sufficient refutation of the argument that the Senate can be counted on to protect the American people against bad treaties becoming the supreme law of the land. The factual illustrations cited in the report under the caption "The Need for a Constitutional Amendment," are themselves adequate evidence of why so many Senators want constitutional protection in this area.

In fact it is believed that the Senate, as well as the State Department, will be greatly aided in the avoidance of inadvertences or doubtful provisions, and in obviating the necessity of trying to solve in advance difficult questions as to the self-executing character of treaty clauses, by the proposed provision making all treaties non-self-executing as internal law until the whole Congress acts by separate legislation.

V. CONCLUSION

The attack of both the Secretary of State and the Attorney General is leveled primarily on the text of Senate Joint Resolution 1. They are really unable to make an effective quarrel with the first section of the American Bar Association text. Although they appear to think that it states the law as set forth in Geofroy v. Riggs, The Cherokee Tobacco and other cases, they somehow or other conjure up a fear that it would be dangerous to embrace this satisfying concept in a constitutional amendment.

As respects section 2 of the American Bar Association text, they quarrel somewhat with a concept which would make all treaties non-self-executing. That argument is not convincing for the reasons previously given.

Their principal quarrel with the American Bar Association text is the socalled "which clause" in section 2, which would limit Congress in making domestic law under treaties, to those otherwise delegated constitutional powers. They say that in this particular the American Bar Association text mold is so strict that it would seriously cripple the Government.

We comment again on the point which we have now made for several years, but which the Government representatives do not appear to want to understand, that there is nothing in the American Bar Association's proposal which affects any treaty negotiated in any field whatsoever as a binding, international obligation under international law; and that our "which clause' 'affects only the domestic law status of the treaty.

The Attorney General goes so far as to say in his statement, page 36, that far from trying to preserve the constitutional balance between State and Federal power as we contend, that we are in fact advocating a violent change in the balance between State and Federal power, because under Missouri v. Holland it was intended that the Federal Government should have the power to "reach many matters which would otherwise be solely of State concern," and that, therefore, we are advocating the unbalancing of State and Federal power as construed in Missouri v. Holland under which the Federal Government can reach at will into domestic State matters and destroy State constitutions and laws.

We still say, as confirmed by the view of Jefferson and others, that it was never thought, at least after the 10 amendments were adopted in 1791, that the treaty power could touch the reserved powers of the States, but Missouri v. Holland is now contrary to Jefferson's view; and we believe that those who contend (and it is so earnestly contended by both the Secretary of State and the Attorney General), that Missouri v. Holland is a good rule which ought to be preserved rather than abolished, must squarely face the fact that under Missouri v. Holland the Federal Government can be, and under articles 55 and 56 of the United Nations Charter, probably is, a government of unlimited powers which can push all State laws and constitutions out of the way; and that in the language of Jefferson, "then we have no Constitution."

We sincerely appreciate the compliments of both the Secretary of State and Attorney General that the proponents of these constitutional amendments have so enlightened public opinion as to bring about a change in the foreign policy of the United States with respect to a multitude of treaties that are now in the works in the United Nations and some of its affiliated agencies. But one such salutary change in foreign policy may at some later time be followed by another change in foreign policy in the treaty field not so salutary. It is only when we have a government that sincerely intends to stay within its constitutional limitations that such an amendment as we propose can be obtained for the protection of future generations.

We sincerely ask that notwithstanding the presentation of the Secretary of State and of the Attorney General, as well as other representatives of Government departments, this committee recommend the adoption of an appropriate

constitutional amendment in this field so that the long program incident to obtaining ratification of a constitutional amendment by legislatures of threefourths of the States may promptly go forward.

As for the familiar argument repeated in the statements of both Cabinet officers that the proposed amendment is both unnecessary and dangerous, you are, of course, aware that exactly the same argument was made in the 84th article of the Federalist, as follows:

"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.”

Need more be said?

Mr. SCHWEPPE. I address myself immediately to the question of executive agreements. On page 4 I called attention to the fact that the Secretary of State immediately starts out with an erroneous conception of the law concerning executive agreements. The Constitution makes treaties the supreme law of the land. The Supreme Court has made executive agreements the supreme law of the land in the Belmont case and Pink case. The statement made by Secretary Dulles:

The danger to the Nation, however, from agreements not submitted to the Senate as treaties or to the Congress for legislative validation cannot be great because without either Senate or congressional action, these agreements cannot constitutionally be the law of the land--

is exactly 100 percent wrong.

The Supreme Court has said so, and I have cited you the cases and have quoted the one sentence. The Supreme Court says that treaties are supreme and international compacts and agreements of certain classes, although not consented to by the Senate, are also the supreme law of the land superseding the law of the State of New York.

Senator WATKINS. What you mean in effect is that the 10,000 agreements Mr. Dulles mentioned the other day are now 10,000 laws of the land?

Senator BRICKER. In the Pink case there was no congressional authority either.

Mr. SCHWEPPE. No congressional. In the Belmont case the court first held that President Roosevelt could make that deal with Mr. Litvinov without congressional consent.

In the Pink case they said, following the dictum in the Belmont case, that treaties, international compacts, and agreements are the supreme law of the land. So we start with that fundamental error in the legal argument of the Secretary of State.

Now I turn to page 5 at the bottom of which I have stated in substance that I belong to the school of constitutional thought to which Senator McCarran and some of the rest of you belong that believes that Congress now has the power to regulate executive agreements under the necessary and proper laws of the first article of the Constitution.

Mr. SMITHEY. Mr. Schweppe, do you go so far as to say under the necessary and proper clause that certain types of executive agreements could be absolutely prohibited by the Congress?

Mr. SCHWEPPE. Yes. I say in this statement-and I will implement it with an additional argument I think that will greatly appeal to you-I say not only has Congress the power to regulate executive agreements, particularly does it have the power to regulate the abuse of executive agreements under the necessary and proper clause. Senator BRICKER. But they have never done it.

80572-53-79

Mr. SCHWEPPE. Never done it. Senator McCarran is the first person who suggested it. Last year when we had the hearing in May, I called attention to the Quirin case. The Steel case came down 10 days later. This is a great decision, gentlemen, by a unanimous court which in my judgment has never received the attention which it deserves either from writers, scholars, or from Members of Congress. This is indeed an unusual case for the reason that in this case a statute had been passed which was in the Commander in Chief area about which everybody seems so scared. This is 317 United States Reparts, page 1. It is the case that is cited here in the memorandum. It is the case of Ex Parte Quirin (317 U. S. 1).

Now, the question in that case, being a criminal case, was whether certain people were properly convicted by a military tribunal appointed under an Executive order of the President of the United States. They raised the question that the conviction was not in conformity with the Constitution of the United States.

Mr. Justice Stone writes this paragraph, one of the finest outlines of the war powers of the Congress and the position of the President of the United States in that field that I have ever seen. He comes out with a magnificent conclusion. I say that case is so important because the act of Congress was within the Commander in Chief area. This is what he says, page 25:

Congress and the President, like the courts, possess no power not derived from the Constitution. But one of the objects of the Constitution declared by its preamble, is to "provide for the common defense." As a means to that end, the Constitution gives to Congress the power "to provide for the common defense," "to raise and support armies," "to provide and maintain a navy,” “to make rules for the government and regulation of the land and naval forces." Congress is given authority "to declare war, grant letters of marque and reprisal, and make rules concerning capture on land and water," "to define and punish piracies and felonies committed on the high seas and the offenses against the law of nations," and finally the Constitution authorizes 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."

That is the bundle of war powers that Congress has, and then the general power to pass all laws necessary. The next paragraph:

The Constitution confers on the President the "executive power and imposes on him the duty to take care that the laws be faithfully executed." It makes him the Commander in Chief of the Army and Navy and empowers him to appoint and commission officers of the United Sates.

The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by the Congress for the conduct of the war, and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of the

war.

The President is merely an executive officer to carry out those laws which Congress passes under its whole bundle of war powers. There are a great many war powers. We often speak for convenience of the war power of Congress. There are a great many powers in the war field and the President is to carry them out. Note:

The Constitution invests the President as Commander in Chief with the power to wage war which Congress has declared and to carry into effect all laws passed by Congress for the conduct of the war, and for the government and regulation of the Armed Forces.

I like that; it is one of the best expositions of the war powers and the duty of the President to carry out the laws which Congress makes with reference to the conduct of war.

Then on page 29 comes this very significant quotation——

Senator SMITH. Mr. Schweppe, I would suggest that from now on you indicate when you are interpolating and when you are quoting. It will be hard for the record to distinguish.

Mr. SCHWEPPE. I will quote now from the top of page 29:

It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions.

Congress having passed the law, that ends it, because Congress has the power to pass all laws necessary and proper to carry all the powers into effect, including those vested in any department or officer thereof, including the President of the United States. So the moment the court finds the law that authorizes the President's action they said that ends it; it is not necessary for us to inquire what his powers would be in the absence of congressional action; there being a law, that ends the discussion under the necessary and proper clause.

Senator BRICKER. There would be no effect upon either one of those powers by this amendment in any way, shape, or form.

Mr. SCHWEPPE. Not at all. I contended a year ago in May that the Quirin case supported the proposition that Congress now has the power to regulate executive agreements. It has the power under the necessary and proper clause, to which in days past I have given a good deal of study. Under the necessary and proper clause, the Congress of the United States has the power to pass all laws reasonably necessary and proper to carry a power into effect.

Senator SMITH. May we not be asked, then, why we should have this amendment, if Congress already has the power to do that?

Mr. SCHWEPPE. All right. I will answer that now. And this has been our approach to it all the way through.

Senator SMITH. I am thinking about the Senators who are going to read this record, who have not heard all this discussion. Right there they would raise that question.

Mr. SCHWEPPE. I will answer it in this way: In my opinion, the Quirin case and this next case I will come to nails it down even harder. In my judgment, the Congress has the power to pass laws that will prevent the abuse of executive agreements, by which I mean the Congress can define the areas of executive agreements and limit them within those things the State Department says are the day-to-day operations of the State Department. I think that power exists now. As you will note in our several reports and in the typewritten memorandum I put in the record this morning, we have advocated putting executive agreements into the proposed constitutional amendment, and Senator Bricker has done it for the same reason-that if we are going to amend the Constitution with respect to treaties, then we might just as well make an express regulation of all international agreements whatsoever, including those that are in the area of executive agreements, and set everything out in express terms. In other words, if we are going to do it, let us do a complete job and have a constitutional statement about the whole gamut of international

agreements of every kind, those requiring the consent of Congress and those not requiring it.

And then the further advantage of doing that is that if there is any doubt at all about my argument and I don't entertain any, but if there is any doubt at all-and others may entertain a doubt about it-then certainly the express statement that Congress shall have the power to regulate executive agreements will remove the whole thing from the area of doubt.

Senator WATKINS. The same reason they adopted the 10 amendments.

Mr. SCHWEPPE. That is right. If you will read the Hamilton, Washington, and Jefferson argument, they said they wanted to be sure. Others said, that is all taken care, but they said, "We want to be sure it is taken care of." So they wrote the 10 amendments.

Senator BRICKER. In the light of the Pink case, it raises a very serious doubt in my mind.

Senator SMITH. That is where we may run into a little more difficulty, in connection with those who have not read all this discussion. Because they are as anxious as we are not to interfere with the proper authority of the executive. That is the reason I raise this question. I am afraid it is a little complicated right now in the minds of some people.

Mr. SCHWEPPE. Let me go on.

I want to fortify the Quirin case with the great decision in the Steel

case.

Senator SMITH. The Quirin case was the criminal case.

Mr. SCHWEPPE. That was the criminal case in 307 United States Reports 1, decided by a unanimous Court, saying when Congress passes a law, even within the area of the Commander in Chief, that is the basis for the action, under the "necessary and proper" clause.

Senator WATKINS. Will you give us the citation?

Mr. SCHWEPPE. The Steel case is 343 United States Reports, at page 579. The majority opinion was written by Mr. Justice Black, and it is an excellent opinion. I want to call your attention to his approach to the problem.

He says, at the top of page 588:

The first article of the Constitution says that all legislative powers herein granted shall be vested in a Congress of the United States. After granting many powers to the Congress, article 1 goes on to provide that Congress may "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 officer or department thereof."

Then he goes on to point out, of course, that the President is an officer, within the meaning of the "necessary and proper" clause. There seems to persist in the city of Washington and in some of the writings of the State Department that somehow or other there is an untouchable area in the Government of the United States that Congress cannot reach by reasonable regulation. I deny that categorically. Senator BRICKER. There is a question, though, when it comes to the separation of powers, of how you will get a forum to litigate that problem.

Mr. SCHWEPPE. Well, I think the cases under the "necessary and proper" clause, which I began studying some 30 years ago, are far more potent than most lawyers believe and understand, because they