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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 of the principles of freedom of association, and recommendation No. 91, concerning collective agreements, are also mentioned. Convention 98 was supported 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 proposal happens to be contrary to our views. As a consequence, this recommendation 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,

Secretary of Labor.

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MEMORANDUM SUBMITTED BY PHILIP B. PERLMAN, SOLICITOR GENERAL, OF THE

DEPARTMENT OF JUSTICE, ON SENATE JOINT RESOLUTION 130, EIGIITY-SECOND CONGRESS, PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS

Senate Joint Resolution 130' 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 l'nited 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 :

“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. 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 aprindir.

: 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 Jay 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.

а

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 prorisions

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

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Government the exclusive power to make treaties. Article IX of the articles provided that the United States, in Congress assembled, should have “the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article-of sending and receiving ambassa. dors—entering into treaties and alliances,” with the qualification that no such treaty should restrain the legislative power of the respective States to impose certain imposts and duties or to prohibit certain exp ition or importations." Any treaty required the assent of nine States. Articles VI provided that no State without the consent of the United States in Congress assembled, could "enter into any conference, agreement, alliance, or treaty." The articles, however, contained no provision for Federal legislation to implement a treaty, no supremacy clause, and did not provide for a Federal judiciary with power to construe and enforce treaties.

Dissatisfaction with the practical workings of these provisions was one of the principal reasons which led to the new Constitution. Thus, Governor Randolph, in presenting the Virginia plan at the Constitutional Convention of 1787, enumerated the defects in the existing articles which had led to the proposal for revision. An abstract of the speech, in Governor Randolph's hand, is set out in Madison's notes of the Convention. It states :

"He then proceeded to enumerate the defects : 1. that the confederation produced no security aga[nst] foreign invasion; congress not being permitted to prevent a war nor to support it by th[eir) own authority-Of this he cited many examples; most of whi[ch] tended to shew, that they could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money" (1 Farrand, Records of the Federal Convention, 19). [Emphasis added.] °

Thus, it was deficiencies in the powers to conduct foreign relations, including specifically the inability to enforce treaties within the States, that were regarded by Randolph as the first of the defects in the Articles of Confederation which needed to be remedied. In subsequent discussions, there were repeated references to the fact that treaties had been violated by the States. (See, e. g., statements of Mr. Pinckney and Mr. Madison on June 8, 1787, 1 Farrand, Records of the Federal Convention, 164.) Thus, on June 19, 1787, Mr. Madison, in commenting on the New Jersey plan, stated the considerations which he felt should be the test of any proposal, and as the first requisite stated :

“1. Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations, A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole.

The existing confederacy does (not) sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrolled as ever" (1 Farrand, Records of the Federal Convention, 316).

Accordingly, each of the principal plans proposed to the Convention contemplated broad and effective treaty provisions. The Virginia plan proposed that the national legislature and the national executive should enjoy, respectively, the legislative and exclusive rights vested in Congress by the Articles of Confederation, which, as we have seen, included the exclusive power to make treaties, and that in addition the national legislature should be empowered “to legislate in all cases in which the several States are incompetent, or in which the har

provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever.'

6 McHenry's notes on Randolph's speech are even more explicit. He states :

“1st. It does not provide against foreign invasion. If a State acts against a foreign power contrary to the laws of nations or violates a treaty. it cannot punish that State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offending power. It therefore cannot prevent a war.

None of the judges in the several States (was) under the obligation of an oath to support the confederation, in which view this writing will be made to yield to State constitutions” (1 Farrand, Records of the Federal Convention, 24-25).

mony of the United States may be interrupted by the exercise of individual legislation," and to negative any State law contravening the Articles of Union. The Federal judiciary was to be empowered to decide any “questions which may involve the national peace and harmony.(1 Farrand, Records of the Federal Convention, 21-22). The New Jersey plan would have given the Federal Government all the authority then vested in the Congress under the Articles of Confederation as well as authority over trade and commerce; it would have given the federal judiciary jurisdiction over the "construction of any treaty or treaties," and would have provided that all acts of Congress "and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens” (1 Farrand, Records of the Federal Convention, 243–245). The plan submitted by Alexander Hamilton would have given the Executive power, with the advice and approbation of the Senate, to make treaties, and would have contained a supremacy clause (1 Farrand, Records of the Federal Convention, 292–293). The Pinckney plan would apparently have added to the treaty provisions of the Articles of Confederation a provision giving a Federal Supreme Court power to review State court decisions involving treaties (3 Farrand, Records of the Federal Convention, 608).

Thus, it was generally assumed that the Federal Government should have the full and exclusive treaty power. This assumption was made before any agree ment had been reached as to what other powers the Federal Government should possess. At no time during the Convention was there any suggestion that the treaty power should be limited as to scope or subject matter. The intention was plainly to give to the Federal Government in respect of foreign affairs the full power of sovereignty.

The first aspect of the treaty provisions to come up for discussion was that which became ultimately embodied in the supremacy clause. The Virginia resolutions had proposed that the legislature have power to negative State laws contravening the Articles of Union. This proposal, with an amendment by Dr. Franklin to add the words "or any Treaties subsisting under the authority of the union" was initially agreed to without debate or dissent (1 Farrand, Records of the Federal Convention, 47, 54, 61.)? Subsequently, the proposed power to negative State legislation was rejected. Those opposed to the provision argued that it would be offensive to the States and that a State law that could be negatived would be set aside by the judiciary or, if necessary, could be repealed by a national law. Accordingly, in place of this provision there was proposed a supremacy clause providing that all legislative acts of the United States and all treaties made and ratified under the authority of the United States should be the supreme law of the respective States insofar as they related to such States or their citizens and inhabitants and should be binding on the State judiciary. This proposal was unanimously adopted (2 Farrand, Records of the Federal Convention, 21-22, 27–29). Subsequently the supremacy clause was extended to “treaties made or which shall be made" under the authority of the United States, so as to "obviate all doubt concerning the force of treaties preexisting" (2 Farrand, Records of the Federal Convention, 417).'

Perhaps the most troublesome issue before the Convention had been the representation of the States in the national legislature. This issue was finally resolved by the Great Compromise, pursuant to which two Houses of Congress were established, the States to be represented equally in the Senate and to be represented in proportion to their population in the House. Almost equally troublesome was the nature, term, and manner of selection of the Chief Execu

& Although the definition of the jurisdiction of the Federal courts took various forms at different stages of the Convention (1 Farrand, Records of the Federal Convention, 232, 2 id., 46, 186), the inclusion in it of an express reference to treaties occasioned no dissent (2 Farrand, Records of the Federal Convention, 431).

7 Pinckney and Madison thereafter proposed to enlarge this provision to authorize the negativing of any laws which the National Legislature would judge to be improper, Madison urging that the States had shown a constant tendency to encroach on the Federal authority and to violate national treaties. This proposed enlargement of the power to negative laws was defeated (1 Farrand. Records of the Federal Convention, 162-173).

8 The proposed power to negative State laws was revived again and extensively debated. It was objected to as unnecessary in view of the supremacy clause, and as offensive to the States, and was strenuously urged as necessary. A motion to refer the question to a committee failed, 6 to 5 (2 Farrand, Records of the Federal Convention, 390-391).

One other matter relating to treaties deserves mention. As drafted by the Committee of Detail, the Constitution would have empowered Congress to call out the militia “to execute the laws of the Union, enforce treaties." The reference to treaties was deleted as "superfluous since treaties were to be 'laws'" (2 Farrand, Records of the Federal Convention, 389-390).

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