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pt efectire in the United States, unless the subject matter were one on - L'agress could legislate in the absence of a treaty (p. 12). 150:2 the examples mentioned in the report are "treaties giving or it to do business or own or inherit land, with reciprocal rights citizens abroad” (p. 12).
objection is founded upon the untenable assumption that the at and the Senate acting as a treatymaking power have broader
e power over the people of the United States than the Conself, in which the people by express grant in the first part of o'titution vested "all legislative power.” You must remember
Jerson said in his Manual of Parliamentary Practice:
for surely the President and the Senate cannot do by treaty what 7. Government is interdicted from doing in any way (quoted from Ameri- Lamiation Journal, September 1952, p. 736).
far as concerns the specific objection resulting to aliens in this -T, in return for reciprocal rights for our citizens abroad, such
**ins have been a well-established part of the commercial policy -- United States from the beginning of the Republic. They have -- ratified particularly with the treatymaking powers because
are usually the form in which reciprocal agreements between
are made. To urge that Congress is incapable of exercising Ptitutional power to regulate commerce with foreign nations, ** sf such regulation cannot be had except through the exercise of
ymaking power constitutes a confusion of constitutional terit creates limitations upon congressional power in the interest
arring the treaty power. By virtue of its power to regulate - commerce, to define and punish offenses against the law of - in to declare war, and so forth, the Congress now has delegated to to iegislate with respect to all of the important subjects in the ** te treaty field. (See American Bar Association Journal, June
- til)). iar as Congress does not have power under the Constitution oste, the consent of the several States must be appropriately
mi such is the case, for example, in Canada, which is also a Fed22. See American Bar Association Journal, September 1952,
tid., June 1952, p. 469.) * *bo object to the so-called “which clause” in the American 4-mation treaty proposal fail to appreciate the real significance - use to the preservation of our form of government against
of the treaty power, originating in the type of agreements te executive arm of the Government has been negotiating in 2-* frs vears in the name of human rights and in other areas.
(HAIPUAN. Mr. Schweppe, a moment ago you mentioned the tojalare war. Will you read that again? 4: SHWEPPE. Yes. 9:e of its power to regulate foreign commerce Le specifically granted powers
201 punish offenses against the law of nations, to declare war, and.
-TAG Dow bas delegated power to legislate with respect to all of the -* rubjects in the legitimate treaty field. :(HAIRMAN. You read the debates in the United Nations when Prer was adopted! 2: HEPPE. Yes.
The CHAIRMAN. Senators Vandenberg and Connally assured Congress that the United States was not divorcing itself fr sovereignty, the right to declare war.
Mr. SCHWEPPE. Yes; I remember that.
The CHAIRMAN. Yet we go ahead with the war in Korea with Congress being consulted at all.
Mr. SCHWEPPE. Yes.
Mr. SCHWEPPE. I felt that the constitutional powers of the Presid were exceeded and the constitutional powers of the Congress of United States were bypassed in that particular episode.
The CHAIRMAN. You maintain that Senator Vandenberg and Sei tor Connally were right in their interpretation of the United Natio Charter?
Mr. SCHWEPPE. Yes.
Those who object to the so-called “which clause" in the Americ Bar Association treaty proposal fail to appreciate the real significar of this clause to the preservation of our form of government agaii the abuse of the treaty power, originating in the type of agreemer which the executive arm of the Government has been negotiating the last few years in the name of human rights and in other are: Without such a constitutional limitation, and within the recent Sta Department concept that “there is no longer any real distinction ! tween domestic and foreign affairs" (see American Bar Associatii Journal, September 1952, p. 737), the President and two-thirds the Senators present could take over the entire area of internal la now reserved to the States:
Supporters of the association's amendment have been challenged to poi to any ratified treaty raising questions that show the need for a constitution limitation on the treaty-making power. The only treaty which has actual been ratified is the United Nations Charter itself, which has undoubtedly, unde te Missouri v. Holland, already conferred on Congress the unlimited power to ir plement by legislation treaties on all matters, including individual rights, co ered by that instrument (American Bar Association Journal, September 195 p. 796.)
I pause there a moment to make this commentary: The United Na tions Charter has in it those famous articles 55 and 56 which relate t the promotion of human rights. The United States has become a part to that charter under the treaty clause. My committee and the res
Tua of us who have considered this subject are convinced that the Unite fa Nations Charter in those articles has already conferred on the Convil gress of the United States the power to take over the whole field o human rights and pushing the States out of the way. That treat; by has already been ratified and is on the books.
Your committee has for several years given constant and seriou study as to the most effective means of dealing with these real and potential extensions of the treatymaking power. After considering all alternatives, it concluded that the only sure safeguard againsik present and future risk is a constitutional amendment, which while preserving the treatymaking power in all its effectiveness in matters which are genuine subjects of the international agreements, will close the gap for such distortions as those just mentioned. The house of delegates of the American Bar Association agreed.
As a necessary corollary to its study on the treaty power, the com--* 0. peace and law of the American Bar Association studied the
i of esecutive agreements. Sir Smith. Is there any doubt about the power of the ConCas enactment to abrogate a treaty made under the United Na
::25 He did before we ratified the United Nations Charter? + SCHWEPPE. There is no doubt about that
power en affirmed in a number of Supreme Court decisions. A treaty es constitutional status which parallels that of the statute. As preme Court has put it in several cases, where a treaty and an i Congress conflict, the test is which one was first in time. If st of Congress was first in time, the subsequent treaty will superit. If the treaty was first in time and Congress passes a subse
conflicting act of Congres, then the act of Congress superthe treaty.
ator Suith. Assuming the act of Congress becomes law by President signing or by passage over his veto? V: SCHWEPPE. Yes. sw. we have no doubt and the argument has been made by some
of Dose the position of the American Bar Association, that an if Congress can set aside a treaty. That has been put forward Tune opponents of Senator Bricker's and our program as being : 5ate defense for the legal situation of the United States. We
think that for the United States Congress to come along and ** wholesale in the revocation and repudiation of treaties, even
that power does exist, is a wise national policy for this Gov--- ant to pursue and we think a much better remedy is to prevent straties from being made in advance rather than trying to repeal 1: *reaties after they have been made and invite the enmity of the * of the nations of the world.
stor SMITH. If it was done by statutory enactment it would at that the tables would be reversed, so to speak, and you would to have an act of both Houses plus the President's signature,
Trto, you would have to have two-thirds. JE SHWEPPE. That is right.
top Suith. Which turns the whole thing around. M. SHWEPPE. That is an excellent point. As against the Chief se trip who is in favor of maintaining the treaty it would take : Thirds vote of Congress to set aside what Congress might
abad treaty. or Smith. And what had been put in effect by the Executive
ting the treaty and the Senate ratifying it. K: SCHWEPPE. Yes.
or Smith. The Senate might ratify by two-thirds of those **t, which could be a handful of Senators. SCHWEPPE. Right.
stor Suiti. Yet it would take two-thirds of both Houses to set V SHWEPPE. Yes. The treaty could be made when negotiated
e President by two-thirds of the Senators present, which cer* would require only two-thirds of a quorum under some in
Cations. But to undo it afterward would take a two-thirds is, yof both Houses.
Mr. SMITHEY. Mr. Schweppe, in connection with your answer Senator Smith's question, you were answering as to the dome effect of the treaty,
not? Mr. SCHWEPPE. That is right.
Mr. SMITHEY. In other words, we could not by statute disregard international obligation that has been placed in the treaty.
Mr. SCHWEPPE. That is right. Under international law we wo be bound by the treaty. We could set aside the domestic effect, / and the international complication of doing it would be just as serious a:
3.: we actually repudiated the treaty itself as an international enga ment.
Senator BRICKER. It would also endanger us with all sorts of all prisals from other nations of the world.
Mr. SCHWEPPE. Yes. We have had experience on that now. -111 notice some of the other nations are engaging in some reprisals 1 cause they do not like what we are doing in the tariff field. So open ourselves up. In other words, the United Nations program, j stead of being one that will make the nations more cohesive alie friendly with one another, could, if this goes forward, actually! sult in a lot of clashes and creation of bad feelings which, wi. a constitutional amendment such as you propose and the American bar, would not occur.
Senator BRICKER. Thank you, Mr. Chairman.
Mr. SCHWEPPE. There are some gentlemen, as you know-D Wallace McClure, for many years with the State Department, is on Pa and Mr. McDougal, of the Yale law faculty is another--who speak « treaties and executive agreements as interchangeable instruments national policy, as though the President, at his option, could do any thing by executive agreement that also could otherwise be done 6 treaty, a concept with which we do not agree That argument wa very sharply, and I think effectively, answered by Professor Borchar of Vale in an article in a Yale Law Journal in 1945 and in the America Political Science Review in 1946.
I trust we may be pardoned if we at the grassroots say we ar startled by the following brazen advocacy of bypassing the constitu tional function of the Senate in making international agreements Mr. Wallace McClure wrote a book entitled "International Executivi. Agreements,” published by the Columbia University Press in 1941 and this is what he said:
For controversial international acts the Senate method may well be quietl; abandoned, and the instruments handled as executive agreements. But for large numbers of purely routine acts, about which no public opinion exists and no question as to their acceptability arises, the present method is desirable * * * international Executive Agreements, by Wallace McClure, New York, Columbia l'niversity Press, 1941, p. 378.)
From 1920 to his retirement last year, Mr. McClure, the author of the foregoing quotation, was an officer of the Department of State. Among other positions he held was that of Assistant Chief of the Treaty Division,
Now, that is the most brazen statement that I have seen anywhere for bypassing the United States Senate in its constitutional exercise of the treaty power by an official of the United States Government for years in the State Department. He says for international matters which are controversial the Senate method should quietly be aban
and and the instruments handled as executive agreements. On ..ne matters which do not mean anything, about which no public
coa exists and no question as to their acceptability arises, the ent method is desirable.
Stie place of the United States Senate, under the opinion of Dr. sire, who was for many years an officer in the State Department,
! you will be favored by the executive branch of the Government 5 s lot of minor and unimportant agreements about which no - poliey exists. But on great public international controversies
the Executive will do it alone. SW.we say at the grassroots we are always startled at the kind of itional law practiced by some people on the payroll of the ei States.
gior Suth. Was Dr. McClure ever elected by the people to 17. JIWE.PPE. He was not. But that is in print at page 378 of his ... wich has wide currency thoughout the United States, entitled ***rational Executive Agreements,” published by the Columbia
rritv Press. Irrie Founding Fathers had intended that an executive agreement wil be an interchangeable instrument of national policy with a
I, then, of course, what was the point of putting anything in -estitution about the treaty-making power at all? We would
nicht right back to the proposition, which the Founding Fathers timi, namely, the President should not alone have the power to ese treaties. They rejected that idea. They finally arrived at
sition that the treaties should be made by the President and Slate. Icea that an executive agreement is interchangeable with a y. I think, was repudiated from the day the Constitution was
I do not think there is any question about it whatsover. rier, power grows by what it feeds on. The executive-agreement :-. was not a serious problem until relatively recent times. In as I think the executive department in Washington—and this
le historically established—took the position that all major
ce between us and foreign countries should be governed by treaty. Ditutional provision was put in there for that purpose. It
) simultaneously recognized that there are many, what you ::: cail, ministerial day-today situations, not important policy 50s, where agreements have to be made on this, that and the
-- sibject, by the State Department and the President, because -5 do riot involve matters of permanent national policy and need : a proach the dignity of the treaty. Of course, when Dr. McI wrote his thesis on executive agreements and first put forward
jea of interchangeability, which, I say, repudiates the idea of Funding Fathers and asserted that the President could ignore Donate by making executive agreements in lieu of treaties on matof international importance, the danger of one-man government als increased, and we have lived to witness some of the disastrous
of this doctrine. 1. I say, we think that that concept of interchangeability is wrong. It is our view that executive agreements can and should be con
ini by Congress. We do not think that executive agreements sul rise or were ever intended to rise to the dignity of treaties;