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1: SCHWEPPE. In no particular whatsoever. The United States
the American Bar Association proposal remains just as sov- in 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 LA make those deals domestic law in the United States and put Te constitutions and statutes and Federal statutes out of the way. estion of the United States in the international field is not
at all. We can make international agreements. *, the Congress on some propositions, if it is outside the ordi17 power of Congress to legislate, may have to go to the States to * consent, but the power of the sovereign nation is not affected Nur I get one commentary in the record about the Curtiss Wright a This case is largely dictum. We made a sharp attack on the
- Wright case in our February 1952 report. We pointed out to the Supreme Court in that case confused the position of the
'n States Government under international law in which it is "rely sovereign, with its status under the Constitution under rm our Government is a government of delegated powers. We
that sharp attack on the decision. We said it was largely ...; and much to our pleasure, Mr. Justice Jackson, who con:** in the majority opinion in the Steel Seizure cases, writes a ke in which the says almost the identical language, referring ve Curtiss Wright case, well, that case was largely dictum.
?'y rate, it does not stand for the doctrine that the President te [nited States can do anything in an area where Congress has os legislated. Whatever may be his powers in the absence of pressional legislation, he is subject to congressional legislation if
is a law that applies to the subject matter. Mr. SMITHEY. May we switch for a moment to the third sentence Saute Joint Resolution 43 dealing with executive agreements ?
w in your mind does the term "executive agreements” include 3. trendi, protocols, conventions, and so forth, or should the bar
albe amended to include those ? O SCHWEPPE. We think it includes them all. We spent some
rate discussion on that subject and we are fortunate in having Bombers of our committee Dr. Finch, who is as great an expert in Ested as anybody I know of, who was in the State Department and *" deals in that field regularly. In his opinion the term "executive
ents" is a broad concept which embodies all engagements of the ou described and would be so interpreted. stor WATKINS. Would it not be true that to attempt to name
if you overlook them you then exclude them? MO: SCHWEPPE. That is right. M: Suthey. I might quote the resolution of Senator Bricker
battempts to do it not by specifically naming them but by saying L-tauitive and other agreements between the President and any intonal organization, foreign power or official thereof, which
L. I think, encompass all of them.
HOLMAN. May I direct myself to that for a moment? H: SMITHEY. I have no objection. Mr. HOLMAX. I am going to cover that in mine. There are some 1 agreements so to speak that are highly important, not exactly e atite agreements. For instance, we made an agreement with
Canada in connection with the damage to farms in the northern part
cuze by hopper, is Dr. Finch will point out to you, many things here, and
shoh would require an analysis of every kind of agreement.
the fo Take postal agreements that have been made in this country, to z from sure by the term "other agreements” you weren't catching in the ho apurt per other things you should not catch. We have tried to draft is on amendment here on the basis of doing the specific thing we are inte talata ested in and the American people are interested in without incapacita a avut ing our Government from doing some of the things which they oug of to continue to do,
th So you are going to be in a bad situation, I am afraid, if you prvilim in other agreements" there. You would then have to define thou roli other agreements,
Mr. Smutney, That of course would be within the province c Howy Congress under the Bricker amendment.
Mr. SERWERK. That is why we like this form of text, because Coi gress oun deal with those questions as they come up and need regula [dos tion.
Mr. Saumurs. They could likewise under the Bricker proposal, a tell I understand it.
Mr. Schwere. That is right. We are in complete agreement on that point.
Mr. Houman. We do not object to having a phrase in there if it i not going to be shot at when we come to getting the States to ratif on the theory that it encompasses too much, and therefore we ar vulnerable
TAI Senator WATKINS. Otherwise, you are in agreement with Senato: Bricker'st
Mr. IlOLMAN. Sure.
Mr. SCHWEPPE. It is purely a matter of form, expressing what we both have in mind.
Mr. Smrrury. You may have answered this in your discussion with Sonator Smith of North Carolina. However, I was not able to overhear that, so even if this is repetitious, I wish you would give the answer nevertheless.
Would you give the committee the benefit of your opinion concerning the extent to which Congress might regulate executive agreements under Senate Joint Resolution 43? You used the term “regulation” and that is why I ask it in that form.
Mr. SCHWEPPE. We did in our September 1, 1952, report, the pertinent portion of which has been incorporated in the record this morning, outline the possible areas of congressional regulation of the field of executive agreements. That particular contribution to our to report was made by Dr. Finch, who has spent a great portion of his life in dealing with that field, and of course the power to regulate includes the power not to regulate, it includes the power to regulate those areas which the Congress feels should be regulated. It may leave other areas of executive agreements unregulated.
Dr. Finch indicated in that portion of our report which is incor
: in the record that Congress would probably proceed in the :. of regulation of executive agreements carefully, gradually; you mitte to it right off, for example, that problems of major policy
foreign governments would not be done by executive agreements cand have to be done by the treaty method, so that the Senate
United States which was deliberately put in as part of the 2 aking power by the founding fathers, will have an opportunity Ir ne the question from the standpoint of the American public.
to us the most important field that Congress ought to regulate. Le report itself spells out a number of areas in which executive wells might be regulated. On the other hand, there are a lot of Briar agreements about sending somebody here or sending some
stirre, the Secretary of State or the President will have to make, Taich the Senate of the United States has no concern. Regula
: bs Congress should make it thoroughly clear that matters of pralt international policy should be done by the treaty method Dajected to the Senate approval. Wtor WATKINS. How would you bring that about? Mr. Holman. It is a day-to-day matter of monitoring what is
on. Sator Watkins. Undoubtedly we are making agreements now. Jr. SCHWEPPE. A bill would have to be drawn by the United States
es in which you tell the executive department what it shall do e area of executive agreements, what areas it can make executive ments in, No. 1, what areas must be reserved to treaties, and then
can probably break it down in some detail.
:. HOLMAN. There should be a code of executive agreements 1. Al just like a code of anything else.
ator WATKINS. That may be true, but we have a situation now 12 at the time that Potsdam agreement was entered into. It is an ein stive agreement. I maintained all the time it was in effect a Ms. 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 Be are never been able to get enough strength in Congress to do lining 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 contotal amendment or you would have a constitutional amendment
Would get clear out of hand. Siator WATKINS. In other words, you cannot get executive agree
br definition. M: SCHWEPPE. No. zator Watkins. There are lots of things happening we don't Tits to happen right now. I thought this would take care of it.
M: HOLMAN. You would have a constitutional amendment which a completely out of hand, which is something you cannot do very
in a constitutional provision. Ur. SCHWEPPE. The place to handle it is to have Congress regulate
They can meet the situations as they develop. I can read you * 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 * that 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 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.
Mr. SCHWEPPE. Our answer is that under the power to regulate, your 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.
LAT Mr. SCHWEPPE. Under the power to regulate commerce, the Con
ir gress has excluded many things, has prohibited the transportation of many things in interstate commerce, and the Supreme Court has held at 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, acidele, 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 mehad it clear?
Mr. SCHEIN. You get into trouble.
Senator WATKINS. You are going to leave a lot of troubles unsolved to if we do not get at it. That is one of the worst abuses we have. Agree- Iris ments all over the world are entered into by the President under his claim of right to make executive agreements. We discover them Bra 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 at great length in view of the interpretation put by the Supreme Court :( on the power to regulate commerce, including the power to prohibit things in interstate commerce. We concluded the same interpretation where we used the word "regulate," which already has been given constitutional and judicial meaning by the Supreme Court, that we were on safe ground to use the word "regulate” as including the concept prohibit.
Senator WATKINS. Our experience indicated you have to spell it out in terms so that even a child can understand it so that you get an effect be out of it.
Mr. SMITHEY. Mr. Schweppe, one question of form before we leave the subject of executive agreement. “As I understand and read the report which you have referred to several times as the 1952 report of the committee on peace and law through the United Nations of the American bar, there is a statement there which says, “If executive 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 48 the sentence on an executive agreement included with that relating to treaties.
V: SCHWEPPE. That is right. Y SMITHEY. Would you prefer now that it be set up as a separate HF. SCHWEPPE. We think it should be. May I say you are reading ere, I think, from the February 1952 report, at which time we mt not yet completed our study on executive agreements. We comsied that and made our recommendation to the house of delegates : o September report. At that time we recommended that the 3.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 1 eparate section of the same amendment? M: HOLMAN. I think so, yes. tator Watkins. May I say that is probably draftsmanship that Tas responsible for? I took the body of your draft, it was all in TOUP. I did not want to spoil it so I put it in just as you had it. M: SCHWEPPE. If you will look at our February 1, 1953, report, jre of which we have copies here, and the ones which we are pre21 ag to the house of delegates next week, you will see we are putSiin two sections. V-SMITHEY. You don't want to give executive agreements the same y as treaties by including them in the same section of the article. NI SHWEPPE. Right. LCHAIRMAN. Thank you very much, Mr. Schweppe.
SHWEPPE. Thank you, Mr. Chairman. TE CHAIRMAN. Mr. Rix
PATEMENT OF CARL B. RIX, MILWAUKEE, WIS., MEMBER OF THE COMMITTEE ON PEACE AND LAW THROUGH THE UNITED
M: Rix. My name is Carl B. Rix, Milwaukee, Wis. I am a mem
I ruf the committee on peace and law through the United Nations.
i tn we appeared I addressed myself particularly to the question * the preservation of our form of government of delegated powers 2. Ce situation in which we find ourselves today. May I ask that a - article entitled "Beyond the Administration of Justice," which :.Turpears in the Congressional Record of February 12, 1953, at
on this subject be included in this record ? CHAIRMAN. It will be incorporated. Jr. Rır. It was a reprint of an editorial in the Journal of the
rature Society which I wrote a short time ago in which I conin these questions as I have stated.
Iwe article referred to follows:)
BEYOND THE ADMINISTRATION OF JUSTICE
(By Carl B. Rix) se peat argument of John W. Davis in the Steel case he quoted these words
on wrote in the Kentucky resolution: estions of power, let no more be said of confidence in man, but bind him **** mischief by the chains of the Constitution.”
Trainess and strength of the United States, its capacities for its people .:he world, are dependent on its form of government and its foundation,
sastution of the United States. If there is to be any change in that