of the council. How many of the co the record of this thing at Chicago.

The CHAIRMAN. You may procesa Mr. PERLMAN. Section 3 has alre meaning and application, in the constitutional and international law

A treaty shall become effective as intern
the enactment of appropriate legislatio
The report of the section of inter
American Bar Association asks

What does "effective as internal 1.
tive agreement) the United States 2
third country and an American
defense in a court in the United
the defense be unavailable if the
supplemented by act of Congress'

Section 4 embodies an e agreements. These, in the Constitution, are to be mad scribed by law, and are to treaties and the making oa The report of the see the American Bar Assoc by him and by Lyman secretary, contains a r with a statement of the not restate them her expressed in recent y power of the Preside organizations. I sph fears and that histe. been advanced in authority of the P are living in danger be exercised with repeating to each must be vested nations do act \ world. The C.. suggests any ou not-limit the. with foreign p Senator W they amount、 · Mr. PERIM mitted to the Senator I not, Mr. P Mr. PERI Senator between P treaty?!! Mr. Pr: executive

how anything that Conwas done by agreement. call your attention to the

as to whether Congress at that time Sterfere with the decision made not by es that capacity alone but in his ef of the Armed Forces of the United were made by him in that capacity or d. They are agreements that are fgovernment.

ke the Steel Seizure case, it seems

derstand it, the effort at Yalta was to our side.

er not actually fixing for all time the

volved?

for all time to come.
ng time, anyway.

ight. Well, somebody has to do it,

ar words, what they were doing was makwhich in effect was a treaty.

this committee you think that was a mili

it was a military decision. The purpose Russia into the war on our side.

really a treaty.

we do not ordinarily make treaties fixing other parts of the world.

arrived at as a military decision, it should You must admit that.

know why we would negotiate a treaty, if fixing of a line between nations somewhere

aid for military purposes.

talking about a treaty. I am talking about er in chief in the field.

at about Versaille? Didn't we make a treaty es of all Europe?

vas submitted to the Senate and it was rejected. is the same kind of treaty here. They were ent to fix the boundaries and futures of people uld any commander in the field be permitted ng, binding us for future generations in this

thing I cannot understand.

would assume that the war being over, when the treaty of peace, which has not yet been made, it would have to be submitted to the Senate of You have not made those treaties.

ANS. You remember the contention of President icism of the agreements that were made secretly wers promising this or that territory to some of World War I and his repudiation of them?

PERLMAN. That is right. He was for open covenants openly . lat.

eter WATKINS. They were for executive agreements behind the

PERLMAN. We did not.

ator WATKINS. That is what I am saying, but we did in this d World War.

M. PERLMAN. We did in the field, and in the course of time, when treaty was entered into between the nations ending not only the lities but firming up what had been agreed to and what was posed, finally would have to be submitted to the Congress. Senator WATKINS. There is nothing we can do about it now. Mr. PERLMAN. We have never been able to get those nations, because Russia's objection, to make a final treaty of peace. That is the happy situation.

Senator WATKINS. They considered the agreement itself sufficient treaty and under their customs over there that was a treaty and most of the European nations would assume that was a treaty, even though the American Senate did not ratify it. That is the tradition over ere. They have a different system here. That is what we are Trying to protect.

Mr. PERLMAN. There is more reason to fear that the absence of such power, or the limitations and handicaps upon the exercise of such power by the President, may in the long run prove more detrimental to the people of the country than the continuance of the present situation-a situation which has been unchanged since the Republic first began to function.

Section 4 and the other sections of the proposed article reflect the fears of the period. Senate Joint Resolution 1 in this Congress, and Senate Joint Resolution 130 in the 82d Congress, were created by fears of what the President and what two-thirds of the Senate may do. Until recently such objections as were voiced to the provisions in the Constitution for the making of treaties were based on the reluctance of the Senate to give its approval to treaty proposals. Some people urged that the treaty authority be broadened and made more responve to current ideas and desires. The will of a majority of the Senate, and perhaps a majority of the people of the country, has been defeated by less than a majority of the Members of the United States Senate. In that way we were kept out of the League of Nations. Whether for good or for bad, that decision was made in accordance with the provisions of the Constitution, and was accepted by the American people. Movements to reduce the number of votes needed for ratification of treaties, and to add approval by the House, were resisted.

This present proposal to limit the treaty-making power of the Nation, to restrict the authority of the Senate over treaties, and to rtail the power of the President to make executive agreements in Latters concerning foreign affairs, should also be resisted-I hope with like effect. I believe that the people of the United States are willing to continue to trust the President and the United States Senate to guard their interests in such matters. The record shows at they have done it well. There is no valid reason, with the history you have made, and your predecessors have made, to tear out of the

30572-53--27

Constitution the provisions written into it by the Founding Fathers, and to attempt to substitute written evidence that the Senate of the United States is afraid to trust itself to continue to exercise the powers vested in it for more than a century and a half.

Thank you.

The CHAIRMAN. Senator Dirksen, have you any questions?

Senator DIRKSEN. I was going to say with respect to Mr. Perlman's last observation, I don't know whether the Senate trusts itself, but I have been in Washington for 20 years and I have developed a rather substantial distrust about this theory of a government of men instead of a government of law. That of course brings me around to this, Mr. Perlman. You were the Solicitor of the United States in the Department of Justice when the steel case came on to the Supreme Court.

Mr. PERLMAN, Yes, sir.

Senator DIRKSEN. You were, so to speak, the Government's lawyer. Mr. PERI MAN. Yes, sir.

Senator DIRKSEN. I notice in the decision of the Chief Justice that refers to defendant's brief. I suppose that was your brief, was it not?

Defendant's brief informs us that the Soviet Union maintains the largest air force in the world, maintains ground forces much larger than those presently available to the United States, and the countries joined with us in mutual security

arrangements.

I am rather curious as to the brief and the argument that you made in the Steel case and whether or not the opinion voiced by the Chief Justice and in which at least there was partial concurrence by Justices Reed and Minton, whether your argument was substantially the same, namely, that because of an emergent and critical condition in the world and since we were members of the United Nations, that there was a power that the President could exercise.

What was the burden of your argument in that case? You were defending the Government position, were you not?

MP. PRE MAN. Yes, sir. I listened to the questions that you asked the previous witness with respect to the Chief Justice's opinion. I do not Prink that actually there is any statement in the opinion that would warrant the construction that you were asking about. The Chief Justice did not rest any finding on any provision of the United Nations No just used the fact that the United Nations had been created and that we were a member of it, as part of the history he gave of the sotuation that confronted the Nation when that case arose. He ward, as you will find in the opinion, that he was stating those facts to show the context in which the matter came before the Court. What he did finally in his opinion, the minority opinion, was to rest what he thought was the authority of the President to act in the way he did under those circumstances on the provision of the Constitution of the United States that vests in the President the authority to take care that the laws should be executed.

And he pointed to a number of laws that the Congress of the United States itself had enacted, making appropriations, sending our armies abroad, giving help to the other nations, and making appropriations for the armed forces in Korea. He pointed to all those different acts of Congress, and to treaties and other engagements which had been made, to emphasize the fact that it was necessary to keep the production of steel in continuous operation in order to enable this Nation

to fulfill its obligations that it had assumed under acts passed by Congress and under treaties ratified by the Senate of the United States.

Senator DIRKSEN. Now, Mr. Perlman, that of course is your interpretation of the opinion of the Chief Justice. I try to see it in its entirety, his many allusions to the Mutual Security and Mutual Assistance Act, his allusions going back to the Founding Fathers and to the Civil War. But there was so much stress, of course, upon the obligations that were upon us in Korea and how we got there and of course it goes right back to the United Nations. As I just read it in its entirety, it just seems to me that he depended on that. Mr. PERLMAN. I disagree with that.

Senator DIRKSEN. I am more interested at the moment, however, in the burden of the argument which you advanced to the Supreme Court in support of the steel seizure, whether your argument was the foundation finally for the opinion by the Chief Justice.

Mr. PERLMAN. I hope it was. I do not think that he pulled the expressed ideas in that opinion out of the thin air. There was a strenuis argument on both sides, and we tried to file the best brief within a very limited time of which the Department was capable. We tried to cover all of the different aspects of that very serious question. One of them, of course, one of the serious ones, one of the important situations was the fact that we were in a hot war or cold war, whatever kind of war you might designate it. Mr. Justice Jackson objected to the statement I made that we were living under war conditions. He said be thought he had read it was a police action, and there was some disssion of that point. But the allusion in the Chief Justice's opinion to the Civil War was merely to point up a precedent. President Lincoln had seized a railroad without congressional authority, and we had ail those different precedents.

Senator DIRKSEN. Of course, no treaty was involved there and no international rights.

Mr. PERLMAN. The question before the Court was whether the President could make a seizure of that kind without specific congressional authority.

Senator BUTLER. But that railroad was in the war area at the time of hostilities, right in that immediate vicinity.

Mr. PERLMAN. That is right, but it was an Executive action.
Mr. HOLMAN. A decision as Commander in Chief.

Mr. PERLMAN. Yes, sir.

Mr. HOLMAN. Not as President.

Mr. PERLMAN. I think you would find in the position that we took in the Steel case that the President acted, the President's Executive or ler, the seizure order was done both as President and as Commander ir. Chief, too.

Senator DIRKSEN. I do not want to belabor the point beyond this, ecause I think Mr. Perlman has been very generous in saying that judges and justices do not reach into thin air for these opinions. Mr. PERLMAN. I hope they read our brief.

Senator DIRKSEN. I think it is quite evident they not only did read your brief but probably they drew rather generously upon the subStance of the brief.

Mr. PERLMAN. I hope so.

bably an understatement on my part.

I do not think we need to belabor matter of interpretation. The opin

hat the Solicitor General must have are convinced the Chief Justice. -re of that, and I am sure also, since there as brief, it brings into context the whole eni, of course, to rest on the decision of vist included in the hearings of the Senate

So I would like to ask now at this point the Youngstown Sheet case, which is the record of the hearings, and if Mr. Perlsbrief I should like to see it included in We can, of course, get it out of the record. priy you with one.

ice both of them in the record. follows:)

APRS UNITED STATES COURT OF APPEALS FOR THE DISTRICT
COLUMBIA CIRCUIT.

[June 2, 1952.]

** P*YNAX, with whom MR. JUSTICE REED and MR. JUSTICE

ted States directed the Secretary of Commerce to take Nation's steel mills during the existing emergency ge" won'd immediately jeopardize and imperil our national Grase 20 those joined with us in resisting aggression, and would ger of our soldiers, sailors and airmen engaged in The District Court ordered the mills returned to their d that the President's action was beyond his powers See members of the Court are of the view that the Presi*** p act in time of crisis in the absence of express statutory doc neders of the Court affirm on the basis of their reading of xse we cannot agree that affirmance is proper on any Axor & the transcending importance of the questions presented cece rigation but also to the powers the President and of a. in time of crisis, we are compelled to register this