State, Territory, or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country.'"

The legal effect of these provisions is that foreign civil aircraft shall not be navigated at all in the air space above the United States unless authorized by a permit granted by the Civil Aeronautics Authority. Furthermore, the granting of the permit under section 6 is discretionary with the Civil Aeronautics Authority, and is conditioned upon a valid reciprocal arrangement according a like privilege to the aircraft of the United States.

Under the Civil Aeronautics Act of 1938, the Civil Aeronautics Board has the power, subject to the approval of the President, to issue permits to foreign air carriers to engage in "foreign air transportation" if it finds, pursuant to statutory criteria, that such service "will be in the public interest" and that the carrier is "fit, willing, and able properly to perform" the proposed service. Hearings must be held and the permit conditioned as the Board may determine within the scope of its authority. In its action, the Board must give effect to the rule prescribed in section 6 (c), of the Air Commerce Act of 1926, as amended. Furthermore, under section 1102 of the act of 1938, the Board is required to exercise its power and duties "consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between the United States and any foreign country or countries." It is clear, then, that the provisions of the Civil Aeronautics Act do not extend to any foreign air carrier the right or privilege, considered as immediately available in the legal sense, of navigating the air spaces over the United States.

In respect to the right of transit, the power of the Civil Aeronautics Board is strictly limited. The first sentence of section 6 (c) of the Air Commerce Act of 1926, above quoted, states broadly that: "If a foreign nation grants a similar privilege in respect of aircraft of the United States, and/or airmen serving in connection therewith, the Civil Aeronautics Authority (Board) may authorize aircraft registered under the laws of the foreign nation and not a part of the armed forces thereof to be navigated in the United States." This might seem to include power to grant the right of transit, as well as the right of commercial entry. this sentence, considered in the light of the requirement for a preexisting reciprocal arrangement and other statutory provisions, impels the conclusion that the Civil Aeronautics Board, without more, lacks authority to issue permits granting foreign air carriers the right of transit. These other provisions are the last sentence in section 6 (c), which is quoted above, and section 1 (3) of the Civil Aeronautics Act of 1938, which defines "air commerce" as follows:

But

"Air commerce" means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air com

merce.

The meaning of these statutory provisions taken together seems to be that no foreign air carrier shall navigate its aircraft in the United States except where such carrier is engaged in commerce between a place in one of the States of the United States (or any Territories or the District of Columbia) and a place in a foreign country. In other words, foreign air carriers are limited strictly to foreign air commerce. The commerce from which foreign air carriers are excluded comprises not only interstate commerce, but also the transportation of mail by aircraft, the navigation of aircraft within the limits of any civil airway, and any operation or navigation of aircraft which directly affects or which may endanger safety in interstate, overseas, or foreign air commerce, otherwise than in foreign commerce. Thus, foreign air carriers engaged in commercial movements across the United States conducted without stopping at any point in the United States (as for example, a Canadian plane passing from Toronto to Halifax across the State of Maine) are engaged in air commerce in the United States, though not in foreign

3 Op. Atty. Gen. (1936) (unreported): "The use of the word 'may' connotes the exercise by the Secretary (Secretary of Commerce-changed to Civil Aeronautics Board in 1938 Act) of discretion in the matter and this discretion must be exercised by him in the interests of the United States. The right and duty to exercise this discretion in the interests of the United States, in my opinion, may not be waived by you either as to your future acts nor as to your successor in office."

As has been noted, the last sentence of that section bars cabotage.

The permit to Trans-Canada Air Lines was issued on April 7, 1939. The Government of the United States entered into an executive agreement with Canada under date of August 18, 1939, under which it was provided that:

"Each of the parties subject to compliance with its laws and regulations agrees to grant to air-carrier enterprises of the other party permits for non-stop services through the air space over its territory between two points within the territory of the other party."

This agreement, and the more general agreement of July 28, 1938, constituted the "pre-existing reciprocal arrangement" under which the Civil Aeronautics Board granted the above permit.

See also permit to Canadian Colonial Airways, Inc., authorizing flights between Montreal, Canada, and Nassau in the Bahamas with a stop-over for nontraffic purposes in Jacksonville, Fla., 2 C. A. B. 752 (1941).

air commerce as defined in the Civil Aeronautics Act. Since the Civil Aeronautics Board is empowered to grant permits to foreign air carriers only to engage in foreign air commerce, that is, movements from a place in the United States (or a Territory or possession) to a place in a foreign country, or vice versa, the conclusion is impelled that the movement across the United States which involved air commerce other than foreign air commerce as defined in the act, is one for which the Civil Aeronautics Board is not empowered to issue a permit, except pursuant to a reciprocal agreement, convention, or treaty. Thus, by reason of the definition of "air commerce" and the factual situation with respect to the location of civil airways, it would seem practically impossible for a foreign air carrier to engage in transit flights which did not require its engaging in that type of air commerce which is prohibited.

This conclusion is fortified by an additional consideration. In the Air Commerce Act of 1926, section 6 (c), the following provision was originally included: "But no foreign aircraft shall engage in interstate or intrastate air commerce.' The act of 1938 expanded this provision to read: "No foreign aircraft shall engage in air commerce otherwise than between any State, Territory, or possession of the United States (including the Philippine Islands) or the District of Columbia, and a foreign country.' Clearly, the congressional purpose in thus amending the 1926 act was to limit the air commerce activities of foreign air carriers in the United States more strictly."

An apparent exception to the above conclusion is a provision in the Pan American Convention of 1928 which by its terms accords "freedom of innocent passage" to the private aircraft to the other contracting States." But this convention takes effect only as between the ratifying States, which are the United States, Mexico, Panama, Guatemala, Nicaragua, Dominican Republic, Costa Rica, Haiti, Honduras, Chile, and Ecuador. Brazil and Argentina are not parties to this convention nor are any of the European or Asiatic powers. Further, the signatory powers have not interpreted the provision to apply to a scheduled air-transport service. This same interpretation of the convention was incorporated in the Civil Aeronautics Act of 1938 by the requirements of permits for foreign air carriers, and is binding upon the executive officers and administrative agencies of the Government. In the light of the above, can a general right of transit for scheduled air-transport services be legally effected by executive agreements not made pursuant to the provisions of a convention or treaty? The scope and use of executive agreements have been widely discussed. Such agreements are in many instances temporary expedients intended to serve as stopgaps and to bridge over legal difficulties pending more complete and adequate legislative treatment of the matters in question. One of the principles plainly deducible from the history of executive agreements in the United States is that executive agreement cannot be used as a means of displacing existing statutory or treaty requirements. The justification for the executive agreement is that such agreements seem in many instances a necessary temporary expedient. In the silence of Congress, the Executive may be compelled under our system of government to take action involving the military or diplomatic interests of the United States to reach a definite agreement with some foreign power.

In relation to the right or privilege of innocent passage for foreign air carriers, Congress has legislated and has covered the entire subject, either by express provisions or by the necessary implications of its enactments. Congress has treated the general subject of air transportation fully and has prohibited air transportation in the United States by foreign air carriers, except when such transportation is a part of a foreign air commerce. Thus Congress has denied to foreign air carriers the privilege of innocent passage. It would not be legally permissible for the Executive to attempt to displace this binding statutory requirement by means of executive agreements with foreign nations.

The President could, of course, be authorized to negotiate executive agreements by means of enabling legislation changing the existing law. This method of procedure, however, might prove less satisfactory than proceeding by formal treaty.

However, see sec. 6 (j) of H. R. 3420 (78th Cong., 1st sess. (1943)), which amends sec. 402 (a) of the Civil Aeronautics Act by providing that "no foreign air carrier shall engage in domestic air transportation." The proposed bill made no changes in sec. 6 (c) of the Air Commerce Act, as amended.

See Latchford, The Right of Innocent Passage in International Civil Air-Navigation Agreements (1944), Department of State Bulletin, p. 19.

The negotiation of executive agreements is illustrative of a modern tendency in government to shift discretion from the legislative to the Executive. These executive agreements may play a creative role in the making of policy. In making immediate decisions, precedents are made and the groundwork for future decisions is laid. As expediencies ripen into principles, the temporary becomes the permanent, and the provisions of executive agreements may find their place in statute law.

Except as it may be accomplished without engaging in air commerce as defined in the act, a very exceptional case indeed, or except as it may be granted pursuant to a treaty.

In the first place, enabling legislation of the character proposed faces thelimitation that it must fall within the general sphere of the powers of Congress as defined in the Constitution. The characteristic difference between the scope of the treaty-making power and the scope of the legislative powers of Congress is indicated by the phraseology of article VI (2) of the Constitution, which reads: "This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land [Italics added.]

* *

Legislation by Congress must be "in pursuance" of the Constitution, that is, within the powers granted to Congress in article I, section 8, or elsewhere in the Constitution. The powers of Congress are enumerated and the proposed legislation must fall within the limits of the enumerated powers, however broad and flexible they may be. On the other hand, the treaty-making power is of very broad and indefinite nature. Treaties become the supreme law of the land if they are made "under the authority of the United States." No limits are stated that relate to the scope and legal applicability of treaties.10

There is another difficulty inherent in the method of procedure by legislation whereby Congress delegates authority to the President to make executive agreements, namely, the difficulty as to the sufficiency of the standards set forth in the enabling act. It is true that the courts have been liberal in defining the type of legislative power which may be validly delegated to the President, but nevertheless there are limitations on this process of delegation. Congress must make the essential choices and define the main lines of the policies to be pursued.

The difficulty as to the fixing of standards may be real in the case of legislation delegating to the President the power to make executive agreements with reference to foreign air transportation. It may be undesirable to restrict the discretion of the President in advance as to the provisions of the agreements that he may enter into. It may be undesirable to hamper his diplomatic freedom in dealing with foreign governments by a set of specific restrictions in a statute." But unless there are some specific principles laid down in the basic statute by Congress, the question may arise as to whether Congress has not delegated to the President in an unconstitutional manner its whole legislative power in the premises.11

While difficulties as to the delegation of legislative power need not necessarily be fatal to the constitutional validity of legislation empowering the President to enter into executive agreement with regard to air-transport matters, yet they create special and serious risks as to the ultimate validity of the whole legislative scheme which could be avoided by the use of the method of formal treaties.

10 In harmony with this distinction, it is well known that legal results may be accomplished by way of treaties that could not be accomplished by the legislation of Congress. The history of Federal action with reference to the preservation of migratory birds furnishes an illustration of the distinction as to the effectiveness of legislation by Congress as compared with procedure by a treaty with a foreign nation. Congress first adopted a statute penalizing the killing of migratory birds except under prescribed conditions. This statute was held unconstitutional in two cases in the district courts of the United States (United States v. Shauver, 214 Fed. 154, E. D. Ark., 1914; United States v. McCullaugh, 221 Fed. 288, Kans., 1915). These decisions were supported by arguments that migratory birds were owned by the States in their sovereign capacity for the benefit of their people and that this control was one Congress had no power to displace. After these decisions, on December 8, 1916, a treaty between the United States and Great Britain relating to this subject was proclaimed by the President. The treaty provided for specified closed seasons and protection in other forms, and provided that the two Goverdments should take the necessary measures through their lawmaking bodies for carrying out the treaty effectively (39 Stat. 1702). Thereafter Congress passed the Migratory Bird Treaty Act of July 3, 1918 (40 Stat. 755; 16 U. S. C., sec. 710). It will be observed that the second statute was directed to accomplish substantially the same purpose as the first. But the Migratory Bird Treaty Act of 1918 was upheld by the United States Supreme Court on the ground that it was a necessary enforcement measure to carry into execution the provisions of the treaty which constituted part of the supreme law of the land (Missouri v. Holland, 252 U. S. 416, 40 Sup. Ct. 382, 64 L. Ed. 641 (1920)). Although the effect of the lower Federal court decisions was that Congress could not proceed ex directo to regulate the matter of the conservation of migratory birds-a question upon which the Supreme Court did not directly pass-the desired regulation was accomplished by the Federal Goverdment through a treaty with a foreign nation and enforcement legislation by Congress pursuant to the provisions of the treaty.

11 It is true that a somewhat similar broad delegation of power to the President has been made with reference to the forming of trade agreements with foreign nations by the method of executive agreement (Trade Agreements Act of 1934. 48 Stat. 943; 5 U. S. C., sec. 372).

It should be noted, however, that Congress, to a certain extent, has avoided judicial review by providing in the Trade Agreements Act that section 1516 (b) of title 19 of the United States Code shall not apply to any article with respect to the importation of which a foreign-trade agreement has been concluded. This section of the code is the section which authorizes an appeal or protest by American producers against the ruling of the customs officials as to the appraised value and the classification of any imported merchandise of a kind manufactured or sold by the contestant. Many case under the tariff laws have reached the courts through these contests under section 1516 (b). For example, see J. W. Hampton, Jr., & Co. v. United States (276 U. S. 394, 48 Sup. Ct. 348, 72 L. ed. 624 (1928)), in which the constitutionality of the flexible tariff provisions of the act of 1922 were upheld, and Ex parte Bakelite Corp. (279 U. S. 438, 49 Sup. Ct. 411, 73 L. ed. 789 (1929)), a leading decision as to the jurisdiction of the Court of Customs and Patent Appeals.

Mention should be made of those executive agreements entered into subject to approval of Congress. An example is the agreement between the United States and Canada concerning the St. Lawrence waterway project which was made specifically subject to legislative approval in the United States and Canada.12 A Senate amendment to the river and harbor bill seeking approval of this agreement was defeated by the Senate on December 12, 1944.13

By the treaty process the Executive, with the approval of the Senate, may enter into agreements with foreign countries without being obliged to trace his authority to legislative acts, general or special, since the treaties are by the Constitution (art. VI) the supreme law to no lesser degree than statutes enacted by Congress pursuant to the Constitution. The proposal to establish a general rule of international law granting freedom for the aircraft of any nation engaged in commercial air transport and other civil operations to fly above the territory of any other nation, with or without the right to land, is of such nature, involving as it does questions of air sovereignty and departure from existing law and international practice, that its achievement could undoubtedly best be attained by the treaty process." 14 Indeed, this view was adopted when the United States became a party to a treaty dealing with this same subject, namely, the Pan American Convention of 1928.

Where operating rights to engage in air commerce are sought by government negotiation, the further question arises as to whether these rights shall be obtained by executive agreement, by treaty, or by other methods.15

Under the existing statutory law as set forth above, it is apparent that the conclusion of executive agreements to effect an exchange of operating rights is without legal basis in our statute law. Such executive agreements, to have legal validity, would require the adoption and ratification of a treaty between the governments concerned. That is not to say that it would be impossible to provide by new legislation for the delegation of power to the President or the Civil Aeronautics Board to negotiate international operating rights, but such legislative delcgation of authority would have to be surrounded with appropriate safeguards and would require a promulgation of suitably specific criteria by the Congress. In the absence of new legislation legalizing this procedure, government action to procure international operating rights must, if the agreements are to be safe from constitutional challenge, be accomplished through the treaty machinery.

Mr. HORNBECK. The author ably covers the major legal points involved, and concludes that under our existing statutory law the making of executive agreements to effect an exchange of operating rights in air transportation is without legal basis. He advocates that the treaty machinery be made use of in negotiating international operating rights.

It should be stressed that the legal issue is very clear cut. It is simply this: May the Department of State, whenever it deems its actions sufficiently justified by expediency, bypass article 2, section 1, of the Constitution of the United States and any pertinent acts of Congress (here, the Civil Aeronautics Act) through the device of so-called executive agreements? An affirmative answer to this question involves the necessary implications that not only is the approval of treaties by the Senate an academic rather than a real prerogative, but even that executive agreements made by the Department of State have the effect of nullifying congressional acts fully covering the same subject matter. This cannot be so, particularly where the subject matter vitally involves the welfare of millions of the citizens of this Nation. It could only be so, if it could be successfully maintained that our democratic form of government has been scrapped.

Senator BREWSTER. Would you be willing to spell that "democratic" with a small "d"?

Mr. HORNBECK. I would, sir.

12 (1941) Department of State Bulletin, pp. 307-312.

13 90 Cong. Rec. 9382 (1944).

14 See Fraser, Treaties and Executive Agreements, S. Doc. 244, 78th Cong., 2a sess. (1944).

15 Possibly by agreement entered into pursuant to specific authority first given by Congress.

It could only be so, if the constitutional functions of the people's elected representatives can be shelved at the whim of persons in whom the people have reposed no confidence.

There is no dispute among the authorities and the learned legal writers as to the proper use and function of executive agreements between our Government and foreign powers. Such agreements are proper and valid only if made to meet an emergency situation pending the negotiation of a treaty. They are not legally effective (nor desirable) substitutes for treaties.

I am, therefore, fully confident that the contention that our State Department had the authority to bind our Government by agreements with Great Britain and France cannot prevail because the fundamental assumptions upon which that contention is predicated are basically opposed to our system of representative government.

I also want to direct your attention to another serious consequence of the action of the State Department in negotiating and executing these agreements. If the State Department can validly do this with respect to international air transportation, without the leave or approval of the Congress, may it not be encouraged to extend its activities to the negotiation and execution of like agreements covering such other important fields as water transportation, communications, radio, the gathering and dissemination of news, and other subjects which will readily occur to the committee? If these agreements are to be accepted as valid and binding obligations on the Government of the United States, the precedent is indeed of far-reaching effect.

The brotherhoods which I have the honor to represent are pleased to endorse and recommend the McCarran bill for favorable consideration and action by this committee, and they further urge upon this committee that appropriate action be taken to the end that the Governments of Great Britain and France be advised that the bilateral agreements executed on February 11 and March 27, respectively, are not to be recognized as valid and binding obligations of the Government of these United States.

Senator MCCLELLAN. Are there any questions by the members of the committee?

Senator BREWSTER. Have you given consideration as to the course of action which the committee might take if they should adopt your view?

Mr. HORNBECK. I was decidedly interested in Senator Bailey's discussion this morning. His theory that these items are treaties corresponds not only with the theories which we have expressed, but theories of others here, and interestingly, Mr. Wiprud's theories. Whether or not this committee can entertain that, I am not here to say. Certainly I would say not, as a lawyer.

But I think that legislation can be effectively made and effectively passed outlawing, if you please, all of these things which have been done, in my opinion, illegally.

I think that is the recourse. I think that requires not only senatorial action, but House action, and a bill signed by the President. Senator BREWSTER. I gather that Senator Bailey inclined to the view of a resolution drawn up by the committee, declaring, at least, the opinion of the committee. Whether he contemplated that's going further, to the Senate, I am not clear. I did not hear his entire discussions.