Mr. PERLMAN. That is right. He was for open covenants openly arrived at. Senator WATKINS. They were for executive agreements behind the scenes. Mr. PERLMAN. We did not. Senator WATKINS. That is what I am saying, but we did in this Second World War. Mr. PERLMAN. We did in the field, and in the course of time, when a treaty was entered into between the nations ending not only the hostilities but firming up what had been agreed to and what was proposed, finally would have to be submitted to the Congress. Senator WATKINS. There is nothing we can do about it now. Mr. PERLMAN. We have never been able to get those nations, because of Russia's objection, to make a final treaty of peace. That is the unhappy situation. Senator WATKINS. They considered the agreement itself sufficient treaty and under their customs over there that was a treaty and most of the European nations would assume that was a treaty, even though the American Senate did not ratify it. That is the tradition over there. They have a different system here. That is what we are trying to protect. Mr. PERLMAN. There is more reason to fear that the absence of such power, or the limitations and handicaps upon the exercise of such power by the President, may in the long run prove more detrimental to the people of the country than the continuance of the present situation-a situation which has been unchanged since the Republic first began to function. Section 4 and the other sections of the proposed article reflect the fears of the period. Senate Joint Resolution 1 in this Congress, and Senate Joint Resolution 130 in the 82d Congress, were created by fears of what the President and what two-thirds of the Senate may do. Until recently such objections as were voiced to the provisions in the Constitution for the making of treaties were based on the reluctance of the Senate to give its approval to treaty proposals. Some people urged that the treaty authority be broadened and made more responsive to current ideas and desires. The will of a majority of the Senate, and perhaps a majority of the people of the country, has been defeated by less than a majority of the Members of the United States Senate. In that way we were kept out of the League of Nations. Whether for good or for bad, that decision was made in accordance with the provisions of the Constitution, and was accepted by the American people. Movements to reduce the number of votes needed for ratification of treaties, and to add approval by the House, were resisted. This present proposal to limit the treaty-making power of the Nation, to restrict the authority of the Senate over treaties, and to curtail the power of the President to make executive agreements in matters concerning foreign affairs, should also be resisted-I hope with like effect. I believe that the people of the United States are willing to continue to trust the President and the United States Senate to guard their interests in such matters. The record shows that they have done it well. There is no valid reason, with the history you have made, and your predecessors have made, to tear out of the 30572-53-27 Constitution the provisions written into it by the Founding Fathers, and to attempt to substitute written evidence that the Senate of the United States is afraid to trust itself to continue to exercise the powers vested in it for more than a century and a half. Thank you. The CHAIRMAN. Senator Dirksen, have you any questions? Senator DIRKSEN. I was going to say with respect to Mr. Perlman's last observation, I don't know whether the Senate trusts itself, but I have been in Washington for 20 years and I have developed a rather substantial distrust about this theory of a government of men instead of a government of law. That of course brings me around to this, Mr. Perlman. You were the Solicitor of the United States in the Department of Justice when the steel case came on to the Supreme Court. Mr. PERLMAN. Yes, sir. Senator DIRKSEN. You were, so to speak, the Government's lawyer. Mr. PERLMAN. Yes, sir. Senator DIRKSEN. I notice in the decision of the Chief Justice that refers to defendant's brief. I suppose that was your brief, was it not? Defendant's brief informs us that the Soviet Union maintains the largest air force in the world, maintains ground forces much larger than those presently available to the United States, and the countries joined with us in mutual security arrangements. I am rather curious as to the brief and the argument that you made in the Steel case and whether or not the opinion voiced by the Chief Justice and in which at least there was partial concurrence by Justices Reed and Minton, whether your argument was substantially the same, namely, that because of an emergent and critical condition in the world and since we were members of the United Nations, that there was a power that the President could exercise. What was the burden of your argument in that case? You were defending the Government position, were you not? Mr. PERLMAN. Yes, sir. I listened to the questions that you asked the previous witness with respect to the Chief Justice's opinion. I do not think that actually there is any statement in the opinion that would warrant the construction that you were asking about. The Chief Justice did not rest any finding on any provision of the United Nations. He just used the fact that the United Nations had been created and that we were a member of it, as part of the history he gave of the situation that confronted the Nation when that case arose. He said, as you will find in the opinion, that he was stating those facts to show the context in which the matter came before the Court. What he did finally in his opinion, the minority opinion, was to rest what he thought was the authority of the President to act in the way he did under those circumstances on the provision of the Constitution of the United States that vests in the President the authority to take care that the laws should be executed. And he pointed to a number of laws that the Congress of the United States itself had enacted, making appropriations, sending our armies abroad, giving help to the other nations, and making appropriations for the armed forces in Korea. He pointed to all those different acts of Congress, and to treaties and other engagements which had been made, to emphasize the fact that it was necessary to keep the production of steel in continuous operation in order to enable this Nation to fulfill its obligations that it had assumed under acts passed by Congress and under treaties ratified by the Senate of the United States. Senator DIRKSEN. Now, Mr. Perlman, that of course is your interpretation of the opinion of the Chief Justice. I try to see it in its entirety, his many allusions to the Mutual Security and Mutual Assistance Act, his allusions going back to the Founding Fathers and to the Civil War. But there was so much stress, of course, upon the obligations that were upon us in Korea and how we got there and of course it goes right back to the United Nations. As I just read it in its entirety, it just seems to me that he depended on that. Mr. PERLMAN. I disagree with that. Senator DIRKSEN. I am more interested at the moment, however, in the burden of the argument which you advanced to the Supreme Court in support of the steel seizure, whether your argument was the foundation finally for the opinion by the Chief Justice. Mr. PERLMAN. I hope it was. I do not think that he pulled the expressed ideas in that opinion out of the thin air. There was a strenuous argument on both sides, and we tried to file the best brief within a very limited time of which the Department was capable. We tried to cover all of the different aspects of that very serious question. One of them, of course, one of the serious ones, one of the important situations was the fact that we were in a hot war or cold war, whatever kind of war you might designate it. Mr. Justice Jackson objected to the statement I made that we were living under war conditions. He said he thought he had read it was a police action, and there was some discussion of that point. But the allusion in the Chief Justice's opinion to the Civil War was merely to point up a precedent. President Lincoln had seized a railroad without congressional authority, and we had all those different precedents. Senator DIRKSEN. Of course, no treaty was involved there and no international rights. Mr. PERLMAN. The question before the Court was whether the President could make a seizure of that kind without specific congressional authority. Senator BUTLER. But that railroad was in the war area at the time of hostilities, right in that immediate vicinity. Mr. PERLMAN. That is right, but it was an Executive action. Mr. PERLMAN. Yes, sir. Mr. HOLMAN. Not as President. Mr. PERLMAN. I think you would find in the position that we took in the Steel case that the President acted, the President's Executive order, the seizure order was done both as President and as Commander in Chief, too. Senator DIRKSEN. I do not want to belabor the point beyond this, because I think Mr. Perlman has been very generous in saying that judges and justices do not reach into thin air for these opinions. Mr. PERLMAN. I hope they read our brief. Senator DIRKSEN. I think it is quite evident they not only did read your brief but probably they drew rather generously upon the substance of the brief. Mr. PERLMAN. I hope so. Senator DIRKSEN. That is probably an understatement on my part. The opinion can speak for itself, so I do not think we need to belabor that any further, because that is a matter of interpretation. The opinion is here. The CHAIRMAN. You agree that the Solicitor General must have written a very good brief to have convinced the Chief Justice. Senator DIRKSEN. I am sure of that, and I am sure also, since there is reference to the defendant's brief, it brings into context the whole international picture. I intend, of course, to rest on the decision of the Supreme Court. It was not included in the hearings of the Senate Joint Resolution 130 before, so I would like to ask now at this point. the opinion of the Court in the Youngstown Sheet case, which is the Steel case, be inserted in the record of the hearings, and if Mr. Perlman has a spare copy of his brief I should like to see it included in the record also at this point. We can, of course, get it out of the record. Mr. PERLMAN. I will supply you with one. The CHAIRMAN. We will place both of them in the record. (The material referred to follows:) SUPREME COURT OF THE UNITED STATES NOS. 744 AND 745.-OCTOBER TERM, 1951 No. 744 THE YOUNGSTOWN SHEET AND TUBE COMPANY, ET AL., PETITIONERS v. CHARLES SAWYER. No. 745 CHARLES SAWYER, PETITIONER, บ. THE YOUNGSTOWN SHEET AND TUBE COMPANY, et al. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. [June 2, 1952.] MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE REED and MR. JUSTICE MINTON join, dissenting. The President of the United States directed the Secretary of Commerce to take temporary possession of the Nation's steel mills during the existing emergency because "a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would add to the continuing danger of our soldiers, sailors and airmen engaged in combat in the field." The District Court ordered the mills returned to their private owners on the ground that the President's action was beyond his powers under the Constitution. This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation but also to the powers the President and of future Presidents to act in time of crisis, we are compelled to register this dissent. I. In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised. Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict. 2 Accepting in full measure its responsibility in the world community, the United States was instrumental in securing adoption of the United Nations Charter, approved by the Senate by a vote of 89 to 2. The first purpose of the United Nations is to "maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, . . ." In 1950, when the United Nations called upon member nations "to render every assistance" to repel aggression in Korea, the United States furnished its vigorous support. For almost two full years our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. The "determination of the United Nations to continue its action in Korea to meet the aggression" has been reaffirmed.3 Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization, as hereinafter described. Further efforts to protect the free world from aggression are found in the congressional enactments of the Truman Plan for assistance to Greece and Turkey and the Marshall Plan for economic aid needed to build up the strength of our friends in Western Europe. In 1949, the Senate approved the North Atlantic Treaty under which each member nation agrees that an armed attack against one is an armed attack against all. Congress immediately implemented the North Atlantic Treaty by authorizing military assistance to nations dedicated to the principles of mutual security under the United Nations Charter.' The concept of mutual security recently has been extended by treaty to friends in the Pacific. Our treaties represent not merely legal obligations but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The need for mutual security is shown by the very size of the armed forces outside the free world. Defendant's brief informs us that the Soviet Union maintains the largest air force in the world and maintains ground forces much larger than those presently available to the United States and the countries joined with us in mutual security arrangements. Constant international tensions are cited to demonstrate how precarious is the peace. Even this brief review of our responsibilities in the world community discloses the enormity of our undertaking. Success of these measures may, as has often been observed, dramatically influence the lives of many generations of the world's peoples yet unborn. Alert to our responsibilities, which coincide with our own self preservation through mutual security, Congress has enacted a large body of implementing legislation. As an illustration of the magnitude of the over-all program, Congress has appropriated $130 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea. In the Mutual Security Act of 1951, Congress authorized "military, economic, and technical assistance to friendly countries to strengthen the mutual security and individual and collective defenses of the free world, ***"* Over $51⁄2 billion were appropriated for military assistance for fiscal year 1952, the bulk of that amount to be devoted to purchase of military equipment.1o A request for over $7 billion for the same purpose for fiscal year 1953 is currently pending in Congress." In addition to direct shipment of military equipment to na 159 Stat. 1031, 1037 (1945); 91 Cong. Rec. 8190 (1945). C. N. Security Council, U. N. Doc. S/1501 (1950); Statement by the President, June 25, 1950, United States Policy in the Korean Crisis, Dept. of State Pub. (1950), 16. C. N. General Assembly, U. N. Doc. A/1771 (1951). 461 Stat. 103 (1947). 62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 198 (1950). 63 Stat. 2241 (1949), extended to Greece and Turkey, S. Exec. E, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. Cong. Rec., Feb. 7, 1952, p. 944. 763 Stat. 714 (1949). S. Execs. A, B, C and D, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. Cong. Rec.. Mar 20, 1952, pp. 2635, 2636, 2646. 65 Stat. 373 (1951). 1965 Stat. 730 (1951); see H. R. Doc. No. 147, 82d Cong., 1st Sess. 3 (1951). 11 See H. Doc. 382, 82d Cong., 2d Sess. (1952). |