ed in the Constitution and which are negotiated by the President and ed by the Senate, can be set aside or modified by subsequent congressional -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, K (89); Hijo v. United States, (194 U. S. 315, 324 (1904))—then ay an executive agreement, which has no express recognition in the sition and is made by the President alone, must be subject to such sub☛ent congressional action. In fact, your committee believes as stated above, Congress has, or should have, power to regulate them in advance and *** their effect as domestic law.

is historically demonstrable that executive agreements have been increassed in lieu of treaties largely as a matter of growing executive usurpation. has recently prevailed in the State Department the theory that the et bas in his discretion the choice of resorting either to treaties or <-223- agreements in his dealings with foreign nations. Thus, it is said:

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troversial international acts the Senate method may well be quietly ames, 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 --.) Press, 1941, p. 378).

1930 to his retirement last year, Mr. McClure, the author of the foregoing was an officer of the Department of State. Among other positions he * that of Assistant Chief of the Treaty Division.

tra 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 Fish professor of international law and diplomacy at Columbia Univerking before the American Society of International Law on April 30, I Hrde said:

examination of the various permitted modes of agreement-making to The 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 Carcase 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 treatywhenever he might desire to avoid difficulties to be encountered in obtainatorial approval of a desired compact. Deference for the constituprinceze of the Senate has been constantly manifested in the making of

defined classes of international arrangements; and that deference beled a seeming acknowledgment that the constitutional provisions in to treatymaking were far more than indicia of a procedure to be followed -the 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 y 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 - The practice of the United States throughout its life reveals respect Dea" (Constitutional Procedures for International Agreement by the * States, Proceedings of American Society of International Law, 1937, The first sentence of the proposed executive-agreement amendment would h the Executive that such discretionary power does not exist, and that bas the power to regulate the use of executive agreements by approislation.

• deemed feasible or desirable to attempt initially a rigid distinction : what may be properly done by treaties, on the one hand, and executive cean's on the other. That should be left to be determined by Congress over >ers from experience when and as it, from time to time, decides to pass 1 legislation in the field of executive agreements.

ay, for example, be enacted that all agreements by the Executive pledging thering an appropriation by Congress, or disposing of property of the United still take the form of a treaty. Likewise, agreements for the alienating eatz of territory, or assuming jurisdiction thereof on the part of the United agreements concerning assets and property rights such as were included 1-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 requi to be entered into with the formality of a treaty. As to the last-mentioned c gory of executive agreements, some 30 years ago Dr. Charles Cheney Hyde I 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 gr obstacle when subsequently, in the course of diplomatic negotiation, or of arbitral adjudication, the United States deems it of highest importance to pur a different course. For that reason, it may be fairly doubted whether the pres practice whereby the President agrees without the approval of the Senate understandings or declarations of vast import, serving both to further the po ical aspirations of other States or to weaken proportionally the subsequent in 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 st is regarded only as an administrator and usufructuary (ibid., art. 55); belliger military occupation being essentially provisional does not serve to transfer sov 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 t 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 with 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 t President to make permanent commitments for the Nation during temporary w periods in the exercise of his powers as "Commander in Chief of the Army a Navy of the United States" (United States Constitution, art. II)-a power f more limited than commonly believed, even by Presidents. See ex parte Millig (4 Wall. 2 (1866)); ex parte Quirin (317 U. S. 1, 25-26, 29 (1942)); Steel Seizu cases (72 Sup. Ct. 863) (June 2, 1952).

In general, it might be prescribed that all agreements by the Executive wi 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 propos amendment on the treaty-making power.

The proposed amendment regarding executive agreements would naturally n affect so called executive agreements which are made pursuant to prior speci congressional authorization given to the President, or which are made specifical subject to subsequent approval or implementation by such legislation befo becoming effective

In order that the first two sentences of the proposed amendment on executi agreements may not be construed as exhausting congressional power to regula stich ab, reements, the last sentence has been added, expressly stating that "nothin herein shall be construed to restrict the existing powers of Congress to regula executive acivements 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, grantin to the Congress the power "to make all laws which shall be necessary an proper for ourying into execution *** all other powers vested by this Constit 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 th President in his conduct of the foreign relations of the United States which ar necessary for the proper administration of the Department of State. These type of executive agreements have been described by John Bassett Moore, who serve for many years as an Assistant Secretary of State and later as counsel for th State Department, and is regarded as one of the leading authorities on inter national law, as follows:

"The conclusion of agreements between governments, with more or less for mality, is in reality a matter of constant practice, without which current diplo matic business could not be carried on. A question arises as to the rights of a 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 mirach a conclusion by which the difference is disposed of. They have entered international 'agreement,' and to assert that the Secretary of State of the Lied States, when he has engaged in routine transactions of this kind, as he has santly done since the foundation of the Government, has violated the Con• because he did not make a treaty, would be to invite ridicule. Without 1-exercise of such power it would be impossible to conduct the business of his 20 Political Science Quarterly pp. 385, 389–390.)

Such powers as the President may possess to make these types of executive Dents under the law or custom of the Constitution are properly safezd by the third sentnce of the proposed amendment on executive agree2x which, it will be noted, preserves "the existing power of Congress to *ate executive agreements under the provisions of this Constitution." Iay be that Congress will conclude that the present constitutional provision I. sec. 8, clause 18, discussed above) is an adequate basis for legislative ctn of executive agreements and will decide that no constitutional amend22: respecting executive agreements is necessary. However, if one is proposed, mittee's suggested text appears worthy of consideration.

Ternize that a shorter text of an amendment could in this instance be red, such as: "Congress shall have power to regulate executive agreements." It 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 3- 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 er the text of the amendment as proposed by your committee.

committee believes that the text suggested by your committee on executive ients 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. John Foster Dulles, now Secretary of State, before the regional meeting, Ian Bar Association, Louisville, Ky., April 12, 1952, made an address And The Negotiation of Treaties" (American Bar Association Journal, June 457). In the course of this address he made the following remarks: "The treatymaking power is an extraordinary power liable to abuse. Treaties ternational law and also they make domestic law. Under our Constitutreaties become the supreme law of the land. They are indeed more supreme rdinary laws, for congressional laws are invalid if they do not conform De Constitution, whereas treaty law can override the Constitution. Treaties, erimple, can take powers away from the Congress and give them to the dest; they can take powers from the State and give them to the Federal Sremment or to some international body and they can cut across the rights the people by the constitutional Bill of Rights."

The 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 -te 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 consideraz amendment to the Constitution of the United States in respect to the making power, reading as follows:

"A provision of a treaty which conflicts with any provision of this Constitushall 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

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enact under its delegated powers in the absence of treaty." (See proceedin 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 attentiof Congress.

At the annual meeting of the American Bar Association held at San Francis September 15 to 19, 1952, the house of delegates, on suggestion of the committ 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 executive agreements, reading as follows:

"Executive agreements shall not be made in lieu of treaties. Congress sha have power to enforce this provision by apprpriate legislation. Nothing here shall be construed to restrict the existing power of Congress to regulate executi agreements under the provisions of the Constitution." (See proceedings 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; Herbe R. O'Conor, Maryland; Willis Smith, North Carolina; Homer Ferguson, Mich 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, 195 The volume of hearings on Treaties and Executive Agreements published by th Government Printing Office, Washington, D. C., consists of 540 pages, and co tains statements pro and con on these important subjects. The hearing volum contains statements by each member of the committee on peace and law; an pages 517-540 set forth a memorandum of your committee in reply to the mem randum of the Department of Justice, which was in substance published by M Philip Perlman, former Solicitor General, in the November 1952 issue of th Columbia Law Review.

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, o Ohio, joined by 61 other Senators, introduced Senate Joint Resolution 1, a pro posed constitutional amendment designed to regulate both treaties and executiv 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 o 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 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

House Joint Resolution 65, introduced by Representative Mills, Democrat, 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 12 September 1, 1952, report of your committee. Your committee's position 3 set forth in its February 1, 1952, and September 1, 1952 reports, in the May- 162, bearings before the Senate subcommittee, and in two articles in the and September issues of the American Bar Association Journal, respec-- by Mr. George A. Finch and Eberhard P. Deutsch, both members of your Reference is also made to the book by Federal Circuit Judge Florence Allen, - "The Treaty as an Instrument of Legislation" (McMillan, 1952). incpanied by a large etching of a Trojan horse, an informative summary the pros and cons on the question was published by the Christian Science r. January 26, 1953, entitled "Primer on the Treaty Debate: Is There a

: Horse?"

<f the opposition agrees with much of the legal reasoning of your com- support of a constitutional amendment, but disagrees as to the present ***y of doing anything about the problem, suggesting that the people of Ted States should rely on the President and the United States Senate. se nnection it seems pertinent to refer to the quotations from Woodrow -card Thomas Jefferson (recenly quoted by Mr. John W. Davis in his t 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 constiimitations on which our Government rests. The American people entidence in constitutional restraints above all confidence in individuals. trst 10 amendments were added to the Constitution in 1791, to prevent Za vance abuses of power. The house of delegates has expressed its view Le abuse of the treaty power should be prevented now.

The principal opposition along these lines mentioned above comes from the tion of the Bar of the City of New York, which approved a resolution 1767g conclusions condemnatory of amendment in this field generally and alled Bricker amendment (S. J. Res. 130, introduced in the 82d Cong.) ly, although it did not center its attack upon the proposal recommended

„e lense of delegates of the American Bar Association.

- New York State Bar Association on January 30, 1953, had a debate the 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 ker resolution, for amending the constitutional provisions as to treaties Laside for the time being and the efforts of the association directed, * * * senting the acceptance or ratification of the Covenant on Human Rights present form." At the January 30, 1953, meeting of the New York State Assation, Mr. Vallance moved the following resolution. Rosired, That the New York State Bar Association opposes the adoption > proposed constitutional amendment limiting the powers of the President treaties and executive agreements known as Senate Joint Resolution 1994 Congress. 2d session."

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

T

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

r committee has examined all of the proposals now pending in Congress. y committee believes that the text previously recommended by it and adequately covers all of the constitutional principles which are red, and which were approved by the house of delegates, an even shorter wholly within those principles, could appropriately read as follows: NOTION 1. A provision of a treaty which conflicts with any provision of this tion shall not be of any force or effect. A treaty shall become effective al law in the United States only through legislation which would be 45 the absence of treaty.

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