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timate area for executive agreements, k it not be used to bypass the treaty pow the power of Congress to determine wh


as our committee recommended to the hou 3 berean Bar Association, a corollary to t Son executive agreements. The house

en and on September 18, 1952, at the annut scan Bar Association at San Francisco adopter

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-- 1 Bar Association recommends to the Congre Ne

-osueration, an amendment to the Constitutie di ! Vec vf executive agreements, reading as follow,

I 100 be made in lieu of treaties. Congress sha pirssion by appropriate legislation. Nothing here

de existing power of Congress to regulate exec * visions of this Constitution." seat time, and wholly within the principles

af delegates, but on its own responsibility

is follows: neats shall be subject to regulation by the Congres

i va treaties by this article. mei in Senator Arthur Watkins' Senate Join

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rection has been voiced to the section proposed verents, designed to make it clear and unequiv as the power to make all laws which shall be

I. to control executive agreements. (Constitute IS: Youngstown Sheet & Tube Co. v. Sawyer of

1932)). Ex parte Quirin (317 U.S. 1, 25-27 tipistee on peace and law, September 1, 1952) 7. seem unanimous that executive agreements

a law within the Constitution. to Pieves that both Senator McCarran in Senate

tri Senator Bricker in Senate Joint Resolution 16th ir reach, namely, that executive agreements should

agulation by Congress. Senator McCarran's prokipeed, appear to be of immediate efficacy under the la

How exists; and Senator Bricker's proposal of te congressional control principle in his proposed

Stieriment, as well as the American Bar Association ha *** t remove any conceivable doubt on the subject.

...te directs attention to article I, section 8, clause 18,
istem of the United States, which provides that Congress

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**s shall be necessary and proper for carrying into execution
**ers and all other powers vested by this Constitution in the opening

de l'uited States, or any department or officer thereof. thear that the foregoing clause vests Congress with the en

all laws necessary and proper to carry the executive efect; and that Congress can, therefore, under existing

i regulate executive agreements.


Tus riew is supported by the principles announced in Ex parte .." (317 U. S. 1, 25-27, 29), in which Chief Justice Stone, in a 1. Deus opinion, makes it unequivocally clear that Congress and - Pitrident, like the courts, possess no power not derived from the

ution; that, under article I, section 8, clause 18, Congress & 2: legislative power “necessary and proper” for carrying the power into execution; and that where there is congressional Intion 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

e Court in the Steel Seizure cases (Youngstown Sheet & Tube 25. Szinyer (decided June 2, 1952, 343 U. S. 579, 72 Sup. Ct. 863)), the majority of the Court twice emphasizes article I, section

ose ls, and concludes with a statement as follows: rems has not thereby lost its exclusive constitutional authority to make Tsary and proper, to carry out the powers vested by the Constittuton • foternment of the United States, or any department or officer therof." 4--1, of course, it is the President's constitutional duty to "take care * Le laws be faithfully executed,” including any law that Congress --15 Lake regulating executive agreements.

Tas view was further emphasized by Mr. Justice Jackson in his suring opinion in the Steel Seizure cases, in which he says (footit of his opinion) that the Court has "intimated that the President ::: act in external affairs without congressional authority, but not t te might act contrary to an act of Congress." Istatement of Mr. Justice Jackson not only supports the affirma7*?*stion, as does the main opinion of the Court, that Congress can Sate the manner of exercising the Executive power, including of

*.executive agreements, but conversely states that the President *** "act contrary to an act of Congress" passed within its deleun powers.

licerefore seems reasonably clear that under article I, section 8, Wel Congress now has power to regulate executive agreements. : Congress has the power to make all laws necessary and proper

27y into execution the powers vested by the Constitution in the Z****Te department or the President, it becomes the duty of the Pres

faithfully to execute such laws as Congress may pass regulating "IM" agreements. Tough believing that present constitutional power appears to exist 1 ropes to regulate executive agreements, your committee is of the

on that to remove any doubts engendered by dicta in decisions ..s referred to, it is desirable to incorporate the congressional con

principle with respect to executive agreements in a constitutional sistent relating to treaties along the general lines proposed by nor Bricker and by the American Bar Association.

Trommittee recognizes, as does Senator Bricker's proposal, that of the strong criticisms currently made of executive agreements ""there has been a tendency on the part of the executive depart*-* to make executive agreements and not submit them to the Senate Proral, instead of covering the subject by treaties, which require

y approval. Certain executive agreements, embodying long7*** and 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 conceivab:25 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 tł position of our committee and a general outline of its work. Othere members of the committee are here who will stress specific phases (= the problem which in their judgment need further emphasis or elal oration. The other members present are: Carl B. Rix, vice chairmar of Vermont Hatch; Eberhard P. Deutsch; Frank B. Ober; George A Finch,

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

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

Woodrow Wilson said: The history of liberty is a history of the limitation of governmental power nor the increase of it.

Thomas Jefferson said:

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

Thank you, Mr. Chairman.

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

Wri SERWETTE. This is a product of 4 years of study.

Senator Surn, Mr. Schweppe, I assume there is no doubt in your mind by the way you love that second provision about “Regulation madusell lini provident for" that that would take care of the necessity for a mundo integration as might be desired by Congress on agreements ! als een by the Executive.

.Wri Sitare. Yes,

Senator Surn. You see, one of the complaints we have had from time for me is to get at the information to see what has been done, ter lowing selline regard for the necessity of secrecy in many matters. li

Wri Semark: It is our opinion, Senator Smith, that the lanpug** den that Congress shall have power to regulate executive

vement in substance will authorize Congress to make any regutation neexaminy to control executive agreements. We feel that taking thology of the commerce laws which the Supreme Court has many time construed ('ongress shall have the power to regulate commenin you will remember under the power to regulate commerce the Supreme Court has sustained in a long series of cases, the right fortelide certain things from interstate commerce.

Senator Surn. And the right to investigate.

illr: SOMWA PPF. The right to investigate, all those things are included in the power to regulate.

Senator SanTN. I assumed that it was.

:-CHAIRMAN. Has the staff any questions they would like to ask? V. SMHEY. Yes. V: Shweppe, in some measure this will cover points which you - urzady made in your statement but I think it is necessary as a

rary question: Tad the second sentence of the American bar proposal render impossible the conclusion of treaties which conferred the :: to own land on a foreign national in the United States in ex> for a conference of similar right on American nationals in

nation? W: SHWEPPE. No. Let me repeat and give you a full answer. - forrican Bar Association proposal does not prevent the State • uent from making a treaty with any country on any subject Exeter, including the ownership of land. Treaties can be made.

une binding as international engagements. Now, what their

will be on domestic law is another question. If, as we have Xin this argument-and the idea is not original with me but mfrim Mr. George Finch sitting at the head of the table, who Prof the greatest international lawyers in the country-editor in

of the American Journal on International Law-if his view is * wich is embodied in our report, that the right to do business

dig the ownership of land has historically been part of the

al commercial policy of the United States, then Congress "bare power to implement treaties in that field, including the

pof land.

at view should not be correct, if that view should not be correct ... the power of Congress in the field under the power to regu****r-tate commerce, then the alternative result will be that such may can be made, will be perfectly binding as an international Lent, but land ownership in the States cannot take place withpor sent of the individual States involved.

it is rather interesting, and one of my associates, I think, will Bit rather fully, that our Government thought for a long time 'Tis the right way to approach this land-holding business. If

men will take a look at Geofroy v. Riggs, which is frequentor in this field, you will find there was before the Supreme

that case a treaty with France which included among other

ir 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 t. that was the treaty as our State Deparment drew it in those - In the days of Geofroy v. Riggs the Federal Government did

17e the concept that it was all-powerful and it could forget about P. 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. It is right in the concept that the doing of business, including the

p of land, is broadly within the commercial policy of the and States in foreign nations, then Congress could implement it Tare wrong about that concept, then the consent of the indi

States would be required, with which I can see nothing wrong. In the State of Washington should have the right to determine


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whether Frenchmen or Russians or anybody else can own land the State of Washington and not the State Department with the ca 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 is 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 lai. 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 k stretching constitutional provisions such as the commerce clause ar 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 ti power to regulate foreign commerce is given in exactly the san clause that gives the right to regulate interstate commerce. We har witnessed in recent years a very substantial judicial enlargement c the concept of interstate commerce, to the point where some of y think perhaps it has gone too far. We think, however, those decision boing 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 ac customed to work.

These matters will come up case by case as the treaty power i extended into fields and Congress makes implementing legislation as I W; in tiolds that otherwise would be within the area of Stati content 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. forvign eommere just as it has the concept of interstate commerce To char l seno objection, as we have adequate judicial control of those concrpis. If they go too far, maybe sometime we will have to: amend the unistitution again. But I do look for that sort of expan. sion.

Mr. Smeruer. Further along that line, I am sure you are familiar with the case of the l'nited States v. the Curtiss Wright Corporation, im

Mr. Senwerra, Very well.

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

A's a member of the family of nations, the right and power of the United, States in that field and they are speaking of treaty powerare equal to the right and power of the other nations of the international family, 2006, otherwise the l'nited States is not completely sovereign.

Would the amendment which you propose render the United States 1 di Government "not completely sovereign”!

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