Evening star. [volume] (Washington, D.C.) 1854-1972, 1954-01-26

Broker Amendment
Unnecessary, Unwise
Seen Upsetting Traditional
Separation Of Powers Theory
By Gould Lincoln
The Bricker amendment, limiting
the constitutional powers of the Presi-
dent in negotiating treaties and making
executive cor other" agreements with
foreign nations. if adopted first by the
Senate, then by the House and finally
by the States themselves, will signalize:
(a) No confidence in the President, who
negotiates treaties; (b) no confidence
in the Senate, which ratifies treaties by
a two-thirds vote, and (c) no confidence
in the Supreme Court, which deter
mines whether treaty violates any
provision of the Constitution or law of
the United States. The debate in the
Senate now getting underway will air
all the arguments, pro and con, on this
proposed constitutional amendment.
which is at one and the same time
unnecessary and unwise.
A great deal of heat has been en-
gendered, with the President and adj
miniStration leaders on Capitol Hill on
the one side, and certain Republican
Senators on the other. The G. O. p.
hope is that before final vote is taken
the proposed amendment may be so
amended-Or substitute found-that
the warning factions will agree, and so
avert any chance of a bitter intra-
party feud, endangering President
Eisenhower's recommendations in the
future and possibly carrying over into
coming political campaigns.
165-Year Tradition.
For 165 years, the United States has
made treaties and entered into agree
ments with foreign nations without the
violation of any provisions of the Con-
Stitution, including the Bill of Rights.
Whether all treaties and agreements
have been wise in all their provisions is
another matter. Nevertheless, they have
been entered into in accordance with
the distribution Of powers to the three
branches of the Federal Government by
the Constitution itself. The treaty.
making or negotiating power is vested
in the President. The Constitution says
the President shall have power, by and
with the advice and consent of the
Senate, to make treaties, provided two
thirds of the Senators present concur"
The Constitution vests the judicial
power of the United States in lone
Supreme Court" and adds: "The judi
cial power shall extend to all cases, in
law and equity, arising under this Con-
stitution, the laws Of the United States.
and treaties made, or which shall be
made under their authority"
History on Treaties.
Two committees of the New York City
Bar Association have made extensive
reports on the Bricker amendment, as
originally presented and later as
amended by the Senate Judiciary Com
mittee which wrote in the controversial
which clause" They found the amend
ment unnecessary and harmful. The
committees express faith in the present
method of treaty making. THE Sen
ate," they say, lis congenitally cautious
IN considering treaties. and is some
times called the graveyard of treaties
OF the nearly 1900 treaties submitted
from 1889 to March "a, 1858 Excluding
those then pending) % per cent either
failed of Senate approval because OF
rejection, failure to take action or with
drawal, or were approved only with
reservations or understandings"
The first three sections Of the Bricker
amendment resolution contain the meat
of the proposal. Section / says, "A
provision of treaty which conflicts
with this Constitution shall not be OF
any force or affect" At best, this
section restates the existing situation.
Treaties cannot conflict with the Con-
stitution and be effective. Section 2
says, "A treaty shall become effective
as internal law in the United States
only through legislation which would
be valid in the absence of treaty" This
contains the which clause" The sec
ton provides that treaty shall have
no force until it is re-enacted as
statute by Congress. The which
clause" would have the effect of con-
filming treaties affecting internal law
Ito those specific subjects on which
Congress has the power to make laws
generally" It would be impossible to
make a treaty binding on the States.
in fields reserved to the States. OBJ
viously, cases could arise where the
concurrence of all 48 States would be
necessary to make treaty completely
effective.
A Federal Power.
This is the kind of chaotic situation
which the Constitution itself was writ
ten to prevent. The Constitution pro-
videS that no State shall enter into
any treaty, alliance or confederation.
The entire treaty making power is
lodged exclusively in the Federal Gov
eminent, and none is lodged in the
States.
Without the (Which clause" Section
still provides terrifically cumbersome
procedure for making an effective
treaty. First, a treaty would be nego-
tiated and signed by the President:
second, it would be ratified by a two
thirds vote of the Senate; third, it
would be approved by a majority vote
Of the House Gin passing legislation to
implement it,; fourth, it would be APP
proved by majority vote of the SEN
ate, and fifth, the President would sign
the law. AS has been pointed out, this
procedure would make peace far more
difficult to obtain than WARRIOR a
declaration of war requires only a Joint
resolution-adopted by a majority of
the two houses of Congress and signed
by the President.
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