Mach that was said there about the powers of the Government and the powers of the President in the absence of an act of Congress has been held by others, including ourselves, to be dictum, and Mr. Justice Juksen confirms that. But this is the paragraph I am leading up to, in footnote 2, at the bottom of page 66. He says, as to the argument based on the great powers of the President under the Curtiss-Wright case: That ease does not solve the present controversy. It recognizes internal and external affairs being in separate categories, and held that the strict limitation en delegation of congressional powers to the President as to internal affairs does not apply to the delegation of power in external affairs. Here is the key sentence: It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an act of Congress. If you pass an act of Congress in external affairs, the President is bound by it under the "necessary and proper" clause. Mind you, get that. It was intimated that in the absence of an act of Congress he might act in external affairs in many particulars, but not that he might act contrary to an act of Congress. Senator SMITH. But I do not think that is the point here at all, that he might act contrary. You are getting way beyond. Because that would presuppose that Congress would have prescience to know every question that was going to face the Executive and act accordingly, and then have an act of legislation on the books against which the President could not act. Now, that is the point there. Mr. SCHWEPPE. Let me give you the next step, then, which I think fills in the gap which I have not yet supplied. That is this. I am dealing with your power to make a statute regulating Executive agreements. Suppose you make a statute regulating Executive agreements. Senator SMITH. You are talking against the amendment now. Mr. SCHWEPPE. No: I am not. Senator SMITH. Well, if we have got the power, why should we put it in there? Mr. SCHWEPPE. I am giving you my view of the power. But Senator Bricker does not agree with it, for instance. He is in doubt about it. Senator WATKINS. As one lawyer I agree that the power is there, but it has been ignored, and it has been contended that it is not there. Mr. SCHWEPPE. All right. Let me finish my point, then, to fill the gap Senator Smith has in mind. Here is the pertinence of Mr. Justice Jackson's sentence. Suppose you pass an act of Congress that in certain areas and I will give you some ideas in a few minutes as to what our thinking has been-that in certain areas all agreements shall be made by treaty and shall not be made by executive agreement. Suppose the President then comes along and nevertheless says, "I am going to make an agreement in that particular area by executive agreement." Suppose, for example, that you pass an act of Congress in which you say that all international agreements which call for legislation, which call for an appropriation by Congress, which call for the permanent transfer of territory of the United States, shall be made by the treaty method and shall not be made by executive agreement, and you pass that kind of a statute. Suppose the President then comes along and says, "We are going to do it by executive agreement." Then you fall squarely within the language of this. Senator SMITH. The difficulty there is that you have got to define the areas, and I do not believe Congress could in advance define the areas with sufficient particularity to bring into play the power which you are now talking about. Senator BRICKER. The best proof of it is that they never have. Mr. SCHWEPPE. They have never thought about it. It has not been necessary. But it has now become necessary to prevent the abuse of the power in the field of executive agreements. And Congress clearly has that power under the "necessary and proper" clause. Senator SMITH. I would hesitate to vote for an act which tried to presume what the executive is going to face in the future and define an area where I did not know what the subject might come up in. I think it would be quite impossible for Congress to do that. Mr. SCHWEPPE. I don't think so. I think it is impossible to anticipate all of them. I think you have already had enough precedents right now. I will undertake to draw you a bill as to what the President can do by executive agreement. Because you know what he has done by executive agreement, that you gentlemen disagree with, and which even the Secretary of State said the other day should be done by treaties. Senator SMITH. You are getting down to personalities, which we want to avoid. I can quite agree with your statement that a lot of things have been done that I do not approve of. But I do not think we can base this proposed legislation on any personalities. The minute we do that, we are going to raise an insurmountable barrier, in my opinion, to getting something constructive done. Mr. SCHWEPPE. You are not doing that, Senator Smith. Every piece of legislation so far as I know that has ever got on the statute books in regulatory form has come about because something happened in some area. I mean, something happened, and therefore somebody drew a regulation to prevent its recurrence in the future. Senator BRICKER. You pass that kind of a statute, Mr. Schweppe, and the President says, "You are interfering with the prerogatives of the President in foreign affairs." He has complete authority there. Where are you going to get your forum to litigate a question of that kind? There just is not any. Mr. SCHWEPPE. Of course, let me put it this way, Senator Smith. If you take the thesis, with which I do not agree, and certainly I don't believe Senator Bricker agrees, or he wouldn't make the proposal, that Congress should have the power to regulate, if you don't think Congress can make any regulation in the field of executive agreements, then let's not talk about it. I am talking about it because I think it can be done, and I think the power exists or ought to exist. Senator SMITH. I think you are getting into the broader field, about which scores and scores of books have been written, on the powers of Congress and the President, and I have a whole shelf of them myself, some of which I have read, some of which I have not, and I think that is going to complicate the handling of this proposition very materially, because not many of the Senators have heard this full discussion, and they are going to read this record. And when they hear something such as you have just been discussing, I think it will have a bad rather than a good effect. Senator WATKINS. We canot ignore, can we, the decissions that have already been made? And what Mr. Schweppe is doing is bringing to our attention the decisions that have already been made. Mr. SCHWEPPE. Let me put it this way, then. Dr. Finch and I, about a year ago, spent about one-half a day trying to evolve, if this power is to be brought into existence, in what areas it is to be exercised. We came to this conclusion, and Dr. Finch is just as firm that Congress should regulate executive agreements as Senator Bricker is, and that it can be done. We don't think it can be done in one full swoop. We don't think we can sit down here and anticipate everything the President may do in the field of executive agreements that Congress may want to regulate, like the development of every other power of Congress, the commerce power, the taxing power, something that has been worked out over the years based on experience. But Dr. Finch and I are both agreed that there are certainly now some areas in which Congress can already say that the Congress shall not do this by executive agreements, or, if he uses another pattern, if he makes executive agreements, they shall not be valid unless consented to by one or both Houses of Congress. Senator WATKINS. Is it not true that when they sit down to write a constitution they have to anticipate? Mr. SCHWEPPE. Why, surely. Mr. SMITHEY. Mr. Schweppe, before we go beyond this, at least this much is clear in the record, is it not: That Secretary of State Dulles, when a similar question was put to him to that which I put to you earlier, said no, he did not think that was the power under the present Constitution. Then Mr. Roger Kent, the counsel for the Defense Department, likewise intimated the same opinion. So that the record now discloses, does it not, that there is a substantial difference of opinion as to whether any exercise this power is possible under the present constitutional setup? Mr. SCHWEPPE. There is no question about it. Both the Secretary of State, on an inquiry by you, and Mr. Kent, said-I think they understood your question, because you asked it very precisely-that they didn't think the power existed in Congress to regulate executive agreements. Senator SMITH. I quite agree with that. Except that the point I am making is what we are loading the record with a lot of arguments that raise doubts and fortify the opponents of this measure with arguments that there is already the power existing, and why do this. That is one of the things we are going to be met with on the floor. Mr. SCHWEPPE. Well, sure you are. But we come to the ultimate question: Do you want to regulate executive agreements? If you want to regulate executive agreements, then you must want to do it on the basis that it can be done, and that over a period of years you can work it out the way other powers of Congress have been worked out. Now, I will go to the bottom of page 8, which states the joint conclusion of Dr. Finch and myself. I will read it, so as to make it short. Now, what would be a reasonable regulation of executive agreements? We cannot, at this juncture, single out in advance all the areas in which executive agreements should be subjected to specific congressional legislation. That is something that will be worked out by the Congress from experience over the However, years, just as has been the case under its other legislative powers. just as an example, as we have pointed out in our printed report of September 1, 1952, which is part of this record, it could be appropriately provided in a statute that any executive agreement pledging or requiring an appropriation by Congress, or permanently disposing of substantial property of the United States or calling for legislation in any form should either take the form of a treaty or if, in the form of an executive agreement, should require either the approval of Congress or at least the approval of the Senate before such an agreement could become binding upon the United States. Senator SMITH. In other words, the present rule could not be made to destroy this. That would be true, would it not? I am just wondering. Mr. SCHWEPPE. I am glad you asked the question, because Mr. Justice Jackson, who has the "necessary and proper" clause view that I have, and of course was, I think, peculiarly sensitive to the law on this question, because he has ruled on it frequently, makes this particular statement. He calls attention to the footnote on page 645 of 343 United States, that his "destroyers" opinion was a construction of the acts of Congress. Whether you agreed with the construction or not, that is how it was done. Note this. This is what he says in the body of the opinion to which the footnote was attached. He says While broad claims have been made *** even then heed has been taken of any efforts of Congress to negative his authority. And then he points out in the footnote that his opinion on the destroyers was based on an act of Congress. And then he adds this: In the same opinion he was advised that Congress had prohibited the release or transfer of the so-called mosquito boats, then under construction, so those boats were not transferred. He points that out specifically. I was not dealing in the destroyers case with any question of inherent powers. I was construing statutes of the Congress of the United States. And as for the overage destroyers, I rendered an opinion that they could be turned over under the act of Congress by the President. As to the mosquito boats, there was an act of Congress which said, "You can't transfer them," and I advised the President that the act of Congress would prevent them from doing it. Now, I will go further here, just to carry this out. Because if Congress cannot do anything or work it out over the years, then, of course, we should forget about the amendment in that area. Senator WATKINS. Or should provide an amendment that would permit them to do it. Mr. SCHWEPPE. But the suggestion was made awhile ago how we can work anything about. I say it can be done. Senator SMITH. I thought that one of the functions of this proposed amendment-and see if I am wrong, Frank-was that if an executive agreement was made that committed the United States to do something and to feel that the domestic law was contrary to the Constitution, ipso faco it would be destroyed? Is that right, Frank? Mr. HOLMAN. Well, I think what Mr. Schweppe is trying to do is to indicate the Attorney General was wrong on a point of law, and that as a matter of fact when they object to a constitutional amendment which writes what is in his opinion now law in, they shouldn't object to that kind of an amendment to the Constitution, where you put it so that no court will ever misunderstand that that is their power. In other words, your constitutional amendment would in the Constitution set at rest his question about which there has been all this discussion, and that it is simply pointing out that on a legal point the Secretary and the Attorney General do not apparently read these cases. But I agree with you, Senator Smith, that the answer to it all is that what we are trying to do here-and this has nothing to do with treaties, what we are talking about-what we are trying to do is to say that if they do have some power or if they don't have the power, why shouldn't it be written into the Constitution? When we write into the Constitution that executive agreements should be subject to regulation by the Congress, it shouldn't be offensive to these departments of Government, because to some extent in some of the cases the courts have indicated that they do have the power. That is all. Senator SMITH. My conception of it went perhaps a bit further than that, that if the Executive entered into an executive agreement that he had a right to enter into from the international standpoint, but there was something in that executive agreement that constituted domestic law, then of itself it was destroyed, and we could not be accused of violating our commitment or our pledge because the domestic law part was not implemented. Mr. HOLMAN. That is correct. Mr. SCHWEPPE. Well, Senator Smith, that is one feature of it. It goes further. This executive agreement regulation of both Senator Bricker's and ours, has two phases in it. It first says Congress shall have the power to regulate executive agreements, period. Then it says executive agreements shall be subject to all the limitations to which treaties are subject, namely, that they are not the supreme law of the land unless Congress makes them so, and secondly they must conform to the Constitution. Senator SMITH. I am in favor of those provisions. There is no question about that. But it seemed to me we were getting a little far away from the text. Mr. SCHWEPPE. I will give you one more sentence on it, and then I will conclude it. I will give you the joint views of George Finch and myself as to what Congress should do immediately-the rest will come by experience-in the way of conceding the power from some source, either as now existing or derived from a constitutional amendment. I have suggested that the President should not be allowed to go out and make an executive agreement, and say it calls for legislation. Certainly he ought not to be able to bind in advance the Congress of the United States. Senator SMITH. Is there any contention that he does that now? Senator SMITH. He may create a moral responsibility, of course. Senator WATKINS. The North Atlantic Pact does just that, in my opinion. Mr. SCHWEPPE. But from the standpoint of experience, wouldn't it be far better to have a specific congressional act that he cannot make binding agreements in those areas without congressional consent? And then the world is on notice. Now you have the difficulty, and here is what happens, and you gentlemen are subject to great pressure on |