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except so far as the international aspects of the treaty are concerned, by preventing treaties from becoming internal law in the United States automatically under the supreme law clause.

Furthermore, it appears that modern treaty framers oppose reservations. The Universay Copyright Convention signed in the fall of 1952 (not yet ratified) provides in article XX: "Reservations to this convention shall not be permitted.”

Finally, the use of "reservations" or "understandings" constitutes reliance on the human factor, which should, so far as possible, be avoided by a sound (onstitutional provision that makes such reliance by the States and the people unnecessary. 3. Subsequent legislation

It is urged that adequate protection exists in the power of Congress to abrogate or modify treaties, at least so far as their internal effect is concerned, by subsequent legislation.

Doubtless treaties can be denounced or modified by subsequent congressional legislation-a principle recognized in Ware v. Hulton (3 Dall. 199, 261 (1796) ), and since often reaffirmed, as for example, in Head Money cases, (112 U. S. 590, 597-99 (1884) ), Hijo v. U. 8. (195 U. S. 315, 324 (1904)), Sanchez v. United States (216 U. S. 167 (1911)) ; Horner v. United States (143 U. S. 570).

Mr. Justice Curtis said in Taylor v. Morton (2 Curtis 454 (1855)), affirmed by Supreme Court (2 Black 481):

"To refuse to execute a treaty, for reasons which approve themselves to the conscientious judgment of the Nation, is a matter of the utmost gravity and delicacy; but the power to do so, is prerogative, of which no nation can be deprived, without deeply affecting its independence” (Ibid., p. 459).

It is thus clear that Congress can, by subsequent legislation, denounce a treaty entirely, or, in a more limited way, render it inoperative as domestic or internal law in the United States.

Is this an adequate remedy in the circumstances ?
It is believed not, for the following reasons :

(1) Congress may elect not to denounce or limit the treaty, even though Congress might not have legislated to make the treaty domestic law in the first instance.

(2) Far more important, Congress may be unable to do so, in the face of the Executive veto power, if it cannot muster a two-thirds vote of both Houses. Thus a treaty which has become the supreme law of the land by action of the President and "two-thirds of the Senators present” (see some striking illustrations of treaty approvals with only 2 or 6 Senators present, American Bar Association Journal, September 1952, p. 795) cannot, even though deemed harmful to our internal affairs by a large majority of Congress, be rendered innocuous unless by the overwhelming two-thirds vote, which, in the case of most Chief Executives, is indeed very difficult to obtain.

(3) Such subsequent legislation by Congress may cause international complications of a major character. Please note the extreme care with which Mr. Dulles framed the congressional resolution on the Yalta, Teheran, and Potsdam agreements, in order to avoid repudiation. On the other hand, if the constitution were amended to prevent treaties from automatically becoming the supreme law of the land unless Congress legislates (thus putting us on a parity with the other leading countries of the world) the rest of the nations could not leriti. mately complain, because with them a treaty, while immediately effective as an international agreement under international law, does not become the internal law of the country except by subsequent legislation. (See Mr. Justice Curtis in Taylor v. Morton (1855) (Curtis 454, 2 Black 481).)

It would seem unwise to rely extensively on this congressional power of repudiation, but much wiser to adopt a constitutional limitation preventing all of these difficulties in advance.

The first 10 amendments were added to the Constitution in 1791, to protect the States and the people in advance against misuse of Feileral power.

While the exercise of the power of Congress to set aside or cut down existing treaties may on rare occasions be useful, a constitutional amendment dealing with the whole problem in advance is definitely preferable. 4. Senate vigilance

The fact that some 60 Senators themselves propose consideration of a constitutional amendment affecting the Senate's powers in the treaty field to approve treaties and make domestic law, regardless of State constitutions and laws, is a

sufficient refutation of the argument that the Senate can be counted on to protect the American people against bad treaties becoming the supreme law of the land.

The factual illustrations cited in the report under the caption "The Need for a Constitutional Amendment,” are themselves adequate evidence of why so many Senators want constitutional protection in this area.

In fact it is believed that the Senate, as well as the State Department, will be greatly aided in the avoidance of inadvertences or doubtful provisions, and in obviating the necessity of trying to solve in advance difficult questions as to the self-executing character of treaty clauses, by the proposed provision making all treaties non-self-executing as internal law until the whole Congress acts by separate legislation.

V. CONCLUSION The attack of both the Secretary of State and the Attorney General is leveled primarily on the text of Senate Joint Resolution 1. They are really unable to make an effective quarrel with the first section of the American Bar Association text. Although they appear to think that it states the law as set forth in Geofroy v. Riggs, The Cherokee Tobacco and other cases, they somehow or other conjure up a fear that it would be dangerous to embrace this satisfying concept in a constitutional amendment.

As respects section 2 of the American Bar Association text, they quarrel some what with a concept which would make all treaties non-self-executing. That argument is not convincing for the reasons previously given.

Their principal quarrel with the American Bar Association text is the so called “which clause" in section 2, which would limit Congress in making domestic law under treaties, to those otherwise delegated constitutional powers. They say that in this particular the American Bar Association text mold is so strict that it would seriously cripple the Government.

We comment again on the point which we have now made for several years, but which the Government representatives do not appear to want to understand, that there is nothing in the American Bar Association's proposal which affects any treaty negotiated in any field whatsoever as a binding, international obligation under international law; and that our “which clause' 'affects only the domestic law status of the treaty.

The Attorney General goes so far as to say in his statement, page 36, that far from trying to preserve the constitutional balance between State and Federal power as we contend, that we are in fact advocating a violent change in the balance between State and Federal power, because under Missouri v. Holland it was intended that the Federal Government should have the power to "reach many matters which would otherwise be solely of State concern,” and that, therefore, we are advocating the unbalancing of State and Federal power as construed in Alissouri v. Holland under which the Federal Government can reach at will into domestic State matters and destroy State constitutions and laws.

We still say, as confirmed by the view of Jefferson and others, that it was never thought, at least after the 10 amendments were adopted in 1791, that the treaty power could touch the reserved powers of the States, but Missouri v. Holland is now contrary to Jefferson's view; and we believe that those who contend (and it is so earnestly contended by both the Secretary of State and the Attorney General), that Missouri v. Holland is a good rule which ought to be preserved rather than abolished, must squarely face the fact that under Missouri v. Holland the Federal Government can be, and under articles 55 and 56 of the United Nations Charter, probably is, a government of unlimited powers which can push ail State laws and constitutions out of the way; and that in the language of Jefferson, “then we have no Constitution."

We sincerely appreciate the compliments of both the Secretary of State and Attorney General that the proponents of these constitutional amendments have so enlightened public opinion as to bring about a change in the foreign policy of the United States with respect to a multitude of treaties that are now in the works in the United Nations and some of its affiliated agencies. But one such salutary change in foreign policy may at some later time be followed by another change in foreign policy in the treaty field not so salutary. It is only when we have a government that sincerely intends to stay within its constitutional limitations that such an amendment as we propose can be obtained for the protection of future generations.

We sincerely ask that notwithstanding the presentation of the Secretary of State and of the Attorney General, as well as other representatives of Government departments, this committee recommend the adoption of an appropriate

constitutional amendment in this field so that the long program incident to obtaining ratification of a constitutional amendment by legislatures of threefourths of the States may promptly go forward.

As for the familiar argument repeated in the statements of both Cabinet officers that the proposed amendment is both unnecessary and dangerous, you are, of course, aware that exactly the same argument was made in the 84th article of the Federalist, as follows:

"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous."

Need more be said ?

Mr. SCHWEPPE. I address myself immediately to the question of executive agreements. On page 4 I called attention to the fact that the Secretary of State immediately starts out with an erroneous conception of the law concerning executive agreements. The Constitution makes treaties the supreme law of the land. The Supreme Court has made executive agreements the supreme law of the land in the Belmont case and Pink case. The statement made by Secretary Dulles:

The danger to the Nation, however, from agreements not submitted to the Senate as treaties or to the Congress for legislative validation cannot be great because without either Senate or congressional action, these agreements cannot constitutionally be the law of the landis exactly 100 percent wrong.

The Supreme Court has said so, and I have cited you the cases and have quoted the one sentence. The Supreme Court says that treaties are supreme and international compacts and agreements of certain classes, although not consented to by the Senate, are also the supreme law of the land superseding the law of the State of New York.

Senator WATKINS. What you mean in effect is that the 10,000 agreements Mr. Dulles mentioned the other day are now 10,000 laws of the land?

Senator BRICKER. In the Pink case there was no congressional authority either.

Mr. SCHWEPPE. No congressional. In the Belmont case the court first held that President Roosevelt could make that deal with Mr. Litvinov without congressional consent.

In the Pink case they said, following the dictum in the Belmont case, that treaties, international compacts, and agreements are the supreme law of the land. So we start with that fundamental error in the legal argument of the Secretary of State.

Now I turn to page 5 at the bottom of which I have stated in substance that I belong to the school of constitutional thought to which Senator McCarran and some of the rest of you belong that believes that Congress now has the power to regulate executive agreements under the necessary and proper laws of the first article of the Constitution.

Mr. SMITHEY. Mr. Schweppe, do you go so far as to say under the necessary and proper clause that certain types of executive agreements could be absolutely prohibited by the Congress?

Mr. SCHWEPPE. Yes. I say in this statement-and I will implement it with an additional argument I think that will greatly appeal to you-I say not only has Congress the power to regulate executive agreements, particularly does it have the power to regulate the abuse of executive agreements under the necessary and proper clause. Senator BRICKER. But they have never done it.


agreements of every kind, those requiring the consent of Congress and those not requiring it.

And then the further advantage of doing that is that if there is any doubt at all about my argument-and I don't entertain any, but if there is any doubt at all—and others may entertain a doubt about it—then certainly the express statement that Congress shall have the power to regulate executive agreements will remove the whole thing from the area of doubt.

Senator WATKINS. The same reason they adopted the 10 amendments.

Mr. SCHWEPPE. That is right. If you will read the Hamilton, Washington, and Jefferson argument, they said they wanted to be sure. Others said, that is all taken care, but they said, “We want to be sure it is taken care of.” So they wrote the 10 amendments.

Senator BRICKER. In the light of the Pink case, it raises a very serious doubt in my mind.

Senator SMITH. That is where we may run into a little more difficulty, in connection with those who have not read all this discussion. Because they are as anxious as we are not to interfere with the proper authority of the executive. That is the reason I raise this question. I am afraid it is a little complicated right now in the minds of some people.

Mr. SCHWEPPE. Let me go on.
I want to fortify the Quirin case with the great decision in the Steel

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Senator SMITH. The Quirin case was the criminal case.

Mr. SCHWEPPE. That was the criminal case in 307 United States Reports 1, decided by a unanimous Court, saying when Congress passes a law, even within the area of the Commander in Chief, that is the basis for the action, under the “necessary and proper” clause.

Senator WATKINS. Will you give us the citation?

Mr. SCHWEPPE. The Steel case is 343 United States Reports, at page 579. The majority opinion was written by Mr. Justice Black, and it is an excellent opinion. I want to call your attention to his approach to the problem.

He says, at the top of page 588:

The first article of the Constitution says that all legislative powers herein granted shall be vested in a Congress of the United States. After granting many powers to the Congress, article 1 goes on to provide that Congress may “make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any officer or department thereof."

Then he goes on to point out, of course, that the President is an officer, within the meaning of the “necessary and proper" clause. There seems to persist in the city of Washington and in some of the writings of the State Department that somehow or other there is an untouchable area in the Government of the United States that Congress cannot reach by reasonable regulation. I deny that categorically.

Senator BRICKER.There is a question, though, when it comes to the separation of powers, of how you will get a forum to litigate that problem.

Mr. SCHWEPPE. Well, I think the cases under the “necessary and proper” clause, which Í began studying some 30 years ago, are far more potent than most lawyers believe and understand, because they


have not followed it through as a consistent pattern. Because I sayand I repeat it for the record—that there is no untouchable area anywhere in the Government of the United States that the Congress cannot reach by reasonable regulation under the "necessary and proper" clause.

Senator SMITH. Then why should we have this provision? I think you are complicating this thing very much. Frankly, I do. I think for the benefit of those Senators who read this record, what you said this morning is going to complicate our problem very, very much.

Mr. SCHWEPPE. I don't think so. Because all people may not agree with this argument.

Senator Smith. But when you take the time to cite and quote the provisions of the Constitution, I have not been here very long, but one of the surprises I got was the thorough familiarity of most of the Members of the Senate with the Constitution. So Ï believe you

I are complicating it a bit by putting in too much detail.

Mr. SCHWEPPE. I want it in the record, because if you don't put it in then I want to see it done by act of Congress.

Senator WATKINS. My impression as to Members of Congress is just the contrary from yours, Senator Smith.

Mr. SCHWEPPE. As I see it, if we are going to put in something about treaties, one form of international agreement, let us draw a complete clause and put them all in, and remove all doubt whatsoever, and not leave it to my legal argument or Senator McCarran's or anyone else's.

Senator BRICKER. If you do not do that, under the Pink decision, if you leave out executive agreements, there is a further question subject to litigation as to whether executive agreements are the supreme law of the land and whether or not you have effected anything in regard to it.

Senator Smith. I am inclined to agree with you, Senator Bricker, that that ought to be that way, but I rather think this record will indicate Mr. Schweppe's suggestion is not necessary,

Mr. SCHWEPPE. There are a lot of things I don't think are necessary, but I put them in so that they are nailed down.

Senator BRICKER. I think in the light of the dissent on the part of the three judges in the case you mention, there is an extreme doubt.

Mr. SCHWEPPE. Now let me call your attention also, in the Steel case, to what I consider a very great opinion, and that is the concurring opinion of Mr. Justice Jackson. Those of you gentlemen around this table who have been so exercised, as I have been exercised, over the action of the preceding President, by moving troops into Korea, will get great intellectual satisfatcion out of a reading of that opinion, because he was during the war years the chief legal adviser of the President who preceded the one before the last one.

Now, here is a very interesting thing that Mr. Justice Jackson says. It is on footnote 2 on page 635. You know, these Government men always cite the Curtiss-Wright case as a great case. They say the President can do almost anything under the Curtiss-Wright case. And Mr. Justice Sutherland uses some extremely broad language in that case. But yet Mr. Justice Jackson's commentary is very interesting. He discusses the Curtiss-Wright case. He says there was much in it that was dictum, because the specific question involved was what the President could actually do by way of forbidding the exportation of arms under an act of Congress.

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