Attorney General BROWNELL. The latter part is where I part company with you.

Senator WATKINS. At least the dissent threw it in doubt?

Attorney General BROWNELL. Let me finish first, if you will.

It is, therefore, fairly clear that, whatever one's views may be on the merits of the dissent-and you will remember I said before this committee that I did not agree with the dissent on the merits-certainly it rests on the view that the President's alleged power to seize the steel mills arose from his duty to execute the legislative programs of the Congress and not from any implication that any treaty gave the President power to seize private property. The adoption of Senate Joint Resolution 1 or Senate Joint Resolution 43 would not increase or diminish the chances that the minority's holding might some day become the majority holding.

In other words, the question of the President's inherent power as the Executive is entirely separate from this treatymaking power.

Senator BRICKER. It would mean that the treaties could not supplement the President's power to do the things that he tried to do in the Steel Seizure case?

Attorney General BROWNELL. The reason why the treaty power is not and should not be limited to matters which would otherwise be within the legislative powers delegated to Congress is clear. In regard to general legislative powers, those powers not delegated to the Federal Government are reserved to and may be exercised by the States under the 9th and 10th amendments to the Constitution. Thus there is no gap in powers.

The power to make treaties is, however, expressly denied to the States by article I, section 10 of the Constitution. Whenever a matter is an appropriate one for international negotiation and agreement, either the Federal Government must be capable of dealing with it by treaty, or the United States as a whole is lacking in an essential aspect of sovereignty and is seriously handicapped in its ability to deal with other nations. The point was succinctly stated by Attorney General Caleb Cushing, in 1857: 90

The power, which the Constitution bestows on the President, with advice and consent of the Senate, to make treaties, is not only general in terms and without any express limitation, but it is accompanied with absolute prohibition of exercise of treaty power by the States. That is, in the matter of foreign negotiation, the States have conferred the whole of their power, in other words, all the treaty powers of sovereignty, on the United States. Thus, in the present case, if the power of negotiation be not in the United States, then it exists nowhere, and one great field of international relation, of negotiation, and of ordinary public and private interest, is closed up, as well against the United States as each and every one of the States. That is not a supposition to be accepted, unless it be forced upon us by considerations of overpowering cogency. Nay, it involves political impossibility. For, if one of the proper functions of sovereignty be thus utterly lost to us, then the people of the United States are but incompletely sovereignnot sovereign-nor in coequality of right with other admitted sovereignties of Europe and America.

The ABA proposal would, therefore, appear to be even more disruptive than the suggestion for change embodies in section 3 of Senate Joint Resolution 1. Since any constitutional limitation of the scope of treaties would weaken the position of this Nation at the International bargaining table, it is incumbent on the proponents of such a limita

*8 Op. Atty. Gen. 411, 415.

tion to show a definite and compelling need for it. As I said at the outset of my statement, that showing is not made by pointing to particular treaties, not yet ratified or even submitted for ratification, which are said to be objectionable.

Senator WATKINS. We have already had some submitted.

Attorney General BROWNELL. Either submitted or not submitted, but not yet, fortunately, passed by two-thirds of the Senate.

Senator BRICKER. But they have been supported by the State Department.

Attorney General BROWNELL. You have been very patient with me, and I have only one more section, and that is your section 4, which I guess we had better read.

SEC. 4. All executive or other agreements between the President and any international organization, foreign power, or official thereof shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this article.

(The comparable provision in Senate Joint Resolution 43 reads as follows: "Executive agreements shall be subject to regulation by the Congress and to the limitations imposed on treaties by this article.")

Along with the above quoted provisions of proposed section 4, it is probably necessary to consider the proposed provisions of Senate Joint Resolution 2, 83d Congress, which sets out the kind of limitations the sponsors of Senate Joint Resolution 1 have in mind in providing that executive agreements shall be made only in the manner and to the extent to be prescribed by law. Thus in addition to being subject to the limitations imposed on treaties and the making of treaties by the first three sections of Senate Joint Resolution 1, executive and other international agreements, other than treaties, would be subject to the following:

1. They shall be of no force or effect as laws or as authorizations until and unless they have been published in full in the Federal Register.

2. They shall be subject to such legislative action as the Congress, in the exercise of its constitutional powers, shall deem it necessary or desirable.

3. They shall be deemed to terminate not later than 6 months after the end of the term of the President during whose tenure they were negotiated, unless extended by proclamation of the succeeding President.

4. Agreements or compacts entered into by the President with foreign governments or officials requiring secrecy shall be submitted to the Congress as treaties in accordance with the requirements of the Constitution, otherwise they shall be of no force or effect except as personal undertakings of the President.

Most of the executive agreements have been and are in fact congressional-executive agreements, based upon the cooperation of the Congress and the President and the merger of their powers.

Senator WATKINS. Do you mind, Mr. Brownell, executive agreements made apparently under the North Atlantic Pact? I think Mr. Dulles told us yesterday they had more than 10,000 of them. I know the present administration has not done it; they could not have that kind of record so far.

Attorney General BROWNELL. Those, as I understand, have not been submitted to Congress.

Senator WATKINS. I doubt if any Member of Congress knows what is in any of them.

Attorney General BROWNELL. Although, as you and I have discussed, the bulk of them are minor.

Senator WATKINS. It may be so, but in that treaty it called for the carrying out of all provisions as interpreted by the Secretary of State and the members of the Foreign Relations Committee, by a general law authorizing the President to go ahead and make these numerous agreements. Those of a minor nature probably would not be submitted to the Congress for approval, but would be authorized in advance.

The thing I am concerned about is how far they are going ahead to bind us. You have 10,000 of them. Many of them must be trivial, but some of them may be very important, and it is going to be just too bad if we wake up 10 years from now and find that we are bound under agreements like Yalta and Teheran.

Attorney General BROWNELL. I think you ought to look at those 10,000 agreements, and I think you will probably agree after looking at them to bind Congress to review and act on every one of them.

Senator WATKINS. That is probably true. If the President had come and said that I merely want a general implementation of these minor matters, and on the others we will follow the 1945 act, and we will submit them to you as major executive agreements all right, but here we are completely in the dark. However, I think there is a great exaggeration when he said there are 10,000. I doubt very much that the staff could have gotten together that many.

I think if this constitutional amendment were to go into effect we would not have to examine them; they would be taken care of.

Attorney General BROWNELL. I think it is expressly required under the language of the amendment.

Senator WATKINS. Executive agreements shall be subject to regulation by the Congress. I am talking about S. J. Res. 43, and to the limitations imposed; that they must be in conformity with the Constitution and subject to regulation by the Congress.

Attorney General BROWNELL. I am glad to have that clarification of that, although I assume that that does not apply to section 4 of Senate Joint Resolution 1.

A comparatively small number of the total agreements has rested upon the sole action of the President. These have related to his express and exclusive constitutional powers as Commander in Chief of the Army and Navy, and his diplomatic powers as the sole organ of the Federal Government in the field of international relations, including the power to receive ambassadors and other public ministers. Thus the power to give permission without legislative assent for the introduction into this country of foreign (Mexican) troops was assumed to exist from the authority of the President as Commander in Chief of the military and naval forces of the United States; 91 and recognition of a foreign government (U. S. S. R.) with incidental settlement of outstanding claims rested on the President's powers to receive ambassadors and other public ministers.92

91 Tucker v. Alexandroff (183 U. S. 424, 435 (1902)).

92 United States v. Belmont (301 U. S. 324 (1937); United States v. Pink (315 U. S. 203 (1942)); and see Fraser, Treaties and Executive Agreements, S. Doc. 244, 78th Cong., pp. 20-27.

In contrast to these types, there is the large bulk of executive agreements either authorized or ratified by Congress. These include the postal conventions; the acquisitions of territories such as Texas, Hawaii, and certain islands in the Great Lakes; the arrangements with foreign powers in relation to commercial reciprocity agreements and the suspension of discriminating duties; extension of the privileges of copyright and the protection of trade-marks; agreements with the Indian tribes, which since 1871 supplanted the use of formal treaties; arrangements respecting fishing privileges of American citizens in foreign waters; the settlement of pecuniary claims against foreign governments, and the submission of such claims to arbitration; adherence by this country to membership in a score or more of international organizations; the trade and financial agreements, and agreements affecting international communications and transportation consummated in the 1930's and 1940's under authorization or policies laid down by acts of Congress.

The fact that there could be international agreements other than treaties was recognized in the Constitution itself, which, in article I, section 10, provides that no State shall enter into

any Treaty, Alliance, or Confederation

nor, without the consent of Congress, enter into any

Agreement or Compact *** with a foreign Power.

It was recognized by the Congress during Washington's first administration.

In establishing the post office, Congress authorized the Postmaster General to make arrangements with the postmaster in any foreign country for the reciprocal receipt and delivery of mail (1 Stat. 232, 239). Pursuant to authority conferred by this and later statutes postal carriage arrangements with Canada and postal conventions with many countries of the world were consummated. Almost 100 years after the first postal act Solicitor General William Howard Taft ruled:

From the foundation of the Government to the present day, then, the Constitution has been interpreted to mean that the power vested in the President to make treaties, with the concurrence of two-thirds of the Senate, does not exclude the right of Congress to vest in the Postmaster General power to conclude conventions with foreign governments for the cheaper, safer, and more convenient carriage of foreign mails."

The frequency with which such agreements have been used is indicated by the fact that of the nearly 2,000 written international agreements entered into by the United States in the 150 years between 1789 and 1939, only some 800 were made by the formal treaty process."4

The Supreme Court has repeatedly recognized as well established "the power to make such international agreements as do not constitute treaties in the constitutional sense.' The Court has said in

93 19 Op. Atty. Gen. 513, 520 (1890).

Letter of April 25, 1947, from Acting Attorney General McGregor to Senator Wallace H. White, Jr., chairman of the Senate Interstate and Foreign Relations Committee, regarding S. 11, 80th Cong.

United States v. Curtiss-Wright Corp. (299 U. S. 304, 318 (1936)); Altman & Co. v. United States (224 U. S. 583 (1912)) (commercial agreement authorized by the tariff acts); United States v. Belmont (301 U. S. 324) (Litvinov assignment); United States v. Pink (315 U. S. 203) (same).

connection with an executive agreement, not submitted to Congress, that an international compact is not always a treaty requiring participation of the Senate.

96

The important fact is that under the broad grants of power in the Constitution to the Congress and to the President other procedures than formal treaty making have developed and have been utilized throughout our history for entering into international agreements on important subject matters with more or less the same legal and practical consequences. Care must therefore be exercised, in any consideration of altering the full foreign affairs power, not to cut off, inadvertently or otherwise, functions, practices, and methods of operation that have developed usefully and to our advantage, and without which our facility in dealing with other nations would be hampered and restricted.

Senator WATKINS. At that point may I ask you how this language would in any event prevent the making of executive agreements? "Executive agreements shall be subject to regulation by Congress and to the limitations on treaty article." Now, is there any limitation whatsoever in that provision on the part of the President to go ahead and make agreements so long as he lives within the Constitution? He can make the agreements, but after he has made them, then they can be regulated by Congress.

Attorney General BROWNELL. In this case as in many others, Senators, there is a line which is hard to draw under our system of the common law.. It is much more effectively drawn case by case as we go along instead of doing as they do under the civil law in other countries by drawing one particular sentence and leaving the interpretation of it to others. I think that there is this line there between the power which the President has exclusively under his war-making powers and the powers to receive ministers and that is on the one side, and then on the other side, the power to make executive agreements with the consent of Congress.

The point I am trying to make here is that we have to study that line and not have language so flexible and sweeping in nature that it will impinge upon the proper functions of the Executive.

Senator WATKINS. You think that the President should be permitted to make any executive agreements; that Congress should not have the power to regulate?

Attorney General BROWNELL. I prefer to state it this way, Senator, that I think the President should have the full power to exercise the powers given to him in the Constitution such as the war-making power to conduct war, the power to receive ministers, and so forth. Senator BRICKER. That is not this?

Attorney General BROWNELL. It comes awfully close to this. The shadow line between that and the so-called executive agreements, in

9 "A treaty signifies 'a compact made between two or more independent nations with a view to the public welfare.' Altman & Co. v. United States (224 U. S. 583, 600). But an international compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations. (See 5 Moore, International Law Digest, 210-221.) The distinction was pointed out by this Court in the Altman case, supra, which arese under section 3 of the Tariff Act of 1897, authorizing the President to conclude commercial agreements with foreign countries in certain specified matters. We held that although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a treaty' within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this court" (United States v. Belmont (301 U. S. 330–331)).