of the President directing the Secretary of Commerce to seize and operate the steel mills which were then threatened with a strike, was not authorized by the Constitution or laws of the United States; and that the order and seizure could not stand. The vote of the Justices was 6 to 3. Proponents of Senate Joint Resolution 1, say, Mr. Chief Justice Vinson, dissenting in the Steel Seizure cases, implied that the United Nations Charter and the North Atlantic Treaty gave the President power to seize private property. (Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 667 (1952).) Two other Justices joined with him in that opinion. Under the pressure of some future emergency, a majority of the Supreme Court may find that the treaty power authorizes action otherwise forbidden by the Constitution.88 This is so important that I have made a comment on it here. The reference to the United Nations Charter and the North Atlantic Treaty occurs in part I of the dissent by Mr. Chief Justice Vinson and Mr. Justices Reed and Minton (343 U. S. beginning at 667). The preface to the reference is this sentence: In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised. The references to the charter and North Atlantic Treaty follow, and appear in describing the historical background of world conflict which the United States has faced from the close of World War II through the Korean conflict. Reference is made to the United Nations Charter and the North Atlantic Treaty as congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The dissent then proceeds to outline the congressional measures which followed the treaties chronologically, such as the Mutual Security Act, the Defense Production Act, and several appropriation acts. Then, after this recitation, the dissenters launch into their derivative conclusion with these opening words: The President has the duty to execute the foregoing legislative programs. Their successful execution depends upon continued production of steel and stabilized prices for steel. 89 Senator BRICKER. Stripped of these treaties there is no basis whatsoever for the dissent, is there? Attorney General BROWNELL. Yes, I think the basis for the dissent is all these acts of Congress, Mutual Security Act, Defense Production Act, and the several appropriations acts that imposed obligations on the President to implement them. Senator WATKINS. All based on treaties, however, every one of those? Attorney General BROWNELL. I must disagree with that, Senator, at least my interpretation of it. Senator BRICKER. They did not contend at any time that the Constitution gave the President the power to seize steel properties, nor did they contend that the Congress had given any such? Attorney General BROWNELL. They said it was an inherent right. Senator BRICKER. Treaties which we had entered into and the implementation of the treaties? 88 Bricker, Safeguarding the Treaty Power, 13 Fed. Bar Journal 77, 79 (Dec. 1952). 343 U. S. 672, Attorney General BROWNELL. The latter part is where I part company with you. Senator WATKINS. At least the dissent threw it in doubt? It is, therefore, fairly clear that, whatever one's views may be on the merits of the dissent-and you will remember I said before this committee that I did not agree with the dissent on the merits-certainly it rests on the view that the President's alleged power to seize the steel mills arose from his duty to execute the legislative programs of the Congress and not from any implication that any treaty gave the President power to seize private property. The adoption of Senate Joint Resolution 1 or Senate Joint Resolution 43 would not increase or diminish the chances that the minority's holding might some day become the majority holding. In other words, the question of the President's inherent power as the Executive is entirely separate from this treatymaking power. Senator BRICKER. It would mean that the treaties could not supplement the President's power to do the things that he tried to do in the Steel Seizure case? Attorney General BROWNELL. The reason why the treaty power is not and should not be limited to matters which would otherwise be within the legislative powers delegated to Congress is clear. In regard to general legislative powers, those powers not delegated to the Federal Government are reserved to and may be exercised by the States under the 9th and 10th amendments to the Constitution. Thus there is no gap in powers. The power to make treaties is, however, expressly denied to the States by article I, section 10 of the Constitution. Whenever a matter is an appropriate one for international negotiation and agreement, either the Federal Government must be capable of dealing with it by treaty, or the United States as a whole is lacking in an essential aspect of sovereignty and is seriously handicapped in its ability to deal with other nations. The point was succinctly stated by Attorney General Caleb Cushing, in 1857: 90 The power, which the Constitution bestows on the President, with advice and consent of the Senate, to make treaties, is not only general in terms and without any express limitation, but it is accompanied with absolute prohibition of exercise of treaty power by the States. That is, in the matter of foreign negotiation, the States have conferred the whole of their power, in other words, all the treaty powers of sovereignty, on the United States. Thus, in the present case, if the power of negotiation be not in the United States, then it exists nowhere, and one great field of international relation, of negotiation, and of ordinary public and private interest, is closed up, as well against the United States as each and every one of the States. That is not a supposition to be accepted, unless it be forced upon us by considerations of overpowering cogency. Nay, it involves political impossibility. For, if one of the proper functions of sovereignty be thus utterly lost to us, then the people of the United States are but incompletely sovereignnot sovereign-nor in coequality of right with other admitted sovereignties of Europe and America. The ABA proposal would, therefore, appear to be even more disruptive than the suggestion for change embodies in section 3 of Senate Joint Resolution 1. Since any constitutional limitation of the scope of treaties would weaken the position of this Nation at the International bargaining table, it is incumbent on the proponents of such a limita 8 Op. Atty. Gen. 411, 415. In contrast to these types, there is the large bulk of executive agreements either authorized or ratified by Congress. These include the postal conventions; the acquisitions of territories such as Texas, Hawaii, and certain islands in the Great Lakes; the arrangements with foreign powers in relation to commercial reciprocity agreements and the suspension of discriminating duties; extension of the privileges of copyrght and the protection of trade-marks; agreements with the Indian tribes, which since 1871 supplanted the use of formal treaties; arrangements respecting fishing privileges of American citizens in foreign waters; the settlement of pecuniary claims against foreign governments, and the submission of such claims to arbitration; adherence by this country to membership in a score or more of international organizations; the trade and financial agreements, and agreements affecting international communications and transportation consummated in the 1930's and 1940's under authorization or policies laid down by acts of Congress. The fact that there could be international agreements other than treaties was recognized in the Constitution itself, which, in article I, section 10, provides that no State shall enter into any Treaty, Alliance, or Confederation nor, without the consent of Congress, enter into any— Agreement or Compact *** with a foreign Power. It was recognized by the Congress during Washington's first administration. In establishing the post office, Congress authorized the Postmaster General to make arrangements with the postmaster in any foreign country for the reciprocal receipt and delivery of mail (1 Stat. 232, 239). Pursuant to authority conferred by this and later statutes postal carriage arrangements with Canada and postal conventions with many countries of the world were consummated. Almost 100 years after the first postal act Solicitor General William Howard Taft ruled: From the foundation of the Government to the present day, then, the Constitution has been interpreted to mean that the power vested in the President to make treaties, with the concurrence of two-thirds of the Senate, does not exclude the right of Congress to vest in the Postmaster General power to conclude conventions with foreign governments for the cheaper, safer, and more convenient carriage of foreign mails.** 93 The frequency with which such agreements have been used is indicated by the fact that of the nearly 2,000 written international agreements entered into by the United States in the 150 years between 1789 and 1939, only some 800 were made by the formal treaty process. 4 The Supreme Court has repeatedly recognized as well established "the power to make such international agreements as do not constitute treaties in the constitutional sense. 95 The Court has said in 93 19 Op. Atty. Gen. 513, 520 (1890). "Letter of April 25, 1947, from Acting Attorney General McGregor to Senator Wallace H. White, Jr., chairman of the Senate Interstate and Foreign Relations Committee, regarding S. 11, 80th Cong. United States v. Curtiss-Wright Corp. (299 U. S. 304, 318 (1936)); Altman & Co. v. United States (224 U. S. 583 (1912)) (commercial agreement authorized by the tariff acts); United States v. Belmont (301 U. S. 324) (Litvinov assignment); United States v. Pink (315 U. S. 203) (same). connection with an executive agreement, not submitted to Congress, that an international compact is not always a treaty requiring participation of the Senate.96 The important fact is that under the broad grants of power in the Constitution to the Congress and to the President other procedures than formal treaty making have developed and have been utilized throughout our history for entering into international agreements on important subject matters with more or less the same legal and practical consequences. Care must therefore be exercised, in any consideration of altering the full foreign affairs power, not to cut off, inadvertently or otherwise, functions, practices, and methods of operation that have developed usefully and to our advantage, and without which our facility in dealing with other nations would be hampered and restricted. Senator WATKINS. At that point may I ask you how this language would in any event prevent the making of executive agreements? "Executive agreements shall be subject to regulation by Congress and to the limitations on treaty article." Now, is there any limitation whatsoever in that provision on the part of the President to go ahead and make agreements so long as he lives within the Constitution? He can make the agreements, but after he has made them, then they can be regulated by Congress. Attorney General BROWNELL. In this case as in many others, Senators, there is a line which is hard to draw under our system of the common law. It is much more effectively drawn case by case as we go along instead of doing as they do under the civil law in other countries by drawing one particular sentence and leaving the interpretation of it to others. I think that there is this line there between the power which the President has exclusively under his war-making powers and the powers to receive ministers and that is on the one side, and then on the other side, the power to make executive agreements with the consent of Congress. The point I am trying to make here is that we have to study that line and not have language so flexible and sweeping in nature that it will impinge upon the proper functions of the Executive. Senator WATKINS. You think that the President should be permitted to make any executive agreements; that Congress should not have the power to regulate? Attorney General BROWNELL. I prefer to state it this way, Senator, that I think the President should have the full power to exercise the powers given to him in the Constitution such as the war-making power to conduct war, the power to receive ministers, and so forth. Senator BRICKER. That is not this? Attorney. General BROWNELL. It comes awfully close to this. The shadow line between that and the so-called executive agreements, in "A treaty signifies a compact made between two or more independent nations with a view to the public welfare.' Altman & Co. v. United States (224 U. S. 583, 600). But an International compact, as this was, is not always a treaty which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations. (See 5 Moore, International Law Digest, 210-221.) The distinction was pointed out by this Court in the Altman case, supra, which arese under section 3 of the Tariff Act of 1897, authorizing the President to conclude commercial agreements with foreign countries in certain specified matters. We held that although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a treaty' within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this court" (United States v. Belmont (301 U. S. 330–331)). other words, is one which we must be most careful not to trespass and unbalance our traditional procedure. Mr. SMITHEY. On the question of traditional agreements, do you think that the Congress now has the power to regulate the making of agreements? Attorney General BROWNELL. Certainly our history would show that in the great bulk of them it has exercised that right. Senator WATKINS. Do you think the Congress should have the right to repudiate an executive agreement by act of Congress? Attorney General BROWNELL. Sure. Senator WATKINS. If it can repudiate a treaty Attorney General BROWNELL. Repudiate it and pay the consequences. I always want to get that in, that distinction. Senator WATKINS. If we agree with somebody and breach the contract, as a matter of equity we want to pay them any damages incurred as a result of not deciding to go on with the agreement. Attorney General BROWNELL. The reason I keep making that point, Senator, is that I would not want any other countries to get the idea that we would just cavalierly repudiate our treaty or executive agreement obligations without due compensation. Senator WATKINS. I think, on the other hand, that we should not let them get the idea that we are so bound up by tradition that we cannot repudiate those agreements or treaties. I think that is necessary for our protection because of the mistakes already made. It may be necessary as far as our existence is concerned to repudiate them. Attorney General BROWNELL. I was first brought up with the importance of contracts and the fact that they are so intermingled with our constitutional form of government that I would not want to cast any doubt on the intention of this country to live up to our agree ments. Senator WATKINS. You do not want to go back on the statement made a moment ago that you still think the Congress has the right to determine whether it ought to be or ought not to be repudiated? I am discussing powers. Attorney General BROWNELL. That is right. If they do that and if they consider that there is good reason, then they must under our system of government pay damages. Senator WATKINS. If an executive agreement is contrary to the Constitution, should it not be repudiated? We have some that seemed to be contrary to the Constitution. All we are trying to do here is to put into the Constitution something that would protect that. But we want to make it clear so that any President in the future would see that beyond this point he may not go. Attorney General BROWNELL. Senator, just in order to drive my point home, I am going to go on to my conclusion. Considering again the limiting effect of proposed section 2 of Senate Joint Resolution 1, there would appear to be no more justification for such limitations on the scope or the subject matter of executive agreements than in the case of treaties. Each form of international agreement may be an appropriate means for the exercise of the Federal power over foreign affairs-a power which because it is exclusive must be plenary. As to the question raised by section 3 of Senate Joint Resolution 1, whether an act of Congress ought to be required to give an inter |