to:

Later it says that the organization, that is the OTC, shall endeavor

*** give full effect to the provisions of article 1-just cited.

In other words, without having the General Agreement on Tariffs and Trade, that is, GATT, before it, Congress is asked to buy a pig in a poke. If further evidence were needed of the level of State Department esteem of Congress, this should provide it.

Congress, in approving the OTC, would confirm United States. membership in an organization established to put into effect certain purposes and objectives that are not named, and were they named would be the subject of great controversy and the most diverse opinion as to their meaning.

Therefore, the thing to do is to withhold the document from Congress. This is contrary to the procedure followed in adhering to the United Nations, the ILO, the World Bank, and other international bodies such as the World Court.

The GATT seems to be an exception to all orderly procedure.

If we turn now to the question of power to be exercised by the OTC we find an equally disturbing cleavage between fact and allegation. Much is made of the withholding from the OTC of power to amend the general agreement, GATT.

The spotlight is also thrown on the provision of article 3 (d) of the OTC that prevents the imposition of any new obligation upon a member if the member has not agreed specifically to undertake it.

In the first place, there will be no occasion for amendment of GATT by the OTC. GATT has adequate power to amend itself.

In the second place, any new obligation that the OTC might seek to place upon the United States might be accepted for us by the Department of State rather than the Congress.

The Secretary of State, in testifying before this committee on March 1, 1956, did indeed state that any new OTC obligation would be presented to Congress for approval, but H. R. 5550 makes no provisions for such submission and, of course, the OTC itself is silent on the point.

The real point at the very center of this question, and the point that the State Department has skirted and concealed, is that GATT itself has the power of self-amendment without approval by Congress. It exercises such power now. It has amended itself from time to time since its first year of existence, and it has never come to Congress with any of these amendments for approval. It has never even been under the necessity of submitting to the Congress a report on what it has done.

Therefore, the fact that OTC could not amend GATT is wholly meaningless, and the State Department's citation of this fact as proof that OTC would be a harmless organization again reflects the lack of candor of the Department's allegations.

The State Department next says that approval of the OTC would not add one whit to the power of GATT, and that is true.

Then what is the objection to OTC, they ask. The answer is very simple.

By approving the OTC, Congress would have yielded its only remaining grip on GATT. The general agreement would now lie beyond the reach of Congress because it had underwritten its purposes. and objectives and had signed over its administration to the OTC.

All this, at least in my judgment, would add up to ratification of GATT. Nor would this be all.

GATT would now have a blanket endorsement and it could undertake its retarded expansion program. GATT has been waiting patiently for years, and you can read it in their reports, to get going. It would now have the green light.

There can be very little conjecture as to what direction it would take.

Having approved the OTC, which is expressly dedicated to carry out GATT objectives, whatever these may be, Congress need not be surprised if some of the missing pieces of the TIO charter should be brought back to life.

The Congress could therefore one day be confronted with a fait accompli by the State Department. Again, that is the very purpose of the OTC maneuver.

The ITO, or any suitable parts of it, could be brought into being without congressional approval and despite its rejection by Congress in 1950, and Congress would not again have another shot at it. What would then be the choice of Congress?

The choice would be between 1 of 3 steps:

(1) Override GATT by legislation; this would involve violation of our international obligations-I shouldn't think that the Congress would want to manufacture that kind of alternative for itself

(2) It could withdraw from GATT; this would involve a violent method of reversing a policy of 20 years' standing. First you approve the OTC. Then, if you don't like it, you pick up your marbles and go home. That is not a respectable plan for Congress to lay out for itself.

(3) It could bow to OTC-GATT; this would mean that the State Department had finally succeeded in coercing Congress and in so doing had deprived the American citizen of his constitutional rights and power as a voter.

Not one of these alternatives is palatable, morally or practically. The whole controversy has arisen because of two spurious doctrines advanced by the State Department.

The first is that the State Department's power in negotiating GATT was not confined to the powers delegated by the Trade Agreements Act.

This was made clear in the hearings on H. R. 1211, the Trade Agreements Extension bill of 1949.

In part 2 of the hearings record before the Senate Finance Committee, the State Department made it clear that the President drew on his general authority to conduct the foreign relations of the United States in negotiating GATT, in addition to the delegated powers bestowed upon him by the Trade Agreements Act. In a tabulation appearing on page 1054 of the hearings, the State Department lists the source of its authority in negotiating each article of GATT.

Of the 35 articles in the agreement, the Department traces 15 to the general authority of the President, independent of the Trade Agreements Act of 1934 as amended and extended.

This classification or attribution by the State Department as to the source of the power on which the Department drew in negotiating the general agreement would itself be subject to many questions; but it is clear that the Department has not replied wholly on the Trade Agreements Act in negotiating the GATT.

It has, however, succeeded in adding to the delegated powers certain items of general presidential authority and come out with something that cuts Congress out of its own field except at the price of dishonoring the formal agreement of the United States.

The second doctrine was enunciated by Secretary of State Dulles before the Senate Finance Committee, on March 23, 1955, at the hearings on H. R. 1. He said:

I would go on the theory that when you give the President the discretion to negotiate tariff reductions you impliedly also give him discretion to negotiate the conditions under which we will get reciprocal advantages.

It should be noted that this doctrine is very different from the other

one.

Here we have a doctrine that the recipient of delegated power, the President in this case, can do whatever in his judgment may be necessary to carry out the delegation. This is, of course, a doctrine of the most dangerous implications. Under it, almost any action could be justified, including complete disregard of the Constitution and the disposition of powers made under it.

It may be a charitable explanation to say that both doctrines were apparently the result of forced explanations and were rationalizations and justifications after the act rather than reasoned departures from past practice.

In any event, both are so vital to the whole question of the delegation of power that they demand the very closest scrutiny. In either case, the powers of the recipient of delegated authority are enlarged almost beyond recognition. Both doctrines would be recognized quickly as counterfeit coin in any honest purse.

It is not difficult to imagine what the State Department could do with the OTC under the approval of Congress, considering what they have done with the strand of delegated power under the Trade Agreements Act.

The wise course of Congress is to reject the request contained in H. R. 5550 at least until the field is clarified and there is some idea what road is being followed. It is of the utmost importance that GATT itself be brought before Congress for consideration, as was done in the case of the UN, the ILO, the World Court, the World Bank, and other similar organizations.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Does that complete your statement?

Mr. STRACKBEIN. It does, Mr. Chairman.

The CHAIRMAN. We thank you for your appearance and the information given the committee.

Are there any questions?

Mr. Eberharter of Pennsylvania will inquire.

Mr. EBERHARTER. Mr. Strackbein, may I ask whether you are a lawver?

Mr. STRACK BEIN. I am not a lawyer by profession.

Mr. EBERHARTER. Yet you emphatically disagree with the results and the findings of the Bar Association of the city of New York after it made an exhaustive study of the constitutional question; is that correct?

Mr. STRACKBEIN. Well, on the other hand, I am in agreement with the American Bar Association.

Mr. EBERHARTER. We understand how they arrived at their decision, but you at least emphatically disagree with the Bar Association of the city of New York?

Mr. STRACKBEIN. Mr. Eberharter, the fact is that I was not here when they testified and I have not read their statement. My testimony is based on my own experience and study of this subject, and very close association with it over the past 8 years.

Mr. EBERHARTER. But you disagree with the findings of the bar association which says that Congress would be within its constitutional authority to pass this act?

That is all right.

Mr. STRACKBEIN. If that is their conclusion.

Mr. EBERHARTER. That is their conclusion and finding.

Mr. Gardner, representing them, testified to that.

The CHAIRMAN. Mr. Jenkins of Ohio will inquire.

Mr. JENKINS. You might get some satisfaction out of the fact. however, that on the same day that the man representing the New York Bar Association testified, another witness testified on behalf of the American Bar Association and gave a different viewpoint entirely. Mr. STRACKBEIN. Yes. I mentioned that, Mr. Jenkins. Mr. JENKINS. I would like to ask you one question. You say that you are not a lawyer.

Has your experience or your work in connection with this line of business brought you into contact with any special cases that have been disposed of or have been up for consideration where you have seen how unfairly this program operates?

For instance, on page 17 at the bottom of the page you have a paragraph there which reads:

It has, however, succeeded in adding to the delegated powers certain items of general presidential authority and come out with something that cuts Congress out of its own field except at the price of dishonoring the formal agreement of the United States.

Have there been any cases that you can cite?

In other words, the testimony up to now has been more or less theoretical.

Mr. STRACKBEIN. I can cite that the Trade Agreements Extension Act of 1951 includes a provision that import quotas may be established under the escape clause. That is contrary to the provisions of the General Agreement on Tariffs and Trade.

I can say further that the President, acting under the escape clause. has steadfastly refused to place into effect recommendations from the Tariff Commission that import quotas be established, I can only conclude that the President's refusal for so doing was that he was advised by the Department of State that this would be in violation of the general agreement.

In other words, in the general agreement, the State Department agreed to the elimination of import quotas, and agreed that no new ones would be established. That was the same as agreeing that the Congress of the United States, if it were so minded, would not impose import quotas now or at any time in the future, and that the State Department would see to the elimination of presently existing quotas. Mr. JENKINS. You do not quite get my point.

I want to point, as a lawyer, to the fact that we talk about constitutionality and unconstitutionality, but has anybody ever taken steps to test that out in the courts of high and competent jurisdiction?

Mr. STRACKBEIN. Efforts have been made. A case was launched, I believe a year ago, in the State of West Virginia to test the constitutionality, but the Federal district court in the District of Columbia said it had no jurisdiction.

Now, you cannot test a case if you cannot find a court that has jurisdiction.

There is presently another case before the Customs Court in the city of New York. That has not yet advanced to the point where it may be determined whether the constitutionality can be weighed on its merits.

The first case was thrown out, not on its merits, because it was never tried on its merits. It was thrown out on the ground that the court had no jurisdiction.

Mr. JENKINS. That is all, Mr. Chairman.

The CHAIRMAN. Are there any further questions?

Mr. Simpson of Pennsylvania will inquire.

Mr. SIMPSON. Mr. Strackbein, should this bill pass and the OTC come into being, and should we be a member of it, then, if I understand correctly, regardless of how the GATT may at any time in the future be amended, OTC would interpret and administer the GATT as it then stood; is that correct?

Mr. STRACKBEIN. There is certainly no limitation in the articles of the OTC that would lead to any other conclusion. It is set up for the purpose of administering and giving effect to the purposes and objectives of GATT. It does not say "as these objectives and purposes are now," and it must be assumed that it would administer the general agreement in such conditions as it found itself at any time. Mr. SIMPSON. Yes, to administer GATT as GATT is.

Now, as you point out here in your paper, GATT has the power of self-amendment?

Mr. STRACKBEIN. That is correct.

Mr. SIMPSON. Without the approval of Congress?

Mr. STRACKBEIN. That is correct.

Mr. SIMPSON. With the approval of the representative of the United States Government then, GATT could be amended, I assume, if the other countries wanted? GATT could be amended by a vote of GATT to include all the parts of ITO which are not in OTC?

Mr. STRACKBEIN. That is correct, if by a two-thirds vote that were adopted by the contracting parties of the General Agreement on Tariffs and Trade.

Mr. SIMPSON. And provided the United States representative agreed.

Mr. STRACKBEIN. The GATT could do it without the United States representative if they had enough votes outside of the United States. Mr. SIMPSON. We would have the right to walk out, would we not? Mr. STRACKBEIN. We would have the right to walk out.

Mr. SIMPSON. But, if our representative agreed, we then wouldn't walk out, even though Congress opposed?

Mr. STRACKBEIN. I don't assume that there would be any grounds for walking out if we agreed to it, and I may say that the Department of State representative has in the past agreed to a number of amendments to GATT and, as I previously stated, not one of those amendments was reported to Congress or was under the necessity of being reported to Congress for review.