I should appreciate it if you would advise me whether you agree that
the arrangement may be effectuated by an agreement signed under the
authority of the Executives of the two countries and approved by
legislative enactments by the Congress and the Canadian
Parliament.
[Enclosure]
Memorandum by the Legal Adviser (Hackworth)44
For several years the United States and Canada have had under
consideration the feasibility of a joint undertaking for the
improvement of the Great Lakes–St. Lawrence Basin so as to make
these
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waters available
to sea-going vessels, the development of hydro-electric power,
etc. The Legal Adviser of the Department of State, in a
memorandum dated February 10, 1939,45 expressed the opinion
that an arrangement between the United States and Canada
concerning the project could be effected by a simple agreement
between the two countries and approval of the agreement by
legislation in the United States and in Canada. The negotiations
have progressed to the point where an agreement is about ready
to be signed, but before proceeding to signature it is thought
desirable to ascertain whether the Attorney General concurs in
the view that the purposes may be accomplished in this
fashion.
It is not necessary here to enter into a discussion of the
treaty-making power or of the power of the President to enter
into executive agreements with foreign countries. It is
sufficient to say that a very large number of such agreements on
various subjects have been entered into from time to time
throughout the history of this country. Some of them have been
specifically authorized by acts of Congress; others, though not
specifically authorized, have been within the framework of acts
of Congress; and still others have been concluded without
enabling legislation on the subject.
Following the failure of the Senate to approve a treaty for the
annexation of Texas,46 the annexation was accomplished by a joint
resolution approved on March 1, 1845 (5 Stat. 797), after
passage by a simple majority vote of the two houses of Congress.
Likewise, in the case of Hawaii, a treaty of annexation had been
signed on June 16, 1897,47 and
approved by the Hawaiian Legislature, but there was not
sufficient support in the United States Senate to obtain
approval by a two-thirds vote. Thereafter Congress passed a
joint resolution to accomplish the same purpose, which was
approved July 7, 1898 (30 Stat. 750).
Of interest in this connection is action by Congress with respect
to the construction of bridges across the international
boundary—United States and Canada, subject to similar
authorization by Canada. For example, Public Resolution No. 117,
75th Congress, 3d session, created the Niagara Falls Bridge
Commission and authorized it to construct and operate bridges
across the Niagara River, subject to “the approval of the proper
authorities in the Dominion of Canada.” (52 Stat. 767.)
On November 11, 1927, President Coolidge issued a presidential
license to the Detroit–Ontario Subway, Inc., authorizing the
company to construct, operate, and maintain a tunnel from a
point in or near Brush or Randolph Street in the City of Detroit
to a point on the international boundary line under the Detroit
River. It is understood
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that corresponding authorization was given on the part of
Canada by an Order in Council.
The improvement of the Great Lakes–St. Lawrence Basin for
navigation and other purposes would seem clearly to fall within
the commerce clause of the Constitution, giving the Congress the
authority to regulate interstate and foreign commerce. Where the
undertaking with respect to interstate and foreign commerce
involves boundary waters over which this country does not have
exclusive jurisdiction, there would seem to be no reason why the
Congress should not within its Constitutional power enact
legislation, contingent upon a like legislative enactment in the
other country, signifying its approval of a joint undertaking
signed by both Governments. The signing of an agreement by the
two Governments would be but a convenient way of bringing about
in advance of legislative enactments a joint understanding by
the two Governments on a complicated question which could hardly
be handled without such advance understanding. The agreement
would contain provisions which might otherwise be incorporated
in a treaty, but would not take the treaty form or follow the
treaty process. It would not constitute a binding international
agreement until Congress and the Canadian Parliament had
indicated their approval.
