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FOREIGN RELATIONS

emphasis that return of deserters required legislative assent confines it to the narrowest compass.

Next, McDougal and Lans state: [T]he general powers of the President to make executive agreements seems to have been first touched by the Supreme Court in 1933, in Monaco v. Mississippi wherein Chief Justice Hughes stated: “The National Government, by virtue of its control of our foreign relations is entitled to employ the resources of diplomatic negotiations and to effect such an international settlement as may be found to be appropriate, through treaty, agreement of arbitration, or otherwise. 204 The question in Monaco was whether a state could be sued by a foreign state without her consent; whether the President could make an executive agreement by himself was not in issue. Hughes's reference to the power of the “National Government” to act does not necessarily imply that the President is authorized to act without the consent of the Senate. A redistribution of constitutional powers should not rest on strained inferences.205

McDougal and Lans next summon the Curtiss-Wright case. 206 That case, it will be recalled, was later dismissed by Justice Jackson because it “involved, not the question of the President's power to act without congressional authority, but the question of his right to act in accordance with an act of Congress.

1,207 Justice Sutherland's dictum regarding the President's inherent powers is without historical foundation; his reliance on Marshall for the statement that “participation in the exercise of the power (over external affairs] is significantly limited”208 all but perverts Marshall's “sole organ” remark.209

“The dicta of the Monaco and Curtiss-Wright cases,” McDougal and Lans tell us, “were the capstones of the decisions in the Belmont and Pink cases, dealing with the validity and interpretation of an assignment of Russian-owned assets in the United States, which was one of several executive agreements

204. McDougal & Lans 310, quoting 292 U.S. 313, 331 (1934).

205. As the Supreme Court stated in Brady v. Roosevelt Steamship Co., 317 U.S. 575, 580–581 (1943), “Such a basic change in one of the fundamentals of the law of agency should hardly be left to conjecture.” See also supra, Ch. 3, text accompanying n. 12.

206. McDougal & Lans 255-256, 310.

207. Youngstown Case, 343 U.S. at 635-636 n. 2, concurring. Curtiss-Wright merely held that the congressional delegation to the President was constitutional; 299 U.S. at 327-328.

208. 299 U.S. at 319. For refutation of Sutherland's “inherent” power dictum, see supra, Ch. 4, text accompanying nn. 205–235, 244–251.

209. See supra, text accompanying nn. 81–88.

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negotiated when the United States recognized the Soviet government in 1933.”210 In the Belmont case, Justice Sutherland once more delivered himself of untenable dicta:

in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution ... require the advice and consent of the Senate.211

No account was taken by Sutherland of the history which demonstrates the Founders' intention to withhold from the President the right to enter into international agreements without Senate consent. Instead, he reasoned from B. Altman & Co. v. United States212 that an international compact may be distinguished from a treaty.

a There a reciprocal agreement had been made with France under authority of the Tariff Act; and the sole question was whether Congress, by permitting a direct appeal to the Supreme Court with respect to treaties, intended to encompass such a compact. In answering this question the Court stated, “True, that under the Constitution ... the treaty-making power is vested in the President, by and with the advice and consent of the Senate," but it concluded that the reciprocal agreement "was a compact authorized by the Congress . . . [and] such a compact is a treaty” for the purposes of the appeals statute. 213 In treating the authorized compact as a treaty for the purposes of a special appeals statute, the Court did not purport to sanction executive agreements not authorized by Congress, a jump unhesitatingly made by Justice Sutherland.

Belmont also leaned on the power of “recognition,” to which the Litvinov Agreement was incidental.214 That power was derived

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210. McDougal & Lans 311.

211. United States v. Belmont, 301 U.S. 324, 330 (1937). Sutherland disposed of the issue in lordly fashion: that the agreements “were within the competence of the President may not be doubted." Earlier he had stated that “international agreements which are not treaties in the full constitutional sense, are perhaps confined to such as affect administrative matters, as distinguished from policies, and those which are of only individual concern, or of limited scope and duration, as distinguished from those of general consequence and permanent character”; Sutherland, supra, n. 24 at 121.

Borchard, supra, n. 119 at 647, stated that about 5 million dollars were accepted in return for the sacrifice of 300 million dollars in American claims arising out of confiscations in Russia.

212. 224 U.S. 583 (1912).
213. Ibid. 600, 601; emphasis added.
214. United States v. Belmont, 301 U.S. 324, 330-331 (1937).

FOREIGN RELATIONS

from the presidential function of “receiving foreign ambassadors, 1215 which Hamilton downgraded as a mere matter of "dignity,” of “no consequence.” The Framers hardly intended by this inconsequential function to authorize the President to evade Senate consent to treaties for which they so painstakingly provided, particularly treaties of serious import. When recognition might lead to grave consequences, such as war, President Jackson considered that it should be exercised in consultation with Congress.216 Lincoln went even further. Referring to recognition of “Hayti” and Liberia, he stated “Unwilling .. to inaugurate a novel policy (recognition) in regard to them without approbation of Congress, I submit for your consideration the expediency of an appropriation for maintaining a chargé d'affaires near each of those new States.”2162 Because recognition has become “a most potent instrument of foreign policy,”217 it calls for critical re

' appraisal rather than, as in the misplaced reliance on Marshall's “sole organ” remark, mechanical repetition.

Justice Stone, in an opinion joined by Justices Brandeis and Cardozo, concurred in Belmont with a significant reservation: We may, for present purposes, assume that the United States, by treaty ... could alter the policy which a State might otherwise adopt. It is unnecessary to consider whether the present agreement between the two governments can rightly be given the same effect as a treaty within this rule, for neither the allegations ... nor the diplomatic exchanges, suggest that the United States has either recognized or declared that any state policy is to be overridden.218

And so we arrive at United States v. Pink, 219 in which the issue reserved by Justice Stone was presented, and where Justice Douglas, citing Belmont and Curtiss-Wright, stated that the Litvinov Assignment was an international compact which did not require the participation of the Senate.... Power to remove such obstacles to full recognition as settlement of claims of our nationals ... certainly is a modest implied power of the President who is the “sole organ of the federal government in the field of international relations."220

215. Cf. Henkin 47. 216. Supra, Ch. 4, text accompanying n. 97; cf. supra, text accompanying n. 183. 216a. 6 Richardson 47. 217. Corwin, President 230. 218. 301 U.S. at 336; emphasis added. 219. 315 U.S. 203 (1942).

220. Ibid. 229. The government had argued that “The authority of the President to enter into executive agreements with foreign nations without the consent of the

EXECUTIVE PRIVILEGE

The Pink case had no occasion to rule that a presidential agreement could be made against the wishes of Congress; and in fact Justice Douglas said that the executive policy had been “tacitly” recognized by congressional appointment of commissioners to determine American claims against the Soviet fund.221 The dissent of Chief Justice Stone, in which Justice Roberts joined, is incontrovertible: “we are referred to no authority which would sustain such an exercise of power as is said to have been exerted here by mere assignment unratified by the Senate.”222

We need only recall Davie's references to the prevalent distrust of executive power,223 to the jealous insistence by the small states on participation in treatymaking on an equal basis in the Senate,224 to the fears that surfaced in the Ratification conventions—despite Senate participation--that the power to override state laws might lead to oppression,225 in order to conclude that without Senate participation the treaty power would not have found acceptance. To allow an executive agreement to override state law or policy on the ground that it represents “a modest implied power" is to ignore the Founders' plain intention to withhold that power from the President.

This is confirmed by Article VI, which makes only “Laws” and “Treaties” the “supreme law of the land” binding upon the states.228 An executive agreement is not a “treaty” because it lacks the “advice and consent” of the Senate; it is not a “law” because it was not “made” by the Congress.227 Justice Sutherland all too lightly leapt over these obstacles; while the supremacy of treaties, he said,

Senate is established,ibid. 208, citing Monaco and Curtiss-Wright; emphasis added. Thus are mere dicta transmuted into “established" law.

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221. Ibid. 227–228.

222. Ibid. 249. McDougal & Lans, 310, also rely on Watts v. United States, 1 Wash. Terr. 288, 294 (1870), for the proposition that “an executive agreement between Great Britain and the United States with regard to jurisdiction over San Juan Island, was deemed to modify the Organic Law of the territory as enacted by Congress.” Whether one can extract such a holding from the three separate opinions in the case is at least debatable. Whatever the effect of the opinion of a territorial court, it may be doubted that the Supreme Court would allow a

residential agree ment to override an Act of Congress. See infra, text accompanying n. 232.

223. See supra, text accompanying n. 152. 224. See supra, text accompanying n. 169. 225. See supra, text accompanying n. 164. 226. For discussion of the “binding” phrase, see Berger, Congress v. Court 236-244.

227. Discussing Art. VI, James Iredell stated that “when the Congress passes a law consistent with the Constitution, it is to be binding”; 4 Elliot 179. At this juncture men thought that judges ascertained the law; they did not "make it.”

FOREIGN RELATIONS

is established by the express language of cl. 2, Art. VI, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several

states. 228

Be it assumed that plenary power over “international affairs” resides in the “national government,” and it by no means follows that it was vested in the President.229 Then too, actuated by profound distrust of centralized federal power and deep-seated attachment to local state sovereignty,230 the people consented to be “bound” only by “laws” and “treaties," and, as we have seen, accepted “treaties” only when participation of the Senate was assured.231 Sutherland would repudiate these assurances in reliance on his impalpable theory of supraconstitutional federal “sovereignty” and “inherent” powers. But the Founders did not fashion a government of limited powers, they did not circumscribe both President and Congress by an enumeration of powers, they did not then go on to reserve all “powers not delegated . Constitution” only to turn over to the President an unbounded power to set these limitations at naught.

At best, the not so “modest implied power” of the President to enter into such agreements with the tacit consent of Congress amounts to no more than a concurrent power that Congress can curtail by statute, as Justice Jackson reminded us in the Youngstown case. 232 Were the issue presented anew by a congressional challenge, embodied in a statute, to presidential entry into executive agreements without its consent, the cases would be far from conclusive.233 Even Curtiss-Wright did not intimate, said Justice

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228. United States v. Belmont, 301 U.S. 324, 331 (1937). To the extent that his statement turns on an assumption of supraconstitutional, “inherent” “sovereignty,” it was earlier shown to be untenable; supra, Ch. 4, text accompanying nn. 211-235.

229. Supra, Ch. 4, text accompanying n. 215.

230. For distrust of centralized power, see Berger, Congress v. Court 8–9, 31–34; for attachment to state sovereignty, ibid. 260-263, 224.

231. Supra, text accompanying nn. 148–156. 232. 343 U.S. at 637–639, concurring. Given concurrent powers, Chief Justice Marshall held in an early war-powers case, a congressional statute must prevail; Little v. Barreme, 6 U.S. (2 Cranch) 170, 177–178 (1804).

233. Professor Henkin comments that the cases exhibit “the vagaries of judicial incursions [into foreign affairs] that are infrequent and develop no confident mastery”; Henkin 64. At another point he states: “To some extent judicial difference in relation to foreign affairs has been the product of conceptualisms about sacrosanct ‘sovereignty,' of unexamined assumptions reflected in incantations about 'war and peace, of set

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