take it effective in the United States, unless the subject matter were one on 2 Congress could legislate in the absence of a treaty (p. 12).

Ang the examples mentioned in the report are "treaties giving ngat to do business or own or inherit land, with reciprocal rights citizens abroad" (p. 12).

The objection is founded upon the untenable assumption that the nt and the Senate acting as a treatymaking power have broader Cative power over the people of the United States than the Contself, in which the people by express grant in the first part of Constitution vested "all legislative power." You must remember Jeferson said in his Manual of Parliamentary Practice:

the treaty clause] must have meant to except out all those rights reserved de tates; for surely the President and the Senate cannot do by treaty what > *e Government is interdicted from doing in any way (quoted from Ameri-Bar Association Journal, September 1952, p. 736).

2

far as concerns the specific objection resulting to aliens in this -y, in return for reciprocal rights for our citizens abroad, such ons have been a well-established part of the commercial policy United States from the beginning of the Republic. They have dentified particularly with the treatymaking powers because

are usually the form in which reciprocal agreements between its are made. To urge that Congress is incapable of exercising *stitutional power to regulate commerce with foreign nations, - at such regulation cannot be had except through the exercise of atymaking power constitutes a confusion of constitutional erit creates limitations upon congressional power in the interest etharging the treaty power. By virtue of its power to regulate -commerce, to define and punish offenses against the law of ts, to declare war, and so forth, the Congress now has delegated er to legislate with respect to all of the important subjects in the mate treaty field. (See American Bar Association Journal, June − p. 470).

far as Congress does not have power under the Constitution late, the consent of the several States must be appropriately ad such is the case, for example, in Canada, which is also a Fedte. (See American Bar Association Journal, September 1952, ...bid., June 1952, p. 469.)

I who object to the so-called "which clause" in the American Acation treaty proposal fail to appreciate the real significance Siause to the preservation of our form of government against 1. of the treaty power, originating in the type of agreements ..the executive arm of the Government has been negotiating in -t few years in the name of human rights and in other areas. CHAIRMAN. Mr. Schweppe, a moment ago you mentioned the declare war. Will you read that again?

HWEPPE. Yes.

be of its power to regulate foreign commerce

-are specifically granted powers

and punish offenses against the law of nations, to declare war, and ress now has delegated power to legislate with respect to all of the zamunt subjects in the legitimate treaty field.

CHAIRMAN. You read the debates in the United Nations when tarter was adopted?

SCHWEPPE. Yes.

The CHAIRMAN. Senators Vandenberg and Connally assured Congress that the United States was not divorcing itself 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.

The CHAIRMAN. What do you say to that?

Mr. SCHWEPPE. I felt that the constitutional powers of the Presi 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 S tor Connally were right in their interpretation of the United Nati Charter?

Mr. SCHWEPPE. Yes.

Those who object to the so-called "which clause" in the Ameri Bar Association treaty proposal fail to appreciate the real significa of this clause to the preservation of our form of government agai the abuse of the treaty power, originating in the type of agreeme 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 St Department concept that "there is no longer any real distinction tween domestic and foreign affairs" (see American Bar Associat Journal, September 1952, p. 737), the President and two-thirds the Senators present could take over the entire area of internal 1 now reserved to the States:

und

Supporters of the association's amendment have been challenged to po to any ratified treaty raising questions that show the need for a constitutio limitation on the treaty-making power. The only treaty which has actua been ratified is the United Nations Charter itself, which has undoubtedly, Missouri v. Holland, already conferred on Congress the unlimited power to i plement by legislation treaties on all matters, including individual rights, c ered by that instrument (American Bar Association Journal, September 19 p. 796.)

I pause there a moment to make this commentary: The United N tions Charter has in it those famous articles 55 and 56 which relate the promotion of human rights. The United States has become a par to that charter under the treaty clause. My committee and the re of us who have considered this subject are convinced that the Unit Nations Charter in those articles has already conferred on the Co gress of the United States the power to take over the whole field human rights and pushing the States out of the way. That treat has already been ratified and is on the books.

Your committee has for several years given constant and serio study as to the most effective means of dealing with these real an potential extensions of the treatymaking power. After considerin all alternatives, it concluded that the only sure safeguard agains present and future risk is a constitutional amendment, which whil preserving the treatymaking power in all its effectiveness in matter which are genuine subjects of the international agreements, will clos the gap for such distortions as those just mentioned. The house o delegates of the American Bar Association agreed.

is necessary corollary to its study on the treaty power, the come on peace and law of the American Bar Association studied the of executive agreements.

or SMITH. Is there any doubt about the power of the Conby enactment to abrogate a treaty made under the United Na15 we did before we ratified the United Nations Charter?

SCHWEPPE. There is no doubt about that power. That power been affirmed in a number of Supreme Court decisions. A treaty constitutional status which parallels that of the statute. As preme Court has put it in several cases, where a treaty and an Congress conflict, the test is which one was first in time. If -t of Congress was first in time, the subsequent treaty will superIf the treaty was first in time and Congress passes a subseconflicting act of Congres, then the act of Congress superthe treaty.

ator SMITH. Assuming the act of Congress becomes law by President signing or by passage over his veto?

Mr. SCHWEPPE. Yes.

Nw, we have no doubt and the argument has been made by some Toppose the position of the American Bar Association, that an at of Congress can set aside a treaty. That has been put forward The opponents of Senator Bricker's and our program as being equate 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 h that power does exist, is a wise national policy for this Govent to pursue and we think a much better remedy is to prevent treaties from being made in advance rather than trying to repeal treaties after they have been made and invite the enmity of the of the nations of the world.

Stator SMITH. If it was done by statutory enactment it would that the tables would be reversed, so to speak, and you would to have an act of both Houses plus the President's signature, Teto, you would have to have two-thirds.

SCHWEPPE. That is right.

Stor SMITH. Which turns the whole thing around.

MSCHWEPPE. That is an excellent point. As against the Chief Ertise who is in favor of maintaining the treaty it would take Birds vote of Congress to set aside what Congress might 1 bad treaty.

Stator SMITH. And what had been put in effect by the Executive ating the treaty and the Senate ratifying it.

V. SCHWEPPE. Yes.

Mator SMITH. The Senate might ratify by two-thirds of those t, which could be a handful of Senators.

:. SCHWEPPE. Right.

ator SMITH. Yet it would take two-thirds of both Houses to set

M: SCHWEPPE. 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 intations. But to undo it afterward would take a two-thirds ty of both Houses.

Mr. SMITHEY. Mr. Schweppe, in connection with your answe Senator Smith's question, you were answering as to the dom effect of the treaty, were you 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, the international complication of doing it would be just as serious a we actually repudiated the treaty itself as an international enga ment.

Senator BRICKER. It would also endanger us with all sorts of prisals from other nations of the world.

Mr. SCHWEPPE. Yes. We have had experience on that now. notice some of the other nations are engaging in some reprisals cause they do not like what we are doing in the tariff field. So open ourselves up. In other words, the United Nations program, stead of being one that will make the nations more cohesive a friendly with one another, could, if this goes forward, actually sult in a lot of clashes and creation of bad feelings which, w a constitutional amendment such as you propose and the Americ bar, would not occur.

Senator BRICKER. Thank you, Mr. Chairman.

Mr. SCHWEPPE. There are some gentlemen, as you know-I Wallace McClure, for many years with the State Department, is o 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 an thing by executive agreement that also could otherwise be done treaty, a concept with which we do not agree That argument w very sharply, and I think effectively, answered by Professor Borchar of Yale 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 constit tional function of the Senate in making international agreement Mr. Wallace McClure wrote a book entitled "International Executiv 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 larg numbers of purely routine acts, about which no public opinion exists and n question as to their acceptability arises, the present method is desirable * * (International Executive Agreements, by Wallace McClure, New York, Columbia University 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

d and the instruments handled as executive agreements. On the matters which do not mean anything, about which no public tion exists and no question as to their acceptability arises, the ent method is desirable.

the place of the United States Senate, under the opinion of Dr. are, who was for many years an officer in the State Department, at you will be favored by the executive branch of the Government a lot of minor and unimportant agreements about which no Le policy exists. But on great public international controversies te the Executive will do it alone.

Now, we say at the grassroots we are always startled at the kind of tional law practiced by some people on the payroll of the Tired States.

ator SMITH. Was Dr. McClure ever elected by the people to VHWEPPE. He was not. But that is in print at page 378 of his which has wide currency thoughout the United States, entitled ternational Executive Agreements," published by the Columbia Tersity Press.

If the Founding Fathers had intended that an executive agreement be an interchangeable instrument of national policy with a ay, then, of course, what was the point of putting anything in 2-Constitution about the treaty-making power at all? We would

ught right back to the proposition, which the Founding Fathers ted, namely, the President should not alone have the power to se treaties. They rejected that idea. They finally arrived at lution that the treaties should be made by the President and

Senate.

The idea that an executive agreement is interchangeable with a taty. I think, was repudiated from the day the Constitution was I do not think there is any question about it whatsover. Her, power grows by what it feeds on. The executive-agreement em was not a serious problem until relatively recent times. In ates I think the executive department in Washington-and this te historically established-took the position that all major es between us and foreign countries should be governed by treaty. e constitutional provision was put in there for that purpose. It a simultaneously recognized that there are many, what you

call, ministerial day-today situations, not important policy Nations, where agreements have to be made on this, that and the rbject, by the State Department and the President, because - do not involve matters of permanent national policy and need approach the dignity of the treaty. Of course, when Dr. Mcwrote his thesis on executive agreements and first put forward Ls.iea of interchangeability, which, I say, repudiates the idea of Founding Fathers and asserted that the President could ignore Senate by making executive agreements in lieu of treaties on matof international importance, the danger of one-man government lly increased, and we have lived to witness some of the disastrous ts of this doctrine.

A- I say, we think that that concept of interchangeability is wrong. It is our view that executive agreements can and should be con

by Congress. We do not think that executive agreements 1 rise or were ever intended to rise to the dignity of treaties;