This provision alone seriously threatens the high wage standards of American labor. We in the brotherhoods urge Congress to examine minutely the specific provisions which deal with "freedom of the air"; new machinery for fixing competitive air rates in international aviation which appear to give the British balance of control; and provisions opening United States built air bases on British territory for commercial purposes. Specifically, the American delegates at the Bermuda Conference agreed to grant the British subsidized monopoly air lines the right of operating international routes (1) from London to New York to Miami, and thence to all South American countries; (2) from London to New York to New Orleans and thence to Mexico and South American countries; (3) from London to New York to San Francisco, and thence across American bases in Honolulu, Midway, Wake, and Guam, and the Philippines to Eurasia and Australia; (4) from London to the Azores to Nassau and Miami; (5) British West Indies to Miami and Palm Beach. Other important and serious concessions were made, including an agreement to permit the International Air Transport Association (British dominated) to control all international air-transport rates. No mode of American transportation is missed in the competition under this "freedom of the air"-railroads, busses, and the domestic air lines are all subjected to the competition of the foreign monopolies in this first step toward allowing foreign lines to come into this Nation under the so-called freedom-of-the-air theory. All transportation employees who fought for the high standard of wages are affected by this new policy. It is understood that the administration claims executive powers to put this over-all agreement into force, but it must apply to Congress for legislation putting into effect a cartel-like system of rate making. The whole subject could then be thrashed out and the congressional determination made of whether this is good or bad for the future of American aviation. With best wishes, I am, Sincerely yours, A. F. WHITNEY, President. Senator MCCARRAN. I have received a letter from Dr. Edwin Borchard, of Yale University, which I request be inserted in the record for the information of the committee. Senator OVERTON. Without objection, it may be inserted. I think the committee will now proceed with a short executive session; and we will, therefore, excuse all noncommittee members. (The letter referred to as follows:) YALE UNIVERSITY, New Haven 11, Conn., April 12, 1946. The Honorable PATRICK A. MCCARRAN, DEAR SENATOR MCCARRAN: I observe your objection to having the aviation agreements concluded as executive agreements instead of treaties. This is a subject I have thought much about and regretted the growing practice of the State Department to make inroads on the Constitution by taking matters out of Senate control merely by making executive agreements, with Congress if necessary, without Congress if possible. This is the result of an evolution of the last few years, calculated, I am afraid, even though unintentionally, to make this Government more totalitarian than it is. It would be a great help if those who desire that result could rid themselves of the two-thirds vote of the Senate heretofore deemed necessary. The evolution has an interesting history. It began with the publication of the book of Wallace McClure entitled "International Executive Agreements," in which Mr. McClure contended that anything that could be done by treaty could be done by executive agreement. This was followed by the introduction of a resolution in Congress, the so-called Sumners amendment, giving the House the power to participate in treaty making. The amendment passed the House at the last session in a somewhat modified form and is now resting, I believe, in the Judiciary Committee, assigned for consideration to a subcommittee of which Senator Hatch is chairman. This is the legal method of changing the Constitution, and to the method adopted no objection can be taken. The third method of amending the Constitution is to use the examples of UNRRA, FAO, Bretton Woods, and other alphabetical arrangements to persuade the Senate that they have already abandoned their two-thirds power. This I believe to be untrue. I analyzed these agreements in an address made last month before the American Political Science Association. The fourth method is perhaps the most dangerous of all. The State Department submitted a memorandum to Senator Hatch's subcommittee on the St. Lawrence project and actually took this position- that where the subject matter is within the legislative power of Congress to act domestically-that includes practically all treaties-the Executive is empowered to turn a treaty (the treaty of 1932) into an executive agreement (that of 1941), send the agreement to Congress for its "information," and there solicit the approval of a majority of Congress. This would very effectively get rid of the two-thirds rule and amend the Constitution by substituting majorities. Its effect would be that where the State Department believes a two-thirds or more vote is easily obtainable they will submit the instrument as a treaty. But where they think the two-thirds vote is doubtful they will use their option to submit it as an executive agreement, soliciting the majority votes of the two Houses of Congress. Thus they would have an option. Apart from the necessity of soliciting Congress when an appropriation is necessary, I think this method would soon be followed by the conclusion of executive agreements by the President alone without Congress. I believe such an amendment of the Constitution is implicitly involved in concluding the aviation agreements by executive agreement. Since I suppose that the Senate would approve these agreements by a majority exceeding two-thirds, I do not understand why the State Department should insist upon their conclusion as executive agreements. I have read their explanation, but it seems to leave the matter in considerable doubt. Very faithfully yours, EDWIN BORCHARD. EXECUTIVE OFFICE OF THE PRESIDENT, April 2, 1946. Hon. JOSIAH W. BAILEY, Chairman, Committee on Commerce. MY DEAR SENATOR BAILEY: I have your letter of February 11, 1946, requesting the views of the Bureau of the Budget with respect to the enactment of S. 1814, which proposes to amend the Civil Aeronautics Act of 1938 so as to prohibit the making of agreements with foreign governments in respect to certain rights in the field of foreign air transportation except by treaty. This office recently had occasion to advise the State Department that there would be no objection to the presentation to your committee of its proposed report opposed to the enactment of this proposal. A copy of that report, in which the Department indicated its complete satisfaction with the policy which has been pursued during the last several years of consulting with appropriate congressional leaders on important foreign negotiations which may be expected to develop into the conclusion of agreements or treaties requiring action on the part of the executive branch of the Government, and expressed the hope that this comity would not be disturbed by the enactment of a proposal of the character proposed in S. 1814, is attached for your ready convenience. I concur in these views of the State Department, and in its hope that this legislation will not be favorably considered. Very truly yours, HAROLD D. SMITH, Director. MARCH 7, 1946. MY DEAR SENATOR BAILEY: I have received your letter of February 11, 1946, requesting my comments on Senate bill 1814, entitled "A bill to amend the Civil Aeronautics Act of 1938 as amended." The general purpose of the bill appears to be to require all agreements with foreign governments relating to air transportation or air commerce or to the participation of the United States in any international organization having to do with international aviation, to be entered into by treaty. In section 6 (c) of the Air Commerce Act of 1926 and sections 2 (a) and (d) and 301 of the Civil Aeronautics Act of 1938 Congress has clearly set forth the policy of this Government to foster air commerce between the United States and foreign countries. It has indicated its understanding that in order to foster such air commerce it is necessary to enter into agreements with foreign countries and in section 802 of the 1938 act the Secretary of State is recognized as the appropriate authority to negotiate such agreements (in consultation with the Civil Aeronautics Eoard). In 'section 1102 of the act, the Board is directed to exercise and perform its powers and duties consistent 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 foreign countries." Thus the Congress has specifically provided by legislation for the making by the executive of certain types of agreements with foreign countries in the field of civil aviation other than through the treaty process. During the last 20 years, pursuant to the authority contained in these laws and in execution of the general policy therein enunciated, the Department of State, in conjunction with the Civil Aeronautics authorities of this government, has executed a number of agreements with foreign countries which have served greatly to foster air commerce and advance the civil aviation interests of the United States. In all of these cases the agreements have been consistent with and could be carried out under the terms of existing legislation. In other cases, as in the case of the Convention on International Civil Aviation which could not be so carried out, the agreement has been submitted to the Senate for its advice and consent to ratification. In the case of the recent Bermuda agreement with the United Kingdom, with respect to those matters which cannot be carried out on the part of this Government under existing legislative authority, namely, the matter of regulation of international rates, the agreement is explicit that the United States incurs no binding obligation in this regard until necessary legislation has been enacted by the Congress. The procedure which has been followed in connection with the execution of agreements in the field of civil aviation under the authority of existing legislation is not at all unusual. Throughout the history of this country, there have been numerous instances where foreign negotiations have been concluded through agreements authorized or approved by acts of Congress in one of the fields of congressional responsibility under the constitution. So long as these agreements remain within the scope of declared congressional policy, there would appear to be no objection whatever to this procedure. In fact the Supreme Court has consistently ruled that such procedure is entirely constitutional. It should be noted also that there are many phases of international civil aviation requiring agreements with foreign countries where the matter involved is of a purely technical or transitory nature and therefore entirely inappropriate for handling through the treaty process. It is believed that a provision requiring all foreign agreements to be entered into as treaties would be impracticable in relation to many of these matters. The proposed legislation has implications of more general import which are a source of concern to this Department. One of these relates to possible questions which might be raised as to the propriety of action by the Congress in attempting through legislation to pass upon a matter which is necessarily of a constitutional nature involving as it must the powers and duties of the President to conduct the foreign relations of the United States. Without endeavoring to pass final judgment on the point, I seriously doubt whether legislation which would purport to prevent the President from entering into any agreements with foreign countries in this field would be valid. Entirely aside from legal arguments, however, I even more seriously question the wisdom from the standpoint of national policy of such an attempted legislative prohibition. The question of the relative responsibilities and prerogatiyes of the two great branches of our government in relation to foreign negotiations and agreements is a complex and at times controversial subject. If doubts arise as to the particular constitutional process to be followed in relation to a particular foreign negotiation, I do not doubt that the Congress or the Senate, as the case may be, can, in the light of all of the circumstances of the case, take adequate steps to assert its own views in the matter. For my part, I should hope that the instances in which questions may arise as to the propriety of the President's action in relation to the procedure followed in foreign negotiations, might be kept to a minimum. During the last several years, the Department of State has conscientiously and, I believe, effectively carried out a policy of consultation with appropriate congressional leaders on important foreign negotiations which may be expected to develop into the conclusion of agreements or treaties requiring action on the part of the legislative branch of this Government. On several important occasions this consultation has embraced the question of the constitutional procedure to be followed in bringing agreements into force as to this country. There has thus been worked out what I believe to be an exceptionally successful system of cooperation between these two great branches of our Government with due regard to the respective responsibilities and prerogatives of each in the formulation and execution of United States foreign policy. It is my firm belief that this type of consultation presents the only satisfactory method of adjusting the relations of the legislative and executive branches in relation to this important problem. For the Congress to attempt by legislation to prescribe in blanket fashion which particular constitutional procedure should be followed in relation to any one or all types of foreign arrangements could result only in very adverse consequences to the conduct of our foreign relations. The Department has been informed by the Bureau of the Budget that there is no objection to the submission of this report. Sincerely yours, JAMES F. BYRNES. THE SECRETARY OF COMMERCE, Hon. JOSIAH W. BAILEY, Chairman, Committee on Commerce, United States Senate, Washington, D. C. DEAR MR. CHAIRMAN: Reference is made to your communication of February 11, 1946, requesting the views of the Department on S. 1814, a bill to amend the Civil Aeronautics Act of 1938, as amended. If the United States is to execute its foreign aviation policy adequately, it must employ a quick, efficient and flexible procedure for making, modifying and abrogating understandings with other powers. Executive agreements containing provisions for amendment from time to time in the light of new developments satisfy all these requirements. The treaty procedure, on the other hand, is slow and cumbersome and not adaptable to continuous and frequent revision. I believe the enactment of the bill S. 1814 might retard the development of the international air commerce of the United States and, therefore, am not in favor thereof. The Bureau of the Budget has advised that there would be no objection to the submission of this letter to your committee. Sincerely yours, (Signed) H. A. WALLACE, Secretary of Commerce. CIVIL AERONAUTICS BOARD, May 10, 1946, Hon. JOSIAH W. BAILEY, Chairman, Committee on Commerce, United States Senate, Washington, D. C. MY DEAR SENATOR BAILEY: The views of the Civil Aeronautics Board concerning S. 1814, a bill "to amend the Civil Aeornautics Act of 1938, as amended," are herein set forth. I The Board is unable to approve legislation which is designed to prevent use of executive agreements concerning international civil aviation. Our opposition to the bill is based primarily upon the practical considerations that in effecting exchanges of operating rights, the time element is often of extreme importance. To prohibit consummation of all international aviation agreements until ratified as treaties would seriously impede the progress of international aviation, and would place United States flag air carriers in a disadvantageous position in international bargaining for reciprocal rights. This is particularly true in instances requiring prompt action wherein designated representatives of foreign sovereignties may be empowered to take final action without such restrictions. The Board does not mean to imply that treaties should not be concluded with respect to reciprocal aviation agreements or international aviation organizations where appropriate. Where the circumstances will permit sufficient time without prejudicing this country's air carriers in respect to competition of foreign nationals, the treaty device is regarded as proper. However, the Board believes that the matter of determining whether a treaty, executive agreement, or other means of international arrangement is necessary and appropriate in a specific instance should be left to the determination of the President. Such determination by the President we regard as a proper exercise of his constitutional executive powers over political matters in international relationships. Should Congress regard as necessary the conclusion by treaty of international agreements of a permanent nature, the Board urges that executive agreements should still be permitted as temporary working arrangements pending treaty ratification. As an illustration, the interim agreement establishing the Provisional International Civil Aviation Organization was entered into between the various nations as a result of the Chicago Conference. This country's participation was authorized by executive agreement on February 8, 1945, and the interim agreement became effective on June 6, 1945, with ratification by the required 26 countries. The permanent International Civil Aviation Convention also drafted at the Chicago Conference was submitted to the Senate for approval as a treaty on March 12, 1945. To date the Senate has not acted upon this matter and substantial developments in international aviation affairs have proceeded under the interim agreement. Had S. 1814 been enacted prior to the Chicago Conference, the United States apparently would have been unable to participate in any such type of international organization up to and including the present time. II For the foregoing reasons, the Civil Aeronautics Board is opposed to enactment of the proposed legislation, but if enacted, the Board regards as necessary the inclusion of additional provisions specifically authorizing executive agreements of a temporary nature pending Senate approval of appropriate treaties. The Bureau of the Budget has advised that there would be no objection to the presentation of this report to the Committee. Sincerely, L. WELCH POGUE, Chairman. (Whereupon, at 11:55 a. m., the committee proceeded in executive session). |