that country. The effectiveness of the quarantine was strengthened by the passage of a provision in section 306 of the Tariff Act of 1930. This provision prohibited the importation of cattle, sheep, swine, other domestic ruminants, and fresh, chilled, or frozen beef, veal, pork, lamb or mutton, from a foreign country found by the Secretary of Agriculture to be infested with the rinder-pest or foot-and-mouth disease. The real issue confronting American agriculture at that time was whether this country should admit animal products coming in from territories or zones declared to be free of disease when the country, of which it was a part, was found to be infested. (Article III, U. S.-Argentina Sanitary Convention-signed May 24, 1935.) The Argentina convention, in effect, would have emasculated the congressional (Smoot-Hawley) mandate. While the 1935 sanitary convention has lain dormant these 3 years or more, the officials of the Department of State have been active. In nearly all, if not all, of the trade agreements thus far executed, these officials have seen fit to incorporate one or another form of sanitary convention. In at least three instances, namely, in the case of trade agreements executed with Brazil (effective January 1, 1936), Colombia (effective May 20, 1936), and the Netherlands (effective May 8, 1937), this country has agreed not to impose additional sanitary requirements without the consent of the other contracting government. It is most singular that the pertinent articles of these agreements are copied verbatim from Article V of the 1935 sanitary convention with Argentina. We quote this identical language as follows: "The Government of the United States of America or the Government of * * * (Argentina), as the case may be, will accord sympathetic consideration to such representations as the other Government may take regarding the application of sanitary laws and regulations for the protection of human, animal, or plant life. "In the event that the Government of either of the contracting countries makes representations to the Government of the other country in respect of the application of any sanitary law or regulation for the protection of human, animal, or plant life, and if there is disagreement with respect thereto, a committee of technical experts on which each contracting Government will be represented shall, on the request of either Government, be established to consider the matter and to submit recommendations to the two Governments. "Whenever practicable each Government, before applying any new measure of a sanitary character, will consult with the government of the other country with a view to insuring that there will be as little injury to the commerce of the latter country as may be consistent with the purpose of the proposed measure. The provisions of this paragraph do not apply to actions affecting individual shipments under sanitary measures already in effect or to actions based on pure food and drug laws." In other trade agreements, illustrated by the new Canadian agreement (provisionally effective January 1, 1939), our Government agrees to submit the question of the application of any sanitary law or regulation to a form of international arbitration whenever the other contracting government disagrees with representations this country may make respecting the application of any sanitary law or regulation for the protection of human, animal, or plant life. In short, an array of international experts displace the Congress of the United States in the matter of protecting the public health. Such a commission would be an excellent device to prevent, for several years, any action on the part of our Government. It is equally significant that the language of this clause in the trade agreements is lifted bodily from the Argentina Sanitary Convention. Compare the following quotation of paragraphs 2 and 3, article XV of the Canadian trade agreement with the first two quoted paragraphs above taken from the Argentina Convention of 1935: "1. * * * "2. The Government of each country will accord sympathetic consideration to, and when requested will afford adequate opportunity for consultation regarding, such representations as the other Government may make with respect to the operation of customs laws and regulations, quantitative restrictions on imports or the administration thereof, the observance of customs formalities, and the application of sanitary laws and regulations for the protection of human, animal. or plant health or life. "3. In the event that the government of either country makes representations to the government of the other country in respect of the application of any sanitary law or regulation for the protection of human, animal, or plant health or life, and if there is disagreement with respect thereto, a committee of technical experts on which each government will be represented shall, on the request of either government, be established to consider the matter and to submit recommendations to the two governments." A further question is raised concerning the incorporation of these sanitary convention clauses in trade agreements that of their application to countries other than the contracting government. In the negotiation of these trade contracts it has been the established policy to give whatever concessions are made to every other country except those which are deemed to discriminate against the United States. By negotiating a trade agreement with one country are all countries free to disagree with representations of our Government concerning the application of any sanitary law or regulation? This continued encroachment on the prerogatives of Congress, the right and duty to legislate for the public health and welfare, has been bitterly protested by the major farm organizations. They are on record in trade-agreement hearings and elsewhere with the request that these conventions be deleted from the agree ments. Sanitary conditions at home and abroad fully justify the Smoot-Hawley embargo. When B. A. I. Order 353 (effective August 1, 1935) was issued by the Secretary of Agriculture in accordance with the provisions of section 306a of the Smoot-Hawley Tariff Act of 1930, foot-and-mouth disease was found to exist in practically all of the major cattle and sheep-producing countries of the world with the exception of the North American Continent and Australia. This is no less true in 1939 as evidenced by B. A. I. Order 370 (effective June 16, 1939), and the amendment of June 13, 1939, thereto. The contagious and communicable disease of rinderpest, or foot-and-mouth disease, having been found by the Secretary of Agriculture to exist in the following countries importations of cattle, sheep, other domestic ruminants, swine, fresh, chilled and frozen beef, veal, mutton, lamb, and pork from these countries are prohibited, viz, all countries on the continent of Africa, Albania, Arabia, Argentina, Belgium, Bolivia, Brazil, Bulgaria, Ceylon, Chile, China, Chosen (Korea), Czechoslovakia, Danzig (Free City), Denmark, Ecuador, Federated Malay States, France, Germany, Greece, Hungary, India, Indochina, Iran (Persia), Iraq, Italy, Great Britain, Luxembourg, Netherlands, Palestine, Paraguay, Peru, Philippine Islands, Poland, Portugal, Rumania, Siam, Spain, Straits Settlements, Sweden, Switzerland, Syria, Turkey, Union of Soviet Socialist Republics (Russia), Uruguay, Yugoslavia, the islands of the Malay Archipelago, and the various islands of the Mediterranean. The comparatively disease-free position of this country, reached after more than 20 years joint effort by Federal and State Governments and at the expense of millions of dollars annually, justifies the embargo. Economic grounds, real or potential, cannot supersede the public health. HOLDING BACK HEALTH LEGISLATION It may be argued that the wording of the so-called sanitary conventions in the trade agreements does not inhibit the Congress from enacting such laws of a sanitary character governing imports as it may please. Let us examine that argument. Pursuant to action of previous national conventions, in 1937 the federation drew up a simple bill to provide that no persons should import dairy products into the United States unless such dairy products had been produced from milk or cream of animals which were either free from tuberculosis or which were under official test for that disease. This proposed draft was placed in the hands of a member of the Agricultural Committee of the House who wrote both to the Secretary of State and the Secretary of Agriculture asking for an official opinion as to the policy of the administration with respect to this proposed legislation. Official replies were received from both the Secretary of State and the Secretary of Agriculture in which opposition was expressed to this legislation. In the letter from the Secretary of State specific reference is made by Mr. Hull to the fact that legislation of this character would be "contrary to the established commercial policy of this administration." Under the circumstances, would not the President veto the proposed legislation, even if Congress should pass it? In the course of 23 years, the Federal, State, and county governments have expended more than $260,000,000 to control vovine tuberculosis. It is likely that an additional $100,000,000 has been sustained by way of actual losses of producers in the value of their animals above returns from indemnities and salvage disposal. The Nation is now practically free from this disease, its incidence having been reduced to a minimum. It has been further established that the tubercular bacilli will live in certain manufactued dairy products for many months. Under such circumstances it seems inconceivable to us that the administration would oppose a law to require imported dairy products to come into this country on the basis of the same standards of health protection that are now compulsory for producers in the United States. Our organization favors legislation requiring permits for both domestic interstate shipment and foreign importation of dairy products, such permits to be issued on the basis of proof that the dairy products come from herds under official test for bovine tuberculosis. We submit that the involvement of this Nation in trade agreements containing these so-called sanitary conventions operates against the health of all American citizens. Knowing that the State Department as at present constituted will not freely abandon this policy, we feel that curative measures should be taken by the Congress to force it to do so. Mr. HOLMAN. I now come to two amendments which we propose for the consideration of the committee. Senator KING. By way of summation, the large number of dairy organizations for which you have spoken today are opposed to the continuance of this treaty? Mr. HOLMAN. Will you please repeat that? Senator KING. I say, by way of summation, I infer from your testimony that the organizations which you represent are opposed to this bill before us? Mr. HOLMAN. The organizations which comprise our federation met in annual convention in Chicago November 15, 16, and 17, 1939, and unanimously asked for its repeal; but, as I previously stated, the convention gave the officers considerable liberty in interpreting the legislative situation as we found it, but further instructed that Senate ratification was the minimum. Acting upon that power, we are suggesting to the committee one amendment which conceives of these present trade agreements as being both revenue legislation and treaties as being "dual purpose animals," if you could use a dairy term for it. If that is the case, then to make them legal, in the judg ment of our counsel, it would be necessary for the House and Senate to pass the revenue phase of the agreement, and then for the Senate, in addition, to ratify, by the usual two-thirds vote, that part of the agreement which might be termed "a treaty." To that effect, we have introduced this amendment, which further provides that this revenue legislation and this treaty combined might be ratified in whole or in part, or adopted in whole or in part. The language may not be the best way to say it, but it expresses our thought. (Following is the proposed amendment referred to by Mr. Holman:) PROPOSED AMENDMENT TO TRADE AGREEMENT ACT REGARDING CONGRESSIONAL RATIFICATION Amend the Tariff Act of 1930, as amended, by adding at the end of part III (U. S. C., title 19, secs. 1351 to 1354, inclusive), the following: "SECTION 5. No foreign trade agreement hereafter entered into under the suthority delegated to the President by section 350 of an Act entitled "An Act to amend the Tariff Act of 1930," approved June 12, 1934, as amended, no amendstory or supplementary agreement hereafter entered into under such section, and no duties and other import restrictions specified in a proclamation issued by the President to carry out any such foreign trade agreement or any such amendatory or supplementary agreement, shall take effect until any such agreement shall have been ratified by the Senate and the duties and other import restrictions so specified to carry out such agreement shall have been approved by Congress: Provided, That the Senate may ratify any such agreement and Congress may approve the duties and other import restrictions so specified in part only; and that part of any such agreement so ratified and such duties and other import restrictions so approved shall then become effective." Senator KING. Have you or your counsel submitted a brief elaborating those points? Mr. HOLMAN. I have a brief here which we believe would be useful to you, and I would like the privilege of offering it in the record, as it represents a considerable amount of scholarly work. Senator CONNALLY. I think it should be printed. Is it in the House hearings? Mr. HOLMAN. No. None of the material that I presented today has ever been printed. The CHAIRMAN. Without objection, the brief will be inserted. (The same will be found at the conclusion of Mr. Holman's testimony.) Mr. HOLMAN. Now, I have a second amendment which has to do with the restoration of the right of producers to go into court. The Senators will recall that when the Tariff Act of 1930 was passed, section 516 (b) spelled out a simple procedure by which any producer could redress his wrongs first by going to the Treasury, we will say, and finally the whole thing was spelled out in that section, and finally getting into court. When this act was passed, specific reference was made to section 516 (b) to the effect that that should not apply to any actions under this act. The result is that we are denied a chance to get into court on this matter, and I can tell you that if we could have gotten into court, our own organization would porbably by this time. have had it up to the Supreme Court for a test to show really whether it is an undue delegation of power. To that end, we are offering an amendment designed to strike that language. It is very simple: Amend the Tariff Act of 1930, as amended, by striking the words and figures "sections 336 and 516 (b)" appearing in the second sentence of section 2 (a) of an act entitled "An act to amend the Tariff Act of 1930," approved June 12, 1934, as amended, and inserting in lieu thereof the following: "Section 336". We do not propose to take out the exemption under this present law of the operations under the flexible tariff provision. Senator KING. Suppose it is admitted that these trade agreements are unconstitutional and not a proper delegation of authority. Has it been the view of your organization and your counsel that there is no way of challenging the validity of the act; that you cannot get into any Federal court directly or indirectly, or into the Supreme Court of the United States? There is a decision Mr. HOLMAN. We have not been able to do so. here in the case of Fletcher versus the United States. Senator CONNALLY. An importer could raise the issue, but they are not importers. An importer could raise the issue, could he not? Mr. HOLMAN. I am not a lawyer, but here is the language from the Fletcher case, Fletcher v. The United States (92 F. (2d), 713), decided in November 1937: In the Tariff Act of 1922, as a means of protecting American manufacturers, producers or wholesalers, Congress provided that they should have the right to protest the assessment by the collector of a rate of duty which was believed to be erroneous. This, of course, included a rate which was regarded as being too low. Definite provisions in section 516 (42 Stat. 970) were made to that effect.. In the Tariff Act of 1930, substantially the same provision as far as is material here was reenacted. In 1934, Congress expressly withdrew the right of the socalled American producer to protest in event of a rate having been fixed by virtue of the so-called Reciprocal Trade Agreement Act. Obviously, by its express amendment of the 1930 act, it did not intend that the producer could do indirectly what it denied him the right to do directly. If a producer, such as the appellant, could make an importation and accomplish the same purpose by protesting the rate fixed under the amended Tariff Act of 1930, the amendment to the act would amount to a nullity. We have felt that we were shut off by virtue of that decision. This brief in support of our amendment has been written by Mr. Charles W. Wilson, our counsel, and I have offered it as a part of the record. There is one final thing I would like to say. We are not to be interpreted as being opposed to an increase of foreign trade. We believe in foreign trade, we believe in importations, we believe that that percentage of our production which goes abroad, whether it be either industrial or agricultural, helps American farmers and America. We are not necessarily opposed to trade agreements, providing the procedure of executing trade agreements is in the form of carrying out a definite congressional mandate for which definite standards are prescribed for the Executive. However, we are definitely opposed to generalization of benefits and we believe that the bilateral system of trade agreements in this very modern, hard-boiled age in which we are living is the best way in which we can use trade agreements to effect the ultimate improvement of our conditions. We suspect, and we hope that this committee will investigate it before it reports the bill, that most of these trade agreements that have been signed by these other countries have been, if not technically, at least actually, violated. We have in these trade agreements in most cases the right of reprisal if we wish to take it. Senator KING. When you say "we", you mean the Government? Mr. HOLMAN. I mean we as a people. Our organization would like to see the Senate and the House reassume their responsibility which we believe has been shunted aside under this act. We think it is your duty to reassume it. I say that respectfully; but it comes from people who are old-fashioned believers in constitutional procedure. I wish to thank you for your very courteous attention. (The brief directed by the chairman to be inserted in the record is as follows:) BRIEF ON CONSTITUTIONALITY OF TRADE AGREEMENT ACT, SUBMITTED BY I. Legal Aspects of Trade Agreements Act: B. Senate ratification. II. Denial of Court Review to Producers, Manufacturers, Etc. A. Nullification of remedial legislation enacted first in 1922 and continued in the Tariff Act of 1930. I LEGAL ASPECTS OF TRADE AGREEMENTS ACT A. Delegation of legislative authority: In each instance of the enactment and extension of the Trade Agreements Act the committee reports both of House and Senate embodying the views of the majority attempt to sustain the constitutionality of the act as a proper delegation of legislative authority. While they cite precedents in tariff and other acts going back as early as 1794, they rest their oars primarily on certain provisions of the McKinley Tariff Act of 1890 (sec. 3), and the Dingley Tariff Act of 1897 (sec. 3). A comparison of the provisions of these sections and the Trade Agreements Act is here apropos. |