I will not say the duties of the Constitution, but it is to provide checks and balances. It is not as though the man in the White House was free to run hog wild on anything he wanted to in the way of agreements. He is going to be coming to you gentlemen for money; maybe implementing legislation on this matter, on other matters; he is going to be coming to you from time to time on appointments.

The leverage is there. The Senate and the House are not at his mercy. I think all those things have to be taken into account in considering: Is there really too much power in the President in the field of executive agreements as the situation now stands?

Senator DIRKSEN. Of course, speaking of the possibility of erratic action. I need only remind you that the man who deserves the presumption that he is a good lawyer because once he was Attorney General and is on the Supreme Court of the United States, advanced a strange doctrine of inherent powers, and in pursuance of that the President seized a whole industry in this country.

You cannot tell what will happen when you are dealing with human mentality.

Mr. PEARSON. That is right.

Senator DIRKSEN. Jefferson would not have subscribed to that view; he would have said, "Nail it down; I know the human mischief that human personality makes in the world. You have to write it down."

Mr. PEARSON. It is a problem, and yet you can write it down too far. Stagnation is an evil, too.

Senator DIRKSEN. We hope that there is both enough wisdom and enough facility with the English language to be able to get it down on a piece of paper where you say what it means, and it means what it says. I think we can do it.

Mr. PEARSON. Sir, I have a few other things I would like to say about section 4, and then I think I am about through.

The CHAIRMAN. Surely.

Mr. PEARSON. We have in here some examples as to instances of executive agreements, arrangements when there was trouble on the border of Mexico, and the President quickly arranged that our Army could chase Indians over there, and they could chase Indians over here. Then there was the instance of a flood of potatoes coming over from Canada and knocking the socks out of our price supports, and he at once arranged to stop the Canadian potatoes from being imported here.

I do not wish to labor too much the importance of speed. There would be some cases where it would be pretty bad, particularly with war, but if Congress does not happen to be in session, well, is any given thing important enough to reconvene it to get the congressional sanction? To my mind, it is clear that if you are to have an Executive worthy of his name, you have to give him some kind of power, and the problem is how much.

Just one other point. I really do not know whether this was intended or not, but I would like to bring this to your attention; it is spelled out in the statement here. The effect of the second sentence of section 4 as it incorporates section 3-I am now speaking about the second sentence that says all the restrictions of the articles that apply to the Executive. I am now talking about that section.

Of course, those are the limitations on the Nation's power and should apply equally to the legislature, whatever they may be. But when you also incorporate section 3, I think you get a peculiar result here. The language is such that it seems to say that if you want to have an executive agreement that affects or may affect internal law, then you have to have this sequence. You have to have a statute passed by both Houses and signed by the President which authorizes the President to make the executive agreement. That is the first sentence. Then he goes ahead and makes the executive agreement, and then before it can become effective as internal law, he has to go back to Congress and get it enacted by a majority of the Congress, the executive agreement that he has made. Maybe it was thought that the third step-that is, the section 3 step-could be done at the same time as the President is authorized to make the agreement under section 4. I do not know. If that is true, it is not too bad if you buy this philosophy at all. If it was not meant that way, if it was really meant that you had to do this thing all over again, first the Congress, then the President, and then the Congress again, I would think that that was the most unfortunate redundancy, and I do not see any useful purpose. Senator DIRKSEN. That goes back to what you call the second look or the stuttering process.

Mr. PEARSON. It is even worse here, because it is in exactly the same forum, same body. He may make an executive agreement in the field of so-and-so, and he does so, and then it happens it is involved in the field of law, and he has to go to Congress to get the whole thing. Senator DIRKSEN. That is the first time you really become familiar with it, when you get the second look.

The CHAIRMAN. Do they not do that in every civilized country except the United States?

Mr. PEARSON. In the case of executive agreements?

The CHAIRMAN. Yes.

Mr. PEARSON. I do not know, sir. I am speaking of executive agreements, not treaties.

Mr. SMITHEY. Could it not be contemplated by that section that the original authorization would be a general one?

Senator SMITH. That is what I had in mind.

Mr. SMITHEY. Say in the field of the President's powers as Commander in Chief, and then they would want to take a closer look so far as it pertains to internal law?

Mr. PEARSON. It seems to me it would be a lot of action.

Senator SMITH. Would it not be true that the second look would really be for the purpose of examining the details as a result of the agreement made?"

Mr. PEARSON. That is assuming that the first power was very broad. Senator SMITH. Yes.

Senator DIRKSEN. Senator Smith, there would be no better illustration than something relating to the St. Lawrence seaway. You can imagine an executive agreement that would commit, let us say authority, plus $100 million.

Senator SMITH. Right.

Senator DIRKSEN. You would spell out nothing as to power facili ties or ports, but it would be the second look when you discovered how these were apportioned in committee.

Senator SMITH. Right.

Senator DIRKSEN. That is when the trouble arises.

Senator SMITH. That is the purpose of the second look.
Mr. PEARSON. In other words, that is deliberative?

Senator SMITH. Yes, I think so, to see what details are included. Mr. PEARSON. Frankly, I should think it would be a mess, but I am not familiar with government; I am just a Wall Street lawyer, and I do not know how these things work. I should think it would be chaos, or at least could be. You gentlemen know about such things, and you hear the testimony of people in government about such things. It sounds to me unfortunate.

Senator DIRKSEN. Going to the field of treaties for a moment, but with this thought in mind, I think the Japanese treaty is an excellent illustration. If you were to ask me today to what extent we are going to pick up the check in Japan, whether it is going to be $100 million or $500 million or $1 billion, there is not a Member of the Senate who can tell you today.

Mr. PEARSON. That about concludes what I have to say, Mr. Chairman.

The CHAIRMAN. Senator Smith, any questions?

Senator SMITH. I have not heard enough of this really to advance questions that I might otherwise want to put.

Mr. SMITHEY. This may be taking a little unfair advantage of you since you may not have had an opportunity to examine the resolution, but the first section of Senate Joint Resolution 43 is the American Bar proposal?

Mr. PEARSON. Yes.

Mr. SMITHEY. You may have had a chance to examine that. They say in their third sentence of that section:

Executive agreements shall be subject to regulation by the Congress and to limitations imposed on treaties by this article.

Would it be your understanding that executive agreements would include such instruments as protocols, conventions, modi vivendi, or do you think that those would have to be encompassed under another term such as "other agreements"?

Mr. PEARSON. I would guess the latter. I am not familiar with all the literature on the subject, but we have a quotation here from some gentleman who knew about these things, and he seemed to assume that there was a fairly well recognized line of distinction. Well, not line, but there were at least two different kinds of animals, so that if you write executive agreement in, there is a perfectly good argument open that other agreements are not included within the phrase.

By the same token, in Senate Joint Resolution 1 when it says executive or other, it is perfectly plain that it means everything under the sun. My guess would be that the answer to your question would be that there would be some kind of lower level day-to-day protocol, what not, that would not be covered by that. But as to whether this is sufficiently well recognized so that you could be sure, I do not know.

Henry S. Fraser, Treaties and Executive Agreements, Senate Document 244. Mr. Fraser says:

Generically the term "executive agreement" would embrace every agreement and understanding, formal and informal, made by the executive branch and a foreign power and not submitted to the Senate for its advice and consent as a treaty. Strictly the term would thus include current diplomatic business and disposing of matters such as the treatment of vessels, a matter of ceremonial or some other routine subject.

Up to that point he says generically:

Ordinarily, however, the term "executive agreement" is intended to denote a term more informal such as protocol, modi vivendi, a postal convention

and so forth.

Mr. Fraser knows what he is talking about; I do not. I would think there was at least a question on the problem that you raised, but probably the answer would be that it would not include these lesser things. It is perfectly clear that this one does, and it was so intended. Senator BRICKER. Just one question, Mr. Chairman?

The CHAIRMAN. Surely.

Senator BRICKER. In the Steel seizure case three Justices of the Supreme Court said that the President has power above and beyond that which is given in the Constitution or that delegated by the Congress because we had entered into the U. N. with a treaty, because we had gone into the pact. If two more had agreed with him, we would then have wiped out entirely the constitutional protection of property; would we not?

Mr. PEARSON. May I say, sir, that I have heard that analysis of the dissent in the Steel case. After I read it, I did not find that there at all. The dissenting opinions mentioned the things you just mentioned the United Nations Charter, and what was the other one? Senator BRICKER. The pact.

Mr. PEARSON. The dissents begin by mentioning those. The citations of those with brief explanations are followed by a sentence, "Before considering the action taken by the President, we must consider the times in which it was taken." Then they cite the United Nations Charter and the pact. Then they go on. Certainly it is clear that in the two or three paragraphs of named treaties, it nowhere says that there was any power derived from those treaties.

Then there are 2 or 3 pages of subsequent dissent, and I felt absolutely clear that there was absolutely no suggestion of that, that they are testing anything by powers derived from those treaties-that is, any extra powers. The sole purpose of the dissent is to look at this statute and the other statute, and so forth, to find the action they did. Senator BRICKER. They say definitely he had no power under the Constitution to do what he had done.

Mr. PEARSON. We are speaking about the dissents; are we not? Senator BRICKER. That is right. They definitely said that in the dissents there was no power under the Constitution or under the law to do what the President did, but in the light, as you say, of present conditions and considering these treaties that the President has the power. You cannot come to any other conclusion.

Mr. PEARSON. I do not read it that way. I read the citation of the treaties to show what is going on in the world. My feeling was that they found sufficient congressional sanction for what they did. Senator BRICKER. There is no congressional sanction.

Mr. PEARSON. That was not my reading. My understanding was that they thought from the accumulation of the congressional action that Congress said it wanted wage controls preserved and Congress said it wanted production and supplies for the Armed Forces, and Congress had done this and that, and the President was carrying out the will of the Congress.

The CHAIRMAN. Senator Dirksen?

Senator DIRKSEN. No questions.

The CHAIRMAN. Thank you very much.

Mr. PEARSON. Thank you, gentlemen.

(The following material was submitted by Mr. Pearson to be incorporated in the record:)

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK-COMMITTEE ON FEDERAL LEGISLATION AND COMMITTEE ON INTERNATIONAL LAW

REPORT ON JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS (S. J. RES. 130)

ACTION TAKEN BY THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

At the annual meeting of the Association of the Bar of the City of New York on May 13, 1952, this report was presented and, on the recommendation of its committee on Federal legislation and committee on international law, the association adopted the following resolution:

Resolved, That the Association of the Bar of the City of New York approves the report of its committee on Federal legislation and committee on international law dated April 28, 1952, and entitled "Report on Joint Resolution Proposing an Amendment to the Constitution of the United States Relative to the Making of Treaties and Executive Agreements," and opposes said proposed constitutional amendment known as Senate Joint Resolution 130.

THE JOINT RESOLUTION

Senate Joint Resolution 130, introduced February 7, 1952, by Senator Bricker on behalf of himself and 58 other Senators, proposes a constitutional amendment which would drastically alter the treaty-making procedures, in some fields prohibit treaties entirely, and place limitations upon the power of the President to enter into executive agreements with foreign countries.' Broadly speaking, the proposed constitutional amendment raises major issues of constitutional policy which have been the subject of consideration and debate since the initial steps of the formation of the Union.

This report concerns the four substantive sections of Senate Joint Resolution 130, which read as follows:

"SECTION 1. No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof.

"SEC. 2. No treaty or executive agreement shall vest in any international organization or in 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, respectively.

"SEC. 3. No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by act or joint resolution. "SEC. 4. Executive agreements shall not be made in lieu of treaties. "Executive agreements shall, if not sooner terminated, expire automatically one year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President, the life of any such agreement made or extended during the next preceding presidential term. "The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication."

The resolution is unusual in that some of its sponsors disavow any firm opinion that all of the provisions should be included. They agree that the proposed

1 Identical resolutions were introduced in the House as H. J. Res. 376, 379, and 390 by Messrs. Smith of Wisconsin, Hébert, and Auchincloss. The resolutions were referred to the respective Committees on the Judiciary. Hearings have not yet been held. A copy of the full text of S. J. Res. 130, including the names of the sponsors, appears in the appendix hereto.

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