirements. The achievement of an agreement so to limit world production of opium has been a standing policy of the United States Government since 1924 when an American delegation to the Geneva Conference failed in the effort to have it incorporated in the Geneva Narcotics Convention signed in 1925. The currently successful progress toward adoption of the plan is due to the vigorous sponsorship by the United States in the Commission on Narcotic Drugs of the United Nations. If and when the plan becomes effective as a binding international agreement, each country, and particularly each producing country will be required to restrict its production of opium-and therefore, of the opium poppy-and to this extent, the right of any and all citizens to produce as much opium as they may desire, from as large an area of opium poppies as they may be able to sow and cultivate, will undoubtedly be curtailed. Such a right of the individual must be subordinated to the greater right of all citizens to be protected from the inevitable result of overproduction of this dangerous substance--the growth and spread of the slavery of drug addiction. In 1916, the United States Supreme Court held that a section of a Federal statute making possession of narcotics by an unregistered person a crime (sec. 8, act of December 17, 1914, 38 Stat. 785) was unconstitutional in the absence of an opium convention requiring the enactment of the particular statutory provision, and notwithstanding that the possession of morphine, in the case under adjudication, was that of an addict for the purpose of supplying his addiction. It was a fair inference that the same condemnation would be applied to a Federal statute, not supportable as the execution of a treaty obligation, which purported to restrict domestic production or manufacture of narcotics. The United States had assumed the obligation, under article 1 of the International Opium Convention of 1912 to control the production and distribution of raw opium but as there was no known production of the opium poppy in the United States-certainly none for the commercial production of opium and opium derivatives—it had not been deemed necessary to recommend the enactment of Federal legislation especially implementing this provision of the convention.

Shortly after the beginning of World War II, importations of opium poppy seed, used to the extent of several million pounds annually in the baking industry, were cut off and as there was no alternative supply available because of nonproduction of the opium poppy in this country, the price of poppy seed promptly rose several hundred percent. With the commercial incentive thus provided, a number of farmers in California commenced growing the opium poppy for seed yield, notwithstanding warnings from the Bureau of Narcotics that this necessarily involved also extensive production of poppy pods which could readily be used for the extraction of opium and morphine, thus furnishing supplies for the growth and spread of drug addiction. To meet this situation, Congress implemented the obligations imposed by the 1912 and 1931 conventions-particularly the formerby enacting the Opium Poppy Control Act of 1942 (21 U. S. C. 188). Under that statute, all production of the opium poppy was prohibited except under license, and all licenses issued under the act were limited to such number, localities, and areas as the Secretary of the Treasury should determine to be appropriate to supply the medical and scientific needs for opium and opium products (not including poppy seed). Therefore, no license could be issued under the act to produce opium poppies merely for seed yield.

Most of the farmers thereupon discontinued production of the opium poppy but a small group proved obdurate and planted fields of the poppies in denance of the act which they maintained was violative of the Tenth Amendment. The United States attorney took action to seize the growing crops of poppies, and the farmers filed application for an injunction directly challenging the constitutionality of the statute, and pointing out that a State law (secs. 11540 and 11541 of the Health and Safety Code of California) authorized them to grow the opium poppy for seed yield under a State permit, which they had obtained. The application for injunction and motions to dismiss were argued before a three-judge court in the United States District Court for the Northern District of California, which rendered an opinion holding the Opium Poppy Act constitutional (Stutz, et al., v. Bureau of Narcotics, 56 Fed. Supp. 810). The petitioners did not take an appeal from this decision but accepted it and destroyed the poppy crops.

Under the constitutional amendment proposed by Senate Journal Resolution 130, there is grave doubt whether the court would have held the Opium Poppy Control Act constitutionally valid as the implementation of our obligation under the International Opium Convention of 1912. There would be similar doubt as to