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form of government of delegated powers to the branches of government, th people of the United States should make that change by amendment of th Constitution. Such change without such amendment may be made, howeve by means of treaties and treaty law. It is incredible but true. Here are fou postulates:

1. An international treaty cannot be safeguarded by a clause in the treat or by reservation or understanding against the expansion of the limited powe of the Federal Congress in the United States to such extent as necessary t fulfill the obligation under the treaty if Congress determines to exercise suc power. No action of the parties or of the Senate and the President at the tim of ratification of a treaty can take away the constitutional power of Congres to execute the treaty and to fulfill the national obligation under the treaty Congress decides to do so.

2. A ratified and approved treaty in executed form becomes supreme law an domestic law of the United States. An executory treaty, or parts thereo becomes domestic law when implemented by Congress.

3. Domestic law created by a treaty or by implementation by act of Congres supersedes State constitutions, laws, and decisions of the States. The Federa jurisdiction is then exclusive.

4. The Charter of the United Nations, as a ratified treaty, has conferred o Congress the exclusive authority under articles 55 and 56 of the charter t legislate on civil, political, economic, social, and cultural rights, unless specificall prohibited by the Constitution.

We shall let these statements speak for themselves. recently that "power granted is seldom neglected."

Justice Douglas sai

The effect of the charter of the United Nations has been stated. In its repo on the Lesinski comprehensive civil-rights bill to the House of Representative the Labor Committee said that no constitutional authority for the enactment the bill was necessary because it was based on the power of Congress to impl ment the charter of the United Nations.

The Civil Rights Commission said in its report that a covenant of huma rights, if ratified and approved, would afford an enlarged opportunity for comprehensive Federal civil-rights bill.

When first migratory bird law was held invalid, on the advice of lawyer for the Government, action was taken to secure a treaty with Great Britai under which the present migratory bird law was passed and upheld by th Supreme Court.

A treaty is now before the Senate for ratification which provides that alienag shall not be a bar to the admission of a member of a profession to practice. ratified and approved, this treaty will supersede every State law which provide that only citizens shall be admitted to the practice of law.

If laws may be made by the Senate and the President without limit except fo a direct prohibition of the Constitution, if Congress and the President are to hav the power to legislate under a treaty without any constitutional delegated powe unless prohibited by the Constitution, can the independence of the judiciary b maintained? What protection can minorities have under a government wit unlimited powers?

Beyond the campaign for the betterment of the administration of justice lie the maintenance of our constitutional form of government. That is our ancho and the anchor of the world. Shall we join Thomas Jefferson and John W. Davi in saying again:

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

Mr. Rix. I desire to read two sections of a sort of condensation which I made of the principles which we were dealing with in thi whole subject of constitutional amendment.

The CHAIRMAN. Dr. Finch, can you hear the witness?

. Mr. FINCH. Yes, sir.

The CHAIRMAN. Speak a trifle louder.

Mr. Rix. One, an international treaty cannot be safeguarded b a clause in the treaty or by reservation or understanding against th expansion of the limited power of the Congress of the United State to such extent as necessary to fulfill the obligation under the treaty i Congress determines to exercise such a power.

Now, that means that while the treaty is in existence the subject zatter of that treaty may be legislated on by Congress in such manr as Congress determines without any other constitutional limits atsoever unless possibly the prohibition in the Constitution would ep Congress from acting. No action of the parties or the Senate the President at the time of ratification of the treaty can take away the constitutional power of Congress to execute the treaty and to fulthe national obligation under the treaty if Congress decides to do It is popularly supposed that we can do by reservation nearly thing we want to preserve the rights of this country. But it is ged by all of us and by Mr. Mitchell and Mr. Davis and others that reservation or no action of Congress or no action of the parties to e treaty can deprive the Congress of the United States of a power ich exists under the Constitution.

And if as a result of the decision of the Supreme Court of the United States in the Migratory Bird case Congress has the unlimited er to legislate on the subject of a treaty, nothing you can do at the e of the drawing of the treaty or its ratification can take away that

power.

Senator WATKINS. You mean by that we can go ahead and amend the treaty later or denounce it and get out from under it completely? Mr. Rix. That is the only way you can get out from under it. Senator WATKINS. You think Congress has that power?

Mr. Rix. It has undoubted power to repudiate any treaty. There are various methods by which you can repudiate a treaty, but it may precipitate an international situation, particularly in the case of these multilateral treaties where we have so many obligations such Charter of the United Nations. It is almost impossible to assume a can get out of those without a great deal of difficulty or without urring foreign retaliation all over the world.

Sezator WATKINS. I take it for granted you are extending that are theory, same power, to Congress, saying Congress shall have powers to regulate or completely abrogate any agreement.

Mr. Rix. I do not think that is necessary because that is a wellwn principle of international law.

Lator WATKINS. I am talking about Congress, not international . I mean Congress itself would have the power, for instance, to gate the Yalta agreement.

Mr. Rix. No question about it, by any subsequent legislation which "gress desires to pass or by direct repudiation.

Senator WATKINS. And by direct repudiation could do so on the

d that the President exceeded his powers to enter into it? Mr. Rix. That is a question of international law, because it has Tays been held that a government which enters into the treaty has power to repudiate its own power to enter into it.

nator WATKINS. Suppose the President enters into it, can the gress repudiate it on the ground that he exceeded his powers? Mr. Rix. If the Senate and the President ratify a treaty, it is a iple of international law and it has recently been restated in a Emittee or a commission of the United Nations that no government, sate, has the right to set up its own lack of power to enter into a

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Necator WATKINS. I notice you said the President and the Senate. talking about when the President acts on his own and makes an

executive agreement which never has been submitted to the Senate Cannot the Congress then repudiate that agreement on the ground that he exceeded his powers, he had no right whatsoever to enter into that agreement?

Mr. RIX. I have been talking about the question of treaties.
Senator WATKINS. I am talking about executive agreement.

Mr. Rix. I do not think that international law has made any rul on the subject of executive agreements or minor agreements of tha type.

Senator WATKINS. You can see the situation we are confronted with right now with respect to this proposal to repudiate some of those agreements, Yalta, Potsdam, maybe Teheran. Maybe that kind of proposition is going to be placed before the Congress. We migh repudiate them on the ground that the other parties to the agreement have not kept them, and denounce them on that ground. But if we ar going to get at the root of the thing, we may want to repudiate them on the ground that the President of the United States had no authority whatsoever to bind the American people. If we cannot do that, ther the Nation is powerless when we have a President who does not care anything about the Congress and goes ahead and does what he pleases Mr. Rix. In my opinion there is no question of the power of Con gress to do this. The question is as to whether or not you would incu any international obligation.

Senator WATKINS. I want to know about the power to do it.

Mr. Rix. There is no question about that. We always assumed that any treaty may be abrogated by well-known methods as well as by executive agreement or any other agreements which were made on behalf of the Government.

Senator WATKINS. Taking it a step further, could succeeding Presidents repudiate it in spite of Congress?

Mr. Rix. I think it is held, and Mr. Finch can correct me, that a treaty may be abrogated by action of the Department of State or the President or the Congress by the passage of other legislation or by passage of a declaration or by an open breach in refusing to live up to it. I think that would be a correct statement, would it not Mr. Finch?

Mr. FINCH. Yes.

The CHAIRMAN. To make it specific, Mr. Schweppe, the preceding Presidents entered into the Yalta and Potsdam agreements. What if President Eisenhower, without consulting Congress at all, should repudiate them?

Mr. Rix. Then you are entering into the field, and that was old concept of Executive agreement, that they existed only during the period of the administration which made them, during the period of the Presi dency of the man who made them, where they did not have official backing of Congress, such as Yalta.

Now, that theory has been whittled down and in the opinion of the other nations we do not have the right to place that time limit on them. But if you will look up the history of Executive agreements, they were always regarded as not having the status of any kind of treaty be cause they had terminal facilities, the term of the man who made them. Now that has been disregarded in the past. In the opinion of foreign nations that enter into these Executive agreements with us in good

5th, they consider it a breach if we do not live up to them, even if we ave a perfect right to do it.

Now, getting back to this question of the situation in which we find rselves as to the effect of a treaty, of conferring unlimited power on ongress to legislate on the subject of a treaty. Now, that is not just opinion of our committee. That is substantiated by Mr. Mitchell, farmer attorney general, Mr. John W. Davis and his associates, with e exception, in the recent committee report to the New York State Bar Association in which it is said:

If it is within the treaty power and would be valid as a treaty, then under the The of Missouri v. Holland, the power of Congress to enact legislation on the subof civil rights would be substantially enlarged and such limits on that power → exists would disappear.

They further say:

I such a treaty as the Covenant on Human Rights is within the treaty-making wwer, then under our Constitution and the decisions of our Supreme Court the Let of our becoming a party to the covenant would be to give the Congress of Caited States full power to enact legislation effective within the States to the covenant into effect.

at obviously would be accomplished "in accordance with the constitutional Txes" of the United States.

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That is the effect of our constitutional system of treaty making.

would be a result consistent with our Constitution, as already determined in Bury v. Holland. Consequently, Congress would in accordance with our cononal processes have full power, and subdivision (b) dealing with favorable endations to the States would be inoperative. If we want to put a clause 'he covenant on this subject, it would have to go further and provide that the **al Government assumes no obligation to enact legislation which it could stitutionally enact in the absence of the treaty.

In other words, if we want to remove this tremendous power of Conto enact legislation on the subject of a treaty, with no constitual limits or restrictions, the only way we can get it, according to Mr. Davis and Mr. Mitchell, is by enacting a "which clause."

Lator WATKINS. What about the first sentence? I am reading Senate Joint Resolution 43.

Aprovision of the treaty which conflicts with any provision of this Constitution be of any force or effect.

start with, you cannot have a treaty which is in conflict. So why to have to do the next thing?

Mr. Rix. The power closed on the treaty-making power of the te and the Congresss and the President. Under Missouri v. Holad it was a holding that that legislation required no constitutional for its enactment.

ator WATKINS. But this will take care of it, will it not?

Mr. Rix. I do not believe the first sentence would take it away, opinion of Mr. Davis and Mr. Mitchell.

VHOLMAN. The second one.

Mr. Rix. The second one would. That is the purpose that we are ng toward, to take away that tremendous power of Congress. . this would relieve the Federal Government from an obligato enact Federal legislation but even then it might be held that the rule in Missouri v. Holland, Congress would gain power to implement the covenant, although under no international oblito do so. So we are confronted, gentlemen, with the question

of how we are going to preserve our system of delegated government Are we to live under an undelegated system under which Congress may enact an act in any way it sees fit without any constitutiona basis except the treaty?

If we want to keep our system of delegated government, it is our opinion, even though you can break it, the continuity of it, nondele gated government, by wiping out a treaty, that from a practica matter we are in no position to enter into treaties like the Charte of the United Nations and the NATO and then the next year say w are not going to live up to them. You cannot establish that sort of system in the world today, and then calmly and blithely pass an act that we do not regard ourselves bound by it.

Mr. HOLMAN. But you could under section 2 of our amendment. Mr. Rix. Yes; we could because it would limit the power of Con gress.

Senator WATKINS. And a nation with which we were entering int an agreement would have to take notice on the limitation of power It should have taken notice on the executive agreement as well, but apparently they do not.

Mr. HOLMAN. Because you had a new school of thought in the State Department beginning with Mr. McLure, and Mr. Finch will tel you a very interesting story about the Treaty of Versaille-he was over there where Woodrow Wilson, realizing he was going to have trouble with the Senate, suggested to Lloyd George he would handle it by executive agreement. Mr. Lloyd George in substance said. "Well, I don't think, Mr. President, you have that constitutional power. I have read your Constitution."

So the constitutional power has been exceeded in the matter of executive agreement. But if you subject them to the same limitation as treaties and you have a clause like our second sentence in here, then you have taken care of this whole problem.

Mr. Rix. There is always this to cling to between our international obligations and our situation within our own country. We are trying to settle this question of where we are going to be under treaty law in the United States.

Senator WATKINS. That is within the country.

Mr. RIX. Within the country. The international obligations are an entirely different matter. Internationally, other parties to a treaty could say that we have repudiated, we have abrogated it. We could say we have not.

Senator WATKINS. The first sentence in the American Bar Association draft seems to get at the international end of it.

Mr. RIX. That is correct. The second one deals with internal law. Senator WATKINS. Would you not suggest also that probably ought to be section 2?

Mr. HOLMAN. That is right.

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Mr. Rix. Now, let me point out just where we sit at the present time in our opinion under the Charter of the United Nations and under the NATO Charter. In this article we have stated that the Charter of the United Nations as arrived at by treaty has conferred on Congress the exclusive authority under articles 55 and 56 of the charter to legislate on civil, political, economic, social, and cultural rights unless specifically prohibited by the Constitution.

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