711.00/1–2854: Telegram
The Acting Secretary of State to the Secretary of State, at Berlin1
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Tedul 7. Substance your telegram2 re Senator George’s amendment transmitted White House with statement that State Dept views would be communicated after you had opportunity to consider matter after further communications from Dept. Justice recommends against amendment. John Davis3 and others have communicated opposition to it. Views of Justice would no doubt be affected by views of State Dept as to desirability. Our legal analysis summarized as follows: First effect is to make an executive agreement plus an Act of Congress the equivalent of a treaty, thus making a majority of both Houses the equivalent of two-thirds of Senate in foreign affairs field. Second effect is to cut down Presidential power to conduct foreign affairs and as Commander in Chief. The Presidential power would thus be reduced and transferred to Congress to the extent that executive agreements were designed to apply and be effective in this country. Not effective as internal law means equivalent of not being given effect in US, and thus agreements would not be recognized in our courts as having any legal effect in the absence of an Act of Congress. It would reverse Pink case. It would preclude agreements made by President as Commander in Chief, such as for passage Canadian troops or use of foreign troops in US in time of war. In event of war in this hemisphere or in US it seems obvious that proposal would greatly hamper President’s authority to make in US kinds of agreements made in Europe during last war.
It would affect exercise of Pres. Const, power to receive ambassadors, and such consequences as diplomatic immunity. Korean Armistice Agreement, Destroyer for Bases agreement have effects on legal rights that might require or justify recognition of US courts. German property received as result of Potsdam and later executive agreements as booty or reparation entitled protection US courts without Congressional action. Determination by US courts of applicable international law requires consideration of Acts of Executive. Not clear whether proposed Constitutional provision would be retroactive. [Page 1840] Uncertainty of interpretation and application and certainty that it reduces President’s authority would seem to require strong reasons for departure from present constitutional practices. Your views for transmission to President urgently desired.
Since above dictated by Phleger, I have ascertained following:
- (1)
- Attorney General will oppose on legal grounds but will take position that this is matter in which Secretary of State has primary interest, and that he would therefore defer legal opinion to that of Secretary of State.
- (2)
- It is reported that this afternoon, at instance of Knowland and Ferguson, they plus Millikin, Johnson and George, have agreed on a combination of the Knowland and George amendments which will be introduced this afternoon. This may put President and yourself in position of opposing Senate majority not only of your own party but of minority party as well in event your considered judgment later indicates you cannot agree with terms of amendment as now proposed.
- (3)
- The Attorney General’s views and those of other lawyers in opposition to this combination of Knowland and George amendments have not yet been communicated to President. I have just advised him to reserve his position and to inform Knowland accordingly. He has done this. The President asks that when you consider the above that you have in mind grave political damages resulting from hysterical build-up of pressure. Senate leaders on both sides fear that if the amendment is returned to committee it may come out worse than original or that State legislators reacting to flood of propaganda may themselves take initiative to move toward original Bricker amendment. Real question is can we live with this amendment without serious impairment of our ability to conduct foreign relations? We do not think you should actually approve any reduction of Executive authority. Possible that practical considerations may be more important in making your final decision than technical consequences.
- (4)
- Present wording of amendment is as follows:
“Section 1, Clause 2, of Article VI of the Constitution of the United States, is hereby amended to read as follows:
‘Notwithstanding the foregoing provisions of this Clause, no treaty made after the ratification of this amendment shall be the supreme law of the land unless made under the authority of the United States and in pursuance of this Constitution.
‘Section 2. A provision of a treaty or other international agreement which conflicts with this Constitution shall not be of any force or effect.
‘Section 3. An international agreement other than a treaty shall become effective as internal law in the United States only by an Act of the Congress.
‘Section 4. 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.
[Page 1841]‘Section 5. This Article shall be inoperative unless it shall have been ratified by three-fourths of the States within seven years of the date of its submission’ ”