Mr. SCHWEPPE. In no particular whatsoever. The United States under the American Bar Association proposal remains just as sovereign in the international field as it has ever been. It can make any kinds of deals and any kinds of negotiations that it wants to, but it cannot make those deals domestic law in the United States and put State constitutions and statutes and Federal statutes out of the way. The position of the United States in the international field is not affected at all. We can make international agreements. Now, the Congress on some propositions, if it is outside the ordinary power of Congress to legislate, may have to go to the States to get their consent, but the power of the sovereign nation is not affected at all. May I get one commentary in the record about the Curtiss Wright case? This case is largely dictum. We made a sharp attack on the Curtiss Wright case in our February 1952 report. We pointed out that the Supreme Court in that case confused the position of the United States Government under international law in which it is completely sovereign, with its status under the Constitution under which our Government is a government of delegated powers. We made that sharp attack on the decision. We said it was largely dictum; and much to our pleasure, Mr. Justice Jackson, who concurred in the majority opinion in the Steel Seizure cases, writes a footnote in which the says almost the identical language, referring to the Curtiss Wright case, well, that case was largely dictum. At any rate, it does not stand for the doctrine that the President of the United States can do anything in an area where Congress has already legislated. Whatever may be his powers in the absence of congressional legislation, he is subject to congressional legislation if there is a law that applies to the subject matter. Mr. SMITHEY. May we switch for a moment to the third sentence of Senate Joint Resolution 43 dealing with executive agreements? Now, in your mind does the term "executive agreements" include modi vivendi, protocols, conventions, and so forth, or should the bar proposal be amended to include those? Mr. SCHWEPPE. We think it includes them all. We spent some considerable discussion on that subject and we are fortunate in having as members of our committee Dr. Finch, who is as great an expert in this field as anybody I know of, who was in the State Department and who deals in that field regularly. In his opinion the term "executive agreements" is a broad concept which embodies all engagements of the type you described and would be so interpreted. Senator WATKINS. Would it not be true that to attempt to name them, if you overlook them you then exclude them? Mr. SCHWEPPE. That is right. Mr. SMITHEY. I might quote the resolution of Senator Bricker which attempts to do it not by specifically naming them but by saying all executive and other agreements between the President and any international organization, foreign power or official thereof, which would, I think, encompass all of them. Mr. HOLMAN. May I direct myself to that for a moment? Mr. HOLMAN. I am going to cover that in mine. There are some other agreements so to speak that are highly important, not exactly executive agreements. For instance, we made an agreement with Canada in connection with the damage to farms in the northern part of my State from a smelter. Those farmers could not sue in Canada so we made an agreement whereby a certain lump sum of money would be paid over into the United States and an international commission was set up to adjust that. When you say all other agreements, you are going to catch in your hopper, as Dr. Finch will point out to you, many things here, and it would require an analysis of every kind of agreement. Take postal agreements that have been made in this country, to be sure by the term "other agreements" you weren't catching in the hopper other things you should not catch. We have tried to draft an amendment here on the basis of doing the specific thing we are interested in and the American people are interested in without incapacitating our Government from doing some of the things which they ought to continue to do. So you are going to be in a bad situation, I am afraid, if you put in "other agreements" there. You would then have to define those other agreements. Mr. SMITHEY. That of course would be within the province of Congress under the Bricker amendment. Mr. SCHWEPPE. That is why we like this form of text, because Congress can deal with those questions as they come up and need regula tion. Mr. SMITHEY. They could likewise under the Bricker proposal, as I understand it. Mr. SCHWEPPE. That is right. We are in complete agreement on that point. Mr. HOLMAN. We do not object to having a phrase in there if it is not going to be shot at when we come to getting the States to ratify on the theory that it encompasses too much, and therefore we are vulnerable. Senator WATKINS. Otherwise, you are in agreement with Senator Bricker's? Mr. HOLMAN. Sure. Mr. SCHWEPPE. It is purely a matter of form, expressing what we both have in mind. Mr. SMITHEY. You may have answered this in your discussion with Senator Smith of North Carolina. However, I was not able to overhear that, so even if this is repetitious, I wish you would give the answer nevertheless. Would you give the committee the benefit of your opinion concerning the extent to which Congress might regulate executive agreements under Senate Joint Resolution 43? You used the term "regulation" and that is why I ask it in that form. Mr. SCHWEPPE. We did in our September 1, 1952, report, the pertinent portion of which has been incorporated in the record this morning, outline the possible areas of congressional regulation of the field of executive agreements. That particular contribution to our report was made by Dr. Finch, who has spent a great portion of his life in dealing with that field, and of course the power to regulate includes the power not to regulate, it includes the power to regulate those areas which the Congress feels should be regulated. It may leave other areas of executive agreements unregulated. Dr. Finch indicated in that portion of our report which is incorporated in the record that Congress would probably proceed in the field of regulation of executive agreements carefully, gradually; you would see to it right off, for example, that problems of major policy with foreign governments would not be done by executive agreements but would have to be done by the treaty method, so that the Senate of the United States which was deliberately put in as part of the treatymaking power by the founding fathers, will have an opportunity to examine the question from the standpoint of the American public. That is to us the most important field that Congress ought to regulate. The report itself spells out a number of areas in which executive agreements might be regulated. On the other hand, there are a lot of day-to-day agreements about sending somebody here or sending somebody there, the Secretary of State or the President will have to make, with which the Senate of the United States has no concern. Regulation by Congress should make it thoroughly clear that matters of important international policy should be done by the treaty method and subjected to the Senate approval. Senator WATKINS. How would you bring that about? Mr. HOLMAN. It is a day-to-day matter of monitoring what is going on. Senator WATKINS. Undoubtedly we are making agreements now. Mr. SCHWEPPE. A bill would have to be drawn by the United States Congress in which you tell the executive department what it shall do in the area of executive agreements, what areas it can make executive agreements in, No. 1, what areas must be reserved to treaties, and then you can probably break it down in some detail. Mr. HOLMAN. There should be a code of executive agreements adopted just like a code of anything else. Senator WATKINS. That may be true, but we have a situation now existing at the time that Potsdam agreement was entered into. It is an executive agreement. I maintained all the time it was in effect a treaty. But at least it was called by the President an executive agreement. He made it and we have never been able to get at it, at least we have never been able to get enough strength in Congress to do anything about that. Now, under the President's proposal about secret agreements, we are not getting anywhere. Mr. HOLMAN. You can't write that kind of restrictions in a constitutional amendment or you would have a constitutional amendment which would get clear out of hand. Senator WATKINS. In other words, you cannot get executive agreements by definition. Mr. SCHWEPPE. No. Senator WATKINS. There are lots of things happening we don't want to happen right now. I thought this would take care of it. Mr. HOLMAN. You would have a constitutional amendment which gets completely out of hand, which is something you cannot do very well in a constitutional provision. Mr. SCHWEPPE. The place to handle it is to have Congress regulate it. They can meet the situations as they develop. I can read you that portion of the report, which I think is unnecessary because it is in your record. If you want a verbal answer right at this juncture as to what you think the field of initial regulation ought to be of execu tive agreements, I suggest you put the question to Mr. Finch, who is sitting at the end of the table. Senator WATKINS. Could you prohibit certain types of executive agreements? Mr. SCHWEPPE. Yes. Senator WATKINS. Have you considered that in drafting this amendment? Mr. SCHWEPPE. Yes. Senator WATKINS. What is your answer? Mr. SCHWEPPE. Our answer is that under the power to regulate, you could prohibit. The Supreme Court has held that many times. Senator WATKINS. That is probably an explanation. But regulation seems to indicate, imply at least, that you have the right to do something but it has to be regulated. Mr. SCHWEPPE. Under the power to regulate commerce, the Congress has excluded many things, has prohibited the transportation of many things in interstate commerce, and the Supreme Court has held time and again the power to regulate includes the power to prohibit and it was done under the commerce clause. You cannot transport lottery tickets or the objects of white slavery, or stolen automobiles, in interstate commerce. They are prohibited. Yet the power is to regulate commerce. Senator WATKINS. Why do you not say "prohibit or regulate,” make it clear? Mr. SCHEIN. You get into trouble. Senator WATKINS. You are going to leave a lot of troubles unsolved if we do not get at it. That is one of the worst abuses we have. Agreements all over the world are entered into by the President under his claim of right to make executive agreements. We discover them some time later and they are "in effect" treaties. Mr. SCHWEPPE. Speaking solely as an individual, I would have no objection to the word "prohibit." I will say that we considered it at great length in view of the interpretation put by the Supreme Court on the power to regulate commerce, including the power to prohibit things in interstate commerce. We concluded the same interpretation where we used the word "regulate," which already has been given constitutional and judicial meaning by the Supreme Court, that we were on safe ground to use the word "regulate" as including the concept prohibit. Senator WATKINS. Our experience indicated you have to spell it out in terms so that even a child can understand it so that you get an effect out of it. Mr. SMITHEY. Mr. Schweppe, one question of form before we leave the subject of executive agreement. As I understand and read the report which you have referred to several times as the 1952 report of the committee on peace and law through the United Nations of the American bar, there is a statement there which says, "If executive agreements are to be dealt with, they should be considered in a separate section which delineates the appropriate field of executive agreement as distinguished from treaties and which provides for appropriate control." I notice as a matter of form you have in Senate Joint Resolution 43 the sentence on an executive agreement included with that relating to treaties. Mr. SCHWEPPE. That is right. Mr. SMITHEY. Would you prefer now that it be set up as a separate section? Mr. SCHWEPPE. We think it should be. May I say you are reading there, I think, from the February 1952 report, at which time we had not yet completed our study on executive agreements. We completed that and made our recommendation to the house of delegates in our September report. At that time we recommended that the clause on executive agreements be included in any amendment relating to the treaty power so that we would have a complete package. Mr. SMITHEY. You are still of the opinion that ought to be included in a separate section of the same amendment? Mr. HOLMAN. I think so, yes. Senator WATKINS. May I say that is probably draftsmanship that I was responsible for? I took the body of your draft, it was all in one group. I did not want to spoil it so I put it in just as you had it. Mr. SCHWEPPE. If you will look at our February 1, 1953, report, the one of which we have copies here, and the ones which we are presenting to the house of delegates next week, you will see we are putting it in two sections. Mr. SMITHEY. You don't want to give executive agreements the same sanctity as treaties by including them in the same section of the article. Mr. SCHWEPPE. Right. The CHAIRMAN. Thank you very much, Mr. Schweppe. Mr. SCHWEPPE. Thank you, Mr. Chairman. The CHAIRMAN. Mr. Rix STATEMENT OF CARL B. RIX, MILWAUKEE, WIS., MEMBER OF THE COMMITTEE ON PEACE AND LAW THROUGH THE UNITED NATIONS Mr. Rix. My name is Carl B. Rix, Milwaukee, Wis. I am a member of the committee on peace and law through the United Nations. When we appeared I addressed myself particularly to the question as to the preservation of our form of government of delegated powers and the situation in which we find ourselves today. May I ask that a short article entitled "Beyond the Administration of Justice," which now appears in the Congressional Record of February 12, 1953, at page 642, on this subject be included in this record? The CHAIRMAN. It will be incorporated. Mr. Rix. It was a reprint of an editorial in the Journal of the Judicature Society which I wrote a short time ago in which I considered these questions as I have stated. (The article referred to follows:) BEYOND THE ADMINISTRATION OF JUSTICE (By Carl B. Rix) In the great argument of John W. Davis in the Steel case he quoted these words that Jefferson wrote in the Kentucky resolution: "In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution." The greatness and strength of the United States, its capacities for its people and for the world, are dependent on its form of government and its foundation, the Constitution of the United States. If there is to be any change in that 30572-53-6 |