"Senator FERGUSON. We are not going over there, of course, on the theory that we will commit crimes; therefore, you could not say that the crime would be one in the enforcement or the carrying out of duty.

"Mr. YINGLING. No; he may commit an offense in the performance of duty; a man, for instance, who is a guard on a post may shoot somebody. "Senator FERGUSON. Yes; I can see how that would happen.

"Mr. YINGLING. Then the question would come up whether he used excessive force; therefore, whether he committed an offense. In that type of case we would have jurisdiction" (hearings, April 7, 1953, pp. 27-28).

An actual incident involving facts similar to those upon which the foregoing testimony was hypothesized has now arisen in Japan in the Girard case, now before the Supreme Court of the United States. At the hearing, in the United States District Court for the District of Columbia, on Girard's petition for relief from an executive decision to turn him over to the Japanese courts for trial and punishment for causing the death of a Japanese civilian, the United States Government conceded that the act charged was done by the petitioner as a member of the Armed Forces in the performance of oficial guard duty. The same concession has been made in the brief filed in the Supreme Court of the United States by the Attorney General and Solicitor General in support of the Government's appeal from the holding of the district court that the executive agreement to turn the petitioner over to Japan for trial and punishment "is illegal and in violation of the Constitution of the United States." The Secretary of State and the Secretary of Defense, against whom Sergeant Girard filed his petition, have publicly stated that they were not responsible for the decision in the first instance to turn the soldier over to the Japanese authorities, but both of them and the President have approved and supported the action of their subordinate or subordinates.

In the light of these facts, how much can the Senate rely on the representations of the executive departments concerning the meaning, interpretation, and actual execution of international agreements submitted for the approval of that body? Furthermore, when opponents speak of the Bricker amendment interfering with the President's conduct of foreign affairs, are they referring to what the President does in his proper person or through his responsible agents, or to the actions of subordinates vested with policymaking authority? Incidently, it should be noted, that the decision to turn Sergeant Girard over to Japan was based upon a subordinate's interpretation of a so-called administrative agreement analogous to the Status of Forces Treaty. Were it not for this soldier's appeal to the American courts, his future freedom and possibly his life would hang on the narrow thread of the decision of an executive subordinate acting upon an administrative agreement which was not submitted to the Senate.

Should the Supreme Court agree with the Government's contention that the decision to turn this soldier over to Japan is a question of foreign policy not reviewable in the courts, the representations made to the Senate in order to obtain its advice and consent to ratification of the Status of Forces Treaty would become worthless. It is submitted that the Bricker amendment requiring treaties and other international agreements to be made in pursuance of the Constitution would indicate to the judicial branch of the Government that cases involving constitutional limitations and violations of personal rights are reviewable by judicial process even when such instruments are involved. Article III of the Constitution now extends the judicial power of the United States "to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties," as well as "to all cases affecting ambassadors, other public ministers and consuls." If the Supreme Court is not the arbiter of the constitutionality of the acts of the executive departments in the exercise of all of their powers, then indeed with respect to matters wihdrawn from judicial review we are in the constitutional vacuum predicted by Thomas Jefferson when, in advocating the adoption of the Bill of Rights, he argued that if the treatymaking power is unlimited "then we have no Constitution." 3

International agreements other than treaties have been included within the constitutional safeguards of the Bricker amendment to control, if possible, the abuse of the executive power by resorting to Presidential agreements whenever it was considered inconvenient or uncertain in result to submit treaties or other international agreements to the Senate for its advice and consent. The important and dangerous Yalta agreement has already been referred to as an instance

Jefferson, Writings (Lib. ed. 1903), p. 419.

of this character. This topic is covered fully in hearings on previous versions of the Bricker amendment. There is no express provision in the Constitution for international agreements other than treaties, and the President's power to make agreements without the advice and consent of the Senate is inferential from his other powers. Yet the Supreme Court has held that such executive agreements have the same supremacy as the law of the land that the Constitution expressly accords to treaties made with the advice and consent of the Senate.*

Under the circumstances, since the making of treaties has been and may be circumvented by resort to other international agreements, it would be futile to prescribe constitutional limitations for the former and not include the latter. Section 2 of Senate Joint Resolution 3 differentiates between the legislative effect of a treaty or other international agreement within the United States and its effect as a contract between the signatory governments. This distinction was emphasized by Alexander Hamilton in urging the ratification of the Constitution against objections raised to the treatymaking power in the State ratifying conventions: "The power of making treaties," he wrote, "relates neither to the execution of the subsisting laws, nor to the enaction of new ones. Its objects 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 sovereign to subject, but agreements between sovereign and sovereign" (The Federalist, No. 75). In the Camillus Letters of 1795-96, Hamilton explained at length the difference between the power to make treaties and the power to make laws under the United States Constitution. (Reprinted in Appendix to the Congressional Record of August 25, 1955, at the request of Senator Mundt.)

This Hamiltonian concept which Senator Bricker has incorporated in Senate Joint Resolution 3 was concurred in by Secretary of State Dulles in his testimony on Senate Joint Resolution 1 in 1953 and 1955. (See hearings on S. J. Res. 1, 1955, pp. 170-171, and appended reprint, p. 6.)

Section 2 of Senate Joint Resolution 3 requiring that a treaty or other international agreement shall have legislative effect within the United States as a law thereof only through legislation, does not affect the self-executing provisions of a treaty or other international agreement as a binding contract between the signatory governments. The contractual effect and the legal consequences which flow from such contracts would not be affected. However, if it be intended that such treaty or international agreement should have legislative effect as distinguished from contractual effect, the treaty or other international agreement would have to be implemented by legislative enactment.

Earlier drafts of the Bricker amendment provoked the argument that to require a treaty to be implemented by legislation before it became effective might sometimes result in such long delay of legislative action as to frustrate the purposes of the treaty. To meet this criticism, the revised amendment provides that when immediate legislative effect of a treaty is deemed necessary, the Senate at the time of consenting to the treaty may, if a sufficient case be made, provide affirmatively that it should have immediate legislative effect. Under section 2 most treaties would be implemented by congressional legislation, while others might require implementation by State legislation.

Section 2 deals with the need for "legislation" to make treaties or other international agreements effective as domestic law within the United States. Section 3 embodies constitutional limitations with respect to legislation to implement international agreements other than treaties. Section 2 recognizes that a treaty advised and consented to by the Senate would bring into being legislative power by Congress to implement the treaty under the "necessary and proper clause" of the Constitution (art. I, sec. 8, par. 18), notwithstanding Congress would have no authority to enact such legislation in the absence of the treaty. The so-called "which clause" is accordingly omitted from this section.

However, it is submitted that the President, acting alone, by entering into an executive agreement should not have authority to bring into being legislative power which would not otherwise exist. Section 3, therefore, provides that legislation to implement an international agreement other than a treaty should be of a character that would be valid in the absence of such an agreement.

U. S. v. Belmont (1937), 301 U. S. 324; U. S. v. Pink (1942), 315 U. S. 203. For a full discussion of the Pink case, see my statement in hearings on S. J. Res. 1, 1955, pp. 519-523, and pp. 13-14 of the appended reprint.

It should be kept in mind that section 3, like section 2, does not affect the international agreement as a contract or the legal consequences which flow from its contractual provisions.

Section 4 embodies an amendment which originated in the Senate during previous debate on the Bricker amendment.

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS,
Washington, D. C., July 9, 1957.

Hon. ESTES KEFAUVER,
Chairman, Subcommittee on Constitutional Amendments,

Committee on the Judiciary, Senate Office Building, Washington, D. C. (Attention Mr. Wayne Smithey.)

DEAR CHAIRMAN KEFAUVER: This is to express the appreciation of the AFLCIO for your courtesy in receiving our statement of position with regard to Senate Joint Resolution 3.

Inasmuch as there are certain differences in this resolution from those of previous years, I believe the enclosed will best express our viewpoint and opposition to the proposal.

I thank you for including the statement as a part of the proceedings of your subcommittee on this subject.

With all good wishes and kind personal regards, I am,

Sincerely yours,

ANDREW J. BIEMILLER,

Director, Department of Legislation.

STATEMENT OF THE AFL-CIO ON SENATE JOINT RESOLUTION 3

In 1953 and again in 1955, representatives of the AFL testified before the Senate Judiciary Committee in opposition to then-pending versions of the Bricker amendment. In 1953, the CIO sent a letter to the Senate Judiciary Committee similarly expressing its opposition to the Bricker amendment.

The AFL and CIO opposition was on the grounds, in general, (1) that no necessity for the Bricker amendment had been shown; (2) that the amendment could embarrass the United States and the President in the conduct of foreign relations; and (3) that the amendment would cast an unwarranted cloud on the operations of the International Labor Office.

Following the introduction last January of Senate Joint Resolution 3, the AFL-CIO executive council reviewed and reexamined the positions heretofore taken by the two organizations on the Bricker amendment, in the light of this latest version of the amendment. The executive council concluded that the objections expressed by the AFL and CIO to earlier forms of the amendment were valid, and had not been obviated by the revisions made in the amendment; and the council accordingly unanimously reaffirmed its opposition to the Bricker amendment, including specifically the version embodied in Senate Joint Resolution 3.

Subsequent to the AFL-CIO council's adoption of this position, the Supreme Court handed down its decision in Reid v. Covert (Nos. 701 and 713, October term, 1956 (decided June 10, 1957)). The opinions of the justices in that case strongly reinforce in our judgment the view we have taken all along that the Bricker amendment would be useless at best and harmful at worst.

Our analysis of and detailed reasons for opposing Senate Joint Resolution 3 follow.

Section 1 of Senate Joint Resolution 3 provides :

"A provision of a treaty or other international agreement not made in pursuance of this Constitution shall have no force or effect. This section shall not apply to treaties made prior to the effective date of this Constitution."

The language of the first sentence of section 1 is clearly taken from the supremacy clause of the Constitution, viz article VI. That article provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; ***” As explained by Justice Black in the Covert case, the broad phrase "made, under the Authority of the United States," was employed, in dealing with treaties, in lieu of the narrower language, “made in Pursuance thereof;" used in dealing with "laws," simply in order not to cast doubt on the validity of treaties

made prior to the adoption of the Constitution. This language was not meant, and the Supreme Court has never held it to mean that treaties made subsequent to adoption of the Constitution need not be made "in Pursuance thereof."

Thus, what article VI was meant to say, and is construed to mean, is that laws and treaties made in pursuance of the Constitution, and also treaties made under the authority of the United States prior to the adoption of the Constitution, shall be the supreme law of the land. Or, put negatively, a treaty not made in pursuance of the Constitution is not valid, unless made prior to the adoption of the Constitution.

Section 1 of Senate Joint Resolution 3 would spell that out, in almost that language. Thus it seems probable that this section of the proposed amendment to the Constitution would not accomplish anything; and certainly unnecessary and useless amendment of the Constitution is to be avoided.

According to the explanation given the Senate by Senator Bricker when he introduced the amendment, the first sentence of section 1 is meant to embody two specific principles: (1) that a treaty provision which conflicts with a specific constitutional provision, such as the free speech (amendment 1) or the due process (amendment 5) clause, is unconstitutional; and (2) that (in Senator Bricker's language)—

"A treaty would be open to challenge on the ground that it dealt with a subject having no legitimate relation to matters of international concern or foreign affairs and dealt with matters of purely domestic concern" (103 Congressional Record 259).

Since section 1 does not in terms articulate these principles, but only the general doctrine, already recognized by the Supreme Court, that a treaty not made in pursuance of the Constitution is invalid, it is difficult to see how section 1 would effect any change in the Court's construction of the Constitution.

Let us, however, put aside the questions of the sufficiency of the language of section 1 to effectuate the Senator's aims, and consider the desirability of those aims. In brief, it is our belief that principle (1) is desirable, and already adhered to by the Court; and that it is not clear whether principle (2) is either desirable or currently adhered to, or, if it departs from current doctrine, what changes it would bring about.

It is quite clear, and the Supreme Court recently reaffirmed in the Covert case, that principle (1) now prevails, without the Bricker amendment. The Court said long ago that the treaty-making power does not extend "so far as to authorize what the Constitution forbids" (Geoffrey v. Riggs, 133 U. S. 258, 267). And in the Covert case, Justice Black declared:

"It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights— let alone alien to our entire constitutional history and tradition-to construe article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by article V. The prohibitions of the Constitution were designed to apply to all branches of the national Government and they cannot be nullified by the executive or by the executive and the Senate combined."

In that case, the Court set aside the convictions by courts-martial of two Army wives who had killed their husbands abroad, one in Great Britain and the other in Japan. In each case the trial of the civilians by court-martial, and the denial of jury trial, was sought to be justified under both the Uniform Code of Military Justice and an executive agreement, with, respectively, Great Britain and Japan.

The Court set aside the convictions by a vote of 6 to 2. Four of the Justices in an opinion by Justice Black declared that the constitutional guaranties of trial by jury extend to the trial of civilians by the United States abroad, including those accompanying the Armed Forces. Two Justices concurred on the ground that the above proposition is at least true in capital cases.

The two dissenting judges thought the jury trial guaranties inapplicable to civilians accompanying the Armed Forces abroad. All of the Justices were in agreement that if the constitutional guaranties of jury trial applicable they could not be overridden, either by the act of Congress or the executive agreements with Great Britain and Japan.

It is thus quite clear that the first of the principles which Senator Bricker states his amendment is intended to effectuate already prevails.

As respects the second principle which Senator Bricker states his amendment is intended to protect, the situation is less clear.

The issue here at stake is perhaps best illustrated by concrete examples. To begin with, the Supreme Court has held that the Federal Government may, under the treaty power, deal with subjects which are not open to Federal regulation under the other specifically granted powers, such as the commerce clause. An example is Federal regulation of duck shooting, which rests on a treaty with Canada and probably would not be valid in the absence of such a treaty. Missouri v. Holland (252 U. S. 416).

The Supreme Court has indicated, however, that there are some limits, in addition to the specific guaranties or prohibitions of the Constitution (involved in principle (1)), on the use of the treaty power to expand Federal authority beyond the reach it would otherwise have. These limits apparently derive, not from the Bill of Rights or other comparable specific restrictions in the Constitution, but from the Constitution's general division of authority between the Federal Government and the States. Thus in Geoffrey v. Riggs (133 U. S. 258, 267), the Court said:

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its departments, and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constituion forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

It will be noted that the phraseology employed by the Supreme Court in describing this limit on the treaty power is quite different from that Senator Bricker has used in describing what his amendment is meant to accomplish. Assuming for the moment that Senator Bricker's amendment is sufficient to write into the Constitution the principle he says that he intends, it is not clear whether or not that principle differs from the doctrine now followed by the Supreme Court.

Let us suppose, for example, that the United States by treaty with Canada fixed a minimum wage of $2 an hour for all workers in the United States, including those beyond the reach of Federal power under the commerce clause. Presumably, such a treaty would, under the doctrine now followed by the Supreme Court, be open to challenge on the ground that it sought to change the character of the Government, that is the basic division of powers between the Federal Government and the States. On the other hand, if Senator Bricker had his way, such a treaty would be open to challenge on the ground that, in Senator Bricker's language, “it dealt with a subject having no legitimate relation to matters of international concern or foreign affairs and dealt with matters of purely domestic concern."

It is, however, not clear what the result would be under either the Supreme Court's formula or Senator Bricker's; and it is therefore not clear whether Senator Bricker's formula would produce any change in the result which would otherwise be reached by the Court. It is not even clear whether Senator Bricker's formula would expand or contract the treaty powers of the Federal Government. Apart from being thus objectionably vague; section 1 is unnecessary. It is avowedly meant to deal with a situation which has never yet actually arisen.

Section 2 of the proposed amendment reads:

"A treaty or other international agreement shall have legislative effect within the United States as a law thereof only through legislation, except to the extent that the Senate shall provide affirmatively, in its resolution advising and consenting to a treaty, that the treaty shall have legislative effect."

This would mean, for instance, that if the United States entered into a new treaty with Canada regulating the killing of migratory wildfowl, the provision would be of no effect unless the Senate resolution ratifying the treaty specified that the treaty should have legislative effect. Here the current Bricker amendment differs from earlier versions, all of which provided that a treaty could be effective as internal law only through legislation. As to this provision, too, Senator Bricker and other proponents of his amendment do not point to past abuses of the treaty power which need correction, but talk rather about future abuses that might conceivably take place.

If this provision of the amendment were adopted, presumably either every resolution ratifying a treaty would contain a provision that the treaty should have legislative effect, in which event the provision would have no practical consequence; or, alternatively, the inclusion of such a provision in a ratifying