As the result of intensive study, the committee on peace and law s mitted to the house of delegates of the American Bar Association the February 1952 midwinter meeting of the National Bar Associati a draft of a proposed constitutional amendment relating to the trea making power. After extended debate, and with some opposition, t house of delegates overwhelmingly adopted the following resoluti which I here read into the record.

This is the resolution adopted by the house of delegates on Februa 26, 1952 [reading]:

Resolved, That the American Bar Association recommend to the Congress the United States for consideration an amendment to the Constitution of United States in respect of the treatymaking power, reading as follows:

"A provision of a treaty which conflicts with any provision of this Constitut shall not be of any force or effect. A treaty shall become effective as inter law in the United States only through legislation by Congress which it co pass under its delegated powers in the absence of such treaty."

This resolution, as indicated above, represents the opinion of t organized bar of the United States in the 48 States and the Territori as embodied in the American Bar Association, after full study at 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 a law, on which the foregoing resolution was based (report February 1, 1952) are reprinted on pages 480-504 of the volume e titled "Treaties and Executive Agreements," being hearings before subcommittee of the Committee on the Judiciary, United Stat 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 the American Bar Association Journal, written respectively by Georg A. Finch and Eberhard Deutsch, both members of our committe Reference is hereby made to them.

In order to give you the benefit of the further studies of our con mittee, not yet incorporated in the record, I offer from the Septen ber 1, 1952, report of the committee on peace and law to the house 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 Chicas on February 25-26, 1952, the house of delegates recommended to the Congres of the United States for consideration an amendment to the Constitution of tl United States in respect to the treatymaking power, reading as follows:

"A provision of a treaty which conflicts with any provision of this Constit tion shall not be of any force or effect. A treaty shall become effective a internal law in the United States only through legislation by Congress which could enact under its delegated powers in the absence of such treaty." (Se proceedings of house of delegates, 38 Am. Bar Jour. 435, May 1952.)

In due course, this action of the house of delegates was brought to the attentio of Congress.

On February 7, 1952, before the text of the American Bar Association's pro posal was adopted on February 26, Senator John W. Bricker of Ohio, joined b 56 other Senators (to which others have since been added). introduced Senat Joint Resolution 130, which proposes a constitutional amendment with respec to both treaties and executive agreements. Congressman Smith of Wisconsi introduced the same amendment in the House of Representatives on Februar 11, 1952, as House Joint Resolution 376.

At the time of introducing Senate Joint Resolution 130, Senator Bricker said Zesonal Record, Feb. 7, 1952, p. 923):

refore explaining the joint resolution section by section, I should like to te to the magnificent work of the American Bar Association and its =”re où peace and law through United Nations in alerting the American - to the dangers inherent in the treatymaking power. I desire to pay a a 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 izen an Bar Association's careful study of this subject over the past 4 years ~at shortly in a proposal to amend the Constitution designed to accomthe same objective as the resolution just introduced."

. ́* J. int Resolution 130 was referred to the Senate Judiciary Committee it in turn referred to a subcommittee (consisting of Senators Pat A. Mc- Nevada, chairman; Herbert R. O'Conor, Maryland; Willis Smith, North a. Homer Ferguson, Michigan; Robert C. Hendrickson, New Jersey), for This subcommittee held hearings which began May 21 and continued enty thereafter until closed on June 13, 1952. At these hearings pro ́s :Ld opponents of an amendment to the Constitution respecting treaties *se agreements were heard. svration of the Senate subcommittee, and with the consent of the board ors of the American Bar Association, all seven members of the commitpeace and law testified at the subcommittee hearings. They stated their support of a constitutional amendment and recommended the text * by the house of delegates as respects the treaty power. They suggested #e the Bricker text covered the subject as a basis for study, the AmeriBar Association text appeared more concise and obviated some questions nder the text of Senate Joint Resolution 130. They concluded that the Dan Bar Association text was preferable and suggested that the Senate cmittee give it consideration.

→ your committee's last report, additional literature, pro and con, has -red with respect to the treaty power, to which attention is directed. See ab Chafee, Jr., Criticism of Constitutional Amendment Backed by AA. Harvard Law School Record, February 21, et seq.; Zechariah Chafee, • Azending the Constitution to Cripple Treaties, 12 Louisiana L. Rev. 345 1/2); Arthur E. Sutherland, Jr., Restricting the Treaty Power, 65 2*a*! L. Rev. 1305 (June, 1952); Report of the Association of the Bar of the of New York on S. J. Res. 130 (May, 1952); George A. Finch, The Treaty se Amendment: The Case for the Association, 38 Am. Bar. Jour. 467 (June, Zariah Chafee, Jr., Stop Being Terrified of Treaties: Stop Being """d of the Constitution, Am. Bar Jour. September, 1952; Eberhard P. Deutsch, > Need for Constitutional Amendment to the Treaty Power: A Restatement Reply. Am. Bar Jour. September, 1952.

Ineral. Mr. Chafee, Mr. Sutherland, and the Association of the Bar of the Na York think that such an amendment is unnecessary and undesirable, That the 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, ***, y answer the arguments in opposition.

snusual significance that, in the Steel Seizure cases (Youngstown Sheet Claw Co, v. Sawyer, decided June 2, 1952, 72 Sup. Ct. 863) Chief Justice Vinson, ng, with the concurrence of two other judges, stated that the United Charter and the North Atlantic Treaty, as treaties designed to suppress -zive the President the power to seize private property, although statanthority is wanting, and although the majority of the Supreme Court at he has no such power under the Constitution, and that under the -dment he is denied the power to take property, without due process and without just compensation. If two additional judges had accepted of the Chief Justice, the treaty known as the United Nations Charter North Atlantic Treaty, made by the President and consented to by the would have effected a fundamental change in the American form of ent, without Congress, or without the States or the people (to whom wwere not delegated are reserved under the 10th amendment) having ng to say about the matter. This real danger will be averted by the - amendment.

inter development of interest is the confirmation of the view of your com2 * 4 T 8. v. Curtiss-Wright Export Corporation (299 U. S. 304), by Mr. • Jackson's concurring opinion in the Steel Seizure cases (Youngstown

Y

Sheet & Tube Company v. Sawyer, decided June 2, 1952, 72 Sup. Ct. 863). committee in its February 1, 1952, report (pp. 7-8, 9-10) sharply criticized Curtiss-Wright case as being largely broad and erroneous dicta. It is belie (and the decisions based on the law of nations cited by the court confirm t belief) that the Curtiss-Wright decision confuses the position of the United Sta as viewed under international law by foreign nations with the position of United States in international relations as a matter of domestic constitutio law, under which the treaty power is delegated expressly. Despite the sweep language, the case dealt only with an express congressional delegation of pov to the President authorizing him in certain circumstances to forbid the s of arms to foreign countries. Mr. Justice Jackson says (footnote 2 of this c curring opinion) that "much of the court's opinion is dicta"; and that it invol "but the question of his [the President's] right to act under and in accord w an act of Congress." And he concludes with the following statement:

"** It recognized internal and external affairs as being in separate ca gories, and held that the strict limitation upon congressional delegations of pov to the President over internal affairs does not apply with respect to delegatio of power in external affairs. It was intimated that the President might act external affairs without congressional authority, but not that he might act c trary to an act of Congress." [Emphasis supplied.]

It should be noted particularly that the American Bar Association's propos amendment does not prevent the President and the Senate from making a trea otherwise valid under the Constitution, on any subject whatsoever, and that such treaties are effective externally. But the proposal prevents such a trea from becoming effective as internal law in the United States, except to the exte that Congress legislates within its delegated powers in the absence of such treat Your committee will keep the house of delegates advised of further develo ments on the proposed treaty-power amendment.

II. EXECUTIVE AGREEMENTS

Immediately following the midwinter meeting of the association in Chicago 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 literatur and decisions on the subject, including, among others, the following: McClur International Executive Agreements (1941); Borchard, Shall the Executiv Agreement Replace the Treaty?, 53 Yale L. J. 664 (1944); McDougal and Lan Treaties and Congressional-Executive or Presidential Agreements; Interchang able Instruments of National Policy, 54 Yale L. J. 181 and 534 (1945); Borchar Treaties and Executive Agreements-A Reply, 54 Yale L. J. 616 (1945); Borchar Treaties and Executive Agreements, 50 Am. Pol. Sci. Rev. 729 (1946); Arthur I Sutherland, Jr., Restricting the Treaty Power, 65 Harvard L. Rev. 1305, pl 1320-1324; McCarran, Congressional Power Respecting Treaties and Executiv Agreements, Cong. Rec. Jan. 21, 1952, pp. 301-2; Hearings, Senate Committee o Commerce, entitled "Civil Aviation Agreements" April 6 and April 10, 1946, pl 311-334, for a distinction between treaties and executive agreements; Unite States v. Pink, 315 U. S. 203 (1942); United States v. Belmont, 301 U. S. 32 (1937); Guaranty Trust Company v. United States, 304 U. S. 126 (1938); Mos cow Fire Insurance Company v. Bank of New York, 280 N. Y. 686, 20 N. E. (2d) 758 (1939); affirmed without opinion by an equally divided court, sub nom. Unite States v. Moscow Fire Insurance Company, 305 U. S. 624 (1940).

On January 21, 1952, Senator McCarran, of Nevada, chairman of the Senat Judiciary Committee, introduced Senate Joint Resolution 122, which would under take to regulate executive agreements by congressional action (Congressiona 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 proed amendment and Senate Joint Resolution 122, recently introduced by the shed chairman of the Senate Judiciary Committee, the Senator from Mr. McCarran. After we find out what can be done with executive ts by legislation, we will have a clearer idea of what must be accomif at all, by constitutional amendment" (Congressional Record, Feb. 142 p23). when the members of your committee appeared in May of this year to testify Late Judiciary Subcommittee hearings on Senate Joint Resolution 130 Eraser amendment), they were asked to express their opinions on the ans of the Bricker amendment relating to executive agreements. In ing such questions, your committee members stated that neither the Aan Bar Association nor your committee had taken action on the subject Live agreements, and that anything an individual member might say ressed only his personal opinion and was in no way binding on the commit→ on the American Bar Association. Individual members of the committee attention to article I, section 8, clause 18, of the Constitution and to Er **** Quirin (317 U. S. 1, 25-26, 29), and expressed their opinion that under ase of the Constitution just cited executive agreements were subject to #sional control; that both the statutory and constitutional amendment

seemed sound; and that any doubt on the subject raised by broad dicta 2 cases as U. S. v. Curtiss-Wright Corporation (299 U. S. 304 and U. S. (315 U. S. 203) should, in any event, be removed by constitutional amendTentatively, individual members of the committee were of the view that purposes of Senate Joint Resolution 130 might be accomplished by comtwo sentences from that resolution, as follows: "Executive agreements be made in lieu of treaties" (sec. 4 of S. J. Res. 130), and "Congress have power to enforce this article by appropriate legislation" (sec. 5 of S. J. Several members of your committee made that suggestion when estioned by Senators during the hearing.

f membership of your committee on peace and law has, since the Senate Cittee hearings, made additional studies of, and given further extended deration to, executive agreements. As a result of a meeting of the full - in July, devoted almost exclusively to this subject, your committee es that both Senator McCarran in Senate Joint Resolution 122 and Senator A in Senate Joint Resolution 130 have the right approach; namely, that tive agreements should be subjected to regulation by Congress. Senator arran's proposal would, if adopted, appear to be of immediate efficacy under station as it now exists; and Senator Bricker's proposal of incorporat"he congressional control principle in his proposed constitutional amendment ve any conceivable doubt in the subject.

Iar committee directs attention to article I, section 8, clause 18, of the Conof the United States, which provides that Congress shall have power meer all laws which shall be necessary and proper for carrying into execution bong powers and all other powers vested by this Constitution in the eat of the United States, or any department or officer thereof." [EmA scoped.] ***ms clear that the foregoing clause vests Congress with the power to make LIT Tecessary and proper" to carry the executive power into effect; and ress can, therefore, under the existing Constitution, regulate executive This view is supported by the principles announced in Ex parte Quirin (317 12-27, 29), in which Chief Justice Stone, in a unanimous opinion, makes vocally clear that "Congress and the President, like the courts, possess aver not derived from the Constitution"; that, under article I, section 8, ale 15, Congress has all legislative power "necessary and proper" for carry4 executive power into execution; and that where there is congressional on on any subject it is unnecessary to determine to what extent the might act in the absence of legislation.

That of the Constitution was strongly emphasized by the Supreme Court Steel Seizure cases (Youngtown Sheet & Tube Co. v. Sawyer, decided 12,2 Sup. Ct. 863) in which the majority of the Court twice emphasizes L section 8, clause 18, and concludes with a statement, as follows:

has not thereby lost its exclusive constitutional authority to make rary and proper, to carry out the powers vested by the Constitution 7% (vernment of the United States, or any department or officer thereof." course, it is the President's constitutional duty to "take care that the

laws be faithfully executed," including any law that Congress may make r lating executive agreements.

This view was further emphasized by Mr. Justice Jackson in his concur opinion in the Steel Seizure cases, in which he says (footnote 2 of his opini that the Court has "intimated that the President might act in external aff without congressional authority, but not that he might act contrary to an ac Congress." [Emphasis supplied.]

This statement of Mr. Justice Jackson not only supports the affirma position, as does the main opinion of the court, that Congress can regulate manner of exercising the executive power, including, of course, executive ag ments, but conversely states that the President may not "act contrary to an 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 powers vested by the Constitution in the executive department or the Presid it becomes the duty of the President faithfully to execute such laws as Cong 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 t to remove any doubts engendered by dicta in decisions above referred to i desirable to incorporate the congressional control principle with respect executive agreements in a constitutional amendment along the general li 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 been a tendency on the part of the executive department to make execut agreements and not submit them to the Senate for approval, instead of cov ing the subject by treaties, which require Senate approval. Certain execut 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 conce able doubt on the question by constitutional amendment.

While "executive agreements, sometimes authorized by Congress in advan and sometimes not, have been used by the United States throughout its histor (see Sutherland, supra, 65 Harvard L. Rev. at p. 1321), your committee believ that it was never intended that executive agreements and treaties should interchangeable, as contended by some proponents of broad executive powe otherwise, the treaty clause was, and is, surplusage.

Based upon the foregoing views and considerations, your committee n proposes that the American Bar Association recommend to the Congre of the United States, for consideration, an amendment to the Constitution the United States in respect of executive agreements, identical with individu opinions already expressed before the subcommittee of the Senate Judicia Committee, with the addition of a sentence preserving intact existing constit tional power to regulate executive agreements. The full text of the suggest amendment reads as follows:

"Executive agreements shall not be made in lieu of treaties.

Congress sha have power to enforce this provision by appropriate legislation. Nothing here shall be construed to restrict the existing power of Congress to regulate exec tive agreements under the provisions of this Constitution."

The purpose and effect of the draft constitutional amendment proposed your committee in respect of executive agreements may be stated as follow The first sentence of this proposed constitutional amendment is a necessa corollary to the constitutional amendment with respect to the treaty-makin power adopted by the house of delegates of the American Bar Association o February 26, 1952. That proposed amendment would deny force and effect to provision of a treaty which conflicts with the Constitution. It would requi legislation by Congress under its delegated powers in the absence of a treat before a treaty shall become effective as internal law in the United States. Th corrective value of that amendment would be greatly weakened if nothing wer done about international agreements which are made by the executive alon and which have been used increasingly in recent years as an alternative metho of reaching understandings with foreign governments.

It has been held by the Supreme Court that executive agreements may hav the force of law within the United States and supersede State law. Unite States v. Pink, 315 v. 3, 203, 230-1. Doubtless, if treaties which are expressl