TREATIES AND EXECUTIVE AGREEMENTS

TUESDAY, MAY 27, 1952

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee, met, pursuant to recess, at 10: 25 a. m., in room 424, Senate Office Building, Hon. Willis Smith presiding.

Present: Senators Smith of North Carolina, Ferguson, and Hendrickson.

Also present: Wayne H. Smithey, professional staff member.

Senator SMITH. Senator McCarran has been delayed in getting in. He just sent word for me to proceed with the hearing.

I am going to now call on Mr. Bruce, Under Secretary of State, who was to be heard at 10:30, and then we will get back to the others. who are listed on the agenda.

Mr. Bruce, I do not know just what Senator McCarran had in mind about procedure this morning and whether or not he had any understanding with you one way or the other. But if he did not, you could proceed in such manner as you wished to in discussing this resolution. STATEMENT OF HON. DAVID K. BRUCE, ACTING SECRETARY OF STATE, ACCOMPANIED BY ADRIAN S. FISHER, LEGAL ADVISER, STATE DEPARTMENT, WASHINGTON, D. C.

Mr. BRUCE. Thank you, sir.

Mr. Chairman, I am sorry to have to read such a long statement. I think it will take in excess of half an hour. But after giving a great deal of consideration to this proposed resolution, we decided, as regards the State Department, that it was of such fundamental importance that we wanted to be accorded the opportunity to have a careful response to your invitation to appear before you in the record.

Senator FERGUSON. Mr. Bruce, do you cover the American Bar Association's proposal as well as the Senate Joint Resolution 130, in your remarks?

Mr. BRUCE. I touch on the American Bar Association's proposal, sir. Senator FERGUSON. You have that in mind in making the statement? Mr. BRUCE. Yes; we have that in mind.

I was very much struck, as will come out in the statement in part, in going over some of the questions which were raised by this very interesting resolution, with the similarity, the very fundamental similarity, between this question being discussed today and what occurred 160 years ago in the Constitutional Convention, which was commented on, as you will recall, at great length in the Federalist Papers. And in the discussion we have included a great many comments on the Federalist Papers.

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Mr. Chairman and members of the subcommittee, I should first like to express my appreciation for this opportunity to give you the views of the State Department with regard to Senate Joint Resolution 130. This proposal to amend the Constitution with respect to the treaty power of the Federal Government concerns every agency of the Government which operates in the foreign field. It concerns our Armed Forces whose operations and status abroad depend upon international treaties and agreements. It concerns our Mutual Security Administration, our Department of Commerce, and even our Post Office. But, of course, it concerns the Department of State most of all.

Mr. Chairman, the Department has already written the subcommittee that we think that an amendment to the Constitution such as proposed in Senate Joint Resolution 130 would not serve the best interests of the citizens of the Government of the United States.

This proposed amendment would alter the basic structure of this Government as established by the Constitution. It is contrary to the basic theory of separation of powers among the legislative, executive, and judicial branches of the United States Government. It would seriously curtail the treaty-making authority of the United States and prevent this Government from entering into many treaties which are beneficial and necessary to the interests of the United States and its citizens.

Senator FERGUSON. Could I inquire there if it is the contention of the State Department that the treaty-making power is now unlimited, with no restrictions whatever on it?

Mr. BRUCE. I deal with that later in the brief, sir, but if you want I could take it up at this time.

Senator FERGUSON. No. Is that your contention, though?

Mr. BRUCE. No, that is subject to the restrictions placed thereon by the Constitution, ratification by two-thirds of the present Members of the Senate.

Senator FERGUSON. And do you cover the question of agreements? Mr. BRUCE. We do, sir, quite fully.

Senator FERGUSON. Do you distinguish between the treaty and the executive agreement?

Mr. BRUCE. We do, sir.

It would so seriously interfere with the historic and fundamental functions of the Executive and the Senate in the field of foreign affairs that it would jeopardize the influence of the United States in the world today.

Any proposal to amend the United States Constitution is, of course, a very serious matter. The greatness of the United States today, the strongest and freest country in the world, is the living proof of the greatness of our Constitution and of the wisdom and foresight of the statesmen who wrote this magnificent instrument. I think, therefore, when we propose to change any part of this instrument which was so carefully worked out in Philadelphia in 1787 we should look back to see why they wrote that part as they did.

Alexander Hamilton explained quite fully in the Federalist (No. LXXV) why the treaty-making authority was conferred jointly upon the President and the Senate. This was a great exception to the general rule of the Constitution that the executive and the legislative branches of Government exercise separate and independent powers.

But Hamilton pointed out that the power to make treaties is neither an executive nor a legislative power. He said that the objects of the treaty power

are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable, in the management of foreign negotiations, point out the Executive as the most fit agent in these transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

Hamilton was opposed, however, to giving the House of Representatives a share in the treaty-making power, on the ground that that body was too large and variable in character.

I most respectfully urge the subcommittee, in studying this proposal, to keep in mind the fundamental nature of the treaty power as so clearly expressed by Hamilton. The power of the United States Government to enter into treaties in its dealings with other governments is to this Nation what the capacity to enter into contracts is to a private individual in his business dealings with other individuals. If we are going to do business with other countries, we have to be able to make treaties. As Jay remarked, you cannot expect other nations to do business with us unless they get something out of the bargain. In considering any changes in the treaty power of the United States, we must be very careful not to "hamstring" ourselves so that we cannot make the "contracts" with other countries which we ought to make in the best interests of the United States and of American citizens. As Justice Sutherland has pointed out:

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Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens **; and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law (United States v. Curtiss-Wright Export Corporation et al, 299 U. S. 304, 318 (1936)).

We are particularly concerned about this because under article I, section 10, of the Constitution, the several States of the Union are expressly forbidden to "enter into any treaty, alliance, or confederation." If the treaty power of the Federal Government is unduly restricted, therefore, the United States will be in a position where nobody will be able to do business for it in its international relations. I shall shortly point out, in connection with specific parts of this proposal that, as now drafted, it would appear to prohibit us from making treaties which are not only beneficial but necessary to the best interests of the United States and its citizens.

Before taking up specific points, however, I want to say that we are very much disturbed by the underlying assumptions of this proposal. It assumes, first, that the President and the Senate acting together as the treaty-making authority of the United States are going to abuse the treaty power. Thus, in introducing this resolution of February 7, 1952, Šenator Bricker described as a "constitutional loophole" the fact that

By a ruthless exercise of the treaty-making power a President, with the support of two-thirds of the Senators present and voting, could revolutionize the relationship between the American people and their Government as prescribed by the Constitution (Congressional Record, p. 921).

Later on in the same debate, Senator Bricker stated:

By misuse of the treaty power it is possible for the President and the Senate to transfer to Washington all the powers reserved to the States by the tenth amendment. I do not see how any such abuse can be prevented (Congressional Record, p. 925).

This proposal thus is based upon fundamental distrust of the intelligence and integrity of both the President and the United States Senate. In addition, it is based upon distrust of our courts, as Senator Bricker also implied in introducing this resolution that he did not trust our courts to protect the constitutional liberties of American citizens. If the situation is indeed this bad-that the President and the Senate will conspire to alienate the traditional liberties of American citizens and the courts will supinely acquiesce in this-I am afraid that the enactment of a constitutional amendment will not help matters much.

Senator FERGUSON. I would just like to ask some questions there. This is not a question of trust, is it? When the original Constitution was made, it was not a question of the people trusting the executive and the legislative, was it?

It was a question of sovereignty being in the people, and that they were forming a limited government; that is, the States were reserving sovereignty except where given to the Federal Government.

And as we have progressed, we are finding that when the United Nations Treaty was made there are many claims now that were not part of at the time that the treaty was approved, particularly when it referred, in the treaty, to the point that domestic matters were not to be altered by it.

And then we find lawyers presenting the claim that there have been alterations, that there has been a change in the sovereignty of the State.

For instance, in the California case; and again when they introduced the one bill here on civil rights, it was the claim that the whole fabric of our Constitution had been changed by this treaty.

Do you discuss that?

Mr. BRUCE. Yes; we do, sir. We deal with the California case later on, and also with the civil rights question.

Senator FERGUSON. But it is not a question of trust, is it? It is a question of the whole idea of the Constitution, which is one of reserving these rights in the people.

It was not that they distrusted the officials when they said, "You are entitled to a jury trial, and you cannot have unreasonable seizure." Was it a question of distrust?

Mr. BRUCE. It was not a question of distrust as it affected the past, Senator, but let me say this.

At the time of the formation of the Constitution, this whole question as to whether the treaty powers should be conferred upon the Executive and both Houses of Congress was debated extensively, as you will recall. Gouverneur Morris, that extremely able man, was a proponent of having the House of Representatives join in with the Senate in a consideration of any treaty making. By a vote of 8 to 1 in committee, the proposition made by Gouverneur Morris was rejected. Several times thereafter in the course of consideration of the formation of the Constitution the same thing was brought up, and it seemed to be the opinion of everyone-when I say "everyone" I

mean almost everyone who participated in that Convention—that as this entered into a very debatable ground between the legislative and the Executive, the only way in which expeditiously and efficiently you could conduct the foreign relations of the United States was through having the Executive take the initiative, subject to the eventual check of the Members of the Senate, with the reservation which also was debated very frequently, that as the requirement of ratification or approval of the Executive's action by a majority of the Senate would lead to some very strange occurrences depending upon the number of Senators present, at least it was agreed it should be by two-thirds of the Members present.

Now, to get back to another thing which you spoke of: The reservation at the time of the delegation to the Federal Government of those powers which were necessary for the conduct of the Federal Government by the States; that is, a reservation to the States of those powers not delegated to the Federal Government, made the issue of States' rights for a large part of our history, of course, a very important one to the individual States concerned.'

I don't need to labor that point. But at the same time, the treatymaking power conferred upon the Executive and the ratification necessary by the Senate also delegated to this central body an authority, as the result of making the treaty, to override the States, either taken corporately, or the individuals of the States, as they might be affected by State legislation.

Senator FERGUSON. Well, do you think that today the treaty-making power could take the right away from the States of having a republican form of government?

Mr. BRUCE. No, not possibly, because the republican form of government is granted by the Federal Constitution.

Senator FERGUSON. Well, but then, is it not also true that of equal importance is this treaty-making power? That is the reason I asked you the original question as to whether or not you contended that the treaty-making power was supreme that there was no limitation upon

it.

Mr. BRUCE. There is a great limitation on it, sir, in this respect: That first of all, the treaty-making power is limited by the Federal Constitution; secondly, the treaty-making power is limited by a Federal statute. If that statute is passed or comes into effect after the making of a treaty, the only case in which the treaty overrides, as the supreme law of the land, any article which guarantees the right of a citizen-and I want to hedge those words a little later-is when that treaty is superior to a State constitution, a State court, or the rights of a citizen as expressed in his State law.

But remember that there has never been but one case, as far as I know, of a treaty entered into by the Federal Government which has ever been questioned constitutionally in the courts.

Senator FERGUSON. Going back to the question where you said that the treaty-making power was limited by the Constitution: Is it not that the legislative is limited by the Constitution but the treaty-making power under the present Constitution is limited only by the powers of the United States?

Mr. BRUCE. By the powers of the Federal Government, by the powers of the Federal Constitution, by the powers of the Supreme Court, and also by the power of Congress, which, if it enacts some