tion those countries do not have a Federal system, it seems clear that the procedures in the countries named not only do not furnish a persuasive argument in favor of the amendment, but to the contrary.' HARMFUL EFFECTS ON INTERNATIONAL NEGOTIATIONS A treaty is not a one-way street. It represents an international bargain, which history has shown is only effective if and as long as it represents an advantageous arrangement for both parties. We cannot secure advantages or privileges in another country unless we are prepared to grant comparable ones within our own. Our ability to assure those with whom we negotiate that when we seal the bargain, there is reasonable ground to believe that it will be made effective with the advice and consent of the Senate, is an essential ingredient in our ability to negotiate successfully. When approval by the Senate, with whom there can be and is close cooperation with the Executive, is the sole requirement we are in a position to give reasonable, although not absolute, assurances during negotiation. That approval must be given before the treaty is ratified and brought into force with the other nation or nations. But if action by Congress is to be required in addition, it is conceivable, and in fact the amendment would be meaningless if it were not anticipated in some instances, that a treaty would receive the consent of the Senate and yet fail of implementation by Congress. In that event the United States would either lose all benefits of the treaty, if ratification were postponed until after enactment of legislation, or, if ratification took place before the Congress acted, the United States would be in default on its treaty obligations. It seems reasonable to conclude that such a requirement would prejudice the United States in its negotiations with foreign countries, without compensating advantages. PAST EXPERIENCE This proposal must be distinguished from the many that have been advanced in the past that the House of Representatives be brought into treatymaking by requiring ratification by a majority of both Houses instead of by two-thirds of the Senators voting. These proposals were intended to make it easier to ratify treaties, rather than more difficult, as are the present proposals, The Senate has always been the conscientious guardian of its role in treatymaking; it has subjected treaties to close scrutiny and has unhesitatingly rejected or modified treaty provisions which in its opinion were contrary to the best national interest. Even so, its action in rejecting treaties has been criticized as government by a minority. Such criticism is the principal basis for the proposals that treaties be ratified by a majority vote of both Houses. All have failed of enactment, although in 1944 hearings were held on six constitutional amendments that would have permitted treaties to be made with the concurrence of a simple majority in each House.' Perhaps a lesson can be drawn from the fact that the pendulum swings periodically from the side of making it more difficult to make treaties to the side of making it easier. Does this not indicate the wisdom of those who drafted the Constitution and its treatymaking provisions, which lie between the extremes of the varying proposals? They have stood unchanged from the beginning, and history records that they have never been abused or failed in practice. IV SENATE JOINT RESOLUTION 1, SECTION 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 • For summary statements of the treaty procedures in a number of foreign constelat furnished by their governments in response to a request from the Department of State. Annex C A survey made by the Department of State In March 1953 indicates the caution of Serate in considering treaties. Of the 1.224 treaties su' mitted to the Seriate from to 1953, 130 failed of Senate approval; 214 were approved with reservations OF UP standings; and 31 were still pending in the Senate on March 24, 1953 Of the total submitted, exclusive of pending treaties, 10.9 percent failed of Senate approv 1*4* of rejection, failure to take action, or withdrawal; 28% percent either failed of approval or were approved subject to reservations and understandings HJ Res Now 6. 31. 278, 246, 264, and 320, 78th Cóng. (H J Res 64 of the Congress would have required only Senate concurrence, without any two thirds rule i subject to the limitations imposed on treaties, or the making of treaties, 'this article." The proposal that the President may not make any agreement in the field of reign affairs without the permission of Congress is perhaps the most far reachg of all the proposals. It would transfer to Congress the constitutional powers which the President w possesses in the field of foreign affairs. Congress and not the President ould represent us or direct our representation in our dealing with foreign itions. Perhaps the unique feature of our Constitution is the provision for the separaon of powers between the legislative, executive, and judicial, each supreme its field, the whole constituting a system of checks and balances. The prosed amendment would destroy this separation insofar as it relates to e President's constitutional authority in the realm of foreign affairs. It is difficult, if not impossible, to define an executive agreement. It is loosely ed to describe any agreement made by the President with a foreign country hich is not ratified as a treaty. Ordinarily, however, the term "executive reement" is intended to denote a transaction of a somewhat formal and im›rtant nature, such as a protocol, a modus vivendi, a postal convention, etc. The majority of such agreements which are of importance or duration are ade pursuant to prior legislative authority-such as the reciprocal trade agreeents or are implemented by later congressional enactment. They may be ore accurately described as legislative-executive agreements. With respect to em the legitimate objectives of the amendment have already been accomished." There are a multitude of other agreements, however, which the President akes in the course of the day-to-day operations of our foreign affairs which ere described by John Bassett Moore 50 years ago as follows: "The conclusion of agreements between governments, with more or less forality, is in reality a matter of constant practice, without which current diploatic business could not be carried on. A question arises as to the rights of 1 individual, the treatment of a vessel, a matter of ceremonial, or any of the ousand and one things that daily occupy the attention of foreign offices without tracting public notice; the governments directly concerned exchange views and ach a conclusion by which the difference is disposed of. They have entered to an international ‘agreement'; and to assert that the Secretary of State of e United States, when he has engaged in routine transactions of this kind, he has constantly done since the foundation of the Government, has violated e Constitution because he did not make a treaty, would be to invite ridicule. ithout the exercise of such power it would be impossible to conduct the business his office" (20 Political Science Quarterly 385, 389-390). The power of the President to make agreement shas been recognized by the preme Court. While a treaty signifies a compact made between two or more tions with a view to the public welfare, there are other international compacts hich are not treaties and do not require the participation of the Senate. IMPORTANT EXERCISES OF THE PRESIDENTIAL POWER Aside from legislative-executive agreements and executive agreements dealing ith the day-to-day conduct of our foreign affairs, there are other executive reements of great importance in that field. Some are based on the exercise the President's authority as Chief Executive in dealings with foreign governents, his authority to receive ambassadors, and finally his authority as Comander in Chief. In these capacities there are agreements of the greatest importance that must made promptly in order that our national interests may be safeguarded. Oviously if this amendment were to be adopted, Congress would grant some oad authority to make such agreements. In time of war, such a prior grant of thority must needs be broad, for we cannot expect foreign nations to commit emselves to us unless we are to commit ourselves in return. See Annex D: Memorandum Relating to the Making of International Agreements Other an Treaties. United States v. Curtiss Wright Corp. (299 U. S. 304, 318); Altman & Co. v. United ates (224 U. S. 583); United States v. Belmont (301 U. S. 324); United States v. Pink 15 U. S. 203). It is a matter of speculation, but it is reasonable to believe that if this provision had been in effect during the late war, blanket authority would have been granted to the President to make agreements. The proponents of this provision no doubt did not intend to put limitations upon the constitutional authority of the President as Commander in Chief, but this would be the result of the amendment. Agreements with foreign nations for bases, for the disposition of troops, for joint diplomatic action, and for a multitude of other matters would then be impossible except with congressional authority. EXAMPLES OF EXECUTIVE AGREEMENTS In the exercise of his power as Commander in Chief in time of war, the President is called upon to make agreements of the greatest importance promptly, and in many cases without immediate publicity. Where we have allies, as appears necessary in this modern world, effective operations require an almost constant succession of agreements and understandings. This is the case not only during the progress of an actual war, but in anticipation of war, or during a "cold war." The Japanese surrender and the creation of the Far Eastern Commission, the German surrender, the agreements with our allies for the occupation of Western Germany, the arrangement for the conduct of our operations in connection with the Boxer Rebellion and its settlement, the arrangements made with Mexico in 1882 covering the passage of troops of either country over the border in connection with Indian depredations, are all examples of the exercise of the Executive power to make agreements in the foreign field. The "gentleman's agreement" with Japan covering immigration of laborers, and the agreement which protected us against a flood of Canadian potatoes during the maintenance of our price-support program, are examples of the exercise of the Executive power during peacetime. Some agreements of this general character would be impossible if an attempt were made to formulate them as treaties, others must be made immediately operative to be effective, and others continue only so long as they appear mutually advantageous. The restrictions proposed would appear to make it difficult or impracticable to conduct our foreign affairs successfully. REQUIREMENTS FOR DOUBLE AUTHORIZATION Section 4, requires in the case of executive agreements which are to have internal effect, not only authorization before the agreement is made but also implementation by act of Congress after it is made-in effect, a double authorization. Such would appear to be the result from the inclusion in section 4 of the provision that executive agreements shall be subject to the limitation on treaties, i. e., that to be effective as internal law they must be implemented by congressional act. Thus it would appear that in various fields the action of the Executive pursuant to prior legislation would be severely hampered in its effectiveness by the requirement for subsequent legislation to implement his action. Such would seem to be the case in action under the Recriprocal Trade Agreements Act (19 U. S. C. 1351) and in such matters as civil aviation and communication. EXISTING SAFEGUARDS AGAINST ABUSE OF EXECUTIVE POWER Legitimate fears with respect to abuse of Executive power in the field of foreign affairs would seem not to justify (1) the permanent shift of the Executive s constitutional power to Congress, (2) the hampering of the Executive's authority to deal promptly and effectively with the problems which confront our country in the foreign field. This is particularly the case when it is realized that curbs now exist against the improper exercise of Executive authority, including the following: 1. The internal effect of an executive agreement can be overcome by an act of Congress. 2. Most executive agreements require implementation by Congress to be effective. 3. Congress possesses the power of the purse and of investigation, and the Senate must confirm Presidential appointments. V Senate Joint Resolution 43 includes the following: "A treaty shall become effecve as internal law in the United States only through legislation which would valid in the absence of treaty." The latter part of this provision reading "which would be valid in the absence treaty" does not appear in Senate Joint Resolution 1. It is referred to popurly as the "which clause" and has its origin in a proposal formulated by the ommittee on peace and law of the American Bar Association. This provision would prevent a treaty from being self-executing as internal law ad in addition would limit its effect as internal law, even if implemented by an et of Congress, to subjects and areas in which Congress could legislate under its elegated powers absent a treaty. It would cut down the treaty power to the mits of powers already vested in Congress. One of the primary objects of our Constitution is to permit the United States speak as a sovereign state with one voice in foreign affairs. This proposal ould destroy this; it would create a no-man's land in foreign affairs. It would quire in certain broad fields of foreign relations not only a treaty consented to 7 the Senate but an act of Congress and legislation by each of the 48 States. ur Nation would thus, instead of speaking with a single voice in foreign affairs, Deak with 49. SOURCES OF OUR TREATY PROVISIONS One of the chief reasons for calling the Constitutional Convention was the fficulty experienced in security compliance with treaties made under the rticles of Confederation." Three treaties with France, besides making her our ly, provided that nationals of both counries should have the right of inheritice. The treaty with the Netherlands of October 8, 1782,13 provided for reprocal rights of inheritance and freedom to worship. The Treaty of Peace of '83 with Great Britain, which ended the Revolutionary War, provided that editors of both nations should meet no lawful impediment in the collection of bts theretofore contracted." Great difficulty was experienced in securing observance of these provisions the various States. Virginia in 1777 enacted a law which interfered with e collection of debts owed British nationals. Madison speaks of disregard of the authority of the Confederation by violaon of all of these treaties" and when the supremacy clause was being formuted insisted on the insertion of phraseology to make clear that eixsting as well future treaties were to be the supreme law of the land. In Ware v. Hylton (3 Dall. 199), the Supreme Court held that the Treaty of eace of 1783 with England prevailed over the laws which Virginia had enacted terfering with the collection of debts owed the British. Thus the very questions posed by this proposal were considered and decided - the Constitutional Convention, and the supremacy clause was adopted to ake impossible the situation which this proposal seeks to create. Nobody in the published debates of the Constitutional Convention ever sugsted that the scope of the treatymaking power should be cut down to the doestic powers of Congress. It was always assumed that the United States had e same powers in foreign affairs as were possessed by the other nations with hom it might negotiate. The treaty power if it cannot reach certain areas denied to Congress under e 10th amendment will be only a partial treaty power, incapable of assuring a nation with which we have made a bargain the consideration we have omised to it, unless and until 48 States shall individually decide that they sh to acquiesce. This turns back the clock to the Articles of Confederation. TYPES OF TREATIES AFFECTED An example of the type of treaty that will be affected by this proposal is the miliar type of treaty of friendship and commerce, of which there are more than now in effect. Such treaties customarily grant to the citizens of each of the tracting countries the same rights as citizens of the other country, to engage See Annex A: Historical Background of the Treaty Clauses of the Constitution. 8 Stat. 6, 12; 17 Stat. 795. 38 Stat. 32. 8 Stat. 80. 3 Farrand, The Records of the Federal Convention, 1911 edition, 548. in business, inherit property, and the like. The rights thus assured are local; they are not matters as to which Congress absent a treaty can legislate. There fore, to be effective, each State would have to enact implementing legislation, a matter obviously impossible of effective accomplishment. The same results would obtain in the case of extradition treaties, of which there are more than 80, treaties covering reciprocal inheritance taxation, migratory birds, collection of debts, and the status of foreign troops. This particular proposal would reverse Missouri v. Holland (252 U. S. 416), the Migratory Bird case, and make it impossible for a treaty, implemented by an act of Congress, to provide for the protection of migratory birds without legislative action by the several States. So also with Asakura v. Seattle (265 U. S. 332, 341). Despite a treaty of friendship and commerce, assuring a foreigner the privilege of engaging in business in the United States in consideration of a similar privilege granted United States citizens in the foreign country, any State with impunity deny the foreigner the rights granted him by the United States by such a treaty. CONCLUSION In this shrinking world, it is more than ever necessary that our country be able to act promptly and effectively in the field of foreign affairs. As we have enemies, so must we have friends. We must be able to give promises in return for promises, and we must be able to perform on those promises. So, also, we must be able to deal with our enemies, and to give assurances to them, as we may demand assurances from them: assurances the fulfillment of which we can guarantee, as we may exact guaranties from them. Treatymaking is a two-way street. We cannot expect nations to grant us rights and privileges unless we not only promise them rights and privileges in return but actually deliver them in return. We must be able to continue to speak as one nation in foreign affairs; we cannot bargain effectively if we speak with 49 tongues. Our existing treaty provisions have operated effectively and without abuse for more than 164 years despite the changes that have occurred, again testifying to the genius of those who framed our Constitution. We should not now change them to meet hypothetical dangers, for the damage thus caused outweighs any possible advantage. The changes are designed to make it impossible to make a bad treaty or a bad executive agreement: in the process it will be made almost impossible to make good ones. It is always possible to abuse power or to exercise powers unwisely; but the remedy does not lie in denying the power entirely, or so shackling it as to make its effective exercise impossible. Rather, the safeguard lies in a vigilant publie and an alert and able Executive and Senate. Never before in our history has it been so necessary that our treaty power be not hampered or diluted, for on its wise and prompt exercise our very national safety may depend. Must we not consider our successors to be as patriotic and responsible as their predecessors, and are we entitled to deprive them of the very powers that may be necessary for their preservation? Finally, we must be sure indeed of our ground before we alter our Constitution, which has been described by Bryce in the following terms: "Yet, after all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definiteness in principle with elasticity in details" (Bryce, The American Commonwealth, 1889 edition, vol. 1, ch. III, p. 25). ANNEX A HISTORICAL BACKGROUND OF THE TREATY CLAUSES OF THE CONSTITUTION CRITICAL PERIOD IN FOREIGN AFFAIRS The treaty clauses of the Constitution, like the Constitution as a whole, were the product of a time of national crisis. They represent a significant part of what the delegates to the Philadelphia Convention deemed essential if the great objects of the new Nation were to be attained (I Farrand Records of the Federal Convention 18, 24, 133, 316). Although domestic instability contributed |