ments are "respecting the rights of the citizens of the United States" as well as citizens of other nations in matters relating to international mails. The section is so worded that it might apply only to future postal conventions and agreements. However, there is a danger that the section might be construed as applying to postal conventions and agreements now in force and effect. Section 3 of the amendment could require this Department to seek enabling legislation from Congress to authorize each proposal submitted for consideration by foreign postal administrations. This would, of course, place a great burden upon Congress, since hundreds of proposed postal proposals are submitted prior to each contemplated universal postal convention and it might be necessary to submit such proposals to Congress for consideration even though the proposal might not be adopted at the postal convention. As a matter of information, it might be stated that some 1,700 proposals were submitted for consideration prior to the present Universal Postal Union Convention being held at Brussels, Belgium. This provision also would take away the flexibility of action needed by the Post Office Department in dealing with members of the Universal Postal Union. Section 4 of the proposed amendment provides in part as follows: "SEC. 4. Executive agreements shall not be made in lieu of treaties. "Executive agreements shall, if not sooner terminated, expire automatically one year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding Presidential term." This could have the effect of repealing the laws codified in 5 United States Code 372 and 39 United States Code 712, thereby bringing the international postal conventions and agreements back within the procedures applicable to treaties. It also could result in removing the certainty of time which now surrounds universal postal conventions. At the present time universal postal conventions meet every 5 years. Parcel post and international money order agreements continue in force and effect until terminated. It is not known whether the members of the Postal Union Convention meeting at Brussels, Belgium, will propose another convention within 5 years. Under the provisions of section 4, none of the future universal postal conventions, parcel post or international money order agreements could continue in force and effect for longer than 1 year after the end of the term of office for which the President making the agreement shall have been elected. It would be necessary for each succeeding President to request the Congress to extend the life of such conventions and agreements. All conventions and agreements negotiated and adopted would have to be contingent, insofar as their continuation is concerned, upon favorable action by succeeeding Presidents and Congresses. Failure of the President to make the necessary request or of either House of Congress to act on the request could result in removing the United States from the international postal services. Such situation might make it extremely difficult, if not impossible, to negotiate conventions and agreements favorable to the United States. In view of the foregoing, this Department urges that Senate Joint Resolution 130 not be adopted. Sincerely yours, Re Senate Joint Resolution 130. Hon. PAT MCCARRAN, J. M. DONALDSON, SECURITIES AND EXCHANGE COMMISSION, Chairman, Committee on the Judiciary, OFFICE OF THE CHAIRMAN, Washington 25, D. C., June 2, 1952. United States Senate, Washington, D. C. DEAR SENATOR MCCARRAN: I have been advised that a subcommittee of the Senate Committee on the Judiciary has begun hearings upon Senate Joint Resolution 130, a joint resolution proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements. Although such matters are generally negotiated by the State Department, assistance is sometimes requested from the Securities and Exchange Commission upon matters affecting the interests of investors, the financial community, and corporate disclosure policies. I should like to comment upon our experience in this area. In the negotiation of a treaty or an executive agreement we have found it is not practicable to insist upon rigid, preconceived terms. It has been our experience that some degree of elasticity is essential, and the final agreement is usually the product of considerable give-and-take trading. This is particularly true of such treaties as the recently approved Supplementary Extradition Convention with Canada amending the extradition treaties now in force between this country and Canada. The proposed amendment is susceptible to a construction which would have seriously hampered our negotiations with Canadian authorities for section 3 provides that: "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 * Congress shall so provide." If, by the phrase "law of the several States," the proposed amendment includes both the statutory law and the law of judicial decision, almost all treaties and executive agreements would fall within that section, including the extradition treaties. Section 3 is ambiguous in that it does not indicate whether the Congress must take the necessary action to implement the treaty or executive agreement prior to the initiation of negotiations with a foreign country, or whether Congress may ratify the treaty or executive agreement after the negotiations have culminated in some agreement. If congressional action must precede the international agreement it would impose a considerable burden upon the negotiators. Thus our proposal to the Canadian officials in the extradition convention discussions would have had to be cast in so rigid a form even the reasonable proposals of the Canadian officials could not have been considered. It is unlikely under such circumstances, that any agreement could be reached. Similarly, the proposed settlement of German bond obligations which we are at present attempting to obtain would be handicapped if it were necessary to obtain congressional action upon the various proposals beforehand. The settlement involves a myriad of details concerning validation procedures and methods of payment. Most are properly executive functions, for they involve the execution of the plan for payment. If the executive agreement is to be ineffective unless there has been prior action upon its subject matters by the Congress each minor decision and each controversial subject would have to be subjected to congressional approval. This would make for both an unwieldy and inefficient administration. Even if section 3 contemplates that subsequent ratification of executive agreements such as the German bond settlement would make it effective, the speed which is essential where securities markets are involved if undue speculation is to be prevented could not be attained under the proposed amendment. Finally, I believe that section 4, which provides that executive agreements shall expire automatically 1 year after the end of the term of ofice for which the President making the agreement was elected, unless extended by the successor President, arbitrarily limits the desirable effects of executive agreements. There is no relationship between the usefulness of a particular agreement and the term of office of the President in whose administration it was negotiated. Thus, the German bond settlement I mentioned is intended as a protection for American investors until their claims are paid or until the bar date in the agreement expires. Section 4 of the proposed constitutional amendment would limit the duration of the agreement to a time not at all related to the need it seeks to serve. I am, of course, in full accord with the constitutional checks upon executive power such as the requirement that all treaties should be approved by a twothirds vote of the Senate. However, I feel that the proposed amendment to the Constitution imposes such additional restraints as to invade the proper function of the executive and upsets, in this respect, separation and allocation of functions among the executive and the legislative branches of the Government incorporated in the Constitution. Sincerely yours, DONALD C. Cook, Chairman. 22984-52- -23 Hon. PAT MCCARRAN, EXECUTIVE OFFICE OF THE PRESIDENT, Washington, D. C. MY DEAR SENATOR MCCARRAN It would be very much appreciated if you could cause to be put in the record of the hearings before the sub-committee considering Senate Joint Resolution 130, “Proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements" the following observations which I should like to make with respect to the proposed measure. Within the framework of the Mutual Security Programs which it is my duty to supervise and direct there have developed a large number of agreements with foreign nations which are essential to the implementation of the various programs. There are 105 economic and technical agreements and 25 mutual defense assistance agreements which have been entered into pursuant to pertinent mutual security legislation, and 100 agreements under the Institute of Inter-American Affairs Act, setting up cooperative programs in the fields of health and sanitation, agriculture, development of productive resources, and education. I am informed by members of my staff that section 4 of the proposed amendment would, if it were adopted, cast considerable doubt on the validity of these agreements in their prsent form. At the least an examination would have to be made as to whether these agreements had been made "in lieu" of a treaty, and as a practical matter renewals of such agreements in the event of their automatic expiration under section 4 might have to take the form of a treaty. Apart from the immense burdens that would fall upon those responsible for negotiating new agreements in the form of treaties, we could not be at all sure that they could be renewed with the same advantages to the United States as heretofore have been obtained. I would call the subcommittee's attention to the fact that the agreements described above are all specifically authorized by pertinent acts of Congress. In case of the bilateral agreements entered into under the Economic Cooperation Act of 1948, the Mutual Defense Assistance Act of 1949, and the Mutual Security Act of 1951, Congress has laid down very exactly the pattern which such agreements must follow. In my judgment, if it should become necessary to renegotiate these agreements in the form of treaties it would very seriously hamper and delay the carrying out of the Mutual Security Programs. If it should prove impossible to renegotiate all or part of the agreements, or to obtain the same advantages as before for the United States, I believe that the effect on the programs as a whole would be crippling. * Furthermore, I am informed that even if section 4 of the proposed amendment should cause no concern, the limitations contained in the first two sections might possibly strike down some of the agreements now in effect. My attention has been particularly called to the possibility that section 1, prohibiting treaties or executive agreements "respecting the rights of citizens of the United States protected by the Constitution *" might serve to invalidate agreements under the Economic Cooperation Act which have secured valuable rights for citizens of the United States. For example, these agreements normally contain a requirement that the participating countries, when requested by the United States, negotiate arrangements providing suitable protection for the right of access for any United States citizen in the development of deficient materials on terms and treatment equivalent to those afforded to the nationals of the country involved. I am also informed that section 2 might cast doubt on the validity of agreements entered into pursuant to section 115 (b) (10) of the Economic Cooperation Act providing for the submission to the International Court of Justice or any arbitral tribunal mutually agreed upon "any case espoused by the United States Government involving compensation of a national of the United States for governmental measures affecting his property rights." I do not take this opportunity to develop a more detailed analysis of the possible effects of the proposed amendment on the carrying out of the Mutual Security Programs because such an analysis has already been made by the Mutual Security Agency and submitted to the subcommittee. I do wish, however, to endorse the statement offered by the Agency and to express the hope that the views expressed therein will receive the subcommittee's careful attention. Since the Mutual Security Programs and our general foreign relations are intertwined to a large degree I wish also to endorse the position taken by the Department of State in so far as it bears on matters coming within my field of responsibility. Sincerely yours, W. A. HARRIMAN, Director for Mutual Security. Hon. PAT MCCARRAN, MUTUAL SECURITY AGENCY, Washington 25, D. C., June 13, 1952. Chairman, Senate Committee on the Judiciary, Senate Office Building, Washington, D. C. DEAR SENATOR MCCARRAN: Pursuant to conversations that have recently taken place between Mr. Ebb of my staff and Mr. Smithey of your committee's staff, I am transmitting herewith a statement by the Mutual Security Agency on Senate Joint Resolution 130, for inclusion in the record of the hearings being conducted by your subcommittee on this resolution. Sincerely yours, W. JOHN KENNEY, Deputy Director for Mutual Security. MUTUAL SECURITY AGENCY COMMENTS ON SENATE JOINT RESOLUTION 122 To IMPOSE LIMITATIONS WITH REGARD TO EXECUTIVE AGREEMENTS) AND SENATE JOINT RESOLTUION 130 (PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATIVE TO THE MAKING OF TREATIES AND MAKING OF EXECUTIVE AGREEMENTS) The Mutual Security Agency opposes the resolutions The Mutual Security Agency believes that both of these resolutions could be very harmful to its activities. We agree fully with the Department of State that both of these resolutions, one by constitutional amendment, the other by law, would seriously hamper the ability of this country to enter into international agreements by treaty or otherwise. This attempt to impose new restrictions upon the basic functions of the President and the Senate in the field of foreign affairs could result only in lessening the influence of the United States in world affairs, and reducing our ability to work out agreements to preserve the peace between nations. The Department of State has already set forth the very grave and adverse consequences of these resolutions on the treaty-making power or on the power of the Executive to make agreements not specifically covered by statute. The following comments point out how these proposals can be most dangerous and damaging even where both Houses of Congress have already participated fully in agreements by annual review both through authorizing and appropriating legislation. Executive agreements in lieu of treaties prohibited Both resolutions use the phrase "executive agreement." Senate Joint Resolution 122 states that it is intended to "impose limitations" with respect to such agreements which it claims have been used in lieu of submitting international undertakings to the Senate in accordance with constitutional requirements. Senate Joint Resolution 130, the proposed constitutional amendment, states that executive agreements shall not be made "in lieu" of treaties. Although it is not clear from the resolutions, it is assumed that "executive agreements" mean "international agreements other than treaties" required to be published pursuant to Public Law 821, Eighty-first Congress, approved September 23, 1950, and thus would cover the economic, technical cooperation, and mutual-defense-assistance agreements, and amendments thereto relating to the Mutual Security Program. Congress has recognized by numerous enactments that executive agreements play an important role, and that for certain relationships and undertakings it would be most inappropriate if not impossible to require the formality of a treaty. The international agreements which the Mutual Security Agency has been responsible for, like the great majority of all so-called executive agreements, have been entered into pursuant to specific authorization by Congress. Indeed, the Economic Cooperation Act of 1948 and now the Mutual Security Act of 1951 spell out in detail the exact nature of the bilateral agreements required in order for each of our allies to be eligible to receive assistance. It would be virtually impossible to conduct the Mutual Security Program if all of our numerous agreements, and the amendments to them which thus far have been negotiated each year to take care of changing circumstances and to reflect changes in law, were required to be in treaty form. It is our opinion that the power to make executive agreements has not been abused; that where an agreement is one that should appropriately take the form of a treaty, submission has been made to the Senate in accordance with constitutional processes; that where agreements other than treaties have been used they have been authorized by the Constitution or laws of the United States and, indeed, in the greatest number of cases, by specific and precise legislation dealing with and often setting forth the type of agreement required (as in the case of the current economic and military-aid agreements). We believe that it would be unfortunate and most cumbersome and perhaps even disastrous to require, or suggest in an ambiguously worded constitutional amendment, that all international agreements must be by treaty, or to leave their validity in doubt until a court has decided whether a particular agreement is "in lieu" of a treaty. Agreements that would be prohibited respecting rights protected by the Constitution Section 1 of the proposed constitutional amendment prohibits executive agreements "respecting the rights of citizens of the United States protected by this Consitution." * Examination of the economic aid agreements entered into under the Economic Cooperation Act will show that the United States via executive agreements authorized by Congress has secured valuable rights for citizens of the United States which would be put in doubt by this proposal. The typical aid agreements in Europe requires the participating countries, when requested by the United States, to negotiate "arrangements providing suitable protection for the right of access for any citizen of the United States of America in the development of [deficient] materials on terms and treatment equivalent to those afforded to the nationals" of the country involved. The agreements give to the United States the right to submit to the International Court of Justice any claim espoused on behalf of one of its nationals against the other government for compensation for damage arising as a consequence of governmental measures by the other government affecting "property or interest of such national." These agreements might well be regarded, under the terms of Senate Joint Resolution 130, as "respecting" rights protected by the Constitution. In other words, the proposed constitutional amendment might have the effect of divesting the United States Government of the power to negotiate favorable agreements of this kind by treaty or otherwise. Agreements prohibited which vest legislative, executive or judicial power in an international organization or foreign power The proposed constitutional amendment prohibits any executive agreement vesting the legislative, executive, or judicial powers of the United States Constitution in any international organization or foreign power. If this proposal is intended to be something more than a statement of existing constitutional doctrine, it can and will be taken as disapproving current United States steps in securing international cooperation. The proposed amendment is indeed so vague that it is difficult to envisage its exact effect. Is it intended to prohibit all agreements which do not leave all decisions possibly affecting the United States Government to its unilateral determination, unguided and uninfluenced by relationships with foreign powers? Would it prevent agreements for the settlement of disputes through conciliation and arbitration? Would it preclude the enactment by Congress of provisions such as section 115 (b) (10) of the Economic Cooperation Act (reflected in the economic aid agreement), authorizing the executive branch to enter into agreements providing that there shall be submitted for decision of the International Court or of any arbitral tribunal mutually agreed upon, cases espoused by the United States Government involving compensation of a United States national for measures affecting his rights? |