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of diplomats seeking to cut off even consideration or inquiry, as the Indonesian case before the Security Council so well showed a few years ago. In which sense Tould the term "domestic jurisdiction” be used in the Constitution, as amended ? Presumably the criteria for prediction could come only from congressional action from treaty case to treaty case. The possibility of the development of a conpressional stare decisis under continually varying political situations, in an age when lawyers sometimes despair even of the judicial variety, might to some seem quite remote.
SESATE JOINT RESOLUTION 1 SHIFTS RESPONSIBILITY FOR FOREIGN AFFAIRS
OPERATIONS TO CONGRESS The last point leads to my final generalization in opposition to Senate Joint Resolution i. I spoke of congressional stare decisis advisedly, because the overall effect of the proposal is obviously to give Congress the ultimate power of both decision and direction in the field of foreign affairs. I see this as an objectionable, perhaps unintended, drift toward parliamentary government, the more dangerous because no blending of legislative with executive power, as in the case of Great Britain, is provided for. Congress shall from time to time decide (section 4) what consensual transactions the President shall have with “any international organization, foreign power, or official thereof." The Federalist papers show that the Founding Fathers, closer to the fear of a President's becoming a totalitarian tyrant than history (thank God) has ever justified us in haring, faced this problem and on a calculated risk basis chose the present distribution of power in the field of foreign affairs. I submit that the risks of denying the Chief Executive initiative and leadership responsibility in this field, are far greater now than they were then. Likewise, the potential dangers of giving him the powers he now has have not, in view of actual experience, been realized. In great part this is due to the wisdom of the men of Philadelphia, who created the corrections of (a) Senate nonconcurrence in treaties; (b) congressional repudiation of Presidential action by the enactment of subsequent inconsistent legislation ; (c) the all-important money power, and (d) the hustings. However, my own experience in the Department of State has left me with the following additional impressions on this point:
(1) The day-to-day conduct of foreign affairs requires many "agreements” with foreign entities. Obviously they could not all or any substantial number of them be specifically approved by Congress. Moreover, any attempt to classify them by transaction types in terms that would furnish a guide as to which (a) could be made by the Executive and which (b) would require treaty treatment does not seem to me possible. At least, before going forward with the constitutional amendment, an exploratory attempt to see how section 4 of Senate Joint Resolution 1 might be implemented in legislation ought to be considered.
(2) Undertakings to foreign entities are not lightly given in the Department of State. One acts only on authority in such matters, and commitments are regularly reported to a central agency and thus are kept track of within the Department.
(3) An executive agreement of the sort the Department will negotiate and not submit to the President for senatorial approval is, in almost all cases, one either (ai carrying out policy along lines of authority already delegated to the executive by the Congress, e. g., executive agreements under the broad delegation of the War Powers Acts, or (b) dealing with some very technical matter and having the overall effect of enlarging or protecting American interests abroad. Re. garding these, the responsible officers of the Department genuinely felt in my time that the Congress should not be bothered, beyond, of course, its busy and effective Foreign Relations and Foreign Affairs Committeemen, who are kept informed.
(4) The Missouri v. Holland power to override State laws inconsistent with international agreements, is very sparingly used, and never lightly or without some measure of advance congressional consultation. Sometimes this abstention is carried to the point of actually withdrawing American interests abroad from otherwise sound settlements. To illustrate, during the drafting of the Italian Peace Treaty, we came to the question : "What is to be done about the running of statutes of limitations during the war years, when an American could not sue an Italian in the courts of Italy, and vice versa?" Every other national and Italy signed a reciprocal agreement that the war years would not be counted. But not the United States. Limitations is a matter of State law. Our specific telegraphed instructions required the following in the treaty:
“Having regard to the legal system of the United States of America. the provisions of this annex shall not apply as between the United States of America and Italy.” (Annex XVI, D-2, Italian Peace Treaty.)
Now there is nothing strange about this. People in the State Departmeli are Georgians and Texans and Massachusetts men too and they might have some reluctance, even if they did not think of what the Senate would do, to jerterting the treaty power to underurine local self-government and State powers in our country. The same thing might be said for Presidents.
So much for routine executive or other agreements. What of the major commitments of the Chief of State himself? I have heard leading projulients of the American Bar Association proposal say that they are really after Talta and Potsdam. How would Yalta or Potsdam be affected by Senate Joint Resolution 1? The only applicable section is No. 4. How would the restriction on presidential power, in time of war, to make interim arrangenrents looking toward ultimate peace treaties, considering all factors in a complex, delicate pwer situation, be drafted? Here we seem to be, once more, up against a fundamental constitutional issue. Senate Joint Resolution 1 affects it for the resolution definitely shifts the ultimate authority to give course and direction to foreign policy to the Congress. Does this safely and effectively resolve the issue? Will the Congress also send and receive Ministers, read the intelligence reports and the telegrams, put out the fires, do the planning and, in general, organize itself for and accept day-in-and-day-out that awful, fateful responsibility that is now on our Chief Executive? Are we to develop in Congress a Prime Minister for Foreign Affairs and make the President an impotent figurehead? Only, gentle. men, if the Congress and the legislatures of the several States are prepared to face honestly and prayerfully so revolutionary a change in our Government should Senate Joint Resolution 1 be further favorably considered.
The CHAIRMAN. Do you have any questions?
During your service in the State Department, Mr. Oliver, did you ever become acquainted with a Dr. Wallace McClure?
Professor OLIVER. To the best of my knowledge and belief, no, sir.
Mr. SMITHEY. Are you familiar with his statement? I will read it to you and ask you to comment on it.
Professor OLIVER. Do you have the page reference which you can give me?
Mr. SMITHEY. It is at page 29 of the hearings on Senate Joint Resolution 130. He says:
The President, acting with Congress, where simple majorities prevail, can, in the matter of international acts, legally accomplish under the Constitution anything that can be legally accomplished by the treatymaking power as specifically defined in the Constitution. * *
The result is that for controversial international acts the Senate method may well be quietly 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 (treaty) method is desirable as saving the time of the House of Representatives. * * *
Would you care to comment on that, Mr. Oliver, in the light of your experience in the State Department?
Professor OLIVER. My comment, sir, on what you have read and without any knowledge of the position of this gentleman or what the basis of his experience was in the Department, is that I am, as the electricians say, 180 degrees out of phase with him. It is just the other way around, in my opinion. I have been on the receiving end of telegrams which said, "Do not use the treaty power in this way," et cetera. We have been kept on a short tether with respect
. to that sort of thing. So, I do not agree with what he says.
Mr. SMITHEY. Did you encounter much of this sort of opinion in the State Department during your tenure there?
Professor OLIVER. No. On the contrary, I found the State Department an extraordinarily well-disciplined place. In the first place, anyone in my position in the Department of State, as a division chief and that sort of thing, is inevitably, if he is a conscientious craftsman at all, going to feel very much like Calvin Coolidge did when he was asked what he thought about being President. Cal, in his monosyllabic way, said, “Well, you have got to be mighty careful.” That is the way I felt about it. That is the way my colleagues felt about it, as far as I can remember. I assure you that my own experience was that the Department of State was extraordinarily sensitive and concerned, even at that time before matters that have come up since, about congressional attitudes and opinions. I feel sure, for instance, that if somebody was getting out of line, or if someone thought hé was, a congressional invitation to show cause wherefor would have a very marked effect upon the course of events at the working level in the Department of State.
Mr. Surther. Senator, I have no further questions, but before we adjourn the hearings for the day may we insert certain statements in the record ?
The statement of Mr. William O'Neill, attorney general of the State of Ohio, in behalf of the National Association of Attorneys General.
The statement of the National Labor-Management Council on Foreign Trade Policy.
The statement of the National Defense League of America. A telegram, which asks that his views be inserted in the record, from Paul A. Redmond, president of the Southern States Industrial Council. The CHAIRMAN. They may be made a part of the record. (The statements referred to follow :)
STATEMENT SUBMITTED BY C. WILLAM O'NEILL, ATTORNEY GENERAL OF THE STATE
ONO, IN BEHALF (F THE NATIONAL ASSOCIATIOX OF ATTORNEYS GENERAL, RE SENATE JOINT RESOLUTION No. 1, BRICKER AND OTHERS, PROPOSING AN AVENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND EXECUTIVE AGREEMENTS
The National Association of Attorneys General has considered the problem of the treatymaking power at its last two national conventions. At its 1951 convention, largely as the result of the presentation of the possible impact of the power by Mr. Frank Holman, former president of the American Bar Association, our association designated a committee to study the matter and make its recommendations. At our 1952 convention held last December, we again discussed the matter, and the association, as one of its official acts, adopted the following resolution :
“IX. THE TREATY POWER AND THE CONSTITUTION OF THE UNITED STATES "Whereas article VI of the Constitution of the United States of America provides that all treaties of the National Government shall be the supreme law of the land; and
"Whereas this provision of the Constitution, due to a changed concept of international relations and obligations of national states whereby national States now undertake obligations which are designed or interpreted to directly affect the lives and property of individual citizens in time of peace as well as war, which changed concept represents a radical deviation from the historical incidents of treatymaking current at the time said article VI was adopted by the Founding Fathers of the Republic, and for the first century and one-half of our national esistence; and
"Whereas it now becomes apparent in proposed treaties and conventions under consideration in the l’nited Nations, of which international body the l'nited States of America is a member, and will be asked to ratify said treaties and conventions, that the individual rights and privileges of American citizens as supposedly guaranteed them by the Constitutions of the United States and the several States may be derogated and even destroyed pursuant to possible interpretations of said article VI; and
"Whereas adherence to this new concept of international relations and obligations of national states, directly affecting private persons and property even when not expressly required by treaty terms, has reached such a level of judicial acceptance as to b» incorporated in a dissenting opinion of the Supreme Court of these United States wherein the general military obligations of the United States under the terms of the United Nations Charter and Conventions and the North Atlantic Treaty were advanced as justification for the seizure of private property by the National Government and might equally well be advanced as a justification for invasion of the traditional liberties of our citizenry; and
"Whereas it is the feeling of the National Association of Attorneys General that the rights and privileges of American citizens, most of which have attended our people from the very formation of the Republic, and which formed the very jurisdiction for the American Declaration of Independence and the founding of the Republic, should be forever inviolate from even the risk of derogation by the treatymaking power of their own National Government : Now, therefore, be it
“Resolved, That the National Association of Attorneys General does herewith recommend that steps should be taken to amend the Constitution of the United States of America so as to subordinate the treatymaking power of the National Government to each and every provision of the Bill of Rights of the Constitution of the United States of America, and to each and every similar provision in the constitutions of the several States except as these may be expressly abridged by act or resolution of the Congress of the United States of America."
Our association, by its nature a loose federation, is not equipped to give detailed study to the problem so as to make a specific recommendation of the type adopted by the house of delegates of the American Bar Association and presented to this committee at its hearings last May. We are, however, gravely concerned at the threat to basic American liberties which the present treaty power presents. It is, therefore, definitely the consensus of the state attorneys general that some language should be added to the Constitution of the l'nited States limiting the internal effect of international agreements which go beyond the traditional definition of treaties.
As lawyers, we realize that the final determination of this internal effect must made by the courts. But we also realize that the judicial precedents in this field are limited, and that certain of the precedents which do exist-namely, Missouri v. Holland and the ('urtiss-Wri ht case-could have a far-reaching effect upon the individual rights and the powers reserved to the States. For this reason we urge that language be added to the Constitution which presents to the courts some standard more definite than the "supreme law of the land" concept which now governs international agreements.
The Attorneys General specifically recommend to this committee favorable action on Senate Joint Resolution No. 1.
C. WILLIAM O'NEILL, Attorney General of Ohio, Chairman of the Committee of the National
Association of Attorneys General. Other committee members: J. D. Buckman, attorney general, of Kentucky; George Conway, attorney general, of Connecticut.
THE NATIONAL LABOR-MANAGEMENT COUNCIL ON FOREIGN TRADE POLICY,
Washington 5, D. C., March 12, 1953. Mr. CHARLES A. WEBB
Senate Office Building, Washington 25, D. C. DEAR MR. WEBB: I send you herewith a copy of a radio address which I delivered in January 1952, on the subject of the General Agreement on Tariffs and Trade (GATT), under the label Tariff Maverick.
May I request that this address be made a part of the record on the hearing now being conducted on Senate Joint Resolution No. 1.
This radio broadcast became the subject of correspondence between the Honorable Robert T. Secrest of Ohio and the Department of State on the one hand, and between myself and Mr. Secrest. In order that a rounded account be given of this subject, I would suggest that the broadcast be given first place, fonuwtd by the letter to Mr. Secrest from the State Department, dated February 28, 1952. That letter should be followed in turn by my letter of March 19, 1952 to Mr. Secrest.
Enclosed herewith is a copy of my letter to Mr. Secrest, but I do not have a copy of the letter from the Department of State, under the signature of Jack K. MeFall, Assistant Secretary to Mr. Secrest. A printed copy of that letter may be found on page 231 to page 233 of the hearings on Senate Joint Resolution No. 130, conducted in May and June 1952, by a subcommittee of the Committee on the Judiciary of the United States Senate.
The purpose of these insertions is to provide an exhibit of the manner in which an executive agreement may, by a process perhaps not intended in the first instance, override the constitutional powers of Congress. I wish particularly to point out how the mere "power to consult”, which is the characterization by the State Department of the limited authority” of the GATT, has been converted into a de facto power to supersede congressional and even presidential authority in this country. Sincerely yours,
0. R. STRACKBEIN.
TARIFF MAVERICK Radio address delivered by 0. R. Strackbein, Chairman, the National Labor
Management Council on Foreign Trade Policy, Washington, D. C., January 13, 1952 When Czechoslovakia sent William Oatis, American press correspondent, to jail for alleged espionage, there was prevalent in this country a belief that the United States could take immediate retaliatory action by breaking off trade reiations with Czechoslovakia. We had negotiated a trade agreement with that country in 1947 under which we made a number of tariff cuts on articles imported from there. These concessions on glassware, pottery, hats, imitation jewelry, hops, and other items were of great economic value to Czechoslovakia. They were designed to increase the sales of these and other products made in (zechoslovakia in this market, thus enhancing the dollar-earning power of the central European country.
It was found upon examination of the provisions of the General Agreement on Tariffs and Trade, known as GATT, that the United States was not at all free to abrogate her trade agreement with Czechoslovakia. To do so on our own account would have been a clear violation of the agreement. The articles of that multilateral trade pact, comprising more than 30 countries, set forth a definite procedure for abrogaton of an agreement between one member country and another. Any withdrawal of concessions must be authorized by the other memtiers. Thus our hands were tied against immediate action.
Although Mr. Oatis was sentenced to jail early in July 1951 and even though the State Department was ready in August to take action it was not until September 22 that the contracting parties to. GATT were to hold their next meeting. This was therefore the first opportunity which the United States had under the General Agreement on Tariffs and Trade to bring forward her proposal to cancel her trade agreement with Czechoslovakia. When the time did arrive the United States delegation laid its proposal before the other member nations. The contracting parties of GATT supported our position with only one dissenting vote, Damely, that of Czechoslovakia. We were duly authorized to kill our trade agreement with the iron curtain country and we did so, as of November 1, 1951.
While the jailing of Mr. Oatis precipitated the United States action, the abrogation of the trade agreement with Czechoslovakia had already been required by the Trade Agreements Extension Act of 1951, passed by Congress in June. This act called upon the President to withdraw all trade-agreement concessions from ('ommunist-controlled countries “as soon as practicable." The Department of State therefore had merely been slow in acting on the congressional mandate. It took the public outcry over the jailing of Mr. Oatis to force her hand.
Any doubt about this will vanish when it is recalled that the State Department arting under the same congressional act, had already early in July notified five other countries behind the Iron Curtain of our withdrawal of trade-agreement concessions. Czechoslovakia was not included in that list although that country bad fallen under Communist control early in 1948. The Oatis incident thus drove the reluctant Department to act as it had already been directed by Congress to do.
Why did the Department then wait for the convening in Geneva during the latter part of September of the contracting parties of GATT before taking action? She already had not only the authority to withdraw our trade agreement; she was under instructions to do so. The answer is that she went to Geneva not