d in the Constitution and which are negotiated by the President and red by the Senate, can be set aside or modified by subsequent congressional D-a principle recognized in Ware v. Hylton (3 Dall. 190, 261 (1796)) e often reaffirmed, as for example, in Head Money Cases, 112 U. S. 580, (1884)); Hijo v. United States, (194 U. S. 315, 324 (1904))—then ay an executive agreement, which has no express recognition in the etition and is made by the President alone, must be subject to such sub--1: ngressional action. In fact, your committee believes as stated above, Cress has, or should have, power to regulate them in advance and to their effect as domestic law.

historically demonstrable that executive agreements have been increasbed in lieu of treaties largely as a matter of growing executive usurpation. has recently prevailed in the State Department the theory that the t has in his discretion the choice of resorting either to treaties or - agreements in his dealings with foreign nations. Thus, it is said: Fretroversial international acts the Senate method may well be quietly ii. and the instruments handled as executive agreements. But for large of purely routine acts, about which no public opinion exists and no as to their acceptability arises, the present method is desirable * * tional Executive Agreements, by Wallace McClure, New York, Columbia 23 Press, 1941, p. 378).

*** 1920 to his retirement last year, Mr. McClure, the author of the foregoing *, was an officer of the Department of State. Among other positions he Was that of Assistant Chief of the Treaty Division.

*

ra this position was that of Dr. Charles Cheney Hyde, author of the outmodern American treatise on international law, Solicitor for the DepartState under Secretary Charles Evans Hughes, and from 1925 to 1945 on Fish professor of international law and diplomacy at Columbia UniverSpeaking before the American Society of International Law on April 30, D Hyde said:

examination of the various permitted modes of agreement-making to be United States has had recourse, it will be found that in practice the whether it is obligatory for the President to work with the Senate, or, * differently, whether there has been imposed through the Constitution * to make use of a treaty as the instrumentality of agreement, has in the * case usually been deemed to rest upon the character of the objectives to be accomplished. It has not been supposed, for example, that the , with or without the aid of Congress, was free to dispense with treatynever he might desire to avoid difficulties to be encountered in obtain* *atorial approval of a desired compact. Deference for the constitu* prilege of the Senate has been constantly manifested in the making of "ar" well-defined classes of international arrangements; and that deference led a seeming acknowledgment that the constitutional provisions in to treatymaking were far more than indicia of a procedure to be followed Executive chose to employ a treaty as a pleasing setting for an agreeand that the provisions in that instrument were rather to be regarded as try of a constitutional duty on the part of the Executive invariably to agreements within a broad and fairly well-defined field to the Senate for - vai. The practice of the United States throughout its life reveals respect 72dea.” (Constitutional Procedures for International Agreement by the - States, Proceedings of American Society of International Law, 1937, Be first sentence of the proposed executive-agreement amendment would sh the Executive that such discretionary power does not exist, and that - has the power to regulate the use of executive agreements by approslation.

is not deemed feasible or desirable to attempt initially a rigid distinction
what may be properly done by treaties, on the one hand, and executive
at's on the other. That should be left to be determined by Congress over
ears from experience when and as it, from time to time, decides to pass
1 legislation in the field of executive agreements.
**45, for example, be enacted that all agreements by the Executive pledging

ng an appropriation by Congress, or disposing of property of the United sail take the form of a treaty. Likewise, agreements for the alienating teng of territory, or assuming jurisdiction thereof on the part of the United agreements concerning assets and property rights such as were included called Litvinov assignment (United States v. Pink (315 U. S. 203) ), and

agreements with other nations pledging or implying the adoption of a long-ra national foreign policy on the part of the United States might also be requir to be entered into with the formality of a treaty. As to the last-mentioned ca gory of executive agreements, some 30 years ago Dr. Charles Cheney Hyde p lished the following admonition :

"Under the Constitution there appears to be no way in which to deter political department of the Government from giving expression to a view as policy or law, which, regardless of the form it assumes, may present a gra obstacle when subsequently, in the course of diplomatic negotiation, or of arbitral adjudication, the United States deems it of highest importance to purs a different course. For that reason, it may be fairly doubted whether the prese practice whereby the President agrees without the approval of the Senate understandings or declarations of vast import, serving both to further the pol ical aspirations of other States or to weaken proportionally the subsequent inf ence of the United States as a deterrent, is to be regarded as advantageous the Nation." (International Law Chiefly as Applied by the United States, 19: vol. II, p. 33, note).

An armistice is but a suspension of military operations, and hostilities may resumed if a peace treaty does not result (Hague Convention and Regulatio Respecting the Laws and Customs of War on Land, art. 36); an occupying sta is regarded only as an administrator and usufructuary (ibid., art. 55); belligere military occupation being essentially provisional does not serve to transfer sove. eignty over the territory controlled (Hyde, International Law, vol. II, p. 362 territory and property in the possession of the victorious belligerents at the e of hostilities are held subject to the terms of the treaty of peace terminating th war (Hyde, op. cit., and Oppenheim, International Law, 1916, vol. II, pp. 28 282); the President of the United States has no power to terminate war witho the advice and consent of the Senate (Hijo v. United States, 194 U. S. 315 (1904) These rules might be the subject of legislation by Congress as to the power of tl President to make permanent commitments for the Nation during temporary wa periods in the exercise of his powers as "Commander in Chief of the Army ai Navy of the United States" (United States Constitution, art. II)-a power fas more limited than commonly believed, even by Presidents. See ex parte Milligo p (4 Wall. 2 (1866)); ex parte Quirin (317 U. S. 1, 25-26, 29 (1942)); Steel Seizur cases (72 Sup. Ct. 863) (June 2, 1952).

In general, it might be prescribed that all agreements by the Executive wit foreign nations in the field of legislation delegated to the Federal Congress sha be in the form of treaties made conformably to the provisions of the propose amendment on the treaty-making power.

The proposed amendment regarding executive agreements would naturally no affect so called executive agreements which are made pursuant to prior specifi congressional authorization given to the President, or which are made specificall subject to subsequent approval or implementation by such legislation befor becoming effective.

In order that the first two sentences of the proposed amendment on executiv agreements may not be construed as exhausting congressional power to regulat stich agreements, the last sentence has been added, expressly stating that "nothin herein shall be construed to restrict the existing powers of Congress to regulat executive agreements under the provisions of this Constitution." This claus is intended to preserve what is now believed to be the full authority of Congres to regulate executive agreements under article I, section 8, clause 18, granting to the Congress the power "to make all laws which shall be necessary and proper for ostrying into execution *** all other powers vested by this Constitu tion in the Government of the United States and in any department or office thereof "

Finally, there are certain types of purely executive agreements made by the President in his conduct of the foreign relations of the United States which are necessary for the proper administration of the Department of State. These types of executive agreements have been described by John Bassett Moore, who served for many years as an Assistant Secretary of State and later as counsel for the State Department, and is regarded as one of the leading authorities on international law, as follows;

"The conclusion of agreements between governments, with more or less formality, is in reality a matter of constant practice, without which current diplomatic business could not be carried on. A question arises as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices with

attracting public notice; the governments directly concerned exchange views rab a conclusion by which the difference is disposed of. They have entered annternational 'agreement,' and to assert that the Secretary of State of the Thurd States, when he has engaged in routine transactions of this kind, as he has stantly done since the foundation of the Government, has violated the Conat because he did not make a treaty, would be to invite ridicule. Without -xercise of such power it would be impossible to conduct the business of his 20 Political Science Quarterly pp. 385, 389–390.)

1

powers as the President may possess to make these types of executive ments under the law or custom of the Constitution are properly safezined by the third sentnce of the proposed amendment on executive agree=s, which, it will be noted, preserves "the existing power of Congress to ate executive agreements under the provisions of this Constitution."

It may be that Congress will conclude that the present constitutional provision I. sec. 8, clause 18, discussed above) is an adequate basis for legislative n of executive agreements and will decide that no constitutional amend2-11 respecting executive agreements is necessary. However, if one is proposed, Committee's suggested text appears worthy of consideration.

nize that a shorter text of an amendment could in this instance be nored, such as: "Congress shall have power to regulate executive agreements." : was thought that since the power in all probability already exists, it was trable to draw a text which might imply a legislative determination that wer does not presently exist.

s believed that the committee's suggested text, which embodies the basic :: the Bricker amendment on executive agreements, adequately covers the ton: and that the other procedural provisions of the Bricker amendment, as publication and automatic termination, are proper subjects of legislation the text of the amendment as proposed by your committee.

I committee believes that the text suggested by your committee on executive zents should be recommended to Congress by the house of delegates.

Mr. SCHWEPPE. I also offer from the February 1, 1953, Report of -Committee on Peace and Law of the American Bar Association,

5-11, and appendix A thereto, pages 19-21, dealing with treaties xecutive agreements.

The information referred to is as follows:)

REPORT OF STANDING COMMITTEE ON PEACE AND LAW, FEBRUARY 1, 1953

I. TREATIES AND EXECUTIVE AGREEMENTS

Mr. J hn Foster Dulles, now Secretary of State, before the regional meeting, izean Bar Association, Louisville, Ky., April 12, 1952, made an address ted The Negotiation of Treaties" (American Bar Association Journal, June -487). In the course of this address he made the following remarks: "The treaty making power is an extraordinary power liable to abuse. Treaties international law and also they make domestic law. Under our Constitutreaties become the supreme law of the land. They are indeed more supreme ordinary laws, for congressional laws are invalid if they do not conform De Constitution, whereas treaty law can override the Constitution. Treaties, ferimple, can take powers away from the Congress and give them to the test; they can take powers from the State and give them to the Federal Semment or to some international body and they can cut across the rights the people by the constitutional Bill of Rights."

be foregoing remarks of Mr. Dulles succinctly point up the problem with yur committee on peace and law has been dealing since 1948, and the of which has resulted in the recommendations of your committee to the -e of delegates of the American Bar Association.

At the midwinter meeting of the American Bar Association held at Chicago on 25-26, 1952, the house of delegates, on suggestion of the committee eve and law, recommended to the Congress of the United States for consideran amendment to the Constitution of the United States in respect to the Taking power, reading as follows:

"A provision of a treaty which conflicts with any provision of this Constitustall not be of any force or effect. A treaty shall become effective as internal in the United States only through legislation by Congress which it could

2572-53

enact under its delegated powers in the absence of treaty." of house of delegates, 38 Am. Bar Jour. 435, May 1952.)

(See proceeding

In due course, this action of the house of delegates was brought to the attention! 195 of Congress.

report

S

At the annual meeting of the American Bar Association held at San Franciscith September 15 to 19, 1952, the house of delegates, on suggestion of the committe on peace and law, recommended to the Congress of the United States for co sideration an amendment to the Constitution of the United States in respect to the executive agreements, reading as follows: Lastr

be

"Executive agreements shall not be made in lieu of treaties. Congress shar have power to enforce this provision by apprpriate legislation. Nothing herei shall be construed to restrict the existing power of Congress to regulate executiv agreements under the provisions of the Constitution." (See proceedings c house of delegates, 38 Am. Bar Jour. 1069, December 1952.) In due course, this action of the house of delegates was brought to the attentio of Congress.

In November of 1952 a subcommittee of the Judiciary Committee of the Unite States Senate, consisting of Senators Pat McCarran, Nevada, chairman; Herber R. O'Conor, Maryland; Willis Smith, North Carolina; Homer Ferguson, Michi gan, and Robert C. Hendrickson, New Jersey, caused to be published the hearing on Treaties and Executive Agreements held between May 21 and June 9, 1952 The volume of hearings on Treaties and Executive Agreements published by th Government Printing Office, Washington, D. C., consists of 540 pages, and con tains statements pro and con on these important subjects. The hearing volum contains statements by each member of the committee on peace and law; and pages 517-540 set forth a memorandum of your committee in reply to the memo randum of the Department of Justice, which was in substance published by Mr Philip Perlman, former Solicitor General, in the November 1952 issue of the Columbia Law Review.

T

s pert

were

The great interest aroused on the subject matter is illustrated by the fact that with the commencement of the new 83d Congress, Senator John W. Bricker, oda Ohio, joined by 61 other Senators, introduced Senate Joint Resolution 1, a pro posed constitutional amendment designed to regulate both treaties and executive agreements (Senator Bricker's S. J. Res. 130, introduced in the 82d Congress expired with that Congress); that Senator McCarran of Nevada introduced Senate Joint Resolution 2, calling for immediate regulation of executive agree ments by congressional action; and that there were introduced in the House of W Representatives 10 resolutions dealing with both treaties and executive agree ments as follows:

House Joint Resolution 7, introduced by Representative Auchincloss, Republican, New Jersey

House Joint Resolution 12, introduced by Representative Burdick, Republican, the North Dakota

House Joint Resolution 25, introduced by Representative Dolliver, Republican, Iowa

House Joint Resolution 28, introduced by Representative Dondero, Republican, Michigan

House Joint Resolution 32, introduced by Representative Fisher, Democrat, Texas House Joint Resolution 57, introduced by Representative McDonough, Republican, California

M. T

House Joint Resolution 65, introduced by Representative Mills, Democrat, en

Arkansas

House Joint Resolution 79, introduced by Representative Smith, Republican, Wisconsin

House Joint Resolution 84, introduced by Representative Wilson, Democrat,

Texas'

House Joint Resolution 141, introduced by Representative Pelly, Republican, Washington

The texts recommended to Congress for consideration by the house of delegates of the American Bar Association are embodied in House Joint Resolution 141, introduced by Congressman Pelly of the State of Washington.

For the information of the house of delegates, the Association of Attorneys General of the United States and also many bar associations and other organizations have recommended to Congress a constitutional amendment regulating both treaties and executive agreements. That there should be some opposition is, of course, understandable. Aside from some opposition voiced in the hearings

the Senate subcommittee, certain literature in opposition was referred že September 1, 1952, report of your committee. Your committee's position set forth in its February 1, 1952, and September 1, 1952 reports, in the May162, hearings before the Senate subcommittee, and in two articles in the Le and September issues of the American Bar Association Journal, respecney by Mr. George A. Finch and Eberhard P. Deutsch, both members of your berete is also made to the book by Federal Circuit Judge Florence Allen, The Treaty as an Instrument of Legislation" (McMillan, 1952). Accompanied by a large etching of a Trojan horse, an informative summary g the pros and cons on the question was published by the Christian Science January 26, 1953, entitled "Primer on the Treaty Debate: Is There a at Horse?"

% of the opposition agrees with much of the legal reasoning of your comit support of a constitutional amendment, but disagrees as to the present -ty of doing anything about the problem, suggesting that the people of

d States should rely on the President and the United States Senate. is connection it seems pertinent to refer to the quotations from Woodrow *e ard Thomas Jefferson (recenly quoted by Mr. John W. Davis in his et in the Steel Seizure cases) set forth at the beginning of this report. arment made by the opposition is a negation of the theory of constimitations on which our Government rests. The American people Vestidence in constitutional restraints above all confidence in individuals. • 10 amendments were added to the Constitution in 1791, to prevent = Avance abuses of power. The house of delegates has expressed its view -the abuse of the treaty power should be prevented now.

The principal opposition along these lines mentioned above comes from the ***slation of the Bar of the City of New York, which approved a resolution trang conclusions condemnatory of amendment in this field generally and --s-called Bricker amendment (S. J. Res. 130, introduced in the 82d Cong.) ally, although it did not center its attack upon the proposal recommended "e base of delegates of the American Bar Association.

~ New York State Bar Association on January 30, 1953, had a debate 2 subject predicated in part upon a report dated June 6, 1952, by its tee on amendments to the Federal Constitution, consisting of William D. chairman; John W. Davis, Lewis R. Gulick, John J. Mackrell, and - Tweed. The committee had recommended "that proposals, including kr resolution, for amending the constitutional provisions as to treaties das de for the time being and the efforts of the association directed, *** resenting the acceptance or ratification of the Covenant on Human Rights

rest form." At the January 30, 1953, meeting of the New York State Car Assolation. Mr. Vallance moved the following resolution. "Kadred. That the New York State Bar Association opposes the adoption fre proposed constitutional amendment limiting the powers of the President e treaties and executive agreements known as Senate Joint Resolution 121 Congress, 2d session."

W* John W. Davis moved to amend the resolution by extending it to Senate Resolution 1 (83d Cong.). After extended debate the resolution so fended was tabled. (Mr. Tweed's views, separately recorded, while not agreeto with the report on other matters, concurred in the conclusion opposing → Oroker proposals.)

1. portions of the Mitchell report are in such complete agreement with zal views of your committee, that they are set forth in appendix A hereto. fear of the New York State Bar Association committee that the Supreme would sustain the proposed International Covenant on Human Rights sily constitute a strong argument for a constitutional amendment.

ommittee has examined all of the proposals now pending in Congress. Jr committee believes that the text previously recommended by it and adequately covers all of the constitutional principles which are Ted and which were approved by the house of delegates, an even shorter wholly within those principles, could appropriately read as follows: 1. A provision of a treaty which conflicts with any provision of this stitution shall not be of any force or effect. A treaty shall become effective *eral law in the United States only through legislation which would be As the absence of treaty.

2 Executive agreements shall be subject to regulation by the Congress As the limitations imposed on treaties by this article."