the force of domestic law if they were self-executing, or could be implemented by legislation under the “necessary and proper" clause. In Missouri v. Holland, the Court expressly rejected a contention that the United States could not by treaty and implementing Act of Congress regulate the subject of migratory birds unless that subject came within the legislative powers delegated to Congress. As the Court stated: It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found.140 That decision, however, merely made explicit what had long been implicit. Indeed, in none of the cases involving treaty provisions had any question been raised as to whether the provision was within the general powers of Congress to legislate; it was enough that the matter was an appropriate subject for international negotiation. 141 Many of the commonest types of treaties would presumably be invalid if measured by the test of whether they came within the legislative powers of Congress. A few examples should suffice. Treaties relating to the rights of aliens to own land and personalty, to inherit property and to transfer property by will or intestate succession were sustained in Chirac v. Chirac, Hauenstein v. Lynham and Santovincenzo v. Egan. Treaties relating to rights of aliens to engage in trade or business, as applied to a business having no interstate character, were sustained in Asakura v. Seattle." Treaties of extradition, where the crime was a purely domestic one within the foreign state, were sustained in Matter of Metzger 145 and Charlton v. Kelly.146 142 143 99 147 This does not mean that the treaty power is a "Trojan horse" which can bring about an unintended “change in the balance between federal and state power." It means simply that one of the powers which the Constitution delegated to the Federal Government was the treaty power. As we have pointed out, the framers clearly understood that the treaty power was very broad in scope and could reach many matters which would otherwise be solely of state concern. Nevertheless, they gave that power exclusively to the Federal Government. It is the proposed denial to the Federal Government of a large part of the treaty power, granted by the Constitution and repeatedly exercised since the beginning of the Republic, which would produce “a change in the balance between federal and state power." 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 respect of general legislative powers, those powers not delegated to the Federal Government are reserved to and may be exercised by the states. Thus, there is no gap in powers. The power to make treaties is, however, expressly denied to the states by Art. I, Sec. 10. 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 handihapped in its ability to deal with other nations. The point was well put by Attorney General Caleb Cushing, in 1857: 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 140 252 U. S. 416, 433 (1920). Regulation of migratory birds today would probably be sustained under the commerce power. Indeed, Justice Holmes, in Missouri v. Holland, did not state or decide that it was not within the commerce power or other federal powers. 42 Wheat. 259 (U. S. 1816). 142 100 U. S. 483 (1879). 148 284 U. S. 30 (1931). 144 265 U. S. 332 (1924) (pawnbroker). 145 5 How. 176, 188 (U. S. 1847). 148 229 U. S. 447 (1913). 147 A. B. A. Committee Report 5. 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 sovereign,-not sovereign,— nor in coequality of right with other admitted sovereignties of Europe and America. 148 The American Bar Association proposal seems more objectionable in this respect than others considered in this article. PROPOSALS THAT TREATIES, AFTER RATIFICATION BY THE SENATE, REQUIRE APPROVAL OF BOTH HOUSES OF CONGRESS Section 3 of Senate Joint Resolution 130 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 should so provide by act or joint resolution. The American Bar Association proposal would go further and provide that, whether or not it is inconsistent with any state or federal law, a treaty shall become effective as internal law in the United States only through legislation by Congress. 149 These proposals relate to what Alexander Hamilton described as "one of the best digested and most unexceptionable parts" of the plan of the Constitution. The provision that treaties could be made by the President and Senate was most fully considered at the federal convention and extensively discussed at the state ratifying conventions. Because treaties were to be laws, proposals to require concurrence of the House in the treaty making process were submitted at the Federal Convention, at a number of the state ratifying conventions and on a number of occasions since the adoption of the Constitution. They have been uniformly rejected. The reasons for placing the treaty power in the President, with the advice and consent of two-thirds of the Senators present, have been fully stated in the Federalist Papers, and shall not be repeated here. 160 The present proposals are particularly objectionable in that they would require two steps before a treaty could have domestic effect. A treaty would have to pass first the hurdle of approval by two-thirds of the Senate. Then it would have to be reconsidered by the Senate and approved by the House. There does not appear to be any other jurisdiction in which two stages are required for a treaty to become effective, and the delays and difficulties inherent in such a two-stage process would certainly tend to render other nations reluctant to enter into treaties with the United States. It is not suggested that all treaties should be self-executing. In many instances, of course, they are not. But existing law does provide adequate means for participation by the House in cases where such participation is appropriate, without the necessity of a rigid requirement of such participation in all cases. As the law now stands a treaty may, of its own force, be a law which "as much binds [the rights of parties litigating in court], and is as much to be regarded by the court, as an act of congress." As such it may override any inconsistent provision of state constitutions and laws or of a municipal ordinance. And it has an equal status with an act of Congress so that, while so far as possible the two will be construed to avoid inconsistency, if there is clear inconsistency a later treaty will prevail over an earlier statute and a later statute will prevail over an earlier treaty. 151 155 But a treaty need not have that effect. As Chief Justice Marshall said in Foster v. Neilson: Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of 148 Ops. Att'y Gen. 411, 415 (1857). See also Hauenstein v. Lynham, 100 U S. 4%, 490 (1879). The Federalist, No. 75 at 465 (Lodge ed. 1888). 10 Id. No. 75 passim. The Peggy, 1 Cranch 103, 110 (U. S. 1801). 183 Hauenstein v. Lynham, 100 U. S. 483 (1879); Ware v. Hylton, 3 Dall 199 (1796) *** Asakura v. Seattle, 265 U'. §. 332 (1924). 14 Pigeon River Co. v. Cor, 291 U. S. 138, 160-161 (1934); United States v. Lee Yen Tai, 185 U. 8. 213, 220 23 (1902). 115 See Huo v. United States, 194 U. S. 315, 324 (1904); United States v. Lee Yen Tas, supra note 154 at 220. Chae Chan Ping v. United States, 130 V. §. 581, 599-603 (1859); Head Moreu Cases, 112 U. 8 580, 597 99 (1884); The Cherokee Tobacco, 11 Wall. 616 (U) 8 187 sep Moser v United States, 341 U. S. 41, 45 (1951); Pigeon River Co. v. Cor, 291 U. S 168 160 (1634). the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.157 Whether a treaty is thus self-executing is not "a matter of judicial guess;" 158 is a matter primarily of construction of the treaty, which is no more difficult or obscure than any other question of construction of a written document. As Judge Putnam stated in United Shoe Machinery Co. v. Duplessis Shoe Machinery Co.: An examination of the decisions of the Supreme Court on this topic will show there is no practical distinction whatever, as, between [sic] a statute and a treaty with regard to its becoming presently effective, without awaiting further legislation. A statute may be so framed as to make it apparent that it does not become practically effective until something further is done, either by Congress itself or by some officer or commission intrusted with certain powers with reference thereto. The same may be said with regard to a treaty. Both statutes and treaties become presently effective when their purposes are expressed as presently effective; . . . 159 Thus under existing law there are at least three means by which participation of the House may be obtained where appropriate. First the treaty, as drafted by the executive, may, and frequently does, provide that it is not self-executing. To the extent that its implementation requires appropriations or other domestic legislation it will necessarily depend on legislation passed by both Houses. And in other situations where a treaty might have internal effect it is frequently cast in terms which are not self-executing: for example, the Convention for the Protection of Migratory Birds,100 legislation implementing which was involved in Missouri v. Holland; 101 the International Slavery Convention of 1926 162 obligating the parties to take "necessary steps," "adopt all appropriate measures," "take all necessary measures," etc. to achieve its objectives; Arts. 55 and 56 of the United Nations Charter, obligating the parties to "promote" certain objectives and to "pledge themselves to take joint and separate action" for the achievement of certain purposes.' Similarly the Genocide Convention was cast in terms intended to make it non-self-executing, and present drafts of proposed conventions relating to Human Rights and to Freedom of Information are cast in non-self-executing terms. 163 Second, the Senate, in the exercise of its power to impose reservations,164 may insist as a condition of ratification that the treaty should not be considered as self-executing. Since one more than one-third of the Senate can prevent ratification, this power would seem to afford ample opportunity for any substantial objection to dealing with the matter by self-executing treaty to be felt.16 Finally, in an extreme case, there is available as a check on the President and Senate the undoubted power of Congress, by subsequent statute, to override the treaty so far as its effect on domestic law is concerned. In general these safeguards appear to have worked satisfactorily. Perhaps the most conspicuous instance of dissatisfaction with their working arose in 257 2 Pet. 253, 314 (U. S. 1829). 158 A. B. A. Committee Report 14. 146 Stat. 2185 (1926). 103 Held non-self-executing in Sei Fujii v. State, 242 P. 2d 617 (Cal. 1952). Considering the attention which has been given this case, it should be noted that the possible application of the United Nations charter, on which the intermediate court relied, was not necessary to the decision, in view of the holding of the Supreme Court of California that the California Alien Land Law violated the Fourteenth Amendment. 164 Haver v. Yaker, 9 Wall. 32, 35 (U. S. 1869); see 98 Cong. Rec. 2602-03 (March 20, 1952). 1 Another illustration of the ways in which the influence of the House may be felt is suggested by the Brussels Convention of 1924. Ratification was advised and consented to by the Senate on April 1, 1935. Thereafter, certain interested groups requested that ratification be withheld pending consideration of legislation covering the subject matter of the Convention. This was done; Congress on April 16, 1936 enacted the Carriage of Goods by Sea Act, 49 Stat. 1207 (1936), 46 U. S. C. §§ 1300-1315 (1946), which followed the Convention almost verbatim, with certain changes to insure the preservation of existing American law and to extend application of the Convention to certain cases not clearly covered by it. Thereafter, on June 25, 1937, ratification of the Convention was deposited, with the understanding that in cases of conflict the statute would prevail, and the Convention was proclaimed to be in effect. 51 Stat. 233 (1937). See Sen. Rep. No. 742, 74th Cong., 1st Sess. 4 (1935); H. R. Rep. No. 2218, 74th Cong., 2d Sess. 4-7 (1935). connection with the Jay Treaty of 1794; but while the issue of the House's participation in commercial treaties was debated at length and with heat, and a constitutional amendment was proposed by the Virginia legislature, no action was taken on that amendment by Congress or the other states. To impose a rigid requirement that no treaty can have domestic effect as law unless it goes through the second step of approval by both Houses of Congress would have seriously damaging consequences in those areas in which treaties have traditionally been self-executing. For example, treaties of commerce and friendship typically provide for the rights of aliens to hold, acquire, inherit, and dispose of property, to engage in businesses and professions, to be protected in their persons and property and to be free from burdensome taxation. Such treaties are almost invariably self-executing. Since the beginning of the Republic, they have, when ratified by the Senate, become domestic law which, in case of conflict, overrides inconsistent state law. The American Bar Association proposal would clearly require that all such treaties, to be effective, be submitted to both Houses of Congress.160 Section 3 of Senate Joint Resolution 130 would have the same effect, for since no one could predict with assurance whether some provision of such a treaty might not be inconsistent with a statute, municipal ordinance or other regulation of one of the forty-eight states, the only safe course would be to assume possible conflict and submit the treaty immediately to Congress. No reason has been suggested why the efforts of the United States to secure adequate protection for the persons and property of its citizens abroad, whether transients or residents, should be impeded by making the process of adopting such treaties more burdensome and time-consuming than it now is. No substantial objections have been suggested to the practice of over 150 years in respect of treaties of friendship and commerce and other types of treaties which have traditionally been self-executing. C. PROPOSALS RELATING TO EXECUTIVE AGREEMENTS Section 4 of Senate Joint Resolution 130 contains a number of proposals relating to executive agreements. In addition, it has been indicated that the provisions of Senate Joint Resolution 122, also relating to executive agreements, will be considered as a possible alternative to section 4. It is well settled that in the exercise of his powers to conduct foreign affairs *** the President may enter into agreements other than treaties with foreign nations. The fact that there could be international agreements other than treaties was recognized in he Constitution iself, 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. 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. The Supreme Court, moreover, has repeatedly recognized as well established "the power to make such international agree Indeed, the further requirement that Congress can enact only such legislation as would be within its delegated legislative powers would probably put such treaties beyond the power of Congress to make effective. The Federal Government's power in this vital area would be limited to requesting states to take action US Const. Art. 11, § 2. 1 Stat 239 (1792), 19 Ops. Att'y Gen. 513, 520 (1890). 99 170 ments as do not constitute treaties in the constitutional sense.' As the Court said in United States v. Belmont in connection with an executive agreement, not submitted to Congress, assigning to the United States certain claims of the Russian Government: 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, Int. Law Digest, 210-221. The distinction was pointed out by this court in the Altman case, supra, which arose under § 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." The important fact is that under the broad grants of power in the Constitution to the Congress and to the President procedures alternative to 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 slough 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. As John Bassett Moore said almost fifty years ago: The conclusion of agreements between governments, with more or less formality, is in reality a matter of constant practice, without which current diplomatic business could not be carried on. A question arises as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices without attracting public notice; the governments directly concerned exchange views and reach a conclusion by which the difference is disposed of. They have entered into an international "agreement"; and to assert that the secretary of state of the United States, when he has engaged in routine transactions of this kind, as he has constantly done since the foundation of the government, has violated the constitution because he did not make a treaty, would be to invite ridicule. Without the exercise of such power it would be impossible to conduct the business of his office."" But there is much more. In addition to agreements made in the transaction of current business, the executive has lawfully and advantageously entered into international agreements of a more formal if not more important kind without resorting to the formal treaty-making process. Mr. Moore continues: 172 The agreement of 1817, for the limitation of naval armaments on the Great Lakes, was made and carried into effect by the executive, though it was afterwards submitted to the Senate. By a protocol signed at London, December 9, 1850, by Abbott Lawrence, American minister, on the part of the United States, and by Viscount Palmerston, on the part of Great Britain, it was agreed that the British crown should cede to the United States Horseshoe Reef in Lake Erie, and that the United States should accept it, on the conditions of erecting a light-house there and maintaining no fortifications. On receipt of the protocol, Mr. Webster, as secretary of state, on January 7, 1851, instructed Mr. Lawrence to acquaint the British government that the arrangement was "approved" by the government of the United States. This Mr. Lawrence did on the 17th of the succeeding month. Congress made appropriations for the erection of the light-house, which was built in 1856. The validity of the title thus 170 United States v. Curtiss-Wright Corp., 299 U. S. 304, 318 (1936); see United States v. Pink, 315 U. S. 203 (1942) (Litvinov assignment); United States v. Belmont, 301 U. S. 324 (1937) (same); Altman & Co. v. United States, 224 U. S. 583 (1912) (commercial agreement authorized by the tariff acts). 171 301 U. S. 324, 330-31 (1937). 172 20 Pol. Sci. Q. 385, 389-90 (1905). |