TREATIES AND EXECUTIVE AGREEMENTS mendations, the provision of technical assistance in the labor field, and the collection of statistics and other information on labor matters by the ILO serve these objectives. Certainly these international standards relate to matters which are in the field of domestic legislation in the various participating countries, the same as are the matters dealt with by the World Health Organization, the Food and Agriculture Organization, and other international organizations. To say that these organizations should not deal with such matters would drastically hamper our efforts toward international cooperation. It is appreciated that participation in international activities which relate to matters in the domestic field is something which requires care and deliberation. In our ILO activities, the position to be taken by the United States on standards under consideration is formulated only after consideration by all the interested agencies of the Federal Government, acting through a formal interdepartmental committee known as the Committee on International Labor Policy. In addition, the Government delegation to each annual conference usually includes one or more representatives of the Congress and frequently a commissioner of labor from one of the States. After a convention is adopted by an International Labor Conference it is carefully reviewed by the executive branch to determine whether it should be submitted to the Senate for advice and consent to ratification, taking into consideration (1) whether it relates to matters which are appropriate for State rather than Federal action and (2), in the case of a matter on which Federal action is appropriate, whether it should be submitted to the Senate for advice and consent to ratification or to the Congress as a whole for its information and such action as the Congress may consider appropriate. Of the 18 conventions listed in Mr. McGrath's testimony before this subcommittee as illustrations of "the extent to which the ILO is attempting to invade the field of domestic legislation" only 3 have been submitted to the Senate for advice and consent to ratification. One of these, No. 63, deals with standards for the collection of labor statistics and does not, as Mr. McGrath states, "set up Federal machinery for gathering statistics." This convention, incidentally, was voted for by the United States employer delegate at the conference when it was adopted. Ratification of this convention would require only minor additions, in the Territories, to the labor statistics which are now collected. Convention No. 87, dealing with freedom of association of employees and employers and protection of the right to organize, was also submitted to the Senate for ratification since our present law (the Taft-Hartley Act) and practice are considered to be in conformity with the provisions of the convention. The employer delegate, as well as the other members of the United States delegation, voted for the adoption of this convention. The third convention, of the 18 cited by Mr. McGrath, submitted to the Senate for ratification is No. 88, dealing with the organization of public employment services. The adoption of this convention, which is not, as described by Mr. McGrath, "a draft of a law setting up a Federal Employment Service," was voted for by the entire United States delegation at the ILO Conference, including the employer delegate. Ratification of this convention would not alter existing law or practice in the United States since we already have, under the WagnerPeyser Act, a system of Federal-State public employment offices conforming to the standards provided in convention No. 88. None of the remaining 15 conventions listed in Mr. McGrath's testimony has been submitted to the Senate for ratification. It may also be noted that nine of these conventions were supported by the United States employer delegate at the ILO Conference at which they were adopted. Mr. McGrath has submitted that some of the subjects of these conventions "are covered by State laws rather than Federal laws, and belong, therefore, most As you know the constitudefinitely in the province of local self-government.' tion of the ILO makes special provision for federal states, such as the United States, under which the Federal Government submits to the States for appropriate action those conventions appropriate, in whole or in part, for State This procedure has been praised by many students rather than Federal action. of international law as the best possible solution for dealing internationally with the Federal-State problem. Last February, the house of delegates, the principal policy-making body of the American Bar Association, adopted a resolution on this subject, as follows: "Resolved, That the American Bar Association is of the opinion that the participation of the United States in international measures for the promotion of human rights and fundamental freedoms should be provided for within a framework similar to that of the International Labor Organizations." There has been a great deal of misunderstanding on the part of Mr. McGrath, as well as others, including Senator Bricker, about the proposed Convention on Minimum Standards of Social Security, which the ILO is now considering, and the position of the United States Government with respect to it. The subject of social security is not new to the ILO. It was not suddenly placed on the ILO Conference agenda as a new subject for the purpose of socializing insurance throughout the world. As far back as 1920, the ILO concerned itself with various aspects of social-security questions and over a period of 30 years it has adopted a number of standards in this field in the form of conventions and recommendations. Because of the number of such standards that have been adopted over a period of years, the governing body of the ILO (on which management and labor as well as governments are represented) decided that it would be advisable to review the field as a whole for the purpose of attempting to correlate the various separate standards. The International Labor Conference, in the summer of 1951, began its consideration of this subject. The present (1952) Conference is considering the adoption of standards in the form of a convention. It has been alleged that in the discussion of this subject which took place last year the United States Government voted in favor of the standards being in the form of a convention and that it supported a proposal contained in the draft that voluntary insurance must be subsidized by the Government in order to be considered as conforming with the provisions of the convention. The impression has also been given that "the convention was passed by the Conference." None of these allegations is correct. First, no convention on this subject "was passed by the Conference," for no convention on social security was up for adoption in 1951. Further, as to whether the standard should take the form of a convention or a recommendation, the Government representative to the 1951 Conference did not support the form of convention and took no position on the question of form, awaiting clarification as to the content of the standard. In fact, in the spring of this year, in the Official Observations of the United States Government to the ILO on this subject, we stated our preference for a recommendation rather than the convention form. In an earlier reply to an ILO inquiry on the subject of this convention, the United States said: "The subject matter of the proposed convention is, in the United States, at present regarded as appropriate in part for Federal action and in part for action by the constituent States." The employers participating in the committee of the Conference considering this subject, incidentally, although favoring the form of a recommendation for the over-all standard, at one point in the deliberations of the committee proposed that the subject be broken down into each of the branches concerned (that is, unemployment benefits, old-age benefits, workmen's compensation, invalidity benefits, etc., a total of nine branches being involved), with the standards for each being developed as conventions. In other words, it does not appear that the employers, including the United States employer representatives, opposed the consideration of each of the nine branches individually as conventions. It might be pointed out that, if a convention encompassing all nine branches is adopted this summer, a government which might choose to ratify the convention would not have to adhere to the standards set forth for all of the branches. If the standards do take the form of a convention, a country which wishes to ratify may do so on the basis of a minimum number of the nine branches which it selects. Second, the United States Government representatives voted against the proposal that voluntary insurance must be subsidized by the public authorities in order to qualify for ratification with respect to the branch concerned. The record is clear concerning United States Government opposition to that provision. The following statement was made by the United States Government representative at a plenary sitting of the Conference concerning this matter: "In order to keep the record clear, it should be noted that in the vote in the Committee on Social Security as to whether voluntary insurance must be subsidized by the public authorities, which was carried by a small margin, the representative of the United States Government voted in opposition. "Certainly in voting in favor of placing the item of minimum standards of social security on next year's agenda, the United States Government does not take the position that the instrument is now perfect. There are a number of points on which we believe modification is desirable, but we do believe the material developed is a starting point for further consideration." TREATIES AND EXECUTIVE AGREEMENTS Subsequently, the ILO proposed a revised draft of the convention under which voluntary insurance without any subsidy could be regarded as a measure in fulfillment of the requirements for ratification. It is this later draft which is now being considered. In the testimony of Mr. McGrath, convention No. 98, dealing with application Convention 98 was supof the principles of freedom of association, and recommendation No. 91, concerning collective agreements, are also mentioned. ported by the Government delegates, and opposed by the employer delegate at the 1949 conference. The employers opposed the convention, not because they opposed freedom of association but because the convention did not mention specifically the right of a worker "not to join a union" as well as his right to join one. Mr. McGrath charges, among other things, that this convention, if adopted, would nullify certain provisions of the Taft-Hartley Act. It was the view of the Government delegates, however, and it is still the view of the executive branch, that the convention was entirely compatible with the Labor Management Relations Act of 1947, and that the promotion of freedom of association for free trade-unions in all countries of the world was highly desirable and should be supported by the United States. However, since the subject matter of convention 98 covered subjects appropriate for action by the several States as well as the Federal Government, it was publicly announced that the United States could not contemplate ratifying this convention. It may be pointed out that the United States employer delegation supported an amendment to this convention which, if adopted, would have put the convention into direct conflict with the provisions of the Taft-Hartley Act which permit the negotiation of union-security agreements under certain circumstances. This amendment was not adopted. With respect to recommendation 91 on collective agreements, it seems appropriate to repeat that recomendations are exactly what the name indicates and are not designed to be ratified. Mr. McGrath's testimony is to the effect that this recommendation proposes that governments "could negotiate, conclude, revise, and renew collective agreements" and could arbitrarily "extend the application of all or certain stipulations of a collective agreement to all employers and workers within the industrial and territorial scope of the agreement." In the first place the recommendation proposes that arrangements be made for the negotiation, conclusion, revision, and renewal of collective agreements, either through agreements between the parties or by legislation, whichever is appropriate. While the United States was opposed to the extension of collective agreements by governmental action to employers and workers not parties to the contract, it agreed to accept the inclusion of this provision when it was modified so as to provide for the application of this principle only where "appropriate, having regard to established collective-bargaining practice." A great many countries in Europe and Latin America apply this principle, and it has not been our policy to attempt to exercise a veto at ILO meetings because a As a consequence, this recomproposal happens to be contrary to our views. mendation simply provides that countries finding the principle of extension of collective agreements to be appropriate should apply it in a certain manner and those which do not find it appropriate should not apply it. Mr. McGrath refers, in his testimony, to convention 96 concerning fee-charging employment agencies as being intended by the "socialistic majority" of the ILO as a means of abolishing private employment agencies. Mr. McGrath does not mention that this convention, which, incidentally, the United States employer delegate voted for, provides either for (1) progressive abolition of such agencies or (2) regulation thereof. The United States Government delegation was instrumental in having the convention framed to include the latter alternative. Furthermore the President, in submitting this convention to both Houses of the Congress, recommended that if the Congress deemed compliance with the terms of the convention to be appropriate, consideration should be given to part III, relating to regulation, rather than to part II, relating to progressive abolition. As the above review of Mr. McGrath's testimony and other statements regarding the ILO has attempted to show, our participation in the ILO has none of the implications which would require the imposition of the inhibitions on the treaty-making power provided in Senate Joint Resolution 130. The fears that our participation in the ILO may involve a surrender to an international organization of our legislative, executive or judicial powers or may disturb the powers of our States are simply without substance. Section 4 of the proposed amendment relates to so-called executive agreements. The testimony of the Under Secretary of State has detailed the adverse effects which this section, if adopted, would have on our day-to-day conduct of foreign affairs and how it would deprive the Executive of means for carrying out responsibilities that would still be his although the amendment be adopted. The Department of Labor is vitally interested in the point 4 program for assisting in the development of underdeveloped areas of the world. The Department also plays a role in the administration of the trade-agreements program. The inhibitions on the making of executive agreements provided in section 4, would have a seriously hampering effect on the efficient administration of these programs. The Department of Labor also has participated in the making of a number of executive agreements with the Republic of Mexico regarding the migration of Mexican workers into the United States for temporary employment in agriculture. All of these agreements have had either prior or subsequent legislative approval, the current authority being provided by Public Law 78, Eighty-second Congress, first session. The successful prosecution of the program provided for in the present agreement is essential if we are to be able to plant and harvest the crops which the farmers of the Nation have been requested to produce. Reaching satisfactory agreements in connection with this program with the Government of Mexico is already an extremely difficult matter. The provisions of section 4 would be bound to have the effect of making this task even more difficult. For the reasons above given, I am hopeful that the subcommittee considering Senate Joint Resolution 130 will report on it unfavorably. Very truly yours, MAURICE J. TOBIN, MEMORANDUM SUBMITTED BY PHILIP B. PERLMAN, SOLICITOR GENERAL, OF THE DEPARTMENT OF JUSTICE, ON SENATE JOINT RESOLUTION 130, EIGHTY-SECOND CONGRESS, PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS Senate Joint Resolution 1301 would propose a constitutional amendment restricting the treaty powers of the Federal Government. Section 1 would prohibit any treaty or executive agreement "respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof." Section 2 would prohibit any treaty or executive agreement from vesting in any international organization or 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." Section 3 would provide that no treaty or executive agreement should "alter or abridge the laws of the United States or the constitutions or laws of the several States" except to the extent that Congress shall so provide by act or joint resolution. Section 4 would provide that executive agreements shall not be made in lieu of treaties, would place a time limit on the duration of such agreements and would require publication or submission to appropriate committees of Congress of such agreements. Section 5 would empower Congress to enforce the foregoing provisions by appropriate legislation. In addition, the subcommittee of the Senate Judiciary Committee which is considering Senate Joint Resolution 130 has had submitted to it a resolution of the American Bar Association for a constitutional amendment which would provide: 2 "A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it could enact under its delegated powers in the absence of such treaty.” The subcommittee also has before it a proposal to adopt, as an alternative to section 4 of Senate Joint Resolution 130, the provisions embodied in Senate Joint Resolution 122.3 Those provisions would prescribe that executive agreements be of no force or effect as laws or authorizations until published in full 1 Full text in appendix. 2 Resolution adopted by the house of delegates of the American Bar Association on February 26, 1952. See 38 American Bar Journal 435-436 (May 1952); full text in appendix. 3 Full text in appendix. S. J. Res. 122 is not itself a proposal to amend the Constitution. being cast merely in the form of a joint resolution of both Houses of Congress. However, at the hearings on S. J. Res. 130 on May 21, 1952, Senator Bricker stated a preference for using the provisions of S. J. Res. 122 in place of sec. 4 of S. J. Res. 130. in the Federal Register; that such agreements shall be subject to the legislative power of Congress, and that such agreements shall be deemed to terminate not later than 6 months after the end of the term of the President during whose tenure they are negotiated unless extended by proclamation of the succeeding President. Senate Joint Resolution 122 further provides that agreements or contracts requiring secrecy shall be submitted to the Congress as treaties, or otherwise shall be of no force or effect except as personal undertakings of the President. Hearings have already been held before a subcommittee of the Senate Committee on the Judiciary at which all three of these proposals were discussed. A number of the subcommittee members, and of the witnesses appearing before it, indicated that at this stage the first question was whether some amendment along the line of these proposals was desirable, and that the proponents of any and all of these measures were not necessarily wedded to any particular phraseology. The Department of Justice, as the agency charged with representing the Federal Government in the courts and hence of litigating constitutional issues, has a deep concern with any proposed constitutional amendment, particularly where that amendment would have a substantial effect on the distribution of governmental powers between the Federal Government and the States, and between the respective branches of the Federal Government. The Department believes that the constitutional provisions adopted in 1789 in respect of the treaty power are sound and have worked well, that no need for any of the proposed changes in those provisions has been shown, and that the proposed changes would seriously weaken the ability of the United States effectively to conduct international rela-tionships at a time when that ability is of even greater importance to the Nation than it was at the time the Constitution was adopted. Accordingly, the Department opposes any of the suggested amendments to the treaty power. The issues raised by the proposed amendments are not new. Most of them were considered fully during the drafting and adoption of the Constitution. We believe, therefore, that any amendments raising the same or related issues should be extensively and fully studied, and that the burden is on their proponents to show a clear and real need for change in constitutional provisions that have been in effect and have been repeatedly construed and applied over the past 163 years. We believe we can best aid the committee to give such a full and careful consideration if, before discussing the specific proposals, we set out the history of the adoption of the pertinent constitutional provisions, and some of the circumstances under which they were adopted. I. THE EXISTING CONSTITUTIONAL PROVISIONS A. Constitutional provisions relating to the treaty power The basic grant of the treaty-making power is contained in article II, section 2, which provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Treaties so made may, if necessary or appropriate, be implemented by act of Congress adopted under the authority conferred by article I, section 8, empowering Congress "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." As a corollary, article I, section 10, provides: "No State shall enter into any Treaty, Alliance, or Confederation", and further prohibits any State from entering without the consent of Congress "into any Agreement or Compact with a foreign Power." Article VI provides that "This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article III, section 2, provides that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; B. Reasons for the adoption of the foregoing provisions ** 1. Proceedings of the Federal Convention of 1787.-These provisions of the present Constitution represented important changes over the treaty provisions in the Articles of Confederation. Those articles had conferred upon the Federal 22984-52-26 |