A BULWARK OF LIBERTY UNDER ATTACK
Borchard, Edwin
A Bulwark Of Liberty Under Attack By EDWIN BORCHARD THE CONSTITUTION AND WORLD ORGANIZATION, by Edward S. Corwin. Princeton Press. NECESSITY knows no law. We have heard of this as a military...
...3 Kenneth Colegrove...
...1941, reviewed in (1942) 42 Col...
...Wallace McClure, International Executive Agreements, New York...
...The executive agreement conies into force on signature...
...If it waives often enough, it may lose its privileges...
...Foreign nations are deemed to know only American constitutional requirements, and cannot be deemed to be acquainted with the tenuous argument Prof...
...47 remained unacted upon...
...24) that Congress can delegate to the President its "cognate" powers and thus merge the two powers in one hand...
...In the meantime we might recall the recent statement of Prof...
...Executive agreements are necessary in administration, but they are and should be of limited scope...
...Colegrove's book proposing a constitutional Amendment, that "the Senate's treaty power is probably the last remaining bulwark of our national safety —even more, perhaps, than our armed forces—and it should be fought for and maintained at all costs...
...HE notes that the proposal to have the House join in the approval of treaties was voted down in the Constitutional Convention 10 to 1 (p...
...7 Charles A. Beard says in Tke Republic, New York, 1943, p. 217: "What law of the land, what provision of the Constitution or any statute, what axiom of our political tradition states that the President's voice is the voice of the nation which all citizens are bound to accept as such...
...Even Prof...
...Like others, he uses the "last ditch" argument that the two-thirds rule is "undemocratic" (p...
...This would be a breach of the Congressional oath of office and duty, and invites that dictatorship which I thought we were repelling...
...16, 1933, in connection with the recogni-tion of Soviet Russia, President Roosevelt agreed to accept for the United States an assignment of Russian claims against American citizens—not against Russian citizens...
...Borchard, ibid...
...Corwin, like Lord Lothian,8 considered the transaction illegal, although it possibly has been saved constitutionally because Congress appropriated the money for the bases and subsequently passed the Lend-Lease Act' of Mar...
...Corwin considers the term "constitutional processes" as "non-committal" (p...
...I can answer for you...
...The various instances of Congressional Resolutions, like the Texas and Hawaiian annexations and the termination of treaties with the In-" dians, are not in point...
...There is no objection to any proposal for a constitutional amendment, the only lawful way to change the two-thirds rule...
...52), and by no means compulsive of a treaty, since of course a treaty must obtain Senate approval by' two-thirds!, whereas it seems possible that a series of Executive military agreements or armistices may take the place of a peace, treaty...
...Since the Joint Resolution joining the ILO was passed by unanimous consent, the Senate may be deemed to have approved it...
...But it is worthy of note that the Gillette Resolution, designed to substitute a bare majority of the Senate for the constitutional two-thirds, and similar resolutions having a like purpose, cannot command a majority in committee in favor of reporting them out...
...One consideration was the settlement of American claims . against Soviet Russia...
...the law...
...That was all that it was necessary to say, but Justice Sutherland gave us a 22-page disquisition on the power of the Federal Government and the President in foreign affairs which had nothing to do with the case and was so ambiguous that any school of thought can find in it material for argument...
...In an opinion really dictum, he sustained only the unlimited power of the President to "negotiate" and "inquire...
...Justice Sutherland, in the Curtiss-Wright case, had only to decide whether Congress could delegate to the President the power to put in force an impartial embargo against Paraguay and Bolivia in 1935, if he thought this would contribute to the reestablishment of peace in the Chaco War...
...When the Republican platform closed the gap by insisting that any "agreement" be concluded by treaty, Prof...
...Royden Dangerfieid in his book In Defense of the Senate, Norman, Oklahoma, 1933, p. 256, states that only 1.8 per cent of the treaties submitted up to 1928, i. e., 15 out of 787, were rejected by the Senate...
...The Times siyit "This ignoring of a plain constitutional requirement would be a dangerous precedent...
...Judge Byers had thought this was not fact-finding, but the expression of an opinion, and disallowed it...
...The answer is, None, absolutely None...
...New York, 1944, pp...
...Corwin seems to have convinced himself that an executive agreement is as good as a treaty, that the power of Congress in the field of international relations is as broad as the war power, and that the aim called peace—assumed to be readily obtainable—is so transcendental that any means can be used to circumvent the Senate—i.e...
...Cong...
...17, 1943 (daily ed...
...31, 95, 105, 110...
...162 were amended, mostly to the improvement of the treaty.or the better protection of the United.States...
...consent of two-thirds of the Senate to ratify treaties, and substitute in place thereof the executive agreement, or a statute of Congress, or, as a last resort, a constitutional amendment providing for an agreement supported by majority vote of both Houses...
...1 Th« New York Herald Tribune denies this, editorial Apr...
...5 See criticism in Briggs, (1940) 33 A. J. I. L. 569...
...It would put in doubt tHe validity of treaties and international agreements not ratified in the constitutionally prescribed manner...
...Of course the Senate can waive its prerogatives, as it did in the UNRRA Agreement, and in the transfer of American assets to Panama...
...17, 1944...
...Disregarding the fact that many rules of law survive their originating cause, that many new reasons, such as the unprecedented inflation of the executive power, justify a decisive constitutional check on the Executive, there actually is no special ground for undertaking what numerous commentators, some of whom approve Mr...
...He would, we fear, multiply the "anomaly" by having the House join the Senate in approving treaties by majority vote...
...But when the Senate in the Connally Resolution insisted on "any treaty" of peace following "constitutional processes" and Senate approval, Mr...
...32), but maintains that the considerations which then prevailed— the necessity for secrecy, speed, rapid turnover of the members, etc.,2—no longer control...
...Its validity does not depend or Congressional approval...
...He is not supposed to mis-manage public affairs and circumvent the Constitution...
...This is a recent invention,4 which is supposed to find justification in the Attorney General's opinion in 1940 supporting the destroyer-naval bases deal made by the Executive,5 in the dictum of Justice Sutherland in United States v. Curtiss-Wright Export Corp., in the dictum of the same judge in United States v. Belmont, and in the recent case of United States v. Pink, in the last two of which the Roosevelt-Litvinoff Agreement of 1933 was sustained...
...We have heard of this as a military doctrine, hardly as a constitutional doctrine...
...Corwin . advances...
...The Supreme Court reversed...
...New York Timet, editorial May 22, 1944...
...There are many other proposals for improving the treaty-making power, such as preliminary legislative "advice" and numerous others, which should be considered before any change is contemplated...
...13, 1940, Part IV, p. 6. 6 By this agreement, made Nov...
...EQUALLY wrong, it is Submitted, is the suggestion (p...
...But even if the learned author had been able to show that an executive agreement is as good as a treaty— which he has decidedly not proved—and that Congress has an undefined power to legislate in the field of foreign affairs—which has nothing to do with the case— he has failed completely to prove that the President may initiate an agreement with a foreign Power and then, instead of submitting it to the Senate for approval—as has been done a thousand times, and as has just been done with the oil agreement with Great Britain—he has the option to submit it to the Congress for joint approval of the House and Senate voting by mere majority...
...4 Cf...
...And while it is true that the President can insult foreign nations and so lamentably conduct the foreign relations of the United States that war is invited and the power of Congress to declare war becomes perfunctory, this is a breach of Presidential duty...
...11,1941...
...This power is anything but 'anachronistic,' nor is it easily waved aside by juggling precedents or calling treaties by some other name.*' 2 See W. Stull Holt, Treaties Defeated by the Senate, Baltimore, 1933, p. 7. Mr...
...Corwin objected...
...xii) because the Constitution has safeguarded the entrance of the United States upon unknown commitments by the requirement of...
...PP* 2180-81...
...yet as applied by Justice Sutherland, it has been severely condemned by authoritative scholars.7 The "destroyer" deal and the supporting opinion have been deplored and the least said about them the better...
...Corwin is the doctrine Justice Sutherland announced of the inherent, extra-constitutional powers of the United States in foreign affairs...
...L. Rev...
...Now the distinguished author, Prof...
...It does not declare the President to be the symbol of national unity or his voice to be the voice of the nation...
...Corwin's idea, called an "evasion" of the Constitution.3 He denies the charge of the New York Times, friendly to a constitutional Amendment, that the proposal to circumvent the Senate's veto power is dishonest, dangerous to all law, and that if we can set aside one provision of the Constitution, we can disregard any other part or the whole of the Constitution...
...Corwin, letter to New York Times, Oct...
...The United States is not less sovereign than Soviet Russia or Great BritT ain (p...
...He must fear that the proposed treaty or the proposed plan for enforcing it will be so unpromising as not to enlist the vote of two^thirds of the Senators...
...deliberative consent of two-thirds of the Senate...
...Harry Elmer Barnes in The Progressive in reviewing Prof...
...The Constitution does not use the term foreign affairs...
...Corwin, who is certainly entitled to a respectful hearing, would have us believe that it is so important that the United States join an international organization to preserve the peace—he assumes this to be the goal of an international organization—that we must abandon the constitutional rule providing for...
...This the Soviets have never done...
...He thinks the two-thirds rule is an "anomaly," an "anachronism,"1 an "abnormality," because the Senate's function has changed from that of a sort of executive council merely to that of a ratifying body for a fait accompli...
...From them no general conclusion can be drawn that an executive agreement is the same thing as a treaty...
...THE executive agreement has internal weaknesses in that it admits of secrecy, is of precarious duration, may be repealed by a succeeding executive or by Congress without incurring the obloquy of treaty breach, does not rise to the force and dignity of a treaty, and has no constitutional support...
...Nor is silence affirmation (p...
...Prof...
...The doctrine of inherent powers has been shot to death so often that it ought to have little life left...
...8 Said Lord Lothian on May 17, 1940: "But you will no doubt realize that international law forbids a neutral government to sell warships to a belliger* ent...
...But these were either aberrations or can only be tolerated on their special facts— not on their reasoning...
...Tke American Senate and World Peace...
...It would make Congress an unnecessary luxury...
...8), though the Dumbarton Oaks proposal for a new League or a Holy Alliance among three Powers is hardly a democratic process or an inducement to abandon our constitutional forms...
...But what meets the support of Prof...
Vol. 8 • November 1944 • No. 48
