Evening star., 1940-01-27

designed to create the impression
that the trade agreement law is an
unconstitutional delegation of pow
er, but the objections cited therein
will be used by the people on the
other side of the argument to but
tress their own case.
Thus, Mr.. Fraser comedies that
the name of the instruments,
whether they be called treaties,
conventions, covenants or pacts, is
IAN immaterial matter" and that
there have been many instances of
executive agreements in American
history which have not been sub
mitted to the Senate for ratifica-
ton.
Very early, for example, in the
growth of the American Republic,
a President made an agreement
for the limitation of ornaments on
the Great Lakes with Great Britain,
and for a long while it was not sub
mitted to the Senate, though put
into effect. Likewise, in 1882, an
agreement was made with Mexico
for the passage of troops across the
border from either country and this
was not submitted for Senate rati-
fication.
All sorts of pacts have been put
into effect under Republican as
well as Democratic Presidents in
the last 80 years relating to quaran-
tine inspection of vessels, admission
of civil aircraft, postal matters,
pecuniary claims, etc.
No Question of Subject Matter.
Mr.. Fraser, while admitting that
this has been the custom. attempts
to say that these are all relatively
minor or at least non-controversial
subjects" but clearly the power of a
President to make agreements with
a foreign government is not gov
erned by the quality of the subject
matter Either the power exists
or it doesn't. Mr.. Fraser says that
often "the practicalities of the sit
uation" have been recognized by
both houses of Congress, where in
ternational agreements have not
been questioned, because they could
not be submitted to the Senate
without embarrassing and unduly
delaying the ordinary conduct of
our foreign relations"
This is precisely why the trade
agreement power was sought by the
State Department by delegation
from Congress, so that overnight
changes in foreign tariff conditions
might be met by the executive
branch of the Government without
subjecting American interests to the
embarrassments and delays of wait
ing for Senate approval. Foreign
governments previously had played
upon this disadvantage in point of
time in conducting Americas for
eign relations Mr.. Fraser says that
such international agreements as
have been made to meet the ''prac-
ticalities of the situation" are quite
valid, since the presidential power
to make them stems from the
sovereignty of the Nation and exists
Independently of the Constitution. -
Temporary Working Arrangements.
What Mr.. Fraser meant, of course,
was independently of that provision
of the Constitution which specifi-
cally requires Senate ratification of
treaties. The trade agreements,
however, are all temporary arrange
ments. The agreements provide for
various contingencies, such as cur
rency depreciation or the rise in
tariffs or in quotas and a host
of other questions that really make
them not treaties in the accepted
sense, but working arrangements
based on our own tariff making.
AS early as 1890, the tariff laws
authorized the President to sus-
pend by proclamation the privilege
OF importing five named commodi-
ties duty-free from countries whose
tariffs on the agricultural or other
products of the United States
deemed to be "reciprocally unequal
and unreasonable" The Supreme
Court upheld the constitutionality
of that law. In that case the court
pointed out that the President was
not authorized to make a law or
treaty, but Congress merely made
the President an agent of the law
making department to declare the
event upon which its own expressed
will was to take effect.
Flexible Tariff Upheld.
Again in 1897, under Republican
regime, Congress delegated power
to the Executive, but specified Ger
tain conditions under which treaties
would have to be submitted to the
Senate. Likewise, certain tariff
changes had to be submitted to
Congress. No actual test has been
made in the courts as to whether
Senate ratification or congressional
approval by both houses in neces-
Sary. However, the executive power
to accept from Congress delegated
authority to change the tariff laws
within limits-known as the f1exi-
BILE tariff law-was upheld by the
Supreme Court under the Coolidge
administration.
The present system is really a
unilateral action. Congress tells the
Executive that tariff changes may
be made within certain prescribed
standards This has been done for
the last 20 years by delegation of
power through Republican Con-
crosses to Republican presidents. A
tariff duty in and of itself affects
foreign relations because it is a
tax on imports. Once the Executive
Is told what tariff duties to i'm
pose, it is equivalent to giving him
the right to carry out the wishes
of Congress. The fact that the
Executive uses his discretion, after
consulting what advantages foreign
governments will bestow on our ex-
ports, and then embodies it in a
written understanding that binds
the foreign government in no less
valid exercise of delegated power
than when President Coolidge was
authorized to raise or lower duties
by 50 per cent after studying all the
facts relating to costs Of production