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Attorney General BROWNELL. As to its domestic affairs.
Senator WATKINS. If they have been able to do that in the past, why should they not be able to do it in the future?
Attorney General BROWNELL. I think they should, and will.
Senator WATKINS. That is, in effect, treaties shall become effective as internal law in the United States only through legislative action which would be valid in the absence of a treaty. That should not be against the Constitution.
Attorney General BROWNELL. I think it does because it takes away from the Executive participation in the treaties. At the present time the Executive has the initiative.
Senator WATKINS. He makes the negotiation and the treaty is there and it is a question of what effect it has on the domestic scene. Even if Congress should attempt to change it at all, he would still have the right to veto the legislation. He would have a part in the making of it.
Senator BRICKER. Jay and Hamilton also opposed the Bill of Rights, did they not?
Attorney General BROWNELL. They came around to it.
Senator BRICKER. They had to, to have the Constitution adopted, but they opposed it, did they not?
Attorney General BROWNELL. Yes.
Senator DIRKSEN. Referring to the observation of Senator Watkins, Secretary Dulles suggested yesterday, if you will recall, that if a mistake is made in a treaty insofar as domestic effect is concerned, that Congress can always remedy that mistake by legislation. That is one viewpoint.
The other viewpoint, as envisaged by the resolution pending here, is to prevent the mistake in the first instance by not giving it the effect of domestic law.
Attorney General BROWNELL. Now, you gentlemen are good lawyers. I do not know. This treatymaking power is a matter of negotiation between governments. I think if you were sitting down to negotiate a contract in your private practice you would feel you were at a considerable disadvantage if you only had authority to cover certain points in the contract and the fellow on the other side had plenary power. That would be the effect, it seems to me, of the provision in Senate Joint Resolution 43 because it would take away from the Executive and the Federal Government the right to negotiate contracts covering all that subject matter that is reserved to the States in the 10th amendment. It is just as you said, the purely international, the mingled international and local matters must be in the Federal Government in order to make that power effective, and from time to time the subject matter which originally was local becomes international. Whenever you have a new invention like your radio, your television, your atomic power, certain things that heretofore were considered primarily local in their nature, by act of Congress and by act of the Executive are thereafter considered federal or international in their relations.
Senator BRICKER. What other country has plenary powers in the matter of treatymaking over domestic law?
Attorney General BROWNELL. I would say practically all of them, Senator, that do not have the federal system.
First, the treaty as drafted, may stipulate or require that it be regarded as not self-executing. If its implementation requires appropriations or criminal sanctions or similar domestic legislation, it will necessarily depend on legislation passed by both Houses. In other situations, where the treaty might have internal effect, its terms may prevent it from being self-executing. A notable example is articles 55 and 56 of the United Nations Charter, obligating the parties to "promote” stated social and economic objectives and pledging themselves to take joint and separate action” for the achievement of these purposes.
75 Recently, the California Supreme Court held these provisions were non-self-executing.78
Senator BRICKER. But did hold they had an important effect upon the consideration of the court in interpreting amendment 14!
Attorney General BROWNELL. Well, they cannot be disregarded.
Mr. SMITHEY. Notwithstanding that holding, a judge in Idaho in a ruling gave the articles self-executing effect, did he not?
Attorney General BROWNELL. Yes, in a case that we think was so clearly wrong it has not been upheld by the appellate court.
Senator BRICKER. It has not been passed upon by the Supreme Court.
Attorney General BROWNELL. It has not.
Senator BRICKER. Many of these treaties have been made subject to the provisions that will be effective.
Attorney General BROWNELL. Yes.
Senator BRICKER. If we make reservations, then we cannot accept the treaty.
Attorney General BROWNELL. Correct. That is the way it should be, I think. We ought not to be bound by it if they will not accept our reservation.
Now, second, the Senate, in the exercise of its power to impose reservations ?? may impose as a condition, to its consent to ratification, that the treaty should not be considered self-executing. This should afford ample opportunity and scope for dealing with matters which the Senate feels ought not have a self-executing effect.
Finally, in an extreme case, there stands as a check on the President and Senate the power of Congress, by subsequent statute, to override the treaty insofar as its effect on domestic law is concerned.
In general, these sa feguards have worked well. The most conspicuous instance of dissatisfaction arose in connection with the Jay Treaty of 1794; but while the issue of the House's participation in commercial treaties was debated and a constitutional amendment was proposed by the Virginia Legislature, no action was taken on that amendment by Congress or the other state.78
A rigid requirement that no treaty can have domestic effect as law unless it goes through the second step of approval by both Houses of
75 See, for other examples, the Convention for the Protection of Migratory Birds of Aug. 16. 1916, 39 Stat. 1702, art. VIII. legislation implementing which was involved in Missouri v. Hollanıl, 252 U. S. 416, 431 ; the International Slavery Convention of Sept. 25, 1926, 46 Stat. 2185, obligating the parties to take “necessary steps," "adopt all appropriate meas. ures," "take all necessary measures," etc., to achieve its objectives: the Genocide Convention. Sepate Executive 0, 81st Cong., which is cast in terms intended to make it non. self-executing; and present drafts of proposed conventions or covenants relating to human richts and to freedom of information, which are the alleged targets of the proposal to amend the Constitution and which are cast in non-self-executing terms.
16 Sre Fujii v. State, 242 P. 2d 617 (Sup. Ct. Calif., 1952).
77 Haver v. Yaker, 9 Wall. 32, 35 ; see 98 Congressional Record, Mar. 20, 1952, pp. 26022603.
78 See note 66, supra.
Congress would have seriously damaging consequences in those areas in which treaties have traditionally been self-executing. For example, treaties of commerce and friendship typically provide for the rights of aliens to hold, acquire, inherit, and dispose of property, to engage in businesses and professions, to be protected in their persons and property, to be free from burdensome taxation, and the like. Such treaties are almost invariably self-executing. When ratified by the Senate, they become domestic law. In case of conflict, they override inconsistent State law. No reason has been suggested why the efforts of the United States to secure adequate protection for the persons and property of its citizens abroad, whether transients or residents, should be impeded by making the process of adopting such treaties more burdensome and time-consuming than it now is. Nor have substantial objections been suggested to the long-established practice respecting treaties of friendship and commerce and other types of treaties which have traditionally been self-executing.
Senator DIRKSEN. If we make a treaty of friendship and commerce with Great Britain it can have no domestic effect on a British citizen until it is first implementd by the House of Commons; is that correct?
Attorney General BROWNELL. That is correct. That is the parliamentary form of government, which I am sure you do not advocate for this country.
Senator DIRKSEN. No; but we are in a state of disparity with them in this whole field, however.
Attorney General BROWNELL. Yes; I think we have greater protection myself here because of the two-thirds rule of the Senate against invasion of our prerogatives.
It seems to me that the requirement of the double step in effectuating treaties would for all practical purposes debase the present constitutional function of the Senate in the treatymaking process. For, as a precaution against attack on provisions which might have some internal effect, it would become advisable, as a matter of practice, to submit all treaties for some form of legislative approval by both Houses. The separate two-thirds approval of the Senate would become merely an obstacle rather than an act of treatymaking.
The American Bar Association addition contained in S. J. Res. 43) to the change suggested by section 3 of Senate Joint Resolution 1 would superimpose a major change in the relations between the Federal and State governments, as well as seriously curtail the scope of the treaty power. The power to enter into treaties was granted by the Constitution without any express limitation as to the subject matter of possible treaties. At the constitutional convention of 1787, while there were suggestions that certain types of treaties, for example, treaties of peace, should receive different procedural treatment, there was no suggestion that the treaty power be limited as to subject matter. The framers were primarily impressed with the necessity, in the interest of national survival, of an adequate and effective power to make, and to enforce within the States, whatever treaties seemed appropriate to facilitate the conduct of foreign relations.
At the Constitutional Convention it was generally agreed that the Federal Government should have the full and exclusive treaty power before any agreement was arrived at as to the scope of the legislative
powers of Congress. The view of the framers is reflected in the letter from George Washington, dated September 17, 1787, transmitting the proposed Constitution to the Continental Congress:
The friends of our country have long seen and desired, that the power of making war, peace, and treaties, that of levying money and regulating commerce, and the corresponding executive and judicial authorities should be fully and effectually vested in the General Government of the Union.
The view of the Supreme Court has always been that, the treaty power of the United States extends to all proper subjects of negotiation between our Government and the governments of other nations.80 Such treaties may have the force of domestic law, if they are selfexecuting, or may be implemented by legislation under the “necessary and proper" clause.
In Missouri v. Holland,81 the Court expressly rejected a contention that the United States could not by treaty and implementing act of Congress regulate the subject of migratory birds unless that subject came within the legislative powers delegated to Congress.
But that decision merely made explicit what had long been implicit, for in none of the cases involving treaty provisions had any question been raised as to whether the provision was within the general powers of Congress to legislate. It was enough that the matter was an appropriate subject for international negotiation.
The most usual types of treaties would be invalid if measured by the test of whether they came within the legislative powers of Congress. For example, treaties relating to the rights of aliens to own land and personality, to inherit property, and to transfer property by will or interstate succession; 83 treaties relating to rights of aliens to engage in trade or business, as applied to a business having no interstate character ; 84 and treaties of extradition where the crime was a purely domestic one within the foreign state.85
Senator WATKINS. I would like you to go back to that statement: The most usual types of treaties would be invalid if measured by the test of whether they came within the legislative powers of Congress. Does not the Congress have the legislative power to abrogate any of them, and do they not therefore come within their powers?
Attorney General BROW NELL. As to domestic affairs.
Senator WATKINS. Even as far as international effect is concerned, they can abrogate them and reject them.
Attorney General BROWNELL. You can always revoke your administration of treaties.
Senator WATKINS. Then it comes within the power of Congress.
79 2 Farrand, Records of the Convention, 666-667.
$0 Geofroy v. Riggs, 133 U. S. 258, 266 (1890). See also Holmes V. Jennison, 14 Pet. 540, 569 (opinion of Taney, C. J.) (1840) : Holdon v. Joy, 17 Wall. 211, 243 (1872) ; In re R088, 140 U. S. 453, 463 (1891 ) ; Missouri v. llolland, 252 U. S. 416, 433-434 (1920); A sakura v. Seattle, 265 U. S. 332, 341 (1924); Santovincenzo v. Egan, 284 U. S. 30, 40 (1931).
61 252 U. S. 416.
82 As the Court stated (252 U. S. 433): “It is obvious that there may be matters of the sharpest exigency for the national well-being that an act of Congress could not deal with but that a treaty followed by such an act couldl. and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found."
83 Chirac v. Chirac, 2 Wheat. 259 ; Hauenstein v. Lynham, 100 U. S. 483; Santovincenzo v. Egan, 284 U. S. 30.
* Asakura v. Seattle, 265 U. S. 332 (pawnbroker).
86 Matter of Metzger, 5 How. 176, 187–188 (forgery) ; Charlton v. Kelly, 229 U. S. 447 (murder).
Attorney General BROWNELL. We are talking here about the legislative powers of Congress, Senator; we are talking about the powers expressly given to Congress. In other words, exactly as involved in Missouri v. Holland.
Senator WATKINS. As I understand, the Congress can abrogate any treaty with respect to its domestic effect or foreign effect.
Attorney General BROWNELL. With the exception of vested rights.
Senator WATKINS. We might have to pay some damages to the nation.
Attorney General BROWNELL. Yes.
Senator Watkins. At least we have been told time and again by those people who have argued that there is no danger, that Congress can abrogate a treaty any time it wants to.
Attorney General BROWNELL. With that important qualification.
Senator WATKINS. It seems to me that is not one which is based on the general law of this country.
Attorney General BROWNELL. Well, this amendment in Resolution 43 would prohibit the Federal Government from negotiating treaties except with respect to the subject matter which is expressly
given to Congress in the Constitution the power to legislate.
Senator WATKINS. I would say this, that I do not think you can name a treaty that you could negotiate where it would not be within the powers of the Congress to abrogate.
Attorney General BROWNELL. That is true, but I think it would be changed if this resolution were adopted.
Senator WATKINS. Do you think we are taking away some of the powers of Congress!
Attorney General BROWNELL. We certainly are.
Senator WATKINS. That is not the intent of it so far as I have been able to ascertain.
Attorney General BROWNELL. That shows the difficulty of interpreting words. That is my interpretation of it, sir. I think maybe we had better just complete this one particular thought.
Senator WATKINS. Pardon me for the interruption, but it seemed to me that I could not let that one go unchallenged.
Attorney General BROWNELL. This does not mean that the treaty power is a “Trojan horse" which can bring about an unintended *change in the balance between Federal and State power,” as the American Bar Association committee has contended.86 It means simply that one of the powers which the Constitution delegated to the Federal Government, completely, was the treaty power. The framers clearly understood that the treaty power was very broad in scope and could reach many matters which would otherwise be solely of State concern.
Nevertheless they gave that power exclusively to the Federal Government. It is the proposed denial to the Federal Government of a large part of the treaty power, granted by the Constitution and repeatedly exercised since the beginning of the Republic, which would produce “a change in the balance between Federal and State power."
In this connection, reference has been made to the so-called Steel Seizure case.87 The Supreme Court held that the executive order
Hearings. p. 37. These are the hearings which were held in May, June 1952, on S. J. Res. 130 (820 Cong.), the predecessor of S. J. Res. 1 (83d Cong.).
* Youngstoron Co. v. Sawyer, 343 U. S. 579 (1952).