under the Constitution should supersede Congressional regulation in an area, such as international commerce, where Congress has been given specific powers. "A direct Presidential agreement will not ordinarily be valid if contrary to previously enacted legislation. [I]f the subject of the agreement is a matter within the President's special Constitutional competence-related, for example, to the recognition of a foreign government or to an exercise of his authority as Commander-in-Chief-a realistic application of the separation of powers doctrine might in some situations appropriately permit the President to disregard the statute as an unconstitutional invasion of his own power." McDougal & Lans, supra, 317. [Emphasis added.] Borchard, whose more conservative view was that "the executive agreement was only a supplementary device designed to accomplish minor arrangements within the limited powers of the Executive to deal with diplomatic affairs and as Commander-in-Chief," Borchard, supra, at 648, called McDougal's position "extraordinary", id at 643. McClure, generally an advocate of the use of executive agreements, opined: "It seems out of harmony with the entire tenor of the Constitution to hold that the President, even when dealing wih international matters, may in the absence of express Constitutional declaration, achieve results which overrule the national legislature. To do so, is no part of even the most plenary executive power." W. McClure, International Executive Agreements, 343 (1941). The Restatement is also quite clear on the question of the effect on domestic law of independent executive agreements. It asserts flatly that while such an agreement "supersedes inconsistent provisions of the law of the several states. [ilt does not supersede inconsistent provisions of earlier acts of Congress." American Law Institute, Restatement (Second) of the Foreign Relations Law of the United States, § 144 (1965). The one case which has decided the question of an inconsistency between an executive agreement and an existing law asserts that the law must prevail. United States v. Guy W. Capps, Inc., supra. The case dealt with conflict between provisions of the Agriculture Act of 1948 dealing with procedures to prevent excessive imports of eating potatoes and an executive agreement with Canada to accomplish the same purposes by different means. The Court of Appeals concluded: 66 that the executive agreement was void because it was not authorized by Congress and contravened provisions of a statute dealing with the very matter to which it related and that the contract relied on, which was based on the executive agreements, was unforceable in the courts of the United States for like reason. The power to regulate foreign commerce is vested in Congress, not in the executive or the courts; and the executive may not exercise the power by entering into executive agreements. Id. at 658. *** [W]hile the President has certain inherent powers under the Constitution such as the power pertaining to his position as Commander in Chief of Army and Navy and the power necessary to see that the laws are faithfully executed, the power to regulate interstate and foreign commerce is not among the powers incident to the Presidential office, but is expressly vested by the Constitution in the Congress." Id. at 659. Chairman Metzger obviously could not ignore the overwhelming legal authority to the effect that an executive agreement must give way to conflicting domestic law. Rather, he asserted that both the law and the agreement were valid and that in cases where they were inconsistent, the agreement should prevail. Mr. Metzger's deference to the rule that the agreement must give way in cases of conflict is merely semantic. He cites three irrelevant cases and begs the relevant question in supporting his outcome-determinative position. The cases, as Commission Clubb correctly pointed out, stand at best for the proposition that a valid act or treaty-which is inconsistent with a prior act, treaty or recognized rule of international law-must be interpreted to resolve inconsistencies in favor of the prior rule of law. Mr. Metzger assumes that the rule of law established by the executive agreement is valid, the very question before him. Even assuming that, the cases he relies upon would dictate the latter act's deference to the prior one in cases of inconsistencies. Thus, as Mr. Clubb intimates, the proper result from Mr. Metzger's position, granting the assumption that the executive agreement is valid, is that it must give way whenever there is an inconsistency with the earlier act. In this case, therefore, the International Antidumping Code must give way to the Antidumping Act of 1921. COVINGTON & BURLING. U.S. TARIFF COMMISSION, Hon. RUSSELL B. LONG, Chairman, Committee on Finance, DEAR MR. CHAIRMAN: It has come to my attention that at the hearings on June 27, 1968 before the Committee on Finance on the International Anti-Dumping Code, certain portions of the Separate Views filed by Commissioner Thunberg and me in the March 8, 1968 Report of the Tariff Commission to the Committee on S. Con. Res. 38 were called into question. In those Separate Views we expressed ourselves in the following terms, at the conclusion of our discussion of the question of the consistency of the AntiDumping Act and the Code: "Accordingly, having examined those provisions of the Code and of the Act relating to the direct functions of the Commission under the Act, we limit ourselves to the statement that a) they are founded upon common basic concepts, b) they obviously differ in language, and c) these differences in language do not appear obviously or patently to call for differing results in future cases regardless of their inevitably differing facts and circumstances. Indeed, we are unable, in the absence of the particular combination of facts and circumstances involved in each injury determination, to assert categorically that in such cases their application would lead to identical or to differing results. "If, folowing July 1, 1968, the Commission has occasion to perform its statutory duties under the Anti-Dumping Act (there are presently no cases thereunder pending before the Commission), and a question of consistency between a provision or provisions of the Code and of the Act is a relevant issue and there has been no intervening new American legislative action, the Commission should apply the principles of American law to the task of interpretation of the Act as it affects the facts of the investigation, including those principles relating to interpreting the Act so as to avoid inconsistency between it and the international obligations of the United States. If this proved not to be possible, the Commission should apply the provisions of the Act of the facts found, not those of the Code.1 " As authority for the principle of interpretation to which we have adverted, we referred to the following: At the hearing, counsel for one of the trade associations interested in S. Con. Res. 38 (Mr. Hiss) first denied that any authority had been cited by us (Tr. p. 156). After the above authorities had been mentioned, he then sought to maintain that an agreement entered into on behalf of the United States by the President could be modified unilaterally if it had been executed upon the basis of the President's constitutional authority, whilst presumably this could not be done if it had been based upon other domestic sources of power, such as through the domestic treaty process or through legislation prior or subsequent to its execution. He also sought to convey the impression that the time when the international agreement was entered into altered the interpretative principle specified in the Restatement. A reading of the cited portions of the Restatement will make clear that he was wrong on all counts, if the Restatement represents a fair statement of American law on the subject, which I believe it does. Neither the flat statement of the Restatement's black-letter rule itself, nor any of its comments, nor anything else in the Restatement, suggests that this interpretative rule is affected by any of 1 See Restatement of the Law, Second, Foreign Relations Law of the United States (American Law Institute, 1965) Secs. 1, 3(3), and Comment j. to Sec. 3. Section 3(3) states that, "If a domestic law of the United States may be interpreted either in a manner consistent with international law or in a manner that is in conflict with international law, a court in the United States will interpret it in a manner that is consistent with international law." Section 1 defines "international law" to mean those rules of law applicable to a state or international organization "that cannot be modified unilaterally by it." After July 1, 1968, the International Anti-Dumping Code will contain rules of law applicable to the United States in its relations with other States which "cannot be modified unilaterally by it." The fact that it is an executive agreement, made by the President under his own authority. makes it no less binding upon the United States in this regard as an internationaol obligation (Sections 122, 131). See also McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963); Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804); Lauritzen v. Larsen, 345 U.S. 571, 578 (1952). the circumstances to which he refers. The reason why the Restatement did not consider the rule to be changed by any such circumstances is the same as that for the rule itself. Throughout this discussion it must be recalled that we are here talking about international obligations which have not been made part of our domestic law. The United States subjects itself to international legal obligations in two ways, through explicit agreement on its part, in the form of international agreements voluntarily assumed through execution by the President on behalf of our country; or implicitly through the operation of customary international law rules to which our country has tacitly agreed through conformity of its conduct over a sufficient period of time and under such circumstances as to lead to the conclusion that the rule was accepted as obligatory. The first kind-explicit agreements are set forth in specific agreed-upon language in negotiated instruments, designed to record mutual obligations of the parties and to achieve a balancing of their interests in a fair and even-handed way. The second kind—those established through customary law, are more likely to be expressed in broad, less specific terms, and hence to be more difficult to establish, both as to their existence (has there been the necessary consensus to establish the rule as customary law?), and their precise scope or coverage. Whatever the domestic source of the President's authority to create or declare on behalf of the United States an international obligation in an international agreement-whether it be his constitutional authority (see United States v. Curtiss-Wright Corp., 299 U.S. 304) acting on his own, or the domestic treatymaking process involving Senate consent, or advance authorization by Act of the whole Congress, or subsequent approval by Act or Joint Resolution of the whole Congress in the first kind of situation-the specific agreement-the rule is stated in relatively precise terms, in an agreement to which the United States is bound by the pledged word of its Chief Executive, speaking for the country. So long as that agreement exists-until it is terminated or denounced-the United States must honor it if it expects others to respect their obligations to us in turn and, if it otherwise places value upon reliable contractual system as an aid to sensible international relationships. The United States can no more legally modify the terms to its advantage unilaterally during the existence of the agreement than Jones can on his own cut his rent payments from $100 to $50 per month, or Smith can on his own require $200 instead of $100, during the one-year lease in which they had both agreed to $100 per month. The situation has to be the same legally under the second kind of rule-the customary international law rule-even though such rules are harder to establish and define, for otherwise any legal obligation would rest on a slender reed, if any-whether a country found it convenient to do what it promised. Whether or not a domestic statute was enacted before or after the creation or declaration of an international obligation binding the United States, whether that obligation, not having the status of domestic law, was assumed pursuant to the President's constitutional authority or through other methods, is likewise irrelevant to the consideration that the United States should not unnecessarily be thrown into a situation whereby it must violate its international obligations. That is the reason for the rule of the Restatement-to avoid, if one can reasonably do so, interpreting a domestic law of the United States so as to be in conflict with a subsisting international obligation of the United States. It is no less a violation of our pledged international obligation whether that obligation rests domestically upon one or another of the sources of the agreement-making power. If anything, the customary international law rule would rest upon less firm consensual underpinnings than those founded on specific international agreements. That the Restatement's unqualified interpretative rule is sound appears also from certain additional considerations, one internal to it, and one external. Internally, it is noteworthy that the Restatement's rule is that if a domestic law "may be interpreted either in a manner consistent with international law or in a manner that is in conflict with international law" (emphasis added), then a United States court "will interpret it in a manner that is consistent with international law." Any idea that the Restatement's authors meant that a court, or an administrative body, is required or permitted to "torture" the construction of a domestic law in order to make it appear to conform to an international agreement, rather than fairly and reasonably to interpret it, is an obvious and an egregious error. That it should have been advanced by one who attended classes of mine would be painful but for the circumstances that no law school holds teachers, and few teachers hold themselves, fully responsible for all of the students who sleep or are otherwise in constructive non-attendance! The Restatement makes clear that it is only if a fair and reasonable interpretation of the Act can render it consistent with the Code that one should adopt it. External to the Restatement's rule, but important to it, is the remedy in the event that the Congress considers nonetheless that the applicaion of the Restatement's rule will result or has resulted in determinations distasteful to it. Congress can change the domestic law so as to avoid or overturn the distasteful determination. If and when it does, the result is conclusive-the United States is then thrown into a violation of its international obligation, from which predicament the President must extricate us either through denunciation of the agreement of which the obligation was a part, or through renegotiation, or in other suitable diplomatic ways. This would be understood, if not enthusiastically welcomed, as part of the perpetual problem of accommodation between those interests of a country which are more internal and those which are more external. In an era when all countries have both interests, the Restatement's rule strikes a balance which I believe to be sound law, realistic, and consistent with America's national interest. The Supreme Court cases cited by Commissioner Thunberg and me illustrate and support the Restatement's rule. Indeed, the latest case, McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963), may properly be characterized as an illustration and even as an extension of the Restatement's rule. In that case, Mr. Justice Clark, speaking for the Court which decided the case unanimously, held that a domestic statute, the National Labor Relations Act, had not been intended by Congress to apply to a Honduran flag vessel, owned by American interests, manned by a foreign crew, which plied regularly to and from American ports, even though there was no doubt that Congress had constitutional power to do so, and even though the jurisdictional provision of the Act was expressed in language which indicated that Congress had intended to exercise fully its constitutional power. The Court adverted to the "admonition of Mr. Chief Justice Marshall in The Charming Betsy, 2 Cranch 64, 118 (1804), that 'an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . ." It mentioned an article in a treaty with Honduras, and a rule of customary international law that the law of the flag state "ordinarily" governs the internal affairs of a ship, but it did not argue that these amounted to clear and relevant international obligations of the United States which were inconsistent with an assertion of jurisdiction by the Congress in the Act, and that such an assertion would throw us into a violation of law situation. Indeed, the holding of the Court was couched in terms which precluded the application of the statute to vessels of countries with which the United States was not in any relevant treaty relationship. Rather, the Court stressed a different kind of "highly charged international circumstances", flowing from dual regulation of the labor relations on the Honduran vessel by two countries: "The possibility of international discord cannot therefore be gainsaid. Especially is this true on account of the concurrent application of the Act and the Honduran Labor Code that would result with our approval of jurisdiction. Sociedad, currently the exclusive bargaining agent of Empresa under Honduran law, would have a head-on collision with N.M.U. should it become the exclusive bargaining agent under the Act. This would be aggravated by the fact that under Honduran law N.M.U. is prohibited from representing the seamen on Honduranflag ships even in the absence of a recognized bargaining agent. Thus even though Sociedad withdrew from such an intramural labor fight-a highly unlikely circumstance-questions of such international import would remain as to invite retaliatory action from other nations as well as Honduras." The Court therefore interpreted the jurisdiction language of the Act to exclude coverage of the vessel since, under the circumstances, it found that it was difficult to believe that Congress had "clearly expressed" an "affirmative intention" to cover such cases despite the use of the widest jurisdictional language in the Act. Contrary arguments "should be directed to the Congress rather than to us." I think that it is fair to say that the Court's opinion in McCulloch v. Sociedad Nacional represents an illustration and even an extension-what lawyers call an a fortiori case-of the Restatement's interpretative principle. *** At one point in the June 27 hearings, it was suggested (Tr. pp. 156-157) that Mr. Hiss, of the law firm representing an interested trade association, and I research the authorities and render an opinion. Since the law firm is clearly an interested party, and since I may have become so, at least on the matter of legal interpretation, by virtue of our March 8 views and this letter, would it not be appropriate for the Committee to ask outsiders-knowledgeable and disinterested lawyers of acknowledged standing-for their opinions? I would suggest a reasonable selection from among the following knowledgeable persons: (1) the Reportorial Staff of the American Law Institute's Restatement, comprising these well-known American international law authorities: Adrian S. Fisher Chief Reporter, former Legal Adviser, Department of State; Covey T. Oliver; I. N. P. Stokes; Joseph M. Sweeney, presently Dean of Tulane Law School; (2) the Advisory Committee of the Restatement, comprising these knowledgeable persons: Robert Amory, Jr.; William W. Bishop, Jr.; Robert R. Bowie; John G. Buchanan; R. Ammi Cutter; Eli Whitney Debevoise; Alwyn V. Freeman; George Winthrop Haight; John B. Howard; James N. Hyde; Philip C. Jessup; Joseph E. Johnson; Milton Katz; Archibald King; Monroe Leigh; Brunson MacChesney; Herman Phleger; Louis B. Sohn; John R. Stevenson; and (3) the Council of the American Law Institute consisting of the following distinguished lawyers: Dillon Anderson, Houston, Texas; Francis M. Bird, Atlanta, Georgia; Charles D. Breitel, New York, N.Y.; Howard F. Burns, Cleveland, Ohio; Homer D. Crotty, Los Angeles, Calif.; Norris Darrell, N.Y.; Edward J. Dimock, N.Y., N.Y.; Arthur Dixon, Chicago, Ill.; Gerald F. Flood, Philadelphia, Pa.; Henry J. Friendly, New York, N.Y.; Edward T. Gignoux, Portland, Maine; H. Eastman Hackney, Pittsburgh, Pa.; Laurance M. Hyde, Jefferson City, Mo.; William J. Jameson, Billings, Mont.; Joseph F. Johnston, Birmingham, Ala.; Edward H. Levi, Chicago, Ill.; William B. Lockhart, Minneapolis, Minn.; Ross L. Malone, Roswell, N.M. William L. Marbury, Baltimore, Md.; Carl McGowan, Washington, D.C.; Charles M. Merrill, San Francisco, Calif.; Robert N. Miller, Washington, D.C.; Timothy N. Pfeiffer, New York, N.Y.; Walter V. Schaefer, Chicago, Ill.; Bernard G. Segal, Philadelphia, Pa.; Eugene B. Strassburger, Pittsburgh, Pa.; Roger J. Traynor, Berkeley, Calif.; Harrison Tweed, New York, N.Y.; John W. Wade, Nashville, Tenn.; Lawrence E. Walsh, New York, N.Y.; Raymond S. Wilkins, Boston, Mass.; Charles H .Willard, New York, N.Y.; Laurens Williams, Washington, D.C.; John Minor Wisdom, New Orleans, La.; Charles E. Wyzanski, Jr., Boston, Mass. To this list might be added two elder statesmen from Mr. Hiss' law firm, whose reputation and ability would grace this list, and whose integrity is bounded by no parochial commercial interests Mr. Dean G. Acheson and Mr. John Lord O'Brian. I believe the views of a representative selection of such persons would command the attention of all and enlist the confidence of many. I should welcome them eagerly. I would appreciate it if this letter could be made a part of the record of the hearings. Sincerely yours, STANLEY D. METZGER. SUPPLEMENTARY MATERIAL PROVIDED BY EXECUTIVE BRANCH Following the hearing on June 27, 1968, the Executive Branch provided supplementary material which is set out below and which concerns (1) Price revision policy of the Department of the Treasury; (3) Inapplicability of Capps case to the Code; (4) Authority under which the Code was negotiated; and EXPLANATION OF TREASURY PRACTICE IN CLOSING OUT "DUMPING" CASES WHEN THERE HAS BEEN PRICE REVISION The question has been raised as to what right Treasury has to close out cases without reference to the Tariff Commission when there has been price revision (or which accomplishes the same result an end put to exports). Critics of this procedure have urged that any case involving exports to the United States at less |