opium in the United States are India, Turkey, Iran, and Mexico. Heroin has been coming in illegally from Italy, although following the action of Italian authorities in curtailing the manufacture of heroin there has been a noticeable lessening of available supplies of illicit heroin. Most of the illicit marijuana seized here came from Mexico and was confiscated on the Mexican border and the Pacific coast. The Mexican authorities are endeavoring to stamp out the illicit production of marijuana. Clearly, however, we cannot expect other governments to cooperate in this international effort to suppress illicit manufacture of narcotic drugs, if we do not take similar measures with our own citizens. The constitutionality of measures we took to enforce this convention was challenged in Stutz v. Bureau of Narcotics (56 F. Supp. 810 (N. D. Calif. 1944)). There the court refused to enjoin the Federal authorities from seizing and destroying a privately owned crop of poppies which had been grown without Federal license. The Federal authorities were acting under the Opium Poppy Control Act of 1942 (21 U. S. C., sec. 188) which the Congress had enacted to discharge more effectively the obligations of the United States under the International Opium Convention of 1912, and the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs of 1931. Had the act been held beyond the Federal power, as it might be under section 3 of the proposed constitutional amendment and as it probably would have been under the Bar Association proposal since the act went outside the field of interstate and foreign commerce, the United States would be powerless to give effect to a treaty like the Narcotics Convention. Senator SMITH. Could it not obtain the same objective by legislative enactment here in our own country, that would have controlled? Mr. BRUCE. No. Because without a treaty we couldn't have had the cooperation, or without a series of treaties in fact, of the other countries, who after all are the chief sources of supply for the illicit production of these drugs. Senator SMITH. I was pointing my remark to the statement I understood you to make about the cultivation of poppies in whatever State it was. Mr. BRUCE. California. Senator SMITH. Now, that is something we could have dealt with by domestic legislative enactment, could we not? Mr. BRUCE. Yes; we could. But how do you deal with the transfer from the production stage of the poppy in the field to the transit of the resulting drug? You can't do that by State enactment. That is covered by Federal statute. Senator SMITH. I said "domestic." I meant "Federal." Mr. BRUCE. Then, having had, Mr. Chairman, your Federal statute which, after all, only takes care of the domestic issue, what we could do in theory, I suppose, in this regard, would be to make illicit the entry into this country, the importation into this country, of any narcotics coming from a foreign country, except under certain restrictions. But by international agreement we get our control exercised other than in the United States alone. As for our narcotics agents, I don't think there is anything secret about them. They are stationed very widely throughout the whole world, and under the provisions of, and exercising their responsibilities as a result of, negotiations which have resulted in treaty understandings between ourselves and the countries affected. I do not want to go further into the narcotics business, except to say that I think if one were to question Harry Anslinger, the head of the enforcement agency, though I have never asked him about it, my guess would be that he would say that through a treaty it would be impossible for him to control the narcotic trade the way he has been successful in doing. Senator SMITH. May I ask you one question right there, Mr. Secretary, if I may? Under section 3, in dealing with the situation which you have just been discussing, you attach no importance to the language "and then only to the extent that, Congress shall so provide by act or joint resolution"? In other words, would it not be possible for Congress by act or joint resolution to take care of the situation which you were discussing right now? Mr. BRUCE. Well, we were coupling section 1 and section 3 together in this particular statement. But I would say that it was possible theoretically, if you want to go through the amendment of the Constitution, for both Houses of Congress to enact the legislation and to ratify treaties that might be entered into regarding your control of narcotics. Senator SMITH. No; I did not mean that. I meant whether or not this provision in section 3, the section, again, reading: No treaty or executive agreement shall alter or abridge the laws of the United States or the constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by act or joint resolution. Now, if Congress did by act or joint resolution, then would not that take care of the situation in the main that you were talking about with respect to narcotics insofar as they were an American concern? Mr. BRUCE. I have exhausted my knowledge of narcotics. I will have to fall back on Mr. Fisher. Mr. FISHER. Mr. Chairman, the question it raises there is the question whether or not the control of the domestic production solely in the State of California, which was the case presented in Stutz against the Bureau of Narcotics, is action within the authority of the Federal Government, whether you can say that you cannot grow poppies in the State of California, cannot grow opium poppies. That question was presented to the court. The court went on the other question. It did not answer that. There has been no decision to that effect. Senator SMITH. Was there a legislative enactment? Mr. FISHER. Yes, sir; there was. But it apparently assumed in its decision that without a treaty this legislative enactment would have not been within the constitutional powers of the Federal Government. Senator SMITH. You do not yourself believe that Congress would not have the power to act in a case of that sort even under this amendment, do you, by act or joint resolution? Mr. FISHER. Under the Senate amendment, it depends upon what construction you give to the rights of citizens of the United States, or abridging or protecting their exercise. Under the Bar Association amendment, the question would be whether or not domestic control of opium poppy production in the State, without any evidence of 22984-52--13 out-of-State shipment, is a matter within the delegated powers of the Federal Government. The court, which made its decision upholding that action, apparently assumed that it would not be within those powers, because it based it solely upon carrying out an international obligation. Senator SMITH. But that was just one way out. You still have several other clauses of the Constitution you could have fallen back on, could you not? Mr. FISHER. It seems to me, sir, the fact that the court Senator SMITH. Would not the general welfare clause have had a little to do with the distribution of narcotics in America, do you think? Mr. FISHER. The fact that the court put it on this ground, which has been a ground which has been the subject of some controversy over a period of time, rather than the ground which you apparently feel is simpler, indicates that the court did not share your views. Senator SMITH. No. Of course, we all know what the court does. The court takes the most direct and almost necessarily easiest way out. And if it passed it on the question of the effect of a treaty, naturally they would pursue that right down to its logical conclusion. But that was not tantamount to saying there was not some other way of dealing with poppies that were going to be converted into narcotics for use in America. Mr. FISHER. Well, sir, the fact that the court put its decision on that ground indicates to me that it felt it was on stronger ground on this theory. That meant that it felt it was not on so strong ground on the theory which you advanced. Senator SMITH. Was the other theory advanced and argued? Mr. FISHER. Yes, sir, it was. It was referred to in the decision as an argument that was made. But it was answered on this ground. Senator SMITH. Then you do not think that the Congress could legislate on the subject of poppy growing in the United States where that was going to lead to the production of narcotics? Mr. FISHER. It would seem to me, sir, that in matters of this kind, as the court has decided in matters like Holland against Missouri, also Asakura versus Seattle, which is pawnshop regulation in the city of Seattle, the issue ought to be not whether the Congress could do it in the absence of a theory, but the clear issue, which was found by the district court in this case and found by the Supreme Court in Asakura versus Seattle-whether or not this was proper action under a treaty. And that has been the approach that the Supreme Court has consistently taken, and I believe to make it a hypothetical question, what you might or might not be able to do, if there were no treaty, throws you on the somewhat treacherous sands of interstate and foreign commerce in areas which we humbly submit might better be taken on a worldwide basis, even though the particular application of it involves no interstate and foreign commerce. Senator SMITH. Now, you do not want to answer my question whether or not you believe that under the law and under the Constitution it is today the case that the Federal Legislature has a right to legislate on the growing of poppies where that growing is going to progress into the distribution of narcotics? You do not think Congress has that power? Mr. FISHER. The extent to which it has that power to go back into production and to deal with production is a doubtful question. You can argue both ways on it. Senator SMITH. I am just trying to get your legal opinion on it. We may want to use this in the future. I want to get your legal opinion on this question. Mr. FISHER. At the present time, sir, I hesitate to give legal opinions on inherent powers. The matter seems to be now up. Senator SMITH. I was not going that far. Mr. FISHER. But in my opinion, the issue ought not to depend on that doubtful question. The issue ought to depend on whether or not there is a justified treaty which has been ratified by the Senate and which has to be put into effect. I concede that you could argue both ways on this. But the very fact that the district court decided on this ground rather than the other would appear to indicate to me that he felt this was a sounder and a safer ground. Senator SMITH. You subscribe to all district court opinions, then, I presume? Mr. FISHER. I subscribe to one, sir, until it is reversed, just like there was considerable subscription to the Fujii case in the lower court before it was reversed. Senator SMITH. I was thinking about the most recent case. Mr. FISHER. I stick with them until they have been acted on by higher authority, sir. Senator HENDRICKSON. Mr. Secretary, I assume from your discussion of the poppy situation that you feel that the enactment of this resolution, or the adoption of this amendment, or any amendment that has been offered, would prevent the exercise of the treaty-making powers which control the poppy situation. Mr. BRUCE. Which control a situation of which the growing of poppies in California is only a minor element. Senator HENDRICKSON. Yes, I agree. Mr. BRUCE. But which has the great advantage of having gotten into the courts so that we can make use of it. Well, I think we have covered the poppy case and the pawn brokerage case, which affected the city of Seattle, which Mr. Fisher has just referred to. Senator HENDRICKSON. Was that a district court case? Mr. FISHER. No, sir, Supreme Court of the United States. Senator SMITH. That was the one written by Mr. Justice Butler? Senator SMITH. He was regarded as sort of reactionary, was he not? He was a very fine gentleman. I knew him and his family. Mr. BRUCE. Well, I had better describe Justice Butler's case. I happen to know him quite well. Senator SMITH. I know his daughter and some members of his family, and I have admired him very much, even though he was somewhat reactionary. Mr. BRUCE. I hope his legal opinions will stand the test of time, as in this case. A good example is Asakura v. Seattle (265 U. S. 332), decided by the Supreme Court in 1924. That case involved a treaty with Japan which provided that the citizens of the high contracting parties should have the right to reside in the territory of the other * * * to own or lease and occupy * ** * to carry on trade * shops to lease land for commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there * the most constant protection * established, and shall receive for their * property. * * The city of Seattle passed an ordinance which provided that no person should enter the business of pawnbroking without a license and that a license should not be issued unless the applicant was a citizen of the United States. The Court held that the ordinance was invalid under the treaty. The opinion was written for a unanimous court by Mr. Justice Butler, who stated as follows: The treaty-making power of the United States is not limited by any express provision of the Constitution, and, though it does not extend "so far as to authorize what the Constitution forbids," it does extend to all proper subjects of negotiation between our Government and other nations (Geofroy v. Riggs, 133 U. S. 258, 266, 257; In re Ross, 140 U. S. 453, 463; Missouri v. Holland, 252 U. S. 416). The statement that the treaty power does not extend "so far as to authorize what the Constitution forbids" first made in 1890 by Mr. Justice Field in Geofroy v. Riggs (133 U. S. 258), has never been retracted by the Court. Certainly this principle, together with care on the part of the Executive and the additional safeguard of a watchful Senate, would seem to provide a satisfactory answer to the second question and make a constitutional amendment unnecessary. The third and final question is whether a treaty should become the law of the land without a subsequent action by the Congress. Article III of the constitutional amendment proposed by Senate Joint Resolution 130 is directed solely to this point. In Justice Story's book on the Constitution, he set forth the reasons for the rule in our Constitution. He said: In regard to treaties, there is equal reason why they should be held, when made, to be the supreme law of the land. It is to be considered that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited by reprisals or war. It is, therefore, indispensable that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. See II Story's Commentaries on the Constitution (fifth edition) paragraph 1838. The rule so well stated by Justice Story, of course, is based on the assumption that the treaty in question was intended to become operative without any further action by the parties._ Chief Justice Marshall laid down the rule in Foster v. Neilson (2 Peters 253) thatwhen the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the Legisiature must execute the contract before it can become a rule for the Court. A great deal has been said about the case of Fujii v. State of California, where an intermediate State court held that the United Nations. Charter invalidated the California alien land law. Some appeared |