Senator DIRKSEN. That is when the trouble arises. Senator SMITH. That is the purpose of the second look. Senator SMITH. Yes, I think so, to see what details are included. Mr. PEARSON. Frankly, I should think it would be a mess, but I am A familiar with government; I am just a Wall Street lawyer, and I do not know how these things work. I should think it would be hans, or at least could be. You gentlemen know about such things, ad you hear the testimony of people in government about such gs. It sounds to me unfortunate. Senator DIRKSEN. Going to the field of treaties for a moment, but th this thought in mind, I think the Japanese treaty is an excellent lustration. If you were to ask me today to what extent we are going pick up the check in Japan, whether it is going to be $100 million 800 million or $1 billion, there is not a Member of the Senate can tell you today. Mr. PEARSON. That about concludes what I have to say, Mr. Chirman. The CHAIRMAN. Senator Smith, any questions? nator SMITH. I have not heard enough of this really to advance gestions that I might otherwise want to put. Mr. SMITHEY. This may be taking a little unfair advantage of you See you may not have had an opportunity to examine the resolution, the first section of Senate Joint Resolution 43 is the American Ear proposal? Mr. PEARSON. Yes. Mr. SMITHEY. You may have had a chance to examine that. They sy in their third sentence of that section: Iterative agreements shall be subject to regulation by the Congress and to limias imposed on treaties by this article. Would it be your understanding that executive agreements would insuch instruments as protocols, conventions, modi vivendi, or do u think that those would have to be encompassed under another such as "other agreements"? Mr. PEARSON. I would guess the latter. I am not familiar with all the Literature on the subject, but we have a quotation here from some entleman who knew about these things, and he seemed to assume at there was a fairly well recognized line of distinction. Well, not , but there were at least two different kinds of animals, so that if 1 write executive agreement in, there is a perfectly good argument that other agreements are not included within the phrase. by the same token, in Senate Joint Resolution 1 when it says execuTe or other, it is perfectly plain that it means everything under the My guess would be that the answer to your question would be that re would be some kind of lower level day-to-day protocol, what not, at would not be covered by that. But as to whether this is sufficientwell recognized so that you could be sure, I do not know. Herry S. Fraser, Treaties and Executive Agreements, Senate DocuLet 244. Mr. Fraser says: erically the term "executive agreement" would embrace every agreement nderstanding, formal and informal, made by the executive branch and a power and not submitted to the Senate for its advice and consent as a Strictly the term would thus include current diplomatic business and ng of matters such as the treatment of vessels, a matter of ceremonial race other routine subject. Up to that point he says generically: Ordinarily, however, the term "executive agreement" is intended to denote a term more informal such as protocol, modi vivendi, a postal conventionand so forth. Mr. Fraser knows what he is talking about; I do not. I would think there was at least a question on the problem that you raised, but probably the answer would be that it would not include these lesser things. It is perfectly clear that this one does, and it was so intended. Senator BRICKER. Just one question, Mr. Chairman? The CHAIRMAN. Surely. Senator BRICKER. In the Steel seizure case three Justices of the Supreme Court said that the President has power above and beyond that which is given in the Constitution or that delegated by the Congress because we had entered into the U. N. with a treaty, because we had gone into the pact. If two more had agreed with him, we would then have wiped out entirely the constitutional protection of property; would we not? Mr. PEARSON. May I say, sir, that I have heard that analysis of the dissent in the Steel case. After I read it. I did not find that there at all. The dissenting opinions mentioned the things you just mentioned the United Nations Charter, and what was the other one? Senator BRICKER. The pact. Mr. PEARSON. The dissents begin by mentioning those. The citations of those with brief explanations are followed by a sentence, "Before considering the action taken by the President, we must consider the times in which it was taken." Then they cite the United Nations Charter and the pact. Then they go on. Certainly it is clear that in the two or three paragraphs of named treaties, it nowhere says that there was any power derived from those treaties. Then there are 2 or 3 pages of subsequent dissent, and I felt absolutely clear that there was absolutely no suggestion of that, that they are testing anything by powers derived from those treaties—that is, any extra powers. The sole purpose of the dissent is to look at this statute and the other statute, and so forth, to find the action they did. Senator BRICKER. They say definitely he had no power under the Constitution to do what he had done. Mr. PEARSON. We are speaking about the dissents; are we not? Senator BRICKER. That is right. They definitely said that in the dissents there was no power under the Constitution or under the law to do what the President did, but in the light, as you say, of present conditions and considering these treaties that the President has the power. You cannot come to any other conclusion. Mr. PEARSON. I do not read it that way. I read the citation of the treaties to show what is going on in the world. My feeling was that they found sufficient congressional sanction for what they did. Senator BRICKER. There is no congressional sanction. Mr. PEARSON. That was not my reading. My understanding was that they thought from the accumulation of the congressional action. that Congress said it wanted wage controls preserved and Congress said it wanted production and supplies for the Armed Forces, and Congress had done this and that, and the President was carrying out the will of the Congress. The CHAIRMAN. Senator Dirksen? Senator DIRKSEN. No questions. The CHAIRMAN. Thank you very much. Mr. PEARSON. Thank you, gentlemen. The following material was submitted by Mr. Pearson to be orporated in the record:) ZEB ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK-COMMITTEE ON FEDERAL LEGISLATION AND COMMITTEE ON INTERNATIONAL LAW PORT ON JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITUTION OF T UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE A.REEMENTS (S. J. RES. 130) ACTION TAKEN BY THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK At the annual meeting of the Association of the Bar of the City of New York May 13, 1952, this report was presented and, on the recommendation of its mmittee on Federal legislation and committee on international law, the associaadopted the following resolution: Golred, That the Association of the Bar of the City of New York approves report of its committee on Federal legislation and committee on international as dated April 28, 1952, and entitled "Report on Joint Resolution Proposing an tendment to the Constitution of the United States Relative to the Making of Ties and Executive Agreements," and opposes said proposed constitutional estment known as Senate Joint Resolution 130. THE JOINT RESOLUTION State Joint Resolution 130, introduced February 7, 1952, by Senator Bricker n behalf of himself and 58 other Senators, proposes a constitutional amend> which would drastically alter the treaty-making procedures, in some fields Tt treaties entirely, and place limitations upon the power of the President er into executive agreements with foreign countries.' Broadly speaking, de proposed constitutional amendment raises major issues of constitutional by which have been the subject of consideration and debate since the initial of the formation of the Union. This report concerns the four substantive sections of Senate Joint Resolution which read as follows: ECTION 1. No treaty or executive agreement shall be made respecting the * of citizens of the United States protected by this Constitution, or abridging bioiting the free exercise thereof. C. 2. No treaty or executive agreement shall vest in any international Panization or in any foreign power any of the legislative, executive, or judicial - vested by this Constitution in the Congress, the President, and in the Ts of the United States, respectively. r. 3. No treaty or executive agreement shall alter or abridge the laws of >ted States or the Constitution or laws of the several States unless, and y to the extent that, Congress shall so provide by act or joint resolution. 4. Executive agreements shall not be made in lieu of treaties. Isutive agreements shall, if not sooner terminated, expire automatically Year after the end of the term of office for which the President making the ent shall have been elected, but the Congress may, at the request of any Tulent, extend for the duration of the term of such President, the life of any Teement made or extended during the next preceding presidential term. President shall publish all executive agreements except that those which dgment require secrecy shall be submitted to appropriate committees Congress in lieu of publication." resolution is unusual in that some of its sponsors disavow any firm opinion a. of the provisions should be included. They agree that the proposed l resolutions were introduced in the House as H. J. Res. 376, 379, and 390 by Sh of Wisconsin, Hébert, and Auchincloss. The resolutions were referred to tive Committees on the Judiciary. Hearings have not yet been held. A copy of est of S. J. Res. 130, including the names of the sponsors, appears in the appendix 30672-53-16 pusuleration, and tender it as us are directed appear to be se of the treaty power or res: (2) that some authority delegated abroad by use of change or abridge Federa Congress; and (4) that th ase executive agreements with ncore if submitted as treaties ew that, under the existing Con materially realized is sufficiently ting safeguards lest the cure Here, we believe that the language e that, if enacted, it would place Ar Chief Executive in handling the at occur with increasing fre es oppose the proposed amend tion in detail, it is advisable t rent scope of, and limitations on 7 - POWER Confederation was that, although and alliances, it could not compe wer which each State thus enjoye ablishment of satisfactory relation As James Madison expressed it eventing the States in their individua nal authority of the States in thei by a past experience.” * ed that the central government alon countries on the treaty-making level - any treaty, alliance or confederation Congress, to enter into any agreemen a foreign power. f the central government is to have th yese it? It was recognized that it would wer to Congress; and the choice narrowed Reasons of secrecy and dispatch and th hang the executive negotiate treaties favore wer in the executive-yet there were thos de in the legislative branch of the Govern to empower the President to negotiate, and he inclusion of the provision: • War. Sonator Bricker, and 923, Senators Saltonstall and Taf of the Federal Convention. 1911 ed., vol. 3, p. 523. ania Convention December 4 and 11, 1787; Charles Pinckne re January 16, 1788: Mr. Davie to North Carolina Conventio he Records of the Federal Convention, 1911 ed., vol. 3, pp. 16 252 (Pinckney); and pp. 347-349 (Davie). He shall have power, by and with the advice and consent of the Senate, to zake treaties, provided two-thirds of the Senators present concur." " Another problem arose: If a treaty should be inconsistent with an act of tongress, or a State constitution or law, which should have precedence? This was resolved by the inclusion of the so-called supremacy clause, article VI, azraph 2, which reads: This Constitution, and the laws of the United States which shall be made in ance thereof; and all treaties made, or which shall be made, under the hority of the United States, shall be the supreme law of the land; and the mizes in every State shall be bound thereby, anything in the constitution or as of any State to the contrary notwithstanding." Under its terms, treaties, and acts of Congress were placed on a parity, with esh of them having primacy over the constitutions of and laws of the several sites. The intent of this arrangement has been reaffirmed by the courts. Infar as the internal law of the United States is concerned, a later act of Cones will override a treaty and a later treaty will supplant an act of Congress, the extent that they are inconsistent. Of course, the other party to a treaty perseded by a later Federal law may claim that the treaty has been violated, that is a matter between it and the United States as a nation. Sme persons opposed the ratification of the Constitution because treaties ved override State constitutions and laws, but the Constitution was ratified spite this opposition. For owing out the logic of the supremacy clause, it was held as early as 1796 that treaties supersede inconsistent State law. In Ware v. Hylton (3 Dall. 199), was held that certain provisions of the treaty ending the Revolutionary War Ve self-executing, and being inconsistent with a Virginia State law, had superdit. This principle of treaty supremacy was reaffirmed in Asakura v. City Seattle (265 Č. S. 332 (1924)), wherein a treaty with Japan was held to have -ridden a city ordinance.1o The inclusion of the so-called necessary and proper clause (Constitution, art. I, was a recognition that the subject matters of treaties might well transand the specific powers delegated to Congress, and that it was in the national Perest that Congress be able to enact legislation implementing a treaty which wonid be unable to enact in the absence of a treaty. It followed as a corollary "at the Supreme Court would hold, as it did in Missouri v. Holland (252 U. S. £5(1920)), that Congress in implementing treaties might enact legislation which was beyond its ordinary delegated powers. Standing at the apex of this pyramid of supremacy is the Constitution of the The States, which overrides treaties, acts of Congress and the constitutions Laws of the several States (see pp. 13–16 below). We shall now consider the provisions of the proposed resolution in detail. As four substantive sections deal with four distinct subject matters, we shall e a section-by-section analysis. Art. II. sec. 2. par. 2. clause 1. The Cherokee Tobacco (11 Wall. 616 (1870))-United States tax law applied to tobacco earlier treaty with Cherokees had exempted from tax. Botiller v. Dominiquez (130 $ 258 (1889))-Mexican treaty required recognition of Mexican title to California Later congressional law barred such recognition after 2-year period. The claimant because of the statute, although the court said the treaty might still subsist in mational law. e Chan Ping v. United States (130 U. S. 581 (1889))-later Federal Chinese Exclu= Act superseded earlier Chinese treaty; Whitney v. Robertson (124 U. S. 190 (1888))— favored-nation treaty construed not to conflict with later Federal law but, if it did, *** Federal law prevailed. Both these cases stated that in the reverse situation of a - superseding an earlier Federal law, the treaty would control. "In either case the last n of the sovereign will must control" (130 U. S. 581 at 600). Luther Martin of Maryland-Farrand, The Records of the Federal Convention (1911 Lvl 3. p. 287); Patrick Henry of Virginia-Henry, Patrick Henry, Life, Correspond1 Speeches (vol. 3, p. 557). treaty recognizing the right of British subjects to own American land was held to a State confiscation decree. Fairfax's Devisee v. Hunter's Lessee (7 Cranch 603 i, as interpreted by the Court in Martin v. Hunter's Lessee (1 Wheaton 304 (1816)). statute restricting inheritance to citizens was held superseded by a treaty recogswiss aliens to have such a right. Hauenstein v. Lynham (100 U. S. 483 (1880)); Clark v. Allen (331 U. S. 503 (1947)). A moment's reflection will show that the principle of Asakura v. Seattle (treaty overnicipal ordinance on pawnbrokers) is necessary to the treaty making power. - we could override the police power of the States to protect foreign nationals, we t expect foreign nations to curb their police power in favor of our citizens abroad. make all laws which shall be necessary and proper for carrying into execution the 2 powers, and all other powers vested by this Constitution in the Government of ted States, or in any department or officer thereof." |