With this background, what does section 4 of Senate Joint Resolution 1 do? The first sentence is mandatory. No executive agreement, either statutory or nonstatuory, could be made until Congress prescribed the permissible manner of making such agreements and their nature. Bearing in mind the above-mentioned fact that nonstatutory executive agreements are generally made because of practical demands of speed or secrecy, Congress would have either to confer on the President broad powers to proceed on his own or require him in some manner to obtain outside approval, presumably from Congress or its representatives, in the case of each nonstatutory executive agreement. Not knowing what sort of implementing statute is contemplated, it cannot be said whether some practical and satisfactory procedure has been, or could be, devised.

It is frequently contended that the Constitution should be amended to provide for ratification of a treaty by a majority of both Houses of Congress rather than by two-thirds of the Senate present. Under section 4, Congress, especially a subservient one, could by majority vote authorize the President to make execative agreements in lieu of treaties. Barring a Supreme Court holding of unCOLstitutionality, who could prevent such a consequence? Yet, if that were to be the result, it would be far better to present a proposed amendment along the Ines mentioned at the beginning of this paragraph than an amendment like section 4.

Congress has already exercised for many years the power to control executive agreements. It has thus, in general, prohibited the Executive from participating in any international congress or conference without previous specific authority of law (37 Stat. 913, Mar. 4, 1913). It has gone so far, in detail, as to spell eat the terms of a proposed executive agreement (the Philippine Trade Act of 1946, 60 Stat. 151). Rather than bar all executive agreements by constitutional amendment until Congress has regulated them by a future law whose terms are not known, would it not be better for Congress to continue, to the extent deemed desirable, to control executive agreements by legislation, which could be carefully considered before adoption, rather than to have a generalized constitutional amendment on the subject?

Sections 1, 2, and 3 of Senate Joint Resolution 1 apply to executive agreements as well as to treaties, as previously pointed out. This report will not be lengthened to consider their separate effect on executive agreements, except to mention that under section 4 Congress would have to authorize executive agreements in advance and then, under section 3, would have to enact further aws in order to make them effective as internal law.

IV. CONCLUSION

As mentioned at the outset, Senate Joint Resolution 1 (83:1) is far better drafted than was its predecessor, Senate Joint Resolution 130 (82:2). Many pfalls that were shown during last year's discussions have been avoided. Refinement has not, however, overcome the two fundamental objections to restricting the treatymaking power that are mentioned in point II and, as discussed in point III, the answer to the problem in limiting the power of the President to make nonstatutory executive agreements does not yet seem to have been found.

Respectfully submitted.

LYMAN M. TONDEL, Jr., Chairman.
WILDER LUCAS, Secretary.

JOHN J. PARKER, Section Delegate.

83D CONGRESS, 1ST SESSION

Mr. Bricker proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of Constitution when ratified by the legislatures of three-fourths of the several

States:

"ARTICLE

"SECTION 1. A provision of a treaty which denies or abridges any right enurated in this Constitution shall not be of any force or effect.

"SEC. 2. No treaty shall authorize or permit any foreign power or any international organization to supervise, control, or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States.

"SEC. 3. A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.

"SEC. 4. All executive or other agreements between the President and any international organization, foreign power, or official thereof, shall be made only in the manner and to the extent to be prescribed by law. Such agreements shall be subject to the limitations imposed on treaties, or the making of treaties, by this Article.

"SEC. 5. The Congress shall have power to enforce this article by appropriate legislation.

"SEC. 6. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission."

Mr. HOLMAN. I would also like to file the action of the house of delegates of the American Bar Association, its official voice, which showed there were only four members of the section there who made up this report and the House in permitting it to be filed did so by the proviso that nothing therein should bind the house of delegates of the American Bar Association or the American bar. So this is a report by four men. Mr. Rhyne says three.

Mr. PERLMAN. I have the names here. I mention them in my statement. It is a report by three men who represented the section which

Mr. HOLMAN. No. That was brought out. They admitted they did not represent the section. They only represented the council of the section and three men acted for the council. That was all brought out in debate. We can have several of us here to testify under oath. Mr. PERLMAN. There is no need to.

Mr. HOLMAN. You were not present out there.

Mr. PERLMAN. No.

Senator DIRKSEN. It is important at this point that we be quite clear whether this is a report by three individuals who are really speaking for themselves.

Mr. PERLMAN. No, sir; these spoke for the council; at least the section. The section has a thousand members in it.

Senator DIRKSEN. Can we not get an agreed statement here for the record as to just what this report does represent?

Mr. PERLMAN. As Mr. Holman says, these three were authorized, I suppose, to make the report by the council of the section.

Mr. HOLMAN. They were the only ones of the council present and the house received it only as a matter of courtesy and put on the proviso that it should not be construed as action of the house in any respect, confirming their former action.

Mr. PERLMAN. You said they were the only ones present. Nobody is present at a meeting of the house of delegates except those that happen to be delegates.

Mr. HOLMAN. There were only three men of your section there.
Mr. PERLMAN. The only ones who can attend those meetings.

Mr. HOLMAN. You made the statement many times, you made it at an international conference in London. Judge Florence Allen, of the sixth circuit, said it was an improper statement to say that you had a section of a thousand people against this. You debated genocide at

St. Louis. Your contentions were overruled by a large majority

rote.

Mr. PERLMAN. Mr. Holman, if you want to bring up that matter, let me tell you that I am a member of that section. I attended the meeting at which the report was approved, that I think Mr. Charley Rhyne, who is in the room here, had a hand in writing. I think he was chairman of the section at the time. At the meeting of the section that report was approved.

Mr. HOLMAN. Which report?

Mr. PERLMAN. You brought in genocide. I am telling you about genocide.

Senator DIRKSEN. I just want to point out, Mr. Perlman, that when the record of this hearing is read, youngsters in high school will be adducing evidence and saying, "Here is a statement representing the views of a thousand lawyers." Now, if it is not a thousand, how many is it?

Mr. PERLMAN. I think it is a thousand, if Your Honor please, beause of the reason that this committee was authorized by the council of the section, the council of the section is authorized to speak for the membership of that section.

Senator WATKINS. How many in the council?

Mr. HOLMAN. Usually about six. There were three present. There was no meeting of the section at all of any kind on this report. It was made up by three men and three produced it. There was an obection to its even being filed. As a matter of courtesy it was allowed to be filed, but the reservation was put on it that it did not represent the views of the American Bar Association at all. Is that right, Mr. Rhyne?

Mr. RHYNE. Yes, it is.

Mr. PERLMAN. It was sent out by the American Bar Association as the report of the section. That is all I know.

Senator DIRKSEN. Mr. Holman said that the House of Delegates admitted the filing of the report.

Mr. HOLMAN. They always admit a report as a matter of courtesy. Mr. PERLMAN. That is right, but the council is the council of the section. It acts for the section.

Senator WATKINS. How many men compose this council?

Mr. PERLMAN. Six.

Senator WATKINS. How many were present when this report was authorized by the council?

Mr. PERLMAN. I don't know.

Mr. HOLMAN. Three.

Mr. PERLMAN. I am surprised that three would be there.

Senator WATKINS. Three authorized the report?

Mr. PERLMAN. One of them, by the way, is the chairman of the whole section that contains a thousand members. Now, you are not going to assume he acted without authority.

Senator DIRKSEN. I do not know about that.

Mr. HOLMAN. He did act without authority. You see, the difSiculty is never at midyear meeting is the section present because that is a meeting of a few lawyers and the house of delegates, all the house of delegates. So Mr. Schweppe asked the chairman of the section whether this was a report of the section. He said no, this was a report

of the council. How many of the council are here? Three. That is the record of this thing at Chicago.

The CHAIRMAN. You may proceed, Mr. Perlman.

Mr. PERLMAN. Section 3 has already raised doubts, both as to its meaning and application, in the minds of recognized authorities on constitutional and international law. It provides that—

A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.

The report of the section of international and comparative law of the American Bar Association asks:

What does "effective as internal law" mean? If, pursuant to treaty (or executive agreement) the United States and Great Britain agreed on a blockade of a third country and an American steamship company asserted the blockade as a defense in a court in the United States for nonperformance of a contract would the defense be unavailable if the treaty (or executive agreement) had not been supplemented by act of Congress?"

Section 4 embodies an effort to restrict the making of executive agreements. These, in the future, if the article becomes part of the Constitution, are to be made only in the manner and to the extent prescribed by law, and are to be subject to the proposed limitations on treaties and the making of treaties.

The report of the section of international and comparative law of the American Bar Association, presented by Judge Parker and signed by him and by Lyman M. Tondel, Jr., chairman, and Wilder Lucas, secretary, contains a rather detailed treatment of these provisions, with a statement of the reasons why they are objectionable. I shall not restate them here. I am aware of the fears which have been expressed in recent years concerning the possibility of abuse of the power of the President to make agreements with foreign powers and organizations. I submit that there is no substantial basis for such fears and that history does not support the arguments which have been advanced in support of the proposal to undermine and limit the authority of the President to act in time of grave emergency. We are living in dangerous times, when the power to act must sometimes be exercised without delay to protect the national safety. We keep repeating to each other that the power to act in time of emergency must be vested somewhere, especially under conditions where other nations do act without debate and without notice to the rest of the world. The Constitution has given it to the President, and nobody suggests any other agency. I submit that we ought not-we must not-limit the power of the Chief Executive to make such agreements with foreign powers or organizations as have been made in the past. Senator WATKINS. Now, would you say that even though in effect they amount to a treaty?

Mr. PERLMAN. If they in effect are treaties, they should be submitted to the Senate.

Senator BUTLER. But they do have the effect of a treaty, do they not, Mr. Perlman?

Mr. PERLMAN. No; they do not.

Senator BUTLER. Did not the Pink case hold that the agreement between President Roosevelt and Litvinoff had the full effect of a treaty? That was not submitted to the Senate.

Mr. PERLMAN. Both the Belmont and the Pink cases held that executive agreements that were incident to the recognition of a for

eign power did cut across state policies. They held that in both

those cases.

Mr. HOLMAN. That had the effect of a treaty.

Mr. PERLMAN. That is right.

Senator BUTLER. It is the same thing.

Mr. PERLMAN. It is a treaty, if you call it a treaty. It is a treaty that Congress can wipe out anytime it desires.

Congress has authority to decline to be bound by any such agreements, to refuse whatever appropriations may be necessary to put them to effect, or to repudiate and nullify them entirely by appropriate action.

Senator WATKINS. How can you do it after they have been acted pon by other parties, effectively, as a practical matter? We are facing that situation now with the Yalta agreement, with the Toronto and Potsdam agreements. They have been acted upon. The statement is now made, "You can't repudiate, you can't roll them back, because we have done certain things under them."

Mr. PERLMAN. Senator, I do not want to debate the Yalta agreeent with you, but you are here in 1953 taking some action with repect to the Yalta agreements that were made a long time ago and ld have been repudiated if the Congress saw fit immediately after ey were made. One of the things that disturbs me, Senator, about discussion is the talk all the time of secret agreements and I tried * find out where the secrets were, who had them. I cannot find them. The writers on them say that everything in connection with those reements was made public long ago. The Congress of the United Mates could have repudiated them long ago. When you come up to it day, all I can find out about it from the publications, and all I can nd out about it from those who were there, and who testified before natorial committees, is that those agreements were proper, they ould have been made at the time they were made and the only dif lty with them is that they were violated by Soviet Russia.

Senator WATKINS. You do not agree they should have been subtted to the Senate for approval?

Mr. PERLMAN. I do not know. I do not want to pass on that estion.

Senator WATKINS. That is the very question we are having up

-re now.

Senator DIRKSEN. Mr. Perlman, let me ask at this point: First, to en the record clear and I hope I am right, the conference took place February 1945. As I remember, the first press release showing in mary what actually was done at Yalta did not come out of the Mate Department until March of 1947, notwithstanding the fact that ce President reported to the Congress in joint session on the 1st of Mirch and there he gave some vague hints with respect to three votes Russia, for instance, and Churchill made his report to Parliament there he spelled out in some greater detail and, incidentally, as a foot* I was in Parliament at the time Churchill made his report. Now, Iant to get what Senator Watkins says, you say Congress can undo -m. One of the agreements at Yalta was, and they signed it, that - Curzon line should be the eastern boundary of Poland. That in'red roughly one-third of Polish territory and millions of Polish ple. You tell me how you undo it when the armies of Marshal