the realistic purposes of the entire instrument fully in mind." Lichter v. United States, supra, 782. The present case does not require this Court to "fix the outermost line" (Steward Machine Co. v. Davis, 301 U. S. 548, 591). As we have sought to show, the issue before this Court is whether, in dealing with an immediate crisis gravely threatening the continuance of the production of perhaps the most essential commodity of our present civilization, the President could take temporary action, of a type not prohibited by either the Constitution or the statutes, to avert the imminent threat, while recognizing fully the power of Congress by apropriate legislation to undo what he has done or to prescribe further or different steps. We believe that the solution does not require the pressing of juristic principles to “abstract extremes" (New York v. United States, 326 U. S. 572, 577), but only a realistic consideration of the "necessities of the situation" (Moyer v. Peabody, 212 U. S. 78, 84). For the reasons set forth above, we submit that the orders of the district court must be set aside. We have demonstrated the non-constitutional grounds which, we believe, compel reversal. When the constitutional question is reached, there is ample authority to sustain the President's action. Final disposition of this case on either of these grounds will open the way for continued steel production and eliminate the occasion for further interruptions. Respectfully submitted. PHILIP B. PERLMAN, Senator DIRKSEN. Section 2, as you say, says that No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in the Constitution or other matters essentially within the jurisdiction of the United States. That is the language. Now, you mentioned atomic energy. I am just curious, since we are dealing here with the rights of citizens, of course I am not unmindful that a citizen could be a corporate entity, but where would that come into play, for instance, in an arrangement with respect to the control and supervision of atomic energy or where would it come into play with respect to any resolution to outlaw war? Because it says specifically, "Rights of citizens of the United States within the United States." Now, if, as Judge Parker and the other two gentlemen pointed cat, there are some ambiguities, would you agree to that if the ambiguities were properly erased and dispelled by language which was clear and explicit, would you then favor the language of section 2 of the Bricker resolution? Mr. PERLMAN. Senator, I would doubt whether it could be drawn so that I would favor it, because I am satisfied with the Constitution under which we have lived in this respect, the provisions relating to treaty powers under which this Nation has lived ever since it was adopted. I don't think it is necessary to change it. I think you invite tremendous difficulties when you undertake to change the Constitution and undertake to change the treatymaking powers. There is one favor I would like to ask. I would like to ask if you would not incorporate in this hearing the statement that we filed last year on behalf of the Department of Justice on that subject matter. While Senate Joint Resolution 130 is different from this one, yet all of the discussion we had on that statement, made with respect to the history of the various provisions that relate to treatymaking in the Constitution, applies with equal relevancy here. I have copies. The CHAIRMAN. Will you see that is done, Mr. Smithey? Mr. SMITHEY. Yes, sir. Mr. PERLMAN. I appreciate that. I have two copies. (The material referred to follows:) [From the Columbia Law Review, November 1952] ON AMENDING THE TREATY POWER (Philip B. Perlman*) Last July, near the close of the Eighty-second Congress, a subcommittee of the Senate Committee on the Judiciary held extensive hearings on three proposals to alter the treaty power under the Constitution. While the Judiciary Committee has filed no report, it is likely that similar proposals will be seriously pressed at the next Congress. Senate Joint Resolution 1301 would propose a constitutional amendment restricting the treaty powers of the Federal Government. Section 1 would prohibit any treaty or executive agreement "respecting the rights of citizens of the United States protected by this Consitution, or abridging or prohibiting the free exercise thereof." Section 2 would prohibit any treaty or executive agreement from vesting in any international organization or any foreign power "any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President and in the courts of the United States." Section 3 would provide that no treaty or executive agreement should "alter or abridge the laws of the United States or the Constitution or laws of the several States" except to the extent that Congress shall so provide by act or joint resolution. Section 4 would provide that executive agreements shall not be made in lieu of treaties, would place a time limit on the duration of such agreements and would require publication or submission to appropriate committees of Congress of such agreements. Section 5 would empower Congress to enforce the foregoing provisions by appropriate legislation. In addition, the Senate subcommittee had submitted to it a resolution of the American Bar Association for a constitutional amendment which would provide: A provision of a treaty which conflicts with any provision of this Constitution 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. The subcommittee also had before it a proposal to adopt, as an alternative to Section 4 of Senate Joint Resolution 130, the provisions embodied in Senate Joint Resolution 122.3 Those provisions would prescribe that executive agreements be *LL. B. 1912. LL. D. 1948, University of Maryland. States, 1947-1952. Solicitor General of the United This article is based upon a Department of Justice memorandum submitted by the author to the subcommittee on Senate Joint Resolution 130 of the United States Senate Committee on the Judiciary. Mr. Perlman gratefully acknowledges the assistance of Mr. James L. Morrison and Mr. Herzel H. E. Plaine, Special Assistants to the Attorney General in the preparation of tse memorandum and this article. 182d Cong., 2d Sess. (1952). Full text in appendix, p. 866 infra. 2 Resolution adopted by the House of Delegates of the American Bar Association on Feb. 26, 1952. See 38 A. B. A. J. 435-36 (1952). At its September, 1952, meeting a further amendment was proposed: Executive agreements shall not be made in lieu of treaties. Congress shall have power to enforce this provision by appropriate legislation. Nothing herein shall be construed to restrict the existing power of Congress to regulate executive agreements under the provisions of this Constitution. Many of the comments made in pages 857-64 infra are applicable to the above resolution. a82d Cong., 2d Sess. (1952). Full text in appendix, p. 866 infra. S. J. Res. 122 is not itself a proposal to amend the Constitution, being cast merely in the form of a joint resolution of both Houses of Congress. However, at the hearings on S. J. Res. 130, on May 21. 1952, Senator Bricker stated a preference for using the provisions of S. J. Res. 122 in place of § 4 of S. J. Res. 130. of no force or effect as laws or authorizations until published in full in the Federal Register, that such agreements shall be subject to the legislative power of Congress, and that such agreements shall be deemed to terminate not later than six months after the end of the term of the President during whose tenure they are Legotiated unless extended by proclamation of the succeeding President. Senate Joint Resolution 122 further provides that agreements or contracts requiring secrecy shall be submitted to the Congress as treaties, or otherwise shal be of no force or effect except as personal undertakings of the President. The issues raised by the proposed amendments are not new. Most of them were considered fully during the drafting and adoption of the Constitution. The author, moreover, believes that the constitutional provisions adopted in 1789 in respect of the treaty power are sound and have worked well, that no need for any of the proposed changes in those provisions has been shown, and that the ¡roposed changes would seriously weaken the ability of the United States effectively to conduct international relationships at a time when the ability is of even greater importance to the nation than it was at the time the Constitution was adopted. I. THE EXISTING CONSTITUTIONAL PROVISIONS The basic grant of the treaty-making power is contained in Article II, Section 2, which provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. Treaties so made may, if necessary or appropriate, be implemented by act of Congress adopted under the authority conferred by Article 1. Section 8, empowering Congress "To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers ested by this Constitution in the Government of the United States, or in any Department or Officer thereof." As a corollary, Article I, Section 10, provides: "No State shall enter into any Treaty, Alliance, or Confederation," and further prohibits any state from entering without the consent of Congress "into any Agreement or Compact . . . with a foreign Power. Article VI provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the reme Law of the Land; and the Judges in every State shall be bound thereby, Thing in the Constitution or Laws of any State to the Contrary notwithsanding." Article III, Section 2, provides that "The judicial Power shall Tend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . ." A. REASONS FOR THE ADOPTION OF THE EXISTING PROVISIONS : Proceedings of the Federal Convention of 1787 These provisions of the present Constitution represented important changes er the treaty provisions in the Articles of Confederation. Those Articles 2nd conferred upon the Federal Government the exclusive power to make maties. Article IX of the Articles provided that the United States, in Congress sembled, should have "the sole and exclusive right and power of determining t peace and war, except in the cases mentioned in the sixth article-of sending and receiving ambassadors-entering into treaties and alliances," with the ifcation that no such treaty should restrain the legislative power of the tive States to impose certain imposts and duties or to prohibit certain ortations or importations. Any treaty required the assent of nine states, Article VI provided that no state, without the consent of the United States in gress assembled, could "enter into any conference, agreement, alliance or y." The Articles, however, contained no provision for federal legislation * Zplement a treaty, no supremacy clause, and did not provide for a federal iary wtih power to construe and enforce treaties. Dissatisfaction with the practical workings of these provisions was one of the ial reasons which led to the new Constitution. Thus, Governor Ran ph in presenting the Virginia plan at the Constitutional Convention of 1787, erated the defects in the existing Articles which had led to the proposal evision. An abstract of the speech, in Governor Randolph's hand, is set P. Madison's notes of the Convention. It states: He then proceeded to enumerate the defects: 1. that the confederation produced no security agai[nst] foreign invasion; congress not being per mitted to prevent a war nor to support it by th[eir] own authority-Of this he cited many examples; most of whi[ch] tended to shew, that they could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.* Thus, it was deficiencies in the powers to conduct foreign relations, including specifically the inability to enforce treaties within the states, that were regarded by Randolph as the first of the defects in the Articles of Confederation which needed to be remedied. In subsequent discussions, there were repeated references to the fact that treaties had been violated by the states." Thus, on June 19, 1787, Mr. Madison, in commenting on the New Jersey plan, stated the considerations which he felt should be the test of any proposal, and as the first requisite stated: 1. Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing confederacy does [not] sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrouled as ever." 7 Accordingly, each of the principal plans proposed to the Convention contem-1 plated broad and effective treaty provisions. The Virginia plan proposed that · the national legislature and the national executive should enjoy, respectively, the legislative and exclusive rights vested in Congress by the Articles of Confederation, which, as we have seen, included the exclusive power to make treaties, and that in addition the national legislature should be empowered "to legislate in all cases in which the several States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation," and to negative any State Law contravening the Articles of Union. The federal judiciary was to be empowered to decide any "questions which may involve the national peace and harmony." The New Jersey plan would have given the Federal Government all the authority then vested in the Congress under the Articles of Confederation as well as authority over trade and commerce; it would have given the federal judiciary jurisdiction over the "construction of any treaty or treaties," and would have provided that all acts of Congress "and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens." 8 The plan submitted by Alexander Hamilton would have given the Executive power, with the advice and approbation of the Senate, to make treaties, and would have contained a supremacy clause. The Pinckney plan would apparently have added to the treaty pro visions of the Articles of Confederation a provision giving a federal Supreme Court power to review state court decision involving treaties.10 9 Thus, it was generally assumed that the Federal Government should have the full and exclusive treaty power. This assumption was made before any agree ment had been reached as to what other powers the Federal Government should possess. At no time during the Convention was there any suggestion that th t 1 Farrand, Records of the Federal Convention 19 (rev. ed. 1937) (emphasis added) McHenry's notes on Randolph's speech are even more explicit. "1st. It does not provid against foreign invasion. If a State acts against a foreign power contrary to the law of nations or violates a treaty, it cannot punish the State, or compel its obedience the treaty. It can only leave the offending State to the operations of the offended powe It therefore cannot prevent a war. * * None of the judges in the several States I was under the obligation of an oath to support the confederation, in which view this writi will be made to yield to State constitutions." 1 id. at 24-25. E. g., statements of Pinckney and Madison on June 8, 1787. 1 id. at 164. 1 id. at 316. 1 id. at 21. 81 id. at 244-45. 1 id. at 292-93. 10 3 id. at 608. treaty power should be limited as to scope or subject matter. The intention was plainly to give to the Federal Government in respect of foreign affairs the all power of sovereignty. 12 The first aspect of the treaty provisions to come up for discussion was that which ultimately became embodied in the supremacy clause." The Virginia resolutions had proposed that the legislature have power to negative state laws travening the Articles of Union. This proposal with an amendment by Dr. Franklin to add the words "or any Treaties subsisting under the authority of the anion" was initially agreed to without debate or dissent. Subsequently, the proposed power to negative state legislation was rejected. Those opposed to the provision argued that it would be offensive to the states and that a state law that could be negatived would be set aside by the judiciary or, if necessary, could te repealed by a national law. Accordingly, in place of this provision there was proposed a supremacy clause providing that all legislative acts of the United States and all treaties made and ratified under the authority of the United States should be the supreme law of the respective states in so far as they related to such states or their citizens and inhabitants and should be binding on the state judiiary. This proposal was unanimously adopted." Subsequently the supremacy ase was extended to "treaties made or which shall be made" under the authorry of the United States, so as to "obviate all doubts concerning the force of reaties pre-existing." 16 15 It was not until the troublesome issues of the representation of the states in the national legislature and the nature, term and manner of selection of the Chief Executive were resolved that attention turned to the question of which gency of the Federal Government should exercise the treaty power. The Comzittee of Detail, to which the resolutions adopted by the Convention had been chemitted for embodiment in a draft Constitution, reported a draft which gave The Senate the power to make treaties. During the discussion of other prosions of the draft, numerous references to the treaty power were made. Thus, a discussing a proposal that, as to all legisative acts each house of Congress have a negative on the other," Col. Mason objected that this would subject Treaties to control by the House, since treaties were to be laws. Gouverneur Morris, in supporting the proposal, urged that treaties were not laws in this sense. The proposal was defeated. Similarly, in discussing the question *hether the Senate should have power to originate money bills, Col. Mason sugrested that the Senate already had great power since it could "sell the whole Country by means of Treaties." Mr. Mercer said the Senate should not have the Teaty power, since that power "belonged to the Executive department." He oded that a treaty should not be a law "till ratified by legislative authority.” " la discussing the provision giving Congress power to make war, it was urged, on e one hand, that that power should be either in the President or the Senate, Ed on the other that Congress should also have the power to make peace, Kave otherwise a few Senators could "give up part of the U. States." Except for change of "make" to "declare," both proposals were defeated, the proposed Cant to Congress of the power to make peace failing ten votes to none." When the treaty provision came on for discussion, two proposals were made. Madison urged that the President should participate in treaty-making. Gourerneur Morris, although doubting whether the treaty power should be in the Sate, proposed adding a proviso that "no Treaty shall be binding on the U. S. *b is not ratified by a law," explaining that “[i]n general he was not solicitous multiply & facilitate Treaties." After some discussion, the whole clause was =Although the definition of the jurisdiction of the federal courts took various forms ¿ferent stages of the Convention, 1 id. at 232; 2 id. at 46, 186, the inclusion in it of an Is reference to treaties occasioned no dissent. 2 id. at 431. : id. at 47. 54. 61. Pickney and Madison thereafter proposed to enlarge this proto authorize the negativing of any laws which the national legislature would judge improper, Madison urging that the States had shown a constant tendency to encroach the federal authority and to violate national treaties. This proposed enlargement of the * to negative laws was defeated. 1 id. at 162-73. #2 id at 21-22, 27-29. The proposed power to negative state laws was revived again extensively debated. It was objected to as unnecessary in view of the supremacy clause las offensive to the states, and was strenuously urged as necessary. A motion to refer question to a committee failed, six to five. 2 id. at 390-91. As drafted Congress to call out This reference to 2 id. at 389-90. * id. at 417. One other matter relating to treaties deserves mention. #2d at 183. *2 d. at 197. #24 at 297. *2 id. at 318, 319. |