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Those who cannot obtain what they want from the legislatures have turned to the courts and they are turning to the United Nations and the Organization of American States where these treaties come from, bodies which I submit to be hostile to the United States, hostile to the notion of federalism, and hostile to the concept of a government of limited powers.

In these treaties there is found a mechanism by which the legislative power for the United States within both the Federal and the State domains is proposed to be taken away from Congress in the Federal domain and from the State legislatures in matters which are outside the Federal domain. For this reason, I believe that the treaties are objectionable, and I will add, in closing my presentation, that I believe the form of reservation in the nature of a "Federal-State clause” which has been recommended in this regard is itself inadequate and pernicious.

In essence, it says that the Federal Government will implement within its field of responsibility the obligations incumbent upon it by the treaties and it will take such steps-Senator, may I have a moment to find this and read it?

Senator Pell. Yes.

Mr. ANDEREGG. It essentially is the same in all four treaties. Essentially the same reservation has been proposed for the Racial Discrimination Convention and for the two U.N. covenants. It appears as article 28 in the American Convention itself. For the Racial Discrimination Convention the clause is:

The United States shall implement all provisions of the Convention over whose subject matter the Federal Government exercises legislative and judicial administration; with respect to the provisions over whose subject matter constituent units—i.e., the states and municipalities-exercise jurisdiction, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Covenant.

The word “may” often enough in American jurisprudence has been read to mean "must." I believe that the force of this reservation is that the Congress will find itself committed to use the taxing power and spending power to make grants to the States on condition that they shall implement the provisions of these various treaties, even in matters which, absent the treaties, would be within the power of the States.

I think this is profoundly wrong. I find it a curious fact that Congress is perfectly willing to grant money to the States on very express conditions of how it shall be used and what standards the States shall meet, but in making foreign aid grants, no. The position of the AID (Agency for International Development), as I heard it expressed orally, was that we cannot impose conditions as that would be offensive to the dignity of the recipients.

I think it strange that the United States is less chary of the dignity and self-respect of the States and their constituent units than it is of foreign governments to which the United States makes foreign aid grants as an act of grace rather than as the fulfillment of an obligation.

Thank you, sir.
[Professor Anderegg's prepared statement follows.)

PREPARED STATEMENT OF PROF. J. PHILIP ANDEREGG 1. The UN Convention on the elimination of all forms of racial discrimination (hereinafter the “RDC”).

1. 2. The UN Covenant on Economic, Social and Cultural Rights (hereinafter he “ESC”). 3. The UN Covenant on Civil and Political Rights (hereinafter the “CP'). 4. The American convention on human rights (hereinafter the “AC”).

SUMMARY

I have been invited to address the issue whether the four treaties in question, [ with and without the Administration's proposed reservations, statements of undertanding and declarations, are compatible with the United States Constitution ind the legal prerogatives of states' rights, and to discuss the effect of ratification of those treaties upon the legal implementation of U.S. human rights policies.

For reasons hereinafter set forth in the body of this statement, I submit that: 1. The RDC is incompatible with the Constitution, at least without the reservations, etc., proposed for it, and

2. Each of the other three treaties is incompatible with the Constitution whether taken with or without the reservations, etc., proposed for it.

I also submit that the Senate should withhold consent to all four treaties, even with the reservations, etc. (and, a fortiori, without them):

(a) In the case of the RDC, for the reason, among others, that the reservation in the nature of a federal-state clause (at page VIII of the Senate star print pamphlet 95th Congress, 2d Session, Executives C, D, E and F (hereinafter “the pamphlet”) is itself pernicious and destructive of the Constitution because it calls upon Congress to buy the implementation of the RDC on the state and local level by means of the spending power and grants on condition.

(b) In the case of the other three treaties for the reason, among others, of their incompatibility with the Constitution, hereinafter set forth.

In my opinion the effect of ratification of these treaties upon the legal implementation of U.S. human rights policies can be summarized as follows:

1. The RDC without reservations, etc.: Clear conflict with the free speech and associational privacy rights guaranteed by the First Amendment. Abandonment of the commerce clause and of support-by-state-action as power-to-legislate foundations; extension of the reach of the 1964 and 1968 (and perhaps other) civil rights acts by abandonment of numerical thresholds on their applicability (e.g. the fifteen employees on Title VII of the 1964 Civil Rights Act on equal employment opportunity). Possibly enormous, incalculable increase in effect if the treaty should be held to be self-executing.

2. The RDC with reservations, etc.: United States frozen in at present level of federal, state and local civil rights legislation, unable to relax prohibitions on discrimination, e.g. by raising the threshold numbers. Pernicious federal-state clause described at top of this page.

3. The ESC without reservations, etc.: Clear conflict with free speech rights of First Amendment. Enormous and incalculable long-term commitment to expanding, centralized welfare state with reduced liberties for the individual. Highly objectionable commitment on U.S. to compel implementation of treaty on local level by state and city authorities in view of Article 28 excluding exceptions for local authorities in federal states. Possibilities for self-executing character make ratification without reservations, etc.: Irresponsible.

4. The ESC with reservations, etc.: Again an enormous and incalculable commitment to an expanding, centralized welfare state with reduced liberties for the individual. Same pernicious federal-state clause reservation as in RDC with reservations (see 2 above).

5. The CP without reservations, etc.: Clear conflict with free speech guarantees of First Amendment. Loss of power to the States, by treaty, to impose either a literate or an oral knowledge of the English language as a qualification for voting. Similar objectionable commitment on U.S. to compel implementation of this treaty by state and local authorities as in ESC without reservations. See 3 above. Substantial criminal law changes favoring defendants. Unpredictable overall impact if treaty should be held to be self-executing.

6. The CP with reservations, etc.: Same loss of power to states to impose voter qualifications as described at 5 above; reservations, etc. have no effect on this issue. Same pernicious state-federal clause reservation as in RDC and ESC with reservations (numbers 2 and 4 above).

7. The AC without reservations, etc.: Essentially the same loss of power to states to impose voter qualifications as described at 5 and 6 above. Overruling of recent Supreme Court decisions limiting use of capital punishment foreclosed. Various benefits to criminal defendants or convicted persons. Treaty text itself contains equivalent of pernicious federal-state clause above referred to. Unpredictable scope if treaty should be held to be self-executing.

8. The AC with reservations, etc.: Essentially the same as indicated at 7 above, except that rule on capital punishment and changes in favor of criminal defendants etc. are set aside, and treaty is made non-self-executing.

I further submit that ratification of any of these treaties, with or without the proposed reservations, etc., would constitute an abuse of the treaty power. It would constitute such an abuse either because of constitutional objections or because it would commit the United States, and in particular both houses of Congress, to legislation in matters not really constituting part of the foreign affairs or foreign relations of the United States, thereby circumventing and subverting the bicameral nature of the national legislature, and also damaging the federal system.

DISCUSSION

I. The Convention on the Elimination of All Forms of Racial Discrimination

(the RDC) A. The RDC is incompatible with the Constitution in at least one way: Without the proposed reservations, etc., the RDC would violate the rights of Americans (and of others present in the United States) to freedom of association under the First Amendment in their choice of associates for social, fraternal, charitable and perhaps for commercial purposes as well. It would require that they be subjected to examination by the law as to their motives in choosing and rejecting associates in the formation of boards of trustees for non-profit institutions and in the formation of partnerships and other voluntary associations not involving the relation of employer and employee, and whether or not operated for gain. See Norwood v. Harrison, 413 U.S. 455 at 463, 469-470. Compare opinion of Gagliardi, J., dated January 12, 1977, in Lucido v. Cravath, 75 Civil No. 6345 in the United States District Court for the Southern District of New York. For this reason alone the Senate should withhold consent, unless the reservations, etc. are made.

B. Without the reservations, etc., (in particular the understanding at page vi of the pamphlet, to the effect that the United States regards its present law as meeting the obligations of the treaty), ratification of the RDC would amount to an abuse of the treaty power, committing Congress to legislation (if the treaty should under these circumstances be non-self-executing) going beyond what it has heretofore been willing to do, and in areas far removed from the foreign affairs or relations of the United States, namely the regulation of employment relations in the course of regulating interstate commerce.

Article 2, para. 1(d) of the RDC reads: "Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization."

In light of this provision, concrete consequences of ratification without the reservations, etc. would include the following, either from the language of the RDC itself if self-executing (as Messrs. Louis Henkin, Richard B. Lillich and David Weissbrodt apparently want it to be) or as a result of legislation which Congress would be obliged to enact to carry out the international obligation of the United States, if the RDC should be found to be non-self-executing:

1. Extension of the coverage of the Equal Employment Opportunity Act (Title VII of the 1964 Civil Rights Act) to employers and labor organizations, even those:

(a) not engaged in an industry affecting interstate commerce, or

(b) having fewer than fifteen employees or members. 2. Extension of the coverage of the prohibition against discrimination or segregation in places of public accommodation of Title Il of the 1964 Civil Rights Act to establishments even though:

(a) their operations do not affect interstate commerce,
(b) discrimination therein is not supported by state action, or

(c) they have fewer than five rooms for rent and are actually occupied by the owner as his residence. 3. Extension of the fair housing provisions of Title VIII of the 1968 Civil Rights Act to cover dwellings with living quarters for less than five families, presently exempted by the so-called “Mrs. Murphy's rooming-house" exemption. See Public Law 90–284, Title VIII, section 803, 42 USC section 3603(b)(2). This is a matter currently under consideration in both houses of Congress under S. 506 and H.R. 2540, 96th Congress, 1st Session, the proposed Fair Housing Amendments Act of 1979.

These, I submit, are matters whose determination lies outside the proper exercise of the treaty power. To be sure, racial discrimination is a problem, and a deplorable phenomenon, world-wide. But so are crime, punishment, riches, poverty, sickness and health. The geographic universality of these sorrows of the human condition, and the proper interest of the American people in alleviating them abroad as well as at home, do not mean that the choice of governmental steps, if any, to be taken to repress or alleviate them in the United States has been entrusted by the Constitution to the President and the Senate. If it did so mean, then the treaty power would extend to the regulation of just about everything that happens in the United States. This was surely not the intention of the Founding Fathers when, in Article 1, Section 1 of the Constitution they vested all legislative powers granted by the Constitution in a Congress consisting of a Senate and a House of Representatives.

In his book “Foreign Affairs and the Constitution", at page 143, Professor Henkin who is testifying at these hearings, puts as an instance of abuse of the treaty power the case of a “treaty” signed between the U.S. and Canada under which, to circumvent the House of Representatives and the States, a uniform divorce law is established for the United States alone. Professor Henkin says that this would not be a treaty under international law and therefore no treaty under the Constitution with the implication that if instead Canada had assumed some obligation also, Professor Henkin's conclusion would have been the opposite. But it would be just as much a mockery, so far as concerns circumventing the House, if Canada had assumed also an obligation, perhaps to apply the same or a different law. And the motives of the Canadian executive, whether or not to circumvent his legislative system, are surely not controlling of the legitimacy of the action of the President of the United States in seizing, either way, upon the assumption of an obligation by Canada to make stick his imposition of a divorce or other law on the United States without the independent, unconstrained participation of both houses of Congress.

In contrast, it is indeed part of the foreign affairs of the United States how aliens are treated here, even by the States, and how Americans are treated, as aliens, in the ports and on the territory of other nations. Hence treaties of friendship, commerce and navigation, under which each state party undertakes to accord national treatment to the citizens of the other when on its territory (e.g. in respect to the right to carry on certain occupations) are a classic example of exercise of the treaty power.

These appear to be examples of what Professor Henkin calls reciprocal agreements. But, he says at page 405 of his book, international agreements may be parallel as well as reciprocal, by which I take it he refers to treaties in which the obligations assumed by each state party are obligations on how it shall treat its own nationals at home. Mr. Henkin then refers to the human rights treaties as parallel in this sense (page 155), and he asserts that they have obvious foreign relations purposes. I question whether this is true, for example of the commitment under Article 2, para. 1(d) of the RDC, requiring each state party to the RDC to prohibit and to bring to an end even acts of private discrimination, “by any persons, group or organization”, provided only that, under Article 1, para 1, it occurs, for example, in the economic, social or cultural field of public life, which wo seem to cover all gainful employment and also voluntary association of men together, to practice law or carry on the hay and feed business as partners, or to be members of the board of trustees of a hospital or museum. But even if Mr. Henkin is right in asserting, as I think he does assert, that for example the RDC has foreign relations purposes down to and including the full apparent reach of Article 2, para. 1(d), it does not follow that the President and the Senate can make that treaty, or that they can make any and all treaties which are treaties under international law. Quite apart the limitations on the treaty power provided by the prohibitions of the Bill of Rights, I submit that a matter must have more of a foreign relations purpose, interest or significance than does an act of racial discrimination by a private (i.e. non-state) employer in interstate commerce for it to become subject to capture by the President and subject to legislation by the President under the treaty power rather than by Congress.

The precedents which Professor Henkin cites, at page 405 of his book, for parallel international agreements are all vastly different and with a much stronger foreign relations interest. Thus he cites treaties providing for the good continued treatment by the United States of aliens who become U.S. citizens upon takeover by the United States of the territory on which they resided. He cites treaties establishing minimum labor standards for the masters and seamen of American ships which sail in the waters and ports of other countries, treaties under which the U.S. has undertaken to impose accepted load line and safety standards for its ships, and treaties for control of the opium trade.

C. Even with the reservations, etc., proposed for it (and again, in particular, the understanding at page vi of the pamphlet to the effect that the United States regards its present law as sufficient to fulfill its obligations under the RDC), ratification of the RDC would amount to an abuse of the treaty power. Such ratification, if effective, would require the United States, as a treaty obligation, to maintain in force indefinitely the bcdy of law in effect at the time of ratification which was so "understood” to fulfill the commitments imposed by the treaty, such as that of Article 2, para. 1(d). Thus the fifteen employee threshold on the applicability of Title VII could not be raised. To be sure, there is no present likelihood that Congress will want to raise it, but if the imposition of such a threshold, or its lowering to ten or to one employee by treaty would be, as I contend, an abuse of the treaty power, so also would be the acceptance by treaty of an obligation preventing Congress in the future from changing its mind about the proper level for the threshold.

D. The impact of Missouri v. Holland. At these hearings there may well be talk of this case as supporting the propriety of ratifying the treaties. Professor Henkin derives from it (at page 146 of his book already mentioned) the proposition that the Tenth Amendment reserves to the States, or to the people, the powers not delegated to the United States (i.e. to the Federal Government), nor prohibited by the Constitution to the States, “as regards domestic legislation but not as regards international agreement.” He continued:

“They are, one might say, left to the States subject to defeasance if the United States (the President?—the Senate?) should decide to make a treaty about them." Two comments suggest themselves: First, the treaty there in question most cer: tainly did concern the foreign relations cf the United States, namely the mutual interest of Canada and the United States in the non-extinction of migratory birds spending a different part of each year in each of the two countries. If the fowlers of Missouri should slaughter them all while they were in Missouri, there would be none for Canada, and vice versa. The Court said (252 U.S. at 435):

"Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with."

Of the factors set forth in this passage, it is only the first, the magnitude of the national interest involved, which is replicated in the case of the human rights treaties. Hence Missouri v. Holland is hardly authority that via the RDC the limitation of, for example, the reach of Title VII to industries affecting interstate commerce should be removed and wholly interstate enterprises also subjected to that law.

Secondly one may ask whether, like the powers reserved to the States under the Tenth Amendment, the powers to legislate vested in Congress by Article I, Section 1 are similarly vested in that Congress subject to defeasance if the President and the Senate should decide to make a treaty about those powers, so that not only the limitation to interstate commerce but also the fifteen employee threshcld might be swept away. II. The UN Covenant on Economic, Social and Cultural Rights (the "ESC”)

A. The ESC is incompatible with the Constitution on several counts.

1. Article 1, paragraph 1 declares that all peoples have the right of self-determination, and that by virtue of that right they freely determine their political status. This is a plain statement the effect of which for the United States, if it adhered to the ESC, is that any group, for example a group of North American Indians who might obtain judicial recognition as a “people”, would have s right to secede from the United States. This is certainly something which the United States is not obliged to accept-the more so, as to any demand for the cession of territory to the seceding group, under the principle stated in Geofroy v. Riggs, 133 C.S. 258, at 267 (1890), that the treaty power does not extend so far as to authorize the cession of any part of the territory of one of the states without its consent.

2. I question the compatibility with the Constitution of Article 2, para. 1, of the ESC, under which each State Party to that convention undertakes to take steps, “to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in (that) Covenant In an article in volume 79 of the Columbia Law Review Professor Henkin sars, at page 419 and with evident disapproval of current conditions in the United

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