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Snator DIRKSEN. Senator Langer had in mind this, Mr. Pearson, si the President must necessarily rely on the people who implement administration in the State Department and they are, after all,

carpenters who get up these treaties, you see. He was thinking 13]nt of view expressed by Mr. Acheson in response to questions : senator Hickenlooper in the Foreign Relations Committee of the

Aleand it just did not turn out that way at all.
Mr. PEAR-ON. I am not familiar with the colloquy.
Senator DirksEN. I will illustrate the fact. What the chairman has
mnd is that those who contrive and develop these treaties for our

iry proceed on the one line of view and the question is, do they lorer in one direction to the point where they are willing to

1e some of these rights on the part of the American people? id what can the people do about them, after all, except to speak

gh their elected representatives, finally, who come to the consrip that maybe it might be wise to amend the Constitution and tie thing down so that it becomes a matter of law rather than of

nal outlook. That is what is involved here. Mr. PLARSOX. I think I see what you are getting at, but whether I yep with the entire spirit of it or not, at least one major difficulty riy mind is how in the world are you going to write into anything

is short enough to be a constitutional amendment or how in the ci are you going to write in a book in words that will decide now

of treaties you want and what treaties you do not want forever? .. tror:bles me most. "stor DIRKSEN. You have to get back now to the line of discussion

Id a moment ago. You have these possibilities, completely selfSating treaties that require nothing more. Those that must be

menter in every case, where those who contrive the treaty :: insert a provision to the effect that there must be implementing :-ation. But in that middle ground you are always dealing, of

2. with the human equation, with a Secretary of State, with a bowlent, you are dealing with persons who may say, "We will not it in and we will find a way around it perhaps.” So you cannot i'ethe very human viewpoint that is involved here. The resolution

*s itself to that very matter because it says, “We will write it

Solemn organic law of the land, then there will be no doubt ..it it, then it has to come back, so that in no case will the rights

rdized until we get not one look but two looks at it. VI. PEARSON. Then we would have less purchase and facility in

Arg treaties than other nations generally where they are made :-- Executive because we have to have legislative actions.

stor DIRKSEN. Would that be so bad? 3r. PEARSON. I would think it would be pretty cumbersome, sir.

are familiar with the way these things work. Just because the wie had passed it by the required two-thirds of the Senators pres:yu would not want the bill to then go through as a matter of

because you say the whole purpose is to look at it all over 4: HOLMAX. Only as to domestic rights. Internationally, the

y moves immediately. Your reservation would prevent it being - ore internationally and it might be very important that a treaty should function internationally immediately, you see. That is what your reservation is, to hold it up.

Mr. PEARSON. What did you mean by my reservation ?

Mr. HOLMAN. You said you could write in these treaties a reservation not self-executing.

Mr. PEARSON. I meant self-executing as a matter of internal law. Do you like me to proceed with section 3 ?

The CHAIRMAN. I think we had better adjourn for lunch and be back here, say, at a quarter to 2.

(Whereupon, at 12:30 p. m., a recess was taken until 1:45 p. m.)

AFTERNOON SESSION

The CHAIRMAN. The committee will come to order.

STATEMENT OF THEODORE PEARSON ON BEHALF OF THE ASSO

CIATION OF THE BAR OF THE CITY OF NEW YORK-Resumed

Mr. PEARSON. Coming back to the needs or supposed needs, as I understand it, that invoked the suggestion of section 4 of Senate Joint Resolution 130 and section 4 of Senate Joint Resolution 1, it was a feeling that there was a difference between treaties and executive agreements, but nobody knew just what the difference was, and certainly in some respects they could cover the same subject matter.

There are some important differences, however. An executive agreement cannot overrule an act of Congress, whereas, of course, a treaty maxi llowever, an act of Congress can overrule an executive agreement in the same way that an act of Congress can overrule a treaty. So far as subject matter goes, it is difficult, and Senator Bricker himself has said impossible or at least unwise in any constitutional provision to try to say what is a treaty that should require the advice and consent of the Senate and what is an executive agreement that it is proper and suitable that the President should make without any express legislative action.

Str: SAMEY, Mr. Pearson, while an executive agreement may not overrulo an act of Congress, it may be urged as a powerful deterrent to congressional legislation after the agreement has been adopted on the grounds that it would represent a violation of an international obligation, could it not!

Mr. L'Ensen, Yes; I think that is true. You mean that the country, lepin say, is in a sense morally bound or in some nonlegal way by the action of its resident?

Mri Simm. It is a deterrent to congressional legislation in the same field; at least it has been so urged. Mr. PEARSON. Yes, I think in a sense.

Is there anything wrong about that

Mr. Sury. Nothing wrong, sir. I was just qualifying what you had previously stated, that it could not override an act of Congress.

Mr. l'ARSON. I was talking about law and morals.

Mr. Sumner. I understand, but I wanted to ask that question at that point.

M. PEARSON. But if that is bad or to the extent that it is bad, there is no answer to it except to have treaties negotiated by Congress because you cannot go anywhere.

Mr. SMITHEY. I did not think we were talking treaties; I thought se were discussing executive agreements.

Mr. PEARSON. If you do not let your executive department have any per to do anything, the only solution would be to have them made 5 Congress.

Mr. SMITHEY. I was just trying to bring out the effect of executive trements rather than to argue that point in the record.

Mr. PEARSON. I was speaking of the moral thing. If you wanted to Love that blemish, the only thing would be to preclude the Presi**. I think we understand that.

So the previous Senate Joint Resolution 130 tried to draw the line 's saying that executive agreements shall not be made in lieu of rates, and then, as Senator Pricker said in his testimony, and I am parapirasing his words, in fact the more he thought about it, he was if sure that that was the way to go about it because there would

il remain the problem of what is properly an executive agreement ud what is properly a treaty:

As I understand, at least the effect, and I suppose the intention of mint present form, the Gordian knot is cut by saying that all agreements :.be made pursuant to previous congressional sanction so that -tead of trying to say some fall in the executive sphere and some fall the treaty sphere requiring Senate action, the present proposal its all agreements, whether executive or other, to a requirement rior congressional action. Iue CHAIRMAN. You think Congress would have agreed to the Tula agreement if it had known what is in it?

Mr. PEARSON. I do not know, sir, but suppose we think of this ques* 2: Before President Roosevelt went over there, of course there Td have been a cloud of secrecy, and could we dare publicize that w was going? But if he could go to Congress and say, "I am going in there to talk and we want to get Russia into the war, and so : 72" If there had been a section 4 in the Constitution, would Con

, s have refused him authority to go and conduct the conference? i inot know. It is a very difficult problem of how are you going to

this international business done. Shator Dirksex. I have an opinion on that, of course, for what it Forth. Mr. PEARSON. Is that the same as this? Senator DIRKSEN. On this very point. Mr. PEARSON. May I ask what it is? Senator DIRKSEN. If that procedure that you mentioned had taken up, there never would have been a commitment at Yalta to give the tese Eastern and the Manchurian Railroad authority to the Soviet 22.991: we would not have bartered away the northern half of Sak

Island. There are a lot of things we would not have done, and it

ful if the boys would be in Korea today. Tie CHAIRMAN. That is true of Potsdam, too; is it not? Mr. PEARSOX. What form could the authorization have taken, I S: the advance authorization by Congress? Lator DIRKSEN. I am referring now only to what you say about

sussion. Suppose the President had come before the Foreign do's Committee of the Senate and said, "I shall go to Yalta"? Mr. PEARSON. Yes.

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Senator DIRKSEN. "I need a lot of latitude, and here are the things : we are going to discuss: Do we give the Kuerile Islands to the Russians? Do we give them Sakhalin? Do we give Japan all the rights at ! she had in Manchuria? Do we give those to the Soviet Union ?” What do you think the Congress would have said? They would have a measured it in terms of the rights of the people at home, and they 133 would have said, "No, sir."

You see, a better case in point, however, to illustrate this provision here is the St. Lawrence seaway, in my judgment. Three times them Senate said "No." Then what? Then came an executive agreement in order to get the work in progress. When you get $15 or $20 millioner invested, how easy it is to argue, “Look, you don't want to throw this money away, do you?” So you go ahead with it. That is the practical side of this thing.

Mr. PEARSON. Yet you do not want to tie him up completely.
Senator DIRKSEN. No, but we want to know what he is doing.

Mr. Pearson. In connection with the Yalta matter, I was supposing that at the time the President was asking for authority that he did not know what the Russians wanted, so that he would not be able to say, “May I give A, B, C, and D?” In other words, “I want to go and talk, and is it all right for me to go and talk?”

Senator DIRKSEN. Well, if we must spin that out to its irreducible minimum, Mr. Byrnes said in his book that there had been no preparation for Yalta. There has to be a safeguard somewhere.

Mr. PEARSON. The problem is, I take it, that you have to take some chance. It is almost impossible to hit the nail on the head. So then it is a question of are the people, speaking in terms of the powers the people grant, are the people going to give the President too much : E power or too little power?

Senator DIRKSEN. Let us spell it out. Suppose the chance that yor speak of involves 100 American lives? Do you still want that naked I chance there, or would you want it hedged with something in the way of a protective device?

Mr. PEARSON. You have to think in terms of 100 American lives, sx or maybe an estimate of 10 times that that may have been lost in the i invasion of Japan if, as many people thought, the war was going to it go on longer.

Senator DIRKSEN. That decision does not involve that. That was just a case of determining whether or not to use a weapon that was available.

Mr. PEARSON. He was making a trade to get Russia in, and, as it turned out, he paid too high a price. I am not talking of the rights of the thing; I am talking of the cold blooded bargain. As it turned out, he did not need to give up what he did. I do not think we can think of just the Korean lives that have been lost; we have to think of the lives of the soldiers in Japan that might have been lost.

You come back to the problem of are you going to circumscribe the Executive so that you not only circumscribe the Executive but the Nation as a whole in efficient and active dealing with foreign nations.

Senator DIRKSEN. I think you must circumscribe the Executive, and I say it for what I deem to be an historical reason. You cannot look at a country in the world today where the legislative power has not been in retreat. You name me one in Europe where that is not true.

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Wat we are dealing with here very fundamentally is to pull back

ne of that legislative power so that we no longer have manmade govriment, but we have government under law. That is what they

. suite on the top of this building, did they not? This is just an effort, Itak, to carry out that philosophy.

So when you talk about circumscribing the Executive, yes, sir; it is to be done if you are going to keep a free country,

Mr. PEARSON. Well, opinions might differ on that. My feeling aut ction is that it is not merely restoring a balance which has

en put out of balance but that this is a definite shift and that this Botid give more power to Congress than it now has because I take it

s pretty clear that under the Constitution as it stands, take, for wance, the Commander in Chief power, the power that the Execu:52 has and was intended to have, the true powers of Commander in tref, including the necessary powers of working with allies in a Far and making deals with allies, as you have to, not necessarily for

ding wars or treaties, but just in the prosecution of war. Who is ning to fight on what front, who is going to command who, and so

As I read section 4, that power which, under the Constitution, the Preslent has exclusively would be subjected to prior legislation by Congress so that I would say that this was-well, will not say retromwing, but this is not merely a restoration of power, but it is defiLes shifting power from the executive to the legislative.

Senator Dirksen. If we are going to consummate a principle to such this joint resolution directs itself, you have to close the back

of, too, at the same time. Suppose you could circumvent a treaty Fan esecutive agreement, then what have you actually accom

V". PEARSON. That is very true, but I do not think you go so far, olls 5"}, as to say that the President shall have no powers to make vements? wator DIRKSEN. No, no. Mr. PEARSON. Then it becomes a problem if we are in agreement 4: he should have some power to make agreements on his own hook 4.1.0t legislative sanction, and then it becomes a problem of just

wing a line, what should go to the Senate and what should not. Tit is a very hard thing to do.

nator DIRKSEN. You may have a situation where the President L'ories to reach some solution through an executive agreement, and ' ('ongress may say O. K. and not even bother itself further. But

is a safeguard because it was only in the manner and to the ex

to be prescribed by law. The law is in the legislative branch; ::t is the exclusive lawmaking body under this Constitution, and if -5 want to exercise their will and their voice, the power has to be wwhere, and here it is right here.

Vr. PEARSON. I did not mean to say that section 4 operates to reat the powers of the Nation. wator DIRKSEN. That is right. Vr. PEARSON. That is the problem you have in probably some of - other sections, but the Nation has the power. The question is I sercises it. If we are in agreement that it is a good idea to run sroad and to let the President make some agreements without TP-sjonal action, then it seems clear to me that this is a definite

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