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here is a legitimate area for executive agreements, 1 So not be used to bypass the treaty pow hin the power of Congress to determine wh

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tes our committee recommended to the ho American Bar Association, a corollary to t proposal on executive agreements. The house our view and on September 18, 1952, at the annu aerican Bar Association at San Francisco adopt

1 Bar Association recommends to the Congre suteration, an amendment to the Constituti ! weet of executive agreements, reading as follow scal not be made in lieu of treaties. Congress sh srsion by appropriate legislation. Nothing here

de existing power of Congress to regulate exec rsions of this Constitution."

that time, and wholly within the principl of delegates, but on its own responsibilit ad as follows:

greements shall be subject to regulation by the Congre den treaties by this article.

ded in Senator Arthur Watkins' Senate Join

election has been voiced to the section propose sreements, designed to make it clear and unequiv

as the power "to make all laws which shall b ver to control executive agreements. (Constitu Suse 18: Youngstown Sheet & Tube Co. v. Sawye 2. 1952)). Ex parte Quirin (317 U. S. 1, 25-27 ttee on peace and law, September 1, 1952) e pace seem unanimous that executive agreement by law within the Constitution.

eeeeves that both Senator McCarran in Senate

and Senator Bricker in Senate Joint Resolution 1 proach, namely, that executive agreements should gulation by Congress. Senator McCarran's proadopted, appear to be of immediate efficacy under the

now exists; and Senator Bricker's proposal of e congressional control principle in his proposed sendment, as well as the American Bar Association remove any conceivable doubt on the subject.

ee directs attention to article I, section 8, clause 18, icon of the United States, which provides that Congress

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xas which shall be necessary and proper for carrying into execution wwers and all other powers vested by this Constitution in the he l'uited States, or any department or officer thereof.

clear that the foregoing clause vests Congress with the de all laws necessary and proper to carry the executive effect; and that Congress can, therefore, under existing ., regulate executive agreements.

This view is supported by the principles announced in Ex parte --^^ (317 U. S. 1, 25–27, 29), in which Chief Justice Stone, in a mous opinion, makes it unequivocally clear that Congress and President, like the courts, possess no power not derived from the stitution; that, under article I, section 8, clause 18, Congress all legislative power "necessary and proper" for carrying the tive power into execution; and that where there is congressional sation on any subject it is unnecessary to determine to what extent President might act in the absence of legislation.

s view of the Constitution was strongly emphasized by the preme Court in the Steel Seizure cases (Youngstown Sheet & Tube AV. Sayer (decided June 2, 1952, 343 U. S. 579, 72 Sup. Ct. 863)),

ch the majority of the Court twice emphasizes article I, section use 18, and concludes with a statement as follows:

Cress has not thereby lost its exclusive constitutional authority to make essary and proper, to carry out the powers vested by the Constittuion = 12e Government of the United States, or any department or officer therof." And, of course, it is the President's constitutional duty to "take care at the laws be faithfully executed," including any law that Congress make regulating executive agreements.

Ts view was further emphasized by Mr. Justice Jackson in his urring opinion in the Steel Seizure cases, in which he says (footof his opinion) that the Court has "intimated that the President t act in external affairs without congressional authority, but not the might act contrary to an act of Congress."

This statement of Mr. Justice Jackson not only supports the affirmareposition, as does the main opinion of the Court, that Congress can ate the manner of exercising the Executive power, including of e. executive agreements, but conversely states that the President "act contrary to an act of Congress" passed within its delegoed powers.

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I therefore seems reasonably clear that under article I, section 8, se 15. Congress now has power to regulate executive agreements. Congress has the power to make all laws necessary and proper arry into execution the powers vested by the Constitution in the tive department or the President, it becomes the duty of the Presfaithfully to execute such laws as Congress may pass regulating

tive agreements.

Tough believing that present constitutional power appears to exist ngress to regulate executive agreements, your committee is of the tion that to remove any doubts engendered by dicta in decisions Te referred to, it is desirable to incorporate the congressional conprinciple with respect to executive agreements in a constitutional iment relating to treaties along the general lines proposed by tor Bricker and by the American Bar Association. Your committee recognizes, as does Senator Bricker's proposal, that of the strong criticisms currently made of executive agreements at there has been a tendency on the part of the executive departTet to make executive agreements and not submit them to the Senate aproval, instead of covering the subject by treaties, which require e approval. Certain executive agreements, embodying longand far-reaching policy commitments on the part of the United such as those at Teheran and Yalta, have so disturbed the

American people that it would be fitting to remove any conceival doubt on the question by constitutional amendment.

Conclusion: The foregoing covers the general presentation of t committee on peace and law of the American Bar Association. It w intended that I should make a general introductory statement of t position of our committee and a general outline of its work. Oth members of the committee are here who will stress specific phases the problem which in their judgment need further emphasis or ela oration. The other members present are: Carl B. Rix, vice chairma Vermont Hatch; Eberhard P. Deutsch; Frank B. Ober; George Finch.

I conclude with the comment that the American people have co fidence in constitutional restraints above all confidence in individual The first 10 amendments were added to the Constitution in 1791, i prevent in advance abuses of power. The house of delegates of th American Bar Association has expressed its view that the abuse the treaty power should be prevented now.

I close with two pertinent quotations, the first from Woodro Wilson and the second from Thomas Jefferson, recently quoted b Mr. John W. Davis, of New York, in his great argument in th Steel Seizure cases last May.

Woodrow Wilson said:

The history of liberty is a history of the limitation of governmental powe not the increase of it.

Thomas Jefferson said:

In questions of power, let no more be said of confidence in man, but bind hir down from mischief by the chains of the Constitution.

Thank you, Mr. Chairman.

The CHAIRMAN, Mr. Schweppe, can you tell me how long you worked on this very excellent statement?

Mr. SCHWEPPE. This is a product of 4 years of study.

Sonator Surrn, Mr. Schweppe, I assume there is no doubt in your mind by the way you have that second provision about "Regulation shall be provided for" that that would take care of the necessity for such mystigation as might be desired by Congress on agreements already made by the Executive.

Mr. SCHWEPPE. Yes.

Sonator Suru. You see, one of the complaints we have had from time to time is to get at the information to see what has been done. having all due regard for the necessity of secrecy in many matters.

Mr. Schwerre. It is our opinion, Senator Smith, that the language as drawn that Congress shall have power to regulate executive Agreement in substance will authorize Congress to make any regulation necessary to control executive agreements. We feel that taking the analogy of the commerce laws which the Supreme Court has many times construed Congress shall have the power to regulate commerce you will remember under the power to regulate commerce the Supreme Court has sustained in a long series of cases, the right to exclude certain things from interstate commerce.

Senator Sarru. And the right to investigate.

Mr. Scnwrrrr. The right to investigate, all those things are included in the power to regulate.

Senator SMITH. I assumed that it was.

CHAIRMAN. Has the staff any questions they would like to ask? SMITHEY. Yes.

Schweppe, in some measure this will cover points which you ready made in your statement but I think it is necessary as a nary question:

Td the second sentence of the American bar proposal render "...v impossible the conclusion of treaties which conferred the t to own land on a foreign national in the United States in exfor a conference of similar right on American nationals in Tran nation?

V: SHWEPPE. No. Let me repeat and give you a full answer. Anerican Bar Association proposal does not prevent the State ⚫ent from making a treaty with any country on any subject ever, including the ownership of land. Treaties can be made. become binding as international engagements. Now, what their it will be on domestic law is another question. If, as we have ed in this argument--and the idea is not original with me but from Mr. George Finch sitting at the head of the table, who of the greatest international lawyers in the country-editor in of the American Journal on International Law-if his view is which is embodied in our report, that the right to do business nding the ownership of land has historically been part of the onal commercial policy of the United States, then Congress have power to implement treaties in that field, including the p of land.

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that view should not be correct, if that view should not be correct the power of Congress in the field under the power to reguHerstate commerce, then the alternative result will be that such y can be made, will be perfectly binding as an international ent, but land ownership in the States cannot take place withThe consent of the individual States involved.

it is rather interesting, and one of my associates, I think, will fy it rather fully, that our Government thought for a long time Was the right way to approach this land-holding business. If men will take a look at Geofroy v. Riggs, which is frequentin this field, you will find there was before the Supreme that case a treaty with France which included among other the right of French citizens to own land in the United States f American citizens to own land in France-provided what? States of the United States in which the individual States

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V. that was the treaty as our State Deparment drew it in those - In the days of Geofroy v. Riggs the Federal Government did ve the concept that it was all-powerful and it could forget about e. They say this is a fair deal between us and the French States as consent thereto.

coming back to wind up my answer to your question, if Dr. is right in the concept that the doing of business, including the p of land, is broadly within the commercial policy of the States in foreign nations, then Congress could implement it

we are wrong about that concept, then the consent of the indiStates would be required, with which I can see nothing wrong. the State of Washington should have the right to determine

whether Frenchmen or Russians or anybody else can own land the State of Washington and not the State Department with the co sent of the Senate. I believe that that ownership of land is so i portant that that should be a matter of State policy unless I Finch's approach to this question of national commercial policy i correct one. I see nothing the matter with it. And I point to Geofr v. Riggs to show that was for a long time the prevailing thinking the State Department of the United States and treaties were nego ated in that form.

Mr. HOLMAN. And still is the situation in Canada today. T treaty that Canada makes does not entitle an American to own la in Ontario.

Mr. SMITHEY. Do you think if the limitation of the "which claus in the second sentence of the American Bar proposal becomes a pa of the Constitution that courts might seek to validate treaties stretching constitutional provisions such as the commerce clause a in so doing make possible further encroachment by the Federal Go ernment on the rights of States?

Mr. SCHWEPPE. I give you this answer: The Supreme Court held the License cases many years ago, cited as the License cases, that t power to regulate foreign commerce is given in exactly the san clause that gives the right to regulate interstate commerce. We ha witnessed in recent years a very substantial judicial enlargement the concept of interstate commerce, to the point where some of think perhaps it has gone too far. We think, however, those decision being in the books, that the Court will adopt probably as liberal a interpretation of the power to regulate foreign commerce as it ha interstate commerce, and that at least gives a judicial control of th problem with which American people are accustomed to live and a customed to work.

Those matters will come up case by case as the treaty power extended into fields and Congress makes implementing legislation as I say, in fields that otherwise would be within the area of Stat control. I have no reason to believe, I do not think anybody has, tha the Court would not expand and develop case by case the concept o foreign commerce just as it has the concept of interstate commerce To that I see no objection, as we have adequate judicial control o those concepts. If they go too far, maybe sometime we will have t amend the Constitution again. But I do look for that sort of expan

sion.

Mr. SMITHEY. Further along that line, I am sure you are familia with the case of the United States v. the Curtiss Wright Corporation Mr. Schwerre. Very well.

Mr. SMITHEY. There is a statement in that case at page 318 (299 U. S. 318) in which the Court stated:

As a member of the family of nations, the right and power of the United States in that field =

and they are speaking of treaty power

are equal to the right and power of the other nations of the international family otherwise the United States is not completely sovereign.

Would the amendment which you propose render the United States Government "not completely sovereign"?

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