seizure, or to any other action. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine remedy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided. [Emphasis added.]

This explanation makes it clear that what was avoided was a provision for seizure as a routine, expectable device." Unwilling to hold out hopes of reward to recalcitrant parties who might anticipate benefits from seizure, Congress left for specific consideration in specific cases the course to be followed when delay and conciliation proved insufficient to settle a dispute. And Congress, which knows the delays and difficulties of legislation, certainly did not intend that a prolonged crisis should continue without remedy while a legislative solution was being hammered out.

56

In any event, what is important at this point is the obvious proposition that the failure of the LMRA to grant specific authority for seizure cannot be read as a prohibition against seizure. Cf. Helvering v. Clifford, 309 U. S. 331, 337. We have shown above (pp. 112-120) that Congress has repeatedly recognized the President's power of seizure in an emergency, with or without specific statutory authority. Nothing in the language or history of the LMRA purports to restrict Presidential power stemming from sources outside that Act. We do not argue that the LMRA is itself authority for the President's action; for this authority we have invoked the Constitution and a large body of other laws as they apply to the urgent circumstances of this case. Supra, Point II. Here we urge simply that, if the authority upon which we rely is otherwise ample, as we think it clearly is, it is in no way diminished by the failure of the Labor Management Relations Act to supply additional authority.

CONCLUSION

One of the great problems of the age is whether the democracies can find sufficient vigor and energy to respond promptly and decisively to the crises of our time. The century and a half since the drafting of the Constitution has witnessed an extraordinary growth in the magnitude, complexity, and interrelationship of the nation's problems. There has been an enormous increase in the tempo at which events occur, and decisions must be made. And above all there is the necessity with which the democracies are faced, if they are to maintain their very existence, to meet and overcome the challenge of dictatorship whether on the field of battle or in the market places of the world, where goods and ideas are traded.

We believe that these problems like other problems which have arisen in the past, can be met within the framework of our Constitution. But they can be met only by regarding the Constitution as a "continuously operative charter of government" (Yakus v. United States, 321 U. S. 414, 424), which is capable now as in the past of adapting itself to the needs of new circumstances without sacrificing the basic priciples of democracy and liberty. This Court has recently emphasized that "it is of the highest importance that the fundamental purposes of the Constitution be kept in mind and given effect" and that "in time of crisis nothing could be more tragic and less expressive of the intent of the people than so to construe their Constitution that by its own terms it would substantially hinder rather than help them in defending their national safety." Lichter v. United States, 334 U. S. 742, 779-780. As was said by Chief Justice Hughes, "We have a fighting Constitution" which "marches" with events. "There are constantly new applications of unchanged powers, and it is ascertained that in novel and complex situations, the old grants contained, in their general words and true significance, needed and adequate authority." Charles E. Hughes, War Powers under the Constitution, 42 A. B. A. Rep. 232, 247-8. “Equally in war and in peace" the particular provisions of the Constitution "must be read with

55 Under the War Labor Disputes Act of June 25, 1943, 57 Stat. 163, 50 U. S. C. App. 309, seizure was the normal ultimate sanction for enforcement of War Labor Board orders. See I Termination Report of the National War Labor Board, chap. 39, p. 415.

56 "There are vast differences between legislating by doing nothing and legislating by positive enactment, both in the processes by which the will of Congress is derived and stated and in the clarity and certainty of the expression of its will." Mr. Justice Rutledge, concurring in Cleveland v. United States, 329 U. S. 14, 22.

the realistic purposes of the entire instrument fully in mind." Lichter v. United States, supra, 782.

The present case does not require this Court to "fix the outermost line" (Steward Machine Co. v. Davis, 301 U. S. 548, 591). As we have sought to show, the issue before this Court is whether, in dealing with an immediate crisis gravely threatening the continuance of the production of perhaps the most essential commodity of our present civilization, the President could take temporary action, of a type not prohibited by either the Constitution or the statutes, to avert the imminent threat, while recognizing fully the power of Congress by apropriate legislation to undo what he has done or to prescribe further or different steps. We believe that the solution does not require the pressing of juristic principles to "abstract extremes" (New York v. United States, 326 U. S. 572, 577), but only a realistic consideration of the "necessities of the situation" (Moyer v. Peabody, 212 U. S. 78, 84).

For the reasons set forth above, we submit that the orders of the district court must be set aside. We have demonstrated the non-constitutional grounds which, we believe, compel reversal. When the constitutional question is reached, there is ample authority to sustain the President's action.

Final disposition of this case on either of these grounds will open the way for continued steel production and eliminate the occasion for further interruptions. Respectfully submitted.

PHILIP B. PERLMAN,

Senator DIRKSEN. Section 2, as you say, says that—

No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in the Constitution or other matters essentially within the jurisdiction of the United States.

That is the language.

Now, you mentioned atomic energy. I am just curious, since we are dealing here with the rights of citizens, of course I am not unmindful that a citizen could be a corporate entity, but where would that come into play, for instance, in an arrangement with respect to the control and supervision of atomic energy or where would it come into play with respect to any resolution to outlaw war? Because it says specifically, "Rights of citizens of the United States within the United States."

Now, if, as Judge Parker and the other two gentlemen pointed out, there are some ambiguities, would you agree to that if the ambiguities were properly erased and dispelled by language which was clear and explicit, would you then favor the language of section 2 of the Bricker resolution?

Mr. PERLMAN. Senator, I would doubt whether it could be drawn so that I would favor it, because I am satisfied with the Constitution under which we have lived in this respect, the provisions relating to treaty powers under which this Nation has lived ever since it was adopted. I don't think it is necessary to change it. I think you invite tremendous difficulties when you undertake to change the Constitution and undertake to change the treatymaking powers.

There is one favor I would like to ask. I would like to ask if you would not incorporate in this hearing the statement that we filed last year on behalf of the Department of Justice on that subject matter. While Senate Joint Resolution 130 is different from this one, yet all of the discussion we had on that statement, made with respect to the history of the various provisions that relate to treatymaking in the Constitution, applies with equal relevancy here. I have copies. The CHAIRMAN. Will you see that is done, Mr. Smithey?

Mr. SMITHEY. Yes, sir.

Mr. PERLMAN. I appreciate that. I have two copies. (The material referred to follows:)

[From the Columbia Law Review, November 1952]

ON AMENDING THE TREATY POWER
(Philip B. Perlman*)

Last July, near the close of the Eighty-second Congress, a subcommittee of the Senate Committee on the Judiciary held extensive hearings on three proposals to alter the treaty power under the Constitution. While the Judiciary Committee has filed no report, it is likely that similar proposals will be seriously pressed at the next Congress.

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 Consitution, 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 Constitution 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.

2

In addition, the Senate subcommittee 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 had 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

*LL. B. 1912. LL. D. 1948, University of Maryland. Solicitor General of the United States, 1947-1952.

This article is based upon a Department of Justice memorandum submitted by the author to the subcommittee on Senate Joint Resolution 130 of the United States Senate Committee on the Judiciary. Mr. Perlman gratefully acknowledges the assistance of Mr. James L. Morrison and Mr. Herzel H. E. Plaine, Special Assistants to the Attorney General in the preparation of tse memorandum and this article.

182d Cong., 2d Sess. (1952). Full text in appendix, p. 866 infra.

2 Resolution adopted by the House of Delegates of the American Bar Association on Feb. 26, 1952. See 38 A. B. A. J. 435-36 (1952). At its September, 1952, meeting a further amendment was proposed:

Executive agreements shall not be made in lieu of treaties. Congress shall have power to enforce this provision by appropriate legislation. Nothing herein shall be construed to restrict the existing power of Congress to regulate executive agreements under the provisions of this Constitution.

Many of the comments made in pages 857-64 infra are applicable to the above resolution. 82d Cong., 2d Sess. (1952). Full text in appendix, p. 866 infra. 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 § 4 of S. J. Res. 130.

of no force or effect as laws or authorizations until published in full 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 six 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 shal be of no force or effect except as personal undertakings of the President.

The issues raised by the proposed amendments are not new. Most of them were considered fully during the drafting and adoption of the Constitution. The author, moreover, 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 relationships at a time when the ability is of even greater importance to the nation than it was at the time the Constitution was adopted.

I. THE EXISTING CONSTITUTIONAL PROVISIONS

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. . . ."

A. REASONS FOR THE ADOPTION OF THE EXISTING 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 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 ambassadors-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 exportations or importations. Any treaty required the assent of nine states, Article 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 wtih 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 agai[nst] foreign invasion; congress not being per

mitted 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.*

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. 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 uncontrouled as ever."

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 harmony 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." 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." 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." 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 decision involving treaties."

8

10

Thus, it was generally assumed that the Federal Government should have the full and exclusive treaty power. This assumption was made before any agreement 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

41 Farrand, Records of the Federal Convention 19 (rev. ed. 1937) (emphasis added). McHenry's notes on Randolph's speech are even more explicit. "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 the State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offended 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 id. at 24-25.

E. g., statements of Pinckney and Madison on June 8, 1787. 1 id. at 164.

1 id. at 316.

71 id. at 21.

81 id. at 244-45.

1 id. at 292-93.

10 3 id. at 608.