Al Qaeda Versus ISIS
The Jihadi Power Struggle in the Taliban’s Afghanistan
ON June 15, 1953, the Senate Committee on the Judiciary favorably reported to the Senate by a vote of nine to five a constitutional amendment which would provide the legal basis for radically altering the present division of powers between the legislative and executive branches of the Federal Government in respect to the formulation and conduct of this country's foreign policy, and for necessary participation by State Governments in the execution of such policy in certain areas.
The proposed amendment, Senate Joint Resolution 1, was introduced by Senator Bricker on January 7, 1953, and is a revised version of Senate Joint Resolution 130 which he had introduced last year in the Eighty-Second Congress. The Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary held extensive hearings in both 1952 and 1953 on the proposed amendment. The text of the revised amendment, as reported to the Senate by the Judiciary Committee, is as follows:
Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect.
Section 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.
Section 3. Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.
Section 4. The Congress shall have power to enforce this article by appropriate legislation.
Section 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
This proposed amendment, supported most actively by Senators Bricker and Watkins, Republicans from Ohio and Utah, has caused consternation in the minds of those who wish us to continue as a sovereign Power with the initiative for foreign affairs in the hands of the President. President Truman's department heads and advisors vigorously opposed the original version of the Bricker Amendment at the 1952 hearings. President Eisenhower's appointees have been equally emphatic in their opposition to the new versions at the 1953 hearings. Further, many Congressmen, led by Senator Wiley of Wisconsin, a Republican and Chairman of the Senate Foreign Relations Committee, have announced full opposition.
On July 22 President Eisenhower announced his "unqualified support" of a compromise amendment introduced by Senator Knowland of California, the Republican Senate Majority Leader. The compromise amendment reads as follows:
Section 1. A provision of a treaty or other international agreement which conflicts with the Constitution shall not be of any force or effect. The judicial power of the United States shall extend to all cases, in law or equity, in which it is claimed that the conflict described in this amendment is present.
Section 2. When the Senate consents to the ratification of a treaty the vote shall be determined by yeas and nays, and the names of the persons voting for and against shall be entered on the Journal of the Senate.
Section 3. When the Senate so provides in its consent to ratification, a treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.
Section 4. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within 7 years from the date of its submission.
Senator Bricker did not accept the Knowland compromise and no floor action was taken on either amendment prior to the adjournment of the First Session of the 83rd Congress on August 4, 1953.
The proponents of the Bricker Amendment rest their case for amendment on the great danger of executive abuse of power, aided and abetted from time to time by an alleged unwary Senate, in imposing upon the nation legal obligations that will deprive the people of constitutionally guaranteed rights, and will invade the domain of power reserved to the States.
The opponents of the amendment vigorously deny the force of the first danger. As to the second, they confess and approve the power of a proper treaty to replace inconsistent State law. There is general agreement as to at least the theoretical legal risk of the President's bypassing Congressional control through his power to conclude executive agreements. But sharp difference of opinion exists as to the extent of the risk and the necessity for remedial action.
II. OUR FOREIGN POLICY TODAY
The primary function of the Federal Government in the conduct of our foreign relations has always been--but is much more consciously so today--that of providing a policy that will assure national survival. The manner in which survival will be brought about, whether by aggressive wars of conquest, by Quaker methods of submission and good will, or by some diplomatic compromise between those two extremes, is of vast importance.
We have chosen a combination of national strength and active diplomacy, achieving a compromise between the theory--perhaps exploded by scientific assaults on time, space and the atom--of an isolated continental fortress and the theory of some supranational polity. This compromise has appeared to most persons to be the only practical way of life in an age of global military problems in which the free nations of the world must jointly meet the threat of a monolithic totalitarian dictatorship ruling one-third of the peoples and natural resources of the world.
In the broadest sense, then, the policy of the past decade has been that of an active diplomacy backed by military preparedness. This course has required active Congressional support. The means selected by the Executive to carry out the active diplomacy, and heretofore supported in larger outline by the Congress, have been of three main sorts:
First, continuous communication and exchange of ideas and negotiation of differences through an enlarged Foreign Service and the United Nations agencies;
Second, a broad program of economic, technical and military aid for those peoples who needed and wanted it and seemed likely to be friendly Powers;
Third, an extensive network of treaties and executive agreements sometimes made ad hoc for problems of the instant, sometimes carefully planned as long-range solutions of continuing problems.
As to the first and second means selected, no pressing constitutional problems have arisen. It is clear that the President will nominate our principal diplomats. The Senate will then either consent to the nomination or not (consent is more likely if the President has sought the advice of interested Senators before-hand); and if the individual is consented to, the President will then appoint him. His conduct, once appointed, may be subject to occasional Congressional questioning, but it is the direct responsibility of the President alone.
For the economic and military aid program, the constitutional course is equally clear. The President will recommend a program. But the Congress must appropriate the money. The spending of the money by the Executive Departments along the lines established by the Appropriations Act is then a clear path so far as constitutional practice is concerned.[i]
It is the third primary means of conduct of our foreign relations --the conclusion of treaties and executive agreements--that raises the constitutional debate. Initiated and negotiated by the executive, international agreements requiring the appropriation of moneys must be implemented by Congress whatever their formal nature (i.e. treaty or executive agreement); if cast in treaty form, then the Senate must give its consent by vote of two-thirds of the Senators present, before the President may ratify. Eventually a treaty or executive agreement may be tested in court as to its validity or meaning, but the great majority of international agreements are never subjected to judicial consideration.[ii]
The policy of active diplomacy used in recent years to coordinate the military and economic strength of the free world in meeting the threat of Soviet power has produced a series of treaties and executive agreements of vast importance. Secretary of State Dulles in his testimony before the Senate Subcommittee estimated that some 10,000 executive agreements had been entered into in relation to the NATO Treaty alone. However, the treaties and other international agreements which have been or are being drafted by the United Nations or its specialized agencies, particularly the Human Rights Covenant and the draft statute for an international criminal court, have been those which the proponents of the amendments have cited as the most convincing examples of the necessity of constitutional protection against international agreements which deny or abridge the fundamental rights of American citizens or interfere in matters that are regarded as essentially local in character. These fears are expressed despite the fact that the agreements most criticized have neither been ratified by the United States nor has the executive branch indicated any intention of becoming a party to such agreements.
In view of the great volume of testimony before the Senate Committee, the countless newspaper articles, the numerous reports by various law associations and other interested groups and the veritable maze of periodical literature on the subject, the interested layman may be pardoned if he assumes, though in error, that the subject of the Bricker Amendment is an infinitely complex one about which only lawyers can talk with any degree of rationality and that it does not concern him.
In point of fact the basic issues which the Bricker Amendment presents, in terms of a proposed shift in the constitutional power of the various branches of the Federal Government and as between the Federal Government and the several States, are fundamental and may be simply stated: the provision included in both the Bricker and Knowland Amendments that any treaty which conflicts with the Constitution shall not be of any force or effect is essentially a provision for assuring that the Judiciary's power to review the constitutionality of legislation and other governmental actions is also a power to review the constitutionality of treaties and executive agreements.
The provisions of the Bricker Amendment that neither a treaty nor an executive agreement shall be effective as internal law in the United States without the passage of implementing legislation by Congress together with the provisions that all executive agreements are to be subject to Congressional regula tion are essentially proposals designed to increase Congressional control (and consequently to lessen executive authority) over international agreements in particular and the conduct of foreign relations in general.
Finally, the so-called "which" clause of Section 2 of the Bricker Amendment would limit the effectiveness of a treaty or an executive agreement or federal implementing legislation as "internal law" to the area in which Congress, absent any treaty, could legislate. This is essentially a proposal to provide for vesting exclusively in the several States the power to effectuate our international commitments affecting matters not otherwise within the scope of federal constitutional power.
It is these proposed transfers of power which underlie the greatest debate about the constitutional ordering of our foreign relations since 1788.
III. INTERNATIONAL AGREEMENTS CONFLICTING WITH THE CONSTITUTION
The provision that no international agreement which conflicts with the Constitution shall be of any force or effect, which is included in both the Bricker and Knowland Amendments, is viewed by its proponents as establishing--or at least removing all doubts as to--the power of the Judiciary to declare inoperative as domestic law an international agreement which conflicts with the Constitution. This proposal does not involve any shift in the constitutional division of powers with respect to foreign affairs. Indeed it is merely declaratory of existing law.
The whole history of our constitutional law, beginning with Chief Justice Marshall's opinion in Marbury v. Madison (1 Cranch 137, U. S. 1803), indicates that the Court will not enforce governmental acts, be they executive acts or congressional acts, in violation of constitutional provisions. Why have a complex procedure of constitutional amendment if a simple statute, treaty or executive agreement can override a contrary constitutional provision? As Marshall pointed out at that time:
The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature unlimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the Constitution, is void.
This reasoning applies in at least equal measure to treaties and executive agreements. The danger that the Judiciary will permit a treaty to override a conflicting constitutional provision is no greater than that the Supreme Court will overrule Marbury v. Madison, or that Congress will use its constitutional power to control the Supreme Court's appellate jurisdiction to bar inquiry into the constitutionality of international agreements, or that the President will ignore the Court's determinations.
While the Supreme Court has never struck down a treaty provision as in conflict with the Constitution, it has never held or even suggested that a treaty might override the Constitution.[iii] Further, a long series of dicta in judicial opinions[iv] has stated the rule for treaties as fully consonant with the doctrine of Marbury v. Madison. Thus, in The Cherokee Tobacco Case, 11 Wall 616, 620-621 (1870), the Supreme Court declared that:
It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.
Since it is established doctrine that a subsequent act of Congress will override the operation of a treaty as the law of the land, a contrary rule would lead to the anomalous result that a statute, itself clearly subordinate to the Constitution, could repeal a treaty superior to the Constitution.
It has been suggested by the proponents of the Bricker Amendment that the freedoms of speech, press and religion may not be protected against impairment by a treaty or executive agreement since the First Amendment in terms applies only to abridgment of those freedoms by Congressional legislation. However, the Federal Courts have regarded the First Amendment as limiting the other branches of the Federal Government as well, and it appears reasonable to assume that they would regard it as also limiting treaties and executive agreements.
The same freedoms may also be protected by the Fifth Amendment which by its terms reaches every branch of the Federal Government under the provision that "No person shall . . . be deprived of life, liberty, or property, without due process of law." Clearly this does not admit of evasion by treaty or executive agreement. While the concept of due process of law certainly has not yet reached its ultimate judicial definition, the Supreme Court has held the "due process" clause of the Fourteenth Amendment forbids abridgment by the States of the freedoms of press, religion and speech. Thus the similar "due process" clause of the Fifth Amendment presumably forbids such abridgment by any branch of the Federal Government and by treaties and executive agreements.
IV. CONGRESSIONAL REGULATION OF EXECUTIVE AGREEMENTS
The vast majority of formal executive agreements, that is to say written instruments embodying an international agreement or understanding of a somewhat formal and important nature, are entered into pursuant to prior legislative authority or are implemented by subsequent action by both houses of Congress, and are appropriately designated as "Congressional executive agreements." Most executive agreements involving the sole action of the Executive branch--i.e. "Presidential executive agreements" --are not formal instruments but rather agreements and understandings arrived at in the course of the day-to-day conduct of United States foreign policy. They have been described by John Bassett Moore as follows:
The conclusion of agreements between governments, with more or less formality, is in reality a matter of constant practice, without which current diplomatic business could not be carried on. A question arises as to the rights of an individual, the treatment of a vessel, a matter of ceremonial, or any of the thousand and one things that daily occupy the attention of foreign offices without attracting public notice; the governments directly concerned exchange views and reach a conclusion by which the difference is disposed of. They have entered into an international "agreement"; and to assert that the Secretary of State of the United States, when he has engaged in routine transactions of this kind, as he has constantly done since the foundation of the Government, has violated the Constitution because he did not make a treaty, would be to invite ridicule. Without the exercise of such power it would be impossible to conduct the business of his office.[v]
The power of the Federal Government to enter into international agreements other than treaties is implicit in Article I, Section 10, of the Constitution providing that "No State shall enter into any Treaty, Alliance or Confederation . . ." and "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . ." This power to enter into both Presidential and Congressional executive agreements has been expressly recognized on various occasions by the Supreme Court.
Congress now has the legislative power to regulate executive agreements within the scope of its expressly delegated powers. Article I, Section 8, of the Constitution provides in part that
The Congress shall have power--
To lay and collect Taxes, Duties, Imposts, and Excises;
To regulate Commerce with foreign Nations . . . ;
To establish a uniform Rule of Naturalization;
To establish Post Offices . . . ;
To define and punish Piracies and Felonies Committed on the high Seas, and Offences against the Law of Nations;
To declare War . . . ;
To raise and support Armies . . . ;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces.
Under these provisions, it clearly appears that Congress already has the power to regulate vast areas of possible international agreement: 1, taxation and tariffs; 2, commerce; 3, crimes under maritime and international law; 4, immigration and naturalization; 5, military procurement of personnel and supplies, and military justice. Furthermore, the prohibition in Article I, Section 9, that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . ." assures Congressional participation in the implementation of any executive agreement requiring the appropriation of moneys.
Congress has not been hesitant to exercise its admitted power to regulate executive agreements within the scope of these delegated powers. The first Congressional executive agreements were authorized during President Washington's first administration by the action of Congress in authorizing the Postmaster General to make suitable arrangements with foreign postmasters for the reciprocal receipt and forwarding of mail (1 Stat. 239 (1792)). Reciprocal trade agreements are, of course, made under and in conformity with the Trade Agreements Act and the various amendments thereto. In the case of the Philippine Trade Act of 1946, Congress spelled out in detail the provisions of an Executive Agreement to be entered into with the Philippine Republic (60 Stat. 141 (1946)).
Many proponents of the Bricker Amendment go further and assert that Congress now has full power under the Constitution to regulate all executive and other international agreements and that the provision in Section 3 of the Bricker Amendment expressly subjecting executive agreements to Congressional regulation is merely declaratory of existing law.
The Constitutional basis of this asserted plenary power in Congress is said to be the "necessary and proper" clause of the Constitution (Article I, Section 8) under which Congress is given the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [the specific delegated powers of Congress], and all other Powers vested by this Constitution in the Government of the United States or in any Department or Office thereof."
It is very doubtful if Congress now enjoys this asserted plenary power with respect to the regulation of executive agreements. The wording of the necessary and proper clause would seem to contemplate implementation and not regulation or even prohibition of the exercise of other powers expressly granted by the Constitution.
The making of executive agreements is a national power which typically has for its constitutional basis the merger of the separate powers of the President and Congress. In view of the fact that they have exercised their power jointly in all but a relatively small number of cases involving executive agreements of any significance or long duration, it cannot be definitively stated what the President's powers might be in the event of a test of power between the executive and legislative branches. Perhaps the most helpful approach is that suggested by Justice Jackson in his concurring opinion in the Steel Seizure cases, Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952):
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power . . . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive, must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. (343 U.S. 635-638)
In what areas does the President have independent power to enter into executive agreements? The President's position as "Commander in Chief of the Army and Navy of the United States" clearly carries with it the independent constitutional power to conclude such executive agreements as may be necessary to the effective discharge of his command responsibilities. Secondly, the diplomatic power of the President, including his power to appoint and receive Ambassadors and other public ministers (Article II, Section 2), gives him the power to recognize and then communicate and negotiate with foreign states and governments "as the sole organ of the Federal government in the field of international relations" and conclude international agreements incident thereto. See United States v. Curtiss-Wright, 299 U.S. 304, 320 (1936). The President's power to "take care that the Laws be faithfully executed" (Article III, Section 3) also gives him a certain power to enter into executive agreements, particularly those which are essentially administrative in character, implementing Congressional legislation where there is no express grant of authority in such legislation to enter into executive agreements pursuant thereto. The President requires these independent powers to enter into executive agreements both to meet national emergencies[vi] and to handle the routine conduct of foreign affairs.
Congress on the other hand would appear to have preëminent constitutional power with respect to executive agreements within the scope of its delegated powers other than the "necessary and proper" clause. Thus, an executive agreement contravening the provisions of a prior act of Congress in an area subject to regulation by Congress under its commerce power was held void by Chief Judge Parker writing for the United States Court of Appeals for the Fourth Circuit in the case of United States v. Guy W. Capps, Inc., 204 F. 2d 655 (1953). Moreover, the Constitution expressly vests "All legislative Powers herein granted" (Article I, Section 1) in the Congress. The majority opinion in the Steel Seizure cases confirmed that this constitutional language means exactly what it says--i.e. that Congress and not the President is the "lawmaker" within our constitutional division of powers. Thus it would appear that to the extent any executive agreement is operative as law in the United States, Congress has primary constitutional power, and may, as in the case of a treaty, override the operation of the agreement as law by a subsequent statute.[vii]
The present article is not intended to be technical, and its object is not to delimit exactly the respective scope of Presidential and Congressional authority with respect to executive agreements. "The great ordinances of the Constitution do not establish and divide fields of black and white." (Dissenting opinion of Justice Holmes in Springer v. Philippine Islands, 277 U.S. 189, 209.) However, this article is intended to demonstrate that the present constitutional scheme with respect to the entering into of executive agreements is one not of legislative dominance but rather of shared power between the President and Congress as coördinate branches of the national government.
It may be urged that it is only the residual or ultimate power that the Bricker Amendment would transfer to the Congress. That is to say, until Congress directed the President not to enter into specified executive agreements, or to enter into them only on certain stipulated terms, he could continue to do so, as heretofore. But residual control is of the highest importance in a system of checks and balances.
This was sharply demonstrated after the Civil War when a well-nigh all-powerful Congress not only came within one vote of convicting an unpopular President in impeachment proceedings but also tampered mightily with the appellate jurisdiction of the United States Supreme Court during the very pendency of an appeal to that Court. Ex. Parte McCardle, 7 Wall. 506 (U.S. 1868) was an habeas corpus case which would have tested the validity of much post-Civil War reconstruction legislation. The test of Congressional power never arrived; the Congress had regulated out of existence the power of the Court to review the legislation. It is thus, at times of stress between the separate branches of government, that these residual powers become crucial. As Ex Parte McCardle demonstrates, Congress is not free from the temptation to abuse power,[viii] and the burden of proof is on those who assert the necessity for altering the present system of shared power in favor of Congressional supremacy.
Easily the most difficult aspect of the entire problem of constitutional control of international agreements--that of defining the respective areas in which a treaty, a Congressional executive agreement, or a Presidential executive agreement is the proper or indeed the only permissible form in which a given international understanding should be cast--is totally unanswered by the Bricker Amendment. That is, except to the extent that charging Congress rather than the President with the responsibility for making the determination may be regarded as a solution.
The doctrine that treaties and executive agreements are wholly interchangeable instruments of national policy may be heady fruit for an executive bent on bypassing the Senate heedless of the policy of coöperative action which is a logical, if not necessarily a legal, corollary of the Constitutional separation of powers.
However, it is difficult not to agree with Secretary of State Dulles that "This is an area to be dealt with by friendly coöperation between the three departments of government which are involved, rather than by attempts at constitutional definition, which are futile, or by the absorption, by one branch of government, of responsibilities which are presently and properly shared.[ix] Moreover, the pledge that he was authorized to make on behalf of the President--that "when there is any serious question of this nature and the circumstances permit, the executive branch will consult with appropriate congressional leaders and committees in determining the most suitable way of handling international agreements as they arise"--bespeaks full awareness of the implicit constitutional principle of maximum coöperation consonant with the President's discharge of his diplomatic and military responsibilities.
V. TREATIES AND EXECUTIVE AGREEMENTS AS "INTERNAL LAW"
Section 2 of the Bricker Amendment providing that "A treaty shall become effective as internal law in the United States only through legislation . . . "[x] represents in part at least an attempt to afford additional protection against the adoption of unwise treaties by providing for participation by the House of Representatives in the implementation of all treaties. In view of the fact that no treaty may enter into force unless two-thirds of the Senators present[xi] have consented to its ratification, the added protection achieved, if any, would not seem to justify the delays and procedural problems attendant upon the automatic imposition of this second legislative step in all cases. If with respect to any given treaty, participation of the House of Representatives (in addition to that which would be necessary in any event if appropriations are required) is desired, a provision may be inserted in the treaty or the Senate may attach a reservation that the particular treaty in question shall not be self-executing.
The requirement of Congressional legislation in all cases would also shift a certain amount of Senate power over foreign affairs to the House. In the future it would force the Executive in negotiating any treaty to consult House leaders in addition to Senate leaders. The dispersion of power would be particularly disrupting if the House majority were of a different party than the President and the Senate, a condition that has existed in 12 out of the last 90 years.
The application of Section 2 to Congressional executive agreements would not require a second legislative round if the Congress were to provide in the enabling act that such executive agreements would become effective as internal law when made by the President. Nor would much waste motion be involved in respect of those executive agreements inherently demanding further Congressional action anyway (i.e. a special appropriation).
While in respect of Congressional executive agreements, the proposed Section may be regarded as making a largely innocuous, but at the same time completely useless and unnecessary change, yet in respect of Presidential executive agreements it raises a more fundamental issue. It has been asserted that a Presidential executive agreement can operate as "internal law" affecting the rights and property of private individuals without Congressional action of any sort. If so, the principle recently reiterated in the Steel Seizure cases that Congress and not the President acting alone is the "lawmaker" within our Constitutional pattern would be a principle of narrower application than the language of the Constitution and the Court would suggest. The basis for the fear of executive lawmaking through the instrumentability of Presidential agreements is not the language of the Constitution itself, for executive agreements are not the "law of the land" under the Supremacy Clause. Rather it is the doctrine enunciated by the Supreme Court in United States v. Pink, 315 U.S. 203 (1942) and other cases involving the Litvinov Assignment that a treaty is the "law of the land" and international agreements such as the Litvinov Assignment should be regarded as having "a similar dignity" (Id. at 230). The status of these cases as authority for the broad proposition that Presidential executive agreements are to be treated as the law of the land is weakened by the special circumstances there involved. The Litvinov Assignment was an executive agreement under which the Soviet Government assigned certain claims to the United States Government and it was entered into concurrently with the recognition of the Soviet Government. Furthermore, the Litvinov Assignment though technically a Presidential executive agreement had received tacit Congressional sanction. Acting in anticipation of the realization of funds under the agreement, Congress had passed a Joint Resolution authorizing the appointment of a Commission to determine the claims of American nationals against the Soviet Government, a legislative fact which the Supreme Court expressly noted in its opinion.
The ambiguity in the Supreme Court's doctrine is matched by the ambiguity in the term "effective as internal law in the United States." Would the Courts regard even Presidential agreements which were non-legislative in character as nullities if they became indirectly involved in a law suit? Would government officials in the United States feel constrained not to implement the terms of a Presidential executive agreement even though the necessary implementary action itself was clearly within the scope of their authority?
There has been neither a convincing showing that there is a real risk of lawmaking by Presidential executive agreements and judicial enforcement of such agreements in matters of private rights, nor a precise definition of the area in which Presidential agreements without supporting legislation would be treated as nullities. No compelling necessity or viable formula for amendment of the Constitution has been presented.
VI. FEDERAL-STATE RELATIONS
Besides vesting full regulatory power over executive agreements in Congress, the major effect of the Bricker Amendment would be in the realm of Federal-State relations. The "which clause" of Section 2[xii] in effect equates treaties and federal implementary legislation with federal statutory law by saying that the former shall be effective as "internal law" only where the latter would be. In view of the latitudinarian construction given by the Supreme Court in recent years to Congressional powers and the increasingly marked State catholicity of outlook, this result may not be nearly so important as it might once have been.
The present constitutional arrangements in this area are illustrated by the case of Missouri v. Holland, 252 U.S. 416 (1920). The facts of the case were that after two lower Federal Courts had held federal migratory bird statutes unconstitutional, the United States and the United Kingdom (acting for Canada) in 1916 entered into a treaty to protect from extermination many species of birds which annually migrated across Canada and the United States. On July 3, 1918, Congress passed a statute to enforce the provisions of the treaty. When Holland, a United States game warden, sought to enforce the statute, Missouri sued to enjoin him from doing so, on the ground that the Act was an unconstitutional interference with the rights reserved to the States by the Tenth Amendment, which provides that:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Justice Holmes answered this contention, and upheld the constitutionality of the Treaty and Statute, by reasoning as follows:
(1) If the Treaty is valid there is no question but that the Statute is, since under Article 1, section 8, this is a law necessary and proper to execute a power--the treaty power--delegated to the Government of the United States, and expressly prohibited to the States.
(2) The Treaty, dealing with a subject of international concern, is valid as within the treaty power expressly delegated to the Federal Government by Article II, section 2.
(3) Since treaties made under the authority of the United States are the supreme law of the land the State of Missouri is bound by the Treaty and the enforcing act.
Justice Holmes said this was true whether or not it were assumed that the older lower court cases were correct that the same statute enacted by Congress, in the absence of a treaty, would have been unauthorized and unenforceable, pointing out that:
The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment . . . . No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.
He then cited various cases for this proposition and went on:
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 and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States.
Under the Bricker Amendment's proposed reversal of the doctrine of Missouri v. Holland, while the Federal Government would still in theory be free to enter into a treaty on a subject of international concern, it would, to the extent the subject matter was not otherwise subject to the reach of federal power, be required to depend on the acquiescence of each of the 48 States to enact necessary implementing legislation. The reluctance of other countries to enter into a treaty with the United States where the fulfillment of the main purpose of the treaty would depend on the favorable action of 48 State legislatures would be understandable.
There are many other areas such as collection of foreign debts, the right to carry on a business and local taxation, in which the traditional ordering of legal relations has been by State law, but treaties have been concluded which are contrary to the State law. The most frequent such conflict has been over the right of aliens to inherit real estate. Despite the fact that of all legal matters, probably those dealing with real estate and rules of inheritance are most peculiarly within the reserved powers of the States, the Court has always held that through the treaty power, the Federal Government may provide effective rules of inheritance for aliens.[xiii]
The transfer of power from the Federal to the State Governments sought to be made by the Bricker Amendment (but not by the Knowland Amendment) is not as of great import as it once would have been in view of the Supreme Court's broad construction of the commerce clause and other constitutional sources of federal power. Nevertheless, the result in some situations might be to prevent effective treaties securing and granting reciprocal rights to our citizens and to citizens of the other treaty nations and to hamper seriously the Executive's power over foreign policy.
Our need for the friendship and cooperation of many foreign nations in meeting the very real threat of Soviet aggrandizement suggests that this is not the time to add stumbling blocks to the implementation of our foreign policy or the time to disintegrate federal power when dealing with a monolithic power like the Soviet Union.
It was long ago decided that subjects of international concern should be dealt with on a federal level. To the extent it is thought desirable to check or reverse the trend toward centralized government, there are many other ways of shifting present federal duties and power to the States--primarily via internal fiscal reform. The attempt to do it in the international sphere would appear to be the least logical and the most dangerous to our welfare.
The problem is simple and fundamental. It should not be reserved to lawyers to debate.
The locus of power to formulate and execute this country's foreign policy was intentionally concentrated by the founding fathers in the Federal Government, particularly in the President and Senate.
The specific provisions of the Bricker Amendment are in sum a proposal radically to shift this constitutional ordering of authority over foreign relations by augmenting Congressional powers and by requiring the necessary participation of the States for the execution of foreign policy in certain areas. The powers of a sovereign state would thus be emasculated.
The burden of proving strong and compelling necessity is incumbent on those who would so drastically alter the constitutional framework. That burden has not been discharged.
[i] It is all but impossible to challenge in court the constitutionality of expenditures from general funds for any given object sanctioned by Congress. The doctrine is that a taxpayer's suit to enjoin United States' governmental spending on the grounds of an act being in violation of the Constitution will not be heard by the court. The judicial explanation of this doctrine is that no one taxpayer (nor even any state as parens patriae) has such an interest in the matter as to give him "standing to sue." This proposition, by no means self-evident (and indeed the rule is otherwise as to municipal corporations), is now well established. The result is that the Judicial Branch has by its own restraint almost entirely removed itself from this large area of constitutional law. The construction of the Constitution in this area is thus left to Congress and the Executive.
[ii] President Washington asked the Supreme Court for advisory opinions on a number of international legal problems. The Court firmly but politely refused to give such advice, pointing out that its constitutional rôle was restricted to the consideration of actual cases and controversies, and that the Constitution expressly authorized the President to secure advisory opinions from his departmental officers. The Federal Judiciary has never departed from this practice, though the concept of what is a "case or controversy" has been in continuous development.
The provision in the Knowland Amendment that the judicial power of the United States shall extend to all cases in which it is claimed that a treaty or other international agreement conflicts with the Constitution would not appear to extend judicial jurisdiction beyond that already granted by Article III of the Constitution. Nor is any relaxation of the "case or controversy" requirement indicated.
[iii] The proponents of the amendment say Missouri v. Holland, 252 U.S. 416 (1920) was such a case. However, no constitutional conflict was involved in that case, the facts of which are set forth on p. 17 and 18. Justice Holmes merely held that the treaty-making power was not subject to limitation by the Tenth Amendment since the Tenth Amendment by its terms only reserves to the States powers not delegated to the Federal Government and the treaty-making power is a delegated power. The Supreme Court has dealt similarly with challenges to the commerce power based on the Tenth Amendment: US. v. Darby, 312 U.S. 100 (1941).
[iv] See the testimony of Atty. Gen. Brownell at the 1953 Hearings, p. 907-8, collecting those dicta.
[v] American Political Science Quarterly, v. 20, p. 385, 389-390.
[vi] Consider the international arrangements for the Berlin air lift
[vii] This will not, of course, relieve the United States of its obligation under international law to the other contracting nation. To the extent such obligations are not otherwise discharged, the United States may be subject to an international claim, which may be pressed through diplomatic or international arbitral or judicial channels.
[viii] See for the subsequent history of that battle, "The Power of Congress to Limit the Jurisdiction of Federal Courts," by Henry M. Hart, Jr., Harvard Law Review, v. 66, 1362, June 1953.
[ix] Statement of Hon. John Foster Dulles, Hearings before Subcommittee of the Committee on the Judiciary on S.J. Res. 1, p. 828 (83:1).
[x] The surface similarity of Section 3 of the Knowland Amendment providing that "When the Senate so provides in its consent to ratification, a treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress" is misleading. The Senate already has full power to attach reservations to its consent to ratification--a power which it has frequently and recently exercised. See footnote 13 on p. 18.
[xi] Section 2 of the Knowland Amendment which, in effect, requires that a treaty-consent vote in the Senate should always be a record vote--thereby ensuring the presence of a quorum --seems entirely sound. No treaty should be slipped through via opportunistic timing. It appears, however, that a change in Senate Rule XXXVII prescribing the treaty-consent procedure would be sufficient to ensure the presence of a quorum.
[xii] "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty." The second sentence of Section 4 applies this rule to executive agreements as well.
[xiii] To the extent the Senate does not desire that a particular treaty provision override State law, an appropriate reservation to that effect may be included in its consent to ratification. As recently as July 22 of this year, the Senate, in granting its consent to the ratification of treaties of commerce and friendship, attached the reservation that the treaties should not grant to aliens the right to practise certain professions in any State that by law barred aliens from such practice.