M. SCHWEPPE. In no particular whatsoever. The United States the American Bar Association proposal remains just as sovin the international field as it has ever been. It can make any of deals and any kinds of negotiations that it wants to, but it A make those deals domestic law in the United States and put "re constitutions and statutes and Federal statutes out of the way. e position of the United States in the international field is not at all. We can make international agreements. T , the Congress on some propositions, if it is outside the ordipower of Congress to legislate, may have to go to the States to eir consent, but the power of the sovereign nation is not affected May I get one commentary in the record about the Curtiss Wright This case is largely dictum. We made a sharp attack on the * Wright case in our February 1952 report. We pointed out the Supreme Court in that case confused the position of the Jed States Government under international law in which it is tely sovereign, with its status under the Constitution under our Government is a government of delegated powers. We te that sharp attack on the decision. We said it was largely m; and much to our pleasure, Mr. Justice Jackson, who conin the majority opinion in the Steel Seizure cases, writes a te in which the says almost the identical language, referring Curtiss Wright case, well, that case was largely dictum. A: any rate, it does not stand for the doctrine that the President United States can do anything in an area where Congress has y legislated. Whatever may be his powers in the absence of ional legislation, he is subject to congressional legislation if a law that applies to the subject matter. Mr. SMITHEY. May we switch for a moment to the third sentence State Joint Resolution 43 dealing with executive agreements? Now, in your mind does the term "executive agreements" include vivendi, protocols, conventions, and so forth, or should the bar al be amended to include those? M. SCHWEPPE. We think it includes them all. We spent some derable discussion on that subject and we are fortunate in having embers of our committee Dr. Finch, who is as great an expert in sted as anybody I know of, who was in the State Department and deals in that field regularly. In his opinion the term "executive ments" is a broad concept which embodies all engagements of the you described and would be so interpreted. Zator WATKINS. Would it not be true that to attempt to name if you overlook them you then exclude them? M. SCHWEPPE. That is right. Mr. SMITHEY. I might quote the resolution of Senator Bricker attempts to do it not by specifically naming them but by saying ecutive and other agreements between the President and any intional organization, foreign power or official thereof, which 4.I think, encompass all of them. Mr. HOLMAN. May I direct myself to that for a moment? Mr. HOLMAN. I am going to cover that in mine. There are some agreements so to speak that are highly important, not exactly ve agreements. For instance, we made an agreement with Canada in connection with the damage to farms in the northern part my State from a smelter. Those farmers could not sue in Cana so we made an agreement whereby a certain lump sum of money wo be paid over into the United States and an international commiss was set up to adjust that. When you say all other agreements, you are going to catch in yo hopper, as Dr. Finch will point out to you, many things here, and would require an analysis of every kind of agreement. Take postal agreements that have been made in this country, to sure by the term "other agreements" you weren't catching in the h per other things you should not catch. We have tried to draft amendment here on the basis of doing the specific thing we are int ested in and the American people are interested in without incapacit ing our Government from doing some of the things which they oug to continue to do. So you are going to be in a bad situation, I am afraid, if you p in "other agreements" there. You would then have to define the other agreements. Mr. SMITHRY. That of course would be within the province Congress under the Bricker amendment. Mr. SCHWEPPE. That is why we like this form of text, because Co gress can deal with those questions as they come up and need regul tion. Mr. SMITHY. They could likewise under the Bricker proposal, I understand it. Mr. SCHWEPPE. That is right. We are in complete agreement that point. Mr. HOLMAN. We do not object to having a phrase in there if it not going to be shot at when we come to getting the States to rati on the theory that it encompasses too much, and therefore we a vulnerable. Senator WATKINS. Otherwise, you are in agreement with Senat Bricker's! Mr. HOLMAN. Sure. Mr. SCHWEPPE. It is purely a matter of form, expressing what w both have in mind. Mr. SMITHEY. You may have answered this in your discussion wit Senator Smith of North Carolina. However, I was not able to over hear that, so even if this is repetitious, I wish you would give th answer nevertheless. Would you give the committee the benefit of your opinion concer ing the extent to which Congress might regulate executive agre ments under Senate Joint Resolution 43? You used the term "regula tion" and that is why I ask it in that form. Mr. SCHWEPPE. We did in our September 1, 1952, report, the per tinent portion of which has been incorporated in the record thi morning, outline the possible areas of congressional regulation of th field of executive agreements. That particular contribution to ou report was made by Dr. Finch, who has spent a great portion of hi life in dealing with that field, and of course the power to regulat includes the power not to regulate, it includes the power to regulat those areas which the Congress feels should be regulated. It may leav other areas of executive agreements unregulated. Dr. Finch indicated in that portion of our report which is incorin the record that Congress would probably proceed in the - of regulation of executive agreements carefully, gradually; you see to it right off, for example, that problems of major policy foreign governments would not be done by executive agreements ld have to be done by the treaty method, so that the Senate The United States which was deliberately put in as part of the aking power by the founding fathers, will have an opportunity e the question from the standpoint of the American public. its to us the most important field that Congress ought to regulate. Le report itself spells out a number of areas in which executive Dents might be regulated. On the other hand, there are a lot of today agreements about sending somebody here or sending somethere, the Secretary of State or the President will have to make, which the Senate of the United States has no concern. Regulaby Congress should make it thoroughly clear that matters of pant international policy should be done by the treaty method jected to the Senate approval. Stator WATKINS. How would you bring that about? Mr. HOLMAN. It is a day-to-day matter of monitoring what is * on. ator WATKINS. Undoubtedly we are making agreements now. Mr. SCHWEPPE. A bill would have to be drawn by the United States gress in which you tell the executive department what it shall do the area of executive agreements, what areas it can make executive ements in, No. 1, what areas must be reserved to treaties, and then ar probably break it down in some detail. Mr. HOLMAN. There should be a code of executive agreements ted just like a code of anything else. Stator WATKINS. That may be true, but we have a situation now isting at the time that Potsdam agreement was entered into. It is an Intive agreement. I maintained all the time it was in effect a ty. But at least it was called by the President an executive agreeHe made it and we have never been able to get at it, at least Lave never been able to get enough strength in Congress to do ng about that. Now, under the President's proposal about agreements, we are not getting anywhere. Mr. HOLMAN. You can't write that kind of restrictions in a con***otal amendment or you would have a constitutional amendment would get clear out of hand. ator WATKINS. In other words, you cannot get executive agreeets by definition. M:. SCHWEPPE. No. Sator WATKINS. There are lots of things happening we don't to happen right now. I thought this would take care of it. Mr. HOLMAN. You would have a constitutional amendment which completely out of hand, which is something you cannot do very in a constitutional provision. Mr. SCHWEPPE. The place to handle it is to have Congress regulate They can meet the situations as they develop. I can read you at portion of the report, which I think is unnecessary because it is or record. If you want a verbal answer right at this juncture as what you think the field of initial regulation ought to be of execu tive agreements, I suggest you put the question to Mr. Finch, who is sitting at the end of the table. Senator WATKINS. Could you prohibit certain types of executive agreements? Mr. SCHWEPPE. Yes. Senator WATKINS. Have you considered that in drafting this amendment? Mr. SCHWEPPE. Yes. Senator WATKINS. What is your answer? Mr. SCHWEPPE. Our answer is that under the power to regulate, you could prohibit. The Supreme Court has held that many times. Senator WATKINS. That is probably an explanation. But regulation seems to indicate, imply at least, that you have the right to do something but it has to be regulated. Mr. SCHWEPPE. Under the power to regulate commerce, the Congress has excluded many things, has prohibited the transportation of many things in interstate commerce, and the Supreme Court has held time and again the power to regulate includes the power to prohibit and it was done under the commerce clause. You cannot transport lottery tickets or the objects of white slavery or stolen automobiles, in interstate commerce. They are prohibited Yet the power is to regulate commerce. Senator WATKINS. Why do you not say "prohibit or regulate," make it clear? Mr. SCHEIN. You get into trouble. Senator WATKINS. You are going to leave a lot of troubles unsolved if we do not get at it. That is one of the worst abuses we have. Agree ments all over the world are entered into by the President under his claim of right to make executive agreements. We discover them some time later and they are "in effect" treaties. Mr. SCHWEPPE. Speaking solely as an individual, I would have no objection to the word "prohibit." I will say that we considered it a great length in view of the interpretation put by the Supreme Cour on the power to regulate commerce, including the power to prohibi things in interstate commerce. We concluded the same interpretation where we used the word "regulate," which already has been given con stitutional and judicial meaning by the Supreme Court, that we wer on safe ground to use the word "regulate" as including the concep prohibit. Senator WATKINS. Our experience indicated you have to spell it ou in terms so that even a child can understand it so that you get an effec out of it. Mr. SMITHEY. Mr. Schweppe, one question of form before we leav the subject of executive agreement. As I understand and read th report which you have referred to several times as the 1952 report o the committee on peace and law through the United Nations of th American bar, there is a statement there which says, "If executiv agreements are to be dealt with, they should be considered in a sepa rate section which delineates the appropriate field of executive agree ment as distinguished from treaties and which provides for appro priate control." I notice as a matter of form you have in Senate Joint Resolution 4 the sentence on an executive agreement included with that relating t treaties. Mr. SCHWEPPE. That is right. Mr. SMITHEY. Would you prefer now that it be set up as a separate tion? Mr. SCHWEPPE. We think it should be. May I say you are reading there, I think, from the February 1952 report, at which time we ad not yet completed our study on executive agreements. We comred that and made our recommendation to the house of delegates our September report. At that time we recommended that the e on executive agreements be included in any amendment relating the treaty power so that we would have a complete package. Mr. SMITHEY. You are still of the opinion that ought to be included 4 separate section of the same amendment? M. HOLMAN. I think so, yes. Lator WATKINS. May I say that is probably draftsmanship that was responsible for? I took the body of your draft, it was all in group. I did not want to spoil it so I put it in just as you had it. Mr. SCHWEPPE. If you will look at our February 1, 1953, report, e of which we have copies here, and the ones which we are preBring to the house of delegates next week, you will see we are putin two sections. Mr. SMITHEY. You don't want to give executive agreements the same tity as treaties by including them in the same section of the article. M.SCHWEPPE. Right. CHAIRMAN. Thank you very much, Mr. Schweppe. M. SCHWEPPE. Thank you, Mr. Chairman. The CHAIRMAN. Mr. Rix RATEMENT OF CARL B. RIX, MILWAUKEE, WIS., MEMBER OF THE COMMITTEE ON PEACE AND LAW THROUGH THE UNITED NATIONS Mr. Rix. My name is Carl B. Rix, Milwaukee, Wis. I am a memof the committee on peace and law through the United Nations. Tien we appeared I addressed myself particularly to the question the preservation of our form of government of delegated powers the situation in which we find ourselves today. May I ask that a article entitled "Beyond the Administration of Justice," which appears in the Congressional Record of February 12, 1953, at 4 on this subject be included in this record? CHAIRMAN. It will be incorporated. Mr. Rix. It was a reprint of an editorial in the Journal of the ature Society which I wrote a short time ago in which I conthese questions as I have stated. Te article referred to follows:) BEYOND THE ADMINISTRATION OF JUSTICE (By Carl B. Rix) the great argument of John W. Davis in the Steel case he quoted these words erson wrote in the Kentucky resolution: - Tastions of power, let no more be said of confidence in man, but bind him from mischief by the chains of the Constitution." creatness and strength of the United States, its capacities for its people *** the world, are dependent on its form of government and its foundation, stitution of the United States. If there is to be any change in that |