TREATIES AND EXECUTIVE AGREEMENTS AMERICAN ASSOCIATION OF UNIVERSITY WOMEN, Hon. PAT MCCARRAN, Chairman, Senate Judiciary Committee, Washington, D. C. MY DEAR SENATOR MCCARRAN: Enclosed please find a copy of the statement issued by the American Association of University Women opposing the adoption of Senate Joint Resolution 130, which proposes an amendment to the Constitution of the United States relative to the making of treaties and executive agreements. The association has been authorized by its international-relations committee to issue this statement opposing Senate Joint Resolution 130 in its belief that adoption of this resolution would destroy our constitutional system for the negotiation of treaties. We desire, therefore, to make known to your committee and urge its serious consideration of the position taken by the American Association of University Women in opposition to Senate Joint Resolution 130 with this statement to you. Yours very truly, (Signed) Anne G. Pannell, STATEMENT PRESENTED BY THE AMERICAN ASSOCIATION OF UNIVERSITY WOMEN OPPOSING SENATE JOINT RESOLUTION 130 In behalf of the American Association of University Women, I am writing as chairman of the association's international-relations committee to oppose the adoption of Senate Joint Resolution 130, which proposes an amendment to the Constitution of the United States relative to the making of treaties and executive agreements. The American Association of University Women, founded in 1882, has a membership of approximately 120,000 women college graduates organized in every State of the United States through 1,206 local branches. The national biennial convention of the American Association of University Women in April 1951 voted to support "A constructive foreign policy which would endeavor to develop conditions favorable to democracy and economic well-being throughout the world as prerequisites for national and international peace and security." We believe that the United States could not continue to develop a constructive foreign policy under the changes proposed by Senate Joint Resolution 130. The international-relations committee of the American Association of University Women has considered the amendment to the Constitution of the United States proposed by Senate Joint Resolution 130. The committee reaffirms its faith in the wisdom and effectiveness of the separation of powers, and of the distribution of powers between the States and the National Government laid down in the Constitution of the United States. The committee opposes Senate Joint Resolution 130 on the ground that this proposed constitutional amendment (1) would nullify the separation of powers established by the Constitution; (2) would divest the Executive of authority to negotiate treaties (which, it should be noted, do not become effective until concurred in by two-thirds of the Senate); and (3) such an amendment is superfluous in the light of existing congressional powers over foreign policy through the power of concurrence in the ratification of treaties, the enactment of appropriations, and the consideration of legislation necessary to implement treaties. The proposed amendment is structurally defective in that it confuses and commingles treaties and executive agreements. Treaties, when ratified-and only when ratified by the Senate become under the Constitution (art. VI) the "supreme law of the land." Executive agreements have no such standing, and generally relate to relatively minor administrative matters. If they relate to more important matters, the Congress controls their execution through implementing legislation and appropriations. The provision in the Constitution recognizing treaties when ratified as the "supreme law of the land" is one of the historic steps taken by the Constitutional Convention which made the United States a great and stable Nation faithful to its obligations. There is no necessity for destroying the constitutional system for the negotiation of treaties. Dr. ANNE G. PANNELL, Chairman, International Relations Committee. Hon. PATRICK A. MCCARRAN. YALE UNIVERSITY LAW SCHOOL, Chairman, Senate Judiciary Committee, Washington, D. C. DEAR SENATOR MCCARRAN: I should be grateful if you could list me, in the hearings of your subcommittee, among those who have expressed opposition to the Bricker resolution to limit our national foreign affairs power. Enclosed is an outlined statement of a talk I gave recently to the International Law Association in New York City. This statement puts the whole problem in, I believe, a somewhat broader context than is customary. I would appreciate your including this statement, if possible, in the printed hearings of your subcommittee. Sincerely yours, MYRES S. MCDOUGAL, William K. Townsend Professor of Law. THE CONTEMPORARY PROPOSALS TO LIMIT THE FOREIGN AFFAIRS POWER OF THE UNITED STATES (Outline of talk by Myres S. McDougal, William K. Townsend professor of law, Yale Law School, to International Law Association, New York City, May 9, 1952) The proposals embodied in the Bricker resolution and the Peace Through Law Committee reports constitute a grave threat to the security and other vital interests of the United States. For realistic appraisal of these proposals we need to consider I. The kind of foreign affairs power the United States needs in the contemporary world. II. The kind of foreign affairs power we now have in the United States. III. The conditions that produced the present structure of control over foreign affairs and the significance of such conditions for our contemporary national interests. IV. The current criticisms of our foreign affairs powers and the assumptions upon which these criticisms are based. V. The validity of the current criticisms when assessed against our contemporary need. Let us proceed to these inquiries seriatim. I. The kind of foreign affairs power we need The clarification of this basic preliminary to rational appraisal requires consideration of the world context in which we live, the problems we face in that world, and appropriate criteria for a foreign affairs power to cope with such problems. (a) The world we live in.-Today we are engaged in a struggle for survival against a foe dedicated to a philosophy of world domination. We live in a world of accelerating bipolarization, of imminent expectations of violence, and of increasing militarization, governmentalization, regimentation, and despotization. In this world we are interdependent with all other peoples aspiring to be free for the most elemental security, and a fortiori for all the other values we cherish. The most intensive cooperation of all free peoples will be required to preserve security and other democratic values. Decisions are now being made, and must continue to be made, by officials in many nation-states whose effects transcend any single nation-state and in fact comprehend the whole free world. Policies are daily being formulated beyond our boundaries which vitally affect our every value. No nation in the world today has freedom of decision in fact. The one realistic question is how effectively we can participate in, and assume leadership in-not how successfully we can hide ourselves from-the decisions which shape our future. (b) The problems we face. The problems in international cooperation that confront us in this world context embrace our every value: security, in the simplest sense of defense; the maintenance of standards of living, the production and exchange of goods and services; the promotion of enlightenment, the preservation of the flow of information by which rational decisions can be made; the promotion of civil liberties and human rights, the preservation of the loyaltycompelling vision of what a free society can be like in contrast to the totalitarian; the improvement of health and well-being; and so on with respect to every value which is a part of our democratic faith and upon which security ultimately depends. (c) Criteria for an effective foreign affairs power.-The kind of foreign affairs power we need to cope with such problems under contemporary world conditions may be determined by elaborating in detail such criteria as the following: democracy, efficiency (quickness, flexibility, rationality in respect to values), representativeness of national interest, responsibility to other nation-states, and maintenance of civilian supremacy. II. The kind of foreign affairs power we have Save for the veto of a minority-third of the Senate over treaties, we have today a foreign affairs power which meets the criteria specified above. It is sufficiently comprehensive and flexible to secure national interests and to permit our assumption of leadership in the free world, but sufficiently limited to protect individual rights and discourage aggrandizement of official power. Detailed documentation appears in McDougal and Leighton, The Rights of Man in the World Community: Constitutional Illusions versus Rational Action (59 Yale L. J. 60, 90-106). An outline follows: (a) The treaty power.-By 165 years of constitutional development it has been determined that the treaty-making power extends to every matter of "genuine international concern." Yet the Supreme Court has many times asserted its willingness, if occasion ever requires, to review a treaty for its relation to international concern and for its compatibility with the express prohibitions of the Constitution. The treaty-making power was intentionally left undefined in the Constitution, because, as Madison explained, no definition could anticipate all future national exigencies and it would be unwise to impose unnecessary restraint. Upon this, it is certainly appropriate for us to recall the wisdom of the forefathers. Contrast the attitude of contemporary spokesmen who profess to be afraid to leave decision to their successors. From the beginning of our history, it has been established that agreements within the scope of the treaty power override all contrary State laws and policies. Within this domain, there are no rights reserved to the States. This was the decision of the Supreme Court on our very first treaty, the treaty of peace with Great Britain, and it has never been departed from. Similarly, by article VI (2), the exercise of the treaty-making power is made a "legislative act," establishing internal law for all decision-makers and private individuals. The collaboration of the President and two-thirds of the Senate are given effects equivalent to those obtainable by the whole Congress and a unified national policy is assured. History suggests that approval of twothirds of the Senate is a legislative act no more easily secured than a majority vote of both Houses. Whether an international agreement in fact becomes immediately internal law in the United States, binding upon all officials and individuals, depends upon the terms of the agreement-upon what the United States has promised. if the United States promises that the agreement shall bind immediately, then by article VI (2) it so binds. If, however, what the United States promises is that some further action will be taken by the Congress or other official body before internal obligation, there is nothing for article VI (2) to make immediately binding. Nothing in the much mooted decision in the Seii Fujii case interferes in the slightest with the power of the United States to protect itself against premature obligation by the express terms of its agreement. The phrases "self-executing" and "non-self-executing" are no more than lawyers' gobbledygook for ascertaining the intent of the parties when that intent is left obscure. (b) The powers of the whole Congress.—The whole Congress has wide powers, granted by the express terms of the Constitution and exercised in hundreds of instances since the beginning of our history, to frame policies to guide the President in his conduct of negotiations and to validate agreements negotiated by him as the law of the land. Contemporary constructions of the war and commerce and other powers offer indispensable protection of the national interest against possible minority veto in times of crisis. Documentation is offered in McDougal and Lans, Treaties and Congressional-Executive Agreements: Interchangeable Instruments of National Policy (54 Yale L. J. 181, 534 (1945)). (c) The powers of the President.-As "the Executive" and as "the Commander in Chief of the Army and Navy," the President has very broad powers to make international agreements. These powers, like the treaty power, are wisely undefined in the Constitution and, also like the treaty power, may be expanded, without danger of tyranny, to meet any exigencies that the Nation may confront. (d) Limitations on the foreign affairs powers.-The broad scope of the powers outlined above need cause no fear of official oppression or unnecessary invasion of private rights. They are subjected to certain severe limitations and are compensated by a balancing of powers in the Government that will protect our liberties so long as we desire to protect them. 1. The Bill of Rights: It is agreed by all authorities that international agreements are subject to judicial review not only for the genuineness of their international concern but also for their compliance with the Bill of Rights and other direct prohibitions of the Constitution. The much maligned decision in Missouri v. Holland offers nothing to the contrary. In fact Mr. Justice Holmes in his opinion expressly reserves such power. That case decided only that the flight of migratory birds was within the scope of the treaty power, even if one assumed a narrow interpretation, now rejected by the Supreme Court, of the commerce power of the Congress. The words of the Constitution and the consistent doctrine and practice of the Supreme Court afford that court full opportunity to exercise judicial review over international agreements so long as it chooses to do so. 2. The foreign affairs power, in all its manifestations, is also balanced by the powers of the whole Congress. The whole Congress can at any time by simple majority vote to enact a statute repealing the internal effects of any international agreement. This is a power which has been exercised many times and sustained by the Supreme Court. An international agreement of consequence for present purposes must, furthermore, eventually require for its implementation the appropriation of funds from the whole Congress. By withholding funds, the Congress can make the agreement impotent as a tool of oppression. So much misconception is abroad, it may perhaps be emphasized that the United States is more securely protected against international agreements than any other major nation, other than Canada. It is the only major nation which requires a two-thirds vote of a legislative body for approval of treaties. It has further much greater protection in judicial review and the Bill of Rights than most nations have. Contrast, for example, the situation in Great Britain where there is no explicit judicial review, where the executive can make any agreement a binding international agreement, and where a simple majority vote of the legislature, which must stand for reelection if it does not support the executive, can make any agreement the law of the land. In his masterful address in the 1951 Proceedings of the American Society of International Law, Professor Lawrence Preuss has reviewed the agreement making procedures of the major nations and has demonstrated that, apart from its unique protections, the United States has very much the same procedures for the making and implementation of international agreements as the other nations. The continued charge by critics of the treaty-making power that the United States is peculiarly vulnerable is simply not in accord with the facts. III. The conditions that produced the present structure of our foreign affairs power It was found under the Articles of Confederation that the Central Government would not even make and enforce peace so long as the individual States had a voice in foreign affairs. The principal purpose for calling the Constitutional Convention was to make this Nation "one" so far as other nation-states were concerned. If this was necessary for a rural community of a few million people, scattered along the Atlantic seaboard in the world of that time, consider how much more imperative it is for our contemporary Nation in the contemporary world. It may be worth while to explore in more detail the assertion that there are sectional interests in the country that deserve special protection from the formulation of foreign policy for the whole Nation by majority will. Is it in fact true that there are in this country sectional interests in international affairs that in the long run differ from the interests of the whole Nation? Any one section of the country is as much interested as any other in the preservation of our national independence from external encroachment or internal erosion. Mr. Ians and I wrote in summary: * when our security system breaks down, every section of the country is put to work, and men are drafted from every section of the country, to repair the breach. Any one section of the country is as much interested as any other in the maintenance of full production, employment, and consumption and in preventing world-wide economic depression, with its consequent impoverishment of our national standard of living. Even where some one section of the country is more interested than any other section in the price of a particular commodity, the price of that commodity is dependent upon all the factors which make up demand, and these factors in turn are ultimately dependent, if the commodity is of any importance, upon the whole economy of the Nation. What can thus be shown of the interdependence of all our sections with respect to security and economic prosperity in the formulation and effects of foreign policy could equally well be shown with respect to all our other major interests. For the long-run achievements of its total values in our international affairs, any one section of our country is wholly dependent upon a similar achievement by every other section." 66 * Even if it be assumed that there are sectional interests deserving protection, the problem remains of identifying such interests. Mr. Ians and I summarize: The first difficult question is whether all sectional interests or just some sectional interests are to be given this special protection. If all sectional interests, however shortrun or however dangerous to the rest of the country, are to be protected, the result is complete disintegration of national policy. As Gouverneur Morris long ago warned the Constitutional Convention, there 'can be no end of demands for security if every particular interest is to be entitled to it.' If only some sectional interests are to be protected, the problem is to achieve a criterion of selection. The only defensible criterion, other than sheer power, is the public interest, which again comes back to the national interest. If the alternative of sheer power is adopted, what begins as mere protection of sectional interests is transmuted into determination of national policy without appropriate regard for the national interest. It is obvious that a negative decision on behalf of a single section may have the effect of precluding a positive policy on behalf of the whole Nation; in most instances, we either join a particular international organization or enter into a particular agreement or we do not. Those proponents of a minority veto for sectional interests who have a real regard for the national interests are therefore confronted with an irremovable dilemma." It is not to be supposed, as the critics of the treaty-making power assert, that the framers of the Constitution did not recognize this dilemma and make their decision. One of my students has made an investigation of the history of their deliberations, which is most relevant. [Statement by Richard I. M. Kelton attached as an appendix.] IV. The current criticisms of the foreign affairs power The language of the Bricker resolution and of the recommendation of the Peace Through Law Committee is obscure, complicated, and contradictory but certain objectives seem to underly both proposals. These may be itemized as (1) The provision for individual citizens and our internal States of some new special protection from the agreement-making power; (2) The putting of certain agreements wholly beyond the power of the Federal Government; and (3) The provision, by curtailing the powers of the President, that certain agreements can be made only in certain ways. These objectives have been subjected to the most careful review and detailed criticism by a recent report of the committees on Federal legislation and international law of the Association of the Bar of the City of New York. (Report released in May 1952.) From this review, we may conclude that the specific measures proposed for limiting the foreign affairs power are both unnecessary and dangerous. VI. The validity of the current criticisms The current criticisms of our foreign-affairs power are, accordingly, based upon completely unrealistic assumptions about the world we live in and the present structure of our constitutional doctrine and practice. The amendments proposed are not only unnecessary but also threaten to make the United States a constitutional cripple among the other nation-states at the very moment when world leadership is required for national survival. The one amendment to our foreign-affairs power that would be rational under contemporary conditions would be the removal of the minority-third veto |