Office of the Historian

National Archives, SFRC Records, Bricker Amendment Working File

Senator Wiley to the President

[Washington,] January 8, 1954.

Dear Mr. President: After the meeting last night1 I felt I should write you a brief note,—especially since I was not included among those who are to submit another draft of the Bricker proposal. I feel that the issue is very clear and that you understand it. Simply put, it amounts to this:

(1)
Should there be any delimiting of the power of the Chief Executive to conclude treaties and agreements?
(2)
Should there be any delimiting of the traditional power of the Senate in this field?
(3)
Should there be any transfer of power to make treaties and executive agreements to the House of Representatives?
(4)
Should there be any transfer of power in the treaty field from the federal government to the 48 states?

It seems to me Mr. President, that the proposal before us is grounded in suspicion and fear. In my judgment it would seriously disturb the balance of power in our federal system that was so carefully worked out by the framers of our Constitution in 1787. That balance has served us remarkably well, and I seriously question the wisdom of tampering with it now.

As I see it there are ample safeguards now, particularly since two-thirds of the Senate must concur before a treaty can be ratified. Moreover, it is settled constitutional law that an act of Congress supersedes a prior conflicting treaty provision, thus reserving to Congress a means of protection against the possibility of injudicious treaties.

If you will consult with any good lawyer, he will tell you that executive agreements are in four categories:

(a)
Agreements that arise from your authority as Commander in Chief;
(b)
Agreements that are specifically authorized by Congress;
(c)
Agreements that are made to implement the provisions of treaties; and
(d)
Agreements that you may conclude under your executive authority to conduct our foreign policy.

Now it seems apparent to me that you cannot agree to any language that would limit your authority under the Constitution to conclude executive agreements. The publications of the State Department show that 1527 executive agreements have been concluded since 1928 (in comparison with 294 treaties). Doubtless many more such agreements have been concluded.

Moreover, as you know, there are many treaty provisions which override state laws on subjects where the federal government’s authority was considered non-existent or questionable. These relate to such matters as the regulation of fisheries and wild life, narcotics control, extradition, taxation, the treatment of consular officers, and related problems.

Last night Senator Bricker said that the formula that he and Senator Ferguson had evolved in the course of fifteen minutes, had been substantially agreed to. I certainly challenge that remark. Mr. Dulles was not there, and your Attorney General said the whole matter had to be studied. I personally called it a morphodite [morphrodite].

Mr. President, in these critical times world peace depends upon the effectiveness of American leadership. And our leadership will depend, in large measure, upon your ability to act decisively when the situation requires it.

Very sincerely yours,

Alexander Wiley

P.S. Attached is Herblock’s cartoon from this morning’s Post. He expresses in graphic form what I have laboriously tried to say in this letter.2

  1. Presumably a reference to a meeting at the White House on Jan. 7. See footnote 1, supra.↩
  2. Not printed.↩