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As the result of intensive study, the committee on peace and law su mitted to the house of delegates of the American Bar Association the February 1952 midwinter meeting of the National Bar Associatis a draft of a proposed constitutional amendment relating to the treat making power. After extended debate, and with some opposition, t house of delegates overwhelmingly adopted the following resolutio which I here read into the record.
This is the resolution adopted by the house of delegates on Februar 26, 1952 [reading]:
Resolved, That the American Bar Association recommend to the Congress the United States for consideration an amendment to the Constitution of t United States in respect of the treatymaking power, reading as follows:
"A provision of a treaty which conflicts with any provision of this Constituti 11. shall not be of any force or effect. A treaty shall become effective as interp law in the United States only through legislation by Congress which it cou pass under its delegated powers in the absence of such treaty.” This resolution, as indicated above, represents the opinion of tł organized bar of the United States in the 48 States and the Territorie as embodied in the American Bar Association, after full study an debate, although it should be recognized that there may be 1 or individual groups who think an amendment is unnecessary.
The pertinent portions of the report of the committee on peace an law, on which the foregoing resolution was based (report ( February 1, 1952) are reprinted on pages 480–504 of the volume er titled “Treaties and Executive Agreements,” being hearings before subcommittee of the Committee on the Judiciary, United State Senate, May 21-June 9, 1952, and will not be here reoffered.
There are also two articles on the treaty power and the America Bar Association proposals in the June and September 1952 issues o the American Bar Association Journal, written respectively by Georg A. Finch and Eberhard Deutsch, both members of our committee Reference is hereby made to them.
In order to give you the benefit of the further studies of our com 1: mittee, not yet incorporated in the record, I offer from the Septem ber 1, 1952, report of the committee on peace and law to the house o delegates of the American Bar Association, pages 7-18, dealing wit] the treatymaking power and with executive agreements.
(The information referred to is as follows:)
1. THE TREATYMAKING POWER At the midwinter meeting of the American Bar Association held at Chicago on February 25–26, 1952, the house of delegates recommended to the Congreso of the United States for consideration an amendment to the Constitution of the United States in respect to the treatymaking power, reading as follows:
“A provision of a treaty which conflicts with any provision of this Constitu tion shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation by Congress which it: could enact under its delegated powers in the absence of such treaty." (Se p'roceedings of house of delegates, 39 Am. Bar Jour. 435, May 19.52.) In due course, this action of the house of delegates was brought to the attention the of Congress.
On February 7, 1952, before the text of the American Bar Association's proposal was adopted on February 28. Senator John W. Bricker of Ohio, joined by 56 other Senators (to which others have since been added). introduced Senate Joint Resolution 130, which proposes a constitutional amendment with respect to both treaties and executive agreements. Congressman Smith of Wisconsin introduced the same amendment in the House of Representatives on February 11, 1952, as House Joint Resolution 376.
the title of introducing Senate Joint Resolution 130, Senator Bricker said
otal Record, Feb. 7, 1952, p. 923): De explaining the joint resolution section by section, I should like to ***212 to the magnificent work of the American Bar Association and its -"Po prace and law through United Nations in alerting the American
to the dangers inherent in the treatymaking power. I desire to pay a pas. tribute to the association's distinguished past president, Mr. Frank E.
of Seattle, Wash., for his pioneer work in this field. I hope that the E-Bar Association's careful study of this subject over the past 4 years 1:22 burtly in a proposal to amend the Constitution designed to accome same objective as the resolution just introduced.”
Jint Resolution 130 was referred to the Senate Judiciary Committee 5.1 in turn referred to a subcommittee (consisting of Senators Pat A. Mc-2. Srrada, chairman; Herbert R. O'Conor, Maryland ; Willis Smith, North 2. Homer Ferguson, Michigan; Robert C. Hendrickson, New Jersey), for
This subcommittee held hearings which began May 21 and continued ***0.5 thereafter until closed on June 13, 1952. At these hearings pro
I opponents of an amendment to the Constitution respecting treaties
urs of the American Bar Association, all seven members of the commit- rare and law testified at the subcommittee hearings. They stated their Es support of a constitutional amendment and recommended the text
be the house of delegates as respects the treaty power. They suggested de tbe Bricker text covered the subject as a basis for study, the Ameri2 Avriation text aspeared more concise and obviated some questions
ter the text of Senate Joint Resolution 130. They concluded that the L2 Bar Association text was preferable and suggested that the Senate
"Pri tee give it consideration, - Tour committee's last report, additional literature, pro and con, has
with respect to the treaty power, to which attention is directed. See K-47 Chafee, Jr., Criticism of Constitutional Amendment Backed by IS A. Harvard Law School Record, February 21, et seq.; Zechariah Chafee,
ing the Constitution to Cripple Treaties, 12 Louisiana L. Rev. 345 97.2,; Arthur E. Sutherland, Jr., Restricting the Treaty Power, 65 T: L Rer. 1305 (June, 1952); Report of the Association of the Bar of the
* York on S. J. Res. 130 (May, 1952); George A. Finch, The Treaty 40-ndment: The Case for the Association, 38 Am. Bar. Jour. 467 (June,
Zbariah Chafee, Jr., Stop Being Terrified of Treaties: Stop Being 12 of be constitution, Am. Bar Jour. September, 1952; Eberhard P. Deutsch,
Sve for Constitutional Amendment to the Treaty Power: A Restatement
R-D's. Am. Bar Jour, September, 1952. 99ai. Mr. Chafee, Mr. Sutherland, and the Association of the Bar of the
CV* Fork think that such an amendment is unnecessary and undesirable, - d be President and the Senate can be counted upon to act carefully and
Mr. Finch and Mr. Deutsch, on the other hand, fully develop the
for the American Bar Association's amendment and, in our judgment, ****, - 7 answer the arguments in opposition.
Dusual significance that, in the Steel Seizure cases (Youngstown Sheet tvia, V. Sauer, decided June 2, 1952, 72 Sup. Ct. 863) Chief Justice Vinson,
*** virh the concurrence of two other judges, stated that the United starter and the North Atlantic Treaty, as treaties designed to suppress
zire the President the power to seize private property, although statartrity is wanting, and although the majority of the Supreme Court "at be has no such power under the Constitution, and that under the
23-0dment he is denied the power to take property, without due process 17 Di without just compensation. If two additional judges had accepted *s of the Chief Justice, the treaty known as the United Nations Charter Y" Sürth Atlantic Treaty, made by the President and consented to by the
1:32:have effected a fundamental change in the American form of
est, without Congress, or without the States or the people (to whom 19-re Dot delegated are reserved under the 10th amendment) having " to say about the matter. This real danger will be averted by the
er derelopment of interest is the confirmation of the view of your com2.r N. v. Curtiss-Wright Export Corporation (299 U. S. 304), by Mr. de Jackson's concurring opinion in the Steel Seizure cases (Youngstown
Sheet & Tube Company v. Sawyer, decided June 2, 1952, 72 Sup. Ct. 863). Yo committee in its February 1, 1952, report (pp. 7-8, 9–10) sharply criticized t Curtiss-Wright case as being largely broad and erroneous dicta. It is believ (and the decisions based on the law of nations cited by the court confirm th belief) that the Curtiss-Wright decision confuses the position of the United Stat as viewed under international law by foreign nations with the position of t] United States in international relations as a matter of domestic constitution law, under which the treaty power is delegated expressly. Despite the sweepir language, the case dealt only with an express congressional delegation of pow to the President authorizing him in certain circumstances to forbid the sa of arms to foreign countries. Mr. Justice Jackson says (footnote 2 of this co curring opinion) that "much of the court's opinion is dicta"; and that it involve sto “but the question of his [the President's] right to act under and in accord wit an act of Congress.” And he concludes with the following statement:
"* * * It recognized internal and external affairs as being in separate cat gories, and held that the strict limitation upon congressional delegations of powi to the President over internal affairs does not apply with respect to delegatioi of power in external affairs. It was intimated that the President might act i external affairs without congressional authority, but not that he might act co: trary to an act of Congress.” [Emphasis supplied.]
It should be noted particularly that the American Bar Association's proposed amendment does not prevent the President and the Senate from making a treat vir otherwise valid under the Constitution, on any subject whatsoever, and that and such treaties are effective externally. But the proposal prevents such a treat man from becoming effective as internal law in the United States, except to the exter that Congress legislates within its delegated powers in the absence of such treaty is the
Your committee will keep the house of delegates advised of further develoj ments on the proposed treaty-power amendment.
II. EXECUTIVE AGREEMENTS
Immediately following the midwinter meeting of the association in Chicago ir i February 1952, at which time your committee's recommendation of a propose constitutional amendment with respect to the treaty power was adopted, you committee determined to make a study of the subject of executive agreements.
A subcommittee of your committee studied and analyzed the leading literaturi and decisions on the subject, including, among others, the following: McClure Pin International Executive Agreements (1941); Borchard, Shall the Executive cd Agreement Replace the Treaty ?, 53 Yale L. J. 664 (1944) ; McDougal and Lansinif Treaties and Congressional-Executive or Presidential Agreements; Interchange OT EN able Instruments of National Policy, 54 Yale L. J. 181 and 534 (1945); Borcharday Treaties and Executive Agreements-A Reply, 54 Yale L. J. 616 (1945); Borchardstable Treaties and Executive Agreements, 50 Am. Pol. Sci. Rev. 729 (1946); Arthur E atte Sutherland, Jr., Restricting the Treaty Power, 65 Harvard L. Rev. 1305, pp. Sages 1320–1324; McCarran, Congressional Power Respecting Treaties and Executive instelli Agreements, Cong. Rec. Jan. 21, 1952, pp. 301-2; Hearings, Senate Committee on and of Commerce, entitled “Civil Aviation Agreements” April 6 and April 10, 1946, pp. ad šta 311-334, for a distinction between treaties and executive agreements; United States v. Pink, 315 U. S. 203 (1942); United States v. Belmont, 301 U. S. 324 ore (1937); Guaranty Trust Company v. United States, 304 U. S. 126 (1938); M08cow Fire Insurance Company v. Bank of New York, 280 N. Y. 686, 20 N. E. (2d), More 758 (1939); affirmed without opinion by an equally divided court, sub nom. United States v. Moscow Fire Insurance Company, 305 U. S. 624 (1940).
On January 21, 1952, Senator McCarran, of Nevada, chairman of the Senate Judiciary Committee, introduced Senate Joint Resolution 122, which would undertake to regulate executive agreements by congressional action (Congressional Record, Jan 21, 1952, p. 301). A copy of Senate Joint Resolution is hereto attached as appendix A.
On February 7, 1952, Senator John W. Bricker, of Ohio, introduced Senate Joint Resolution 130 as a proposed constitutional amendment, which, in addition to regulating the treaty power, also regulates executive agreements. (See Congressional Record, Feb. 7, 1952, pp. 920-928.) A copy of Senate Joint Resolution 130 is hereto attached as appendix B.
Senator McCarran in Senate Joint Resolution 122 recommends immediate statutory control of executive agreements. Senator Bricker in Senate Joint Resolution 130 recommends that, in any event, the subject should be dealt with by constitutional amendment. At the time of introducing his proposed constitutional amendment in the form of Senate Joint Resolution 130, Senator Bricker said:
*judgment there is nothing inconsistent between section 4 of the proe umeiwent and Senate Joint Resolution 122, recently introduced by the 10 shed chairman of the Senate Judiciary Committee, the Senator from
lir. MeCarran. After we find out what can be done with executive Sit by legislation, we will have a clearer idea of what must be accomemine if at all, by constitutional amendment” (Congressional Record, Feb.
R3). * the members of your committee appeared in May of this year to testify
zaie Judiciary Subcommittee hearings on Senate Joint Resolution 130 Binder amendment), they were asked to express their opinions on the Tents of the Bricker amendment relating to executive agreements. In
such questions, your committee members stated that neither the Lan Bar Association nor your committee had taken action on the subject -intre agreements, and that anything an individual member might say Card only his personal opinion and was in no way binding on the commit
be American Bar Association. Individual members of the committee attention to article I, section 8, clause 18, of the Constitution and to Er *** Osirin (317 U. S. 1, 25–26, 29), and expressed their opinion that under
% of the Constitution just cited executive agreements were subject to 270 al control; that both the statutory and constitutional amendment ** seemed sound; and that any doubt on the subject raised by broad dicta 2. Heases as U. 8. v. Curtiss-Wright Corporation (299 U. S. 304 and U. S. *** 315V. S. 203) should, in any event, be removed by constitutional amend
Tentatively, individual members of the committee were of the view that L parposes of Senate Joint Resolution 130 might be accomplished by com= 1 sentences from that resolution, as follows: "Executive agreements
Box be made in lieu of treaties” (sec. 4 of S. J. Res. 130), and "Congress
die power to enforce this article by appropriate legislation" (sec. 5 of S. J. ** 1.9. Several members of your committee made that suggestion when Pestoned by Sepators during the hearing.
I fii membership of your committee on peace and law has, since the Senate riunitee hearings, made additional studies of, and given further extended
cation to, executive agreements. As a result of a meeting of the full *** in July, devoted almost exclusively to this subject, your committee
that both Senator McCarran in Senate Joint Resolution 122 and Senator BD Senate Joint Resolution 130 have the right approach; namely, that Crite a Teements should be subjected to regulation by Congress. Senator #azan's proposal would, if adopted, appear to be of immediate efficacy under it tation as it now exists; and Senator Bricker's proposal of incorporat*2 modressional control principle in his proposed constitutional amendment
Poore any conceivable doubt in the subject.
ng powers and all other powers vested by this Constitution in the :itat of the United States, or any department or officer thereof.” (Em"pied.)
Sans clear that the foregoing clause vests Congress with the power to make
his TV is supported by the principles announced in Ex parte Quirin (317 1127, 29), in which Chief Justice Stone, in a unanimous opinion, makes
Finally clear that "Congress and the President, like the courts, possess amar pot derived from the Constitution”; that, under article I, section 8,
Congress has all legislative power “necessary and proper" for carry"De Incotire power into execution; and that where there is congressional d's on any subject it is unnecessary to determine to what extent the me tot izht act in the absence of legislation.
Da of the Constitution was strongly emphasized by the Supreme Court
2. 2 Sup. Ct. 863) in which the majority of the Court twice emphasizes I sertion 8, clause 18, and concludes with a statement, as follows: *** bas not thereby lost its exclusive constitutional authority to make u nary and proper, to carry out the powers vested by the Constitution : Wernment of the United States, or any department or officer thereof." 14 varse, it is the President's constitutional duty to "take care that the
laws be faithfully executed,” including any law that Congress may make re lating executive agreements.
This view was further emphasized by Mr. Justice Jackson in his concurr. opinion in the Steel Seizure cases, in which he says (footnote 2 of his opinic that the Court has "intimated that the President might act in external affa without congressional authority, but not that he might act contrary to an act 3 Congress.” [Emphasis supplied.]
This statement of Mr. Justice Jackson not only supports the affirmati position, as does the main opinion of the court, that Congress can regulate 1 manner of exercising the executive power, including, of course, executive agr ments, but conversely states that the President may not "act contrary to an a of Congress" passed within its delegated powers.
It therefore seems reasonably clear that under article I, section 8, clause Congress now has power to regulate executive agreements. Since Congress : the power to make all laws necessary and proper to carry into execution t powers vested by the Constitution in the executive department or the Preside it becomes the duty of the President faithfully to execute such laws as Congre may pass regulating executive agreements.
Though believing that present constitutional power appears to exist in C gress to regulate executive agreements, your committee is of the opinion th to remove any doubts engendered by dicta in decisions above referred to it desirable to incorporate the congressional control principle with respect executive agreements in a constitutional amendment along the general lin proposed by Senator Bricker.
Your committee recognizes, as does Senator Bricker's proposal, that one the strong criticisms currently made of executive agreements is that there h been a tendency on the part of the executive department to make executi agreements and not submit them to the Senate for approval, instead of cove ing the subject by treaties, which require Senate approval. Certain executi agreements, embodying long-range and far-reaching policy commitments the part of the United States, such as those at Tehran and Yalta, have disturbed the American people that it would be fitting to remove any concei able doubt on the question by constitutional amendment.
While "executive agreements, sometimes authorized by Congress in advanc and sometimes not, have been used by the United States throughout its history (see Sutherland, supra, 65 Harvard L. Rev. at p. 1321), your committee believ that it was never intended that executive agreements and treaties should I'm interchangeable, as contended by some proponents of broad executive power otherwise, the treaty clause was, and is, surplusage.
Based upon the foregoing views and considerations, your committee no proposes that the American Bar Association recommend to the Congres of the United States, for consideration, an amendment to the Constitutione the United States in respect of executive agreements, identical with individus uitha pip opinions already expressed before the subcommittee of the Senate Judiciarski Committee, with the addition of a sentence preserving intact existing constituire tional power to regulate executive agreements. The full text of the suggeste po amendment reads as follows:
“Executive agreements shall not be made in lieu of treaties. Congress share have power to enforce this provision by appropriate legislation. Nothing herei shall be construed to restrict the existing power of Congress to regulate execrat tive agreements under the provisions of this Constitution."
The purpose and effect of the draft constitutional amendment proposed b: your committee in respect of executive agreements may be stated as follows
The first sentence of this proposed constitutional amendment is a necessar, corollary to the constitutional amendment with respect to the treaty-makiny power adopted by the house of delegates of the American Bar Association on February 26, 1952. That proposed amendment would deny force and effect to : provision of a treaty which conflicts with the Constitution. It would requirt stier legislation by Congress under its delegated powers in the absence of a treaty before a treaty shall become effective as internal law in the United States. The corrective value of that amendment would be greatly weakened if nothing wert done about international agreements which are made by the executive alone and which have been used increasingly in recent years as an alternative method of reaching understandings with foreign governments.
It has been held by the Supreme Court that executive agreements may have the force of law within the United States and supersede State law. United States v. Pink, 315 v. 3, 203, 230_1. Doubtless, if treaties which are expressly