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Treaties and Executive Agreements

Published online by Cambridge University Press:  02 September 2013

Edwin M. Bouchard
Edwin M. Bouchard
Affiliation:
Law School, Yale University
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Extract

There have been several recent attempts to change the Constitution by dispensing with the necessity for the advice and consent of two-thirds of the Senate in the making of treaties. The two-thirds rule is undoubtedly a handicap to the freedom of the Executive in concluding arrangements with foreign countries. It was intended to have such effect; but the check proves to be irksome. It is the author's belief that the check is exceedingly valuable to a democratic government, and while it unquestionably slows up the process of making international commitments, it insures a popular control over treaties and it safeguards the small states in a manner which an easier method of approval might escape.

The first method of eliminating the Senate was suggested in 1941 when Mr. Wallace McClure, of the Department of State, wrote his book advocating the interchangeability of the treaty and executive agreement, concluding that anything that could be done by treaty could also be done by executive agreement, with the approval of Congress if necessary, without the approval of Congress if possible. In his support, he invoked what purported to be a growing usage to this effect, as proof of which he cited numerous agreements. These statistics have doubtless been aided by the supposedly unlimited power over foreign affairs assigned to the federal government by Justice Sutherland in the Curtiss-Wright case, a case which has been much misunderstood and the dictum of which has been vigorously criticized. I ventured to review Mr. McClure's book, and came to the conclusion that the dilapidation of the Constitution which he foreshadowed was unjustified by the facts and harmful to the United States. While Mr. McClure's views met a somewhat mixed reception in the Department of State, there is some evidence that his proposals appealed to certain groups.

Type
American Government and Politics
Information
American Political Science Review , Volume 40 , Issue 4 , August 1946 , pp. 729 - 739
Copyright
Copyright © American Political Science Association 1946

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References

1 McClure, Wallace, International Executive Agreements; Democratic Procedure Under the Constitution of the United States (New York, 1941).Google Scholar

2 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

3 Beard, Charles A., The Republic (New York, 1943), pp. 217–218.Google ScholarPatterson, , “In re the United States v. Curtiss-Wright Corporation,” 22 Texas Law Rev. 286, 297; 445 (1944)Google Scholar; JudgeQuarles, in 32 Georgetown Law Jour., 375 (1944)Google Scholar; Levitan, David, in 55 Yale Law Jour., 476 (1946).Google Scholar

4 42 Columbia Law Rev. 887 (1942).

6 Borchard, Edwin, “The Proposed Constitutional Amendment on Treaty-Making,” 39 Amer. Jour. Internat. Law, 537 (1945).CrossRefGoogle Scholar

6 Bloom, , Treaty-Making Power; Fourteen Points Showing Why the Treaty-Making Power Should be Shared by the House of Representatives (Washington, 1944).Google Scholar

7 See N. Y. Times, Apr. 17, 1944, p. 22, col. 1; ibid., May 22, 1944, p. 18, col. 2. See also Colegrove, , The American Senate and World Peace (New York, 1944), pp. 31, 110Google Scholar; Borchard, , “Shall the Executive Agreement Replace the Treaty?”, 53 Yale Law Jour., 664, 677, n. 44 (1944)CrossRefGoogle Scholar; Mr.Gossett, of Texas in 91 Cong. Rec., May 1, 1945, at 4082Google Scholar; Mr.Kefauver, of Tennessee, , 91 Cong. Rec., May 2, 1945, at 4111Google Scholar; Miss Sumner, idem, at 4137. Said Mr. Celler of New York, another proponent of the amendment: “But such procedure [the executive agreement] is not wise nor is it healthy,” idem, at 4117; Mr. Baldwin, idem at 4129 (“bypassing” the Senate, people, or Constitution); Mr. Wadsworth, idem, at 4134; Mr. Robinson, 91 Cong. Rec., May 9, 1945, at 4420 (“working around the Constitution”).

8 37 Stat. 4.

9 Briggs, , “The UNRRA Agreement and Congress,” 38 Amer. Jour. Internat. Law, 650 (1944).CrossRefGoogle Scholar

10 Borchard, Edwin, Opinion on the Question Whether the St. Lawrence Waterway and Power Project Can be Concluded by Executive Agreement with Canada or Requires a Treaty (revised, Washington, 1946), p. 63.Google Scholar

11 252 U.S. 416 (1920).

12 Borchard, Edwin, “The Charter and the Constitution,” 39 Amer. Jour. Internat. Law, 767 (1945).CrossRefGoogle Scholar

13 N. Y. Times, May 19, 1945, p. 20, col. 3. See AFL Report of Committee on “Freedom of the Air,” approved by Executive Council May 4, 1945. Wiprud, Arne C., Special Assistant to the Attorney General, in “Some Aspects of Public International Air Law,” 13 Geo. Wash. Law Rev., 247, 264 (1945)Google Scholar, maintains that bilateral executive agreements have been entered into for temporary purposes only, until a treaty could be concluded, that multilateral agreements should be incorporated in treaty form, that the Executive should not purport to fix, much less violate, the policy of Congress, and that treaties would be much less vulnerable to constitutional attack. He says (idem at 266): “The Executive may act in these matters in one of three ways: he may enter into executive agreements as an emergency matter to protect and further the interests of the nation; he may enter into particular agreements pursuant to a special or general authorization by Congress; or he may conclude treaties subject to the approval of the Senate.” The Department of State is “of the strong opinion, … that nothing done or provided for under the three agreements exceeds the authority contained in existing legislation.” 12 Dept. of State Bull., No. 312, p. 1103 (1945). Cf. article by Latchford, idem at 1104. See also Sen. Doc. No. 56, 79th Cong., 1st Sess. (1945), pp. 16–18. As to the Bermuda Aviation Agreement, see resolution of protest adopted by the Senate Commerce Committee by a vote of 17 to 1, New York Times, Apr. 16, 1946, p. 1, col. 7.

14 See Fraser, “Treaties and Executive Agreements,” Sen. Doc. No. 244, 78th Cong., 2d Sess. (1944); also letter of Mr. Fraser to Senator Connally, Aug. 14, 1944.

15 See 11 Dept. of State Bull., No. 290, p. 63 (1945). “It appears to the Department that the misunderstandings which have arisen come not from lack of agreement upon these objectives, but from the implementing features attending them.”

16 Another statistical record comes to the following conclusion:

91 Cong. Rec., May 2, 1945, at 4118. See also Wright, , “The United States and International Agreements,” 38 Amer. Jour. Internat. Law, 341, 345 (1944).CrossRefGoogle Scholar

17 This includes the still unpublished water treaty with Mexico, in force since November 8, 1945. Dept. of State Bull., Dec. 2, 1945, p. 901.

18 “Constitutionality of St. Lawrence Legislation.” Memorandum Submitted by the Department of State to a Subcommittee of the Committee on Foreign Relations, United States Senate, on S. Joint Res. 104, 79th Cong., 1st Sess., pp. 1, 5.

19 “Great Lakes-St. Lawrence Basin,” Hearings before a Subcommittee of the Committee on Foreign Relations, United States Senate, 79th Cong., 2nd Sess., on S. J. Res. 104, Feb. 18-Mar. 9, 1946.

20 Treaty of 1794, Art. IX. Malloy, , Treaties, Conventions, etc., Vol. I, p. 597.Google Scholar

21 Treaty of 1778. Art. XI. Malloy, , Treaties, Conventions, etc., Vol. I, p. 471Google Scholar; Treaty of 1800, Art. VII, idem at 498; Treaty of 1853, Art. VII, idem at 531.

22 Treaty of 1847. Malloy, , Treaties, Conventions, etc., Vol. II, p. 1762.Google Scholar

23 Borchard, , “The Two-Thirds Rule as to Treaties; A Change Opposed,” Economic Council Papers, Vol. III, No. 8 (1945).Google Scholar

24 Hackworth, , Digest of International Law, Vol. V (1943), p. 164.Google Scholar

25 Ibid., Vol. V (1943), p. 12.

26 Ibid., p. 15.

27 Geofroy v. Riggs, 133 U.S. 258(1890). It maybe that Missouri v. Holland, 252 U.S. 416 (1920), presents a limitation in that while a treaty gives Congress the power to legislate, the treaty power is limited to questions not designated as unconstitutional. This would not include the making of treaties on subjects within the legislative power of Congress.

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