The manner in which the power to make treaties must be exercised in the United States does not affect the power of the national government as a whole to make international agreements. The distribution of power in making treaties between the President and the Senate will be considered in a later chapter.112 Suffice it to say here, that controversy has arisen over the power of the President to negotiate treaties by agents to whose appointment the Senate has not consented, to make executive agreements without Senate consent, and to ignore directions of Congress in negotiation and treaty making.

C. Effect on Power to Make National Decisions.

66. Alleged Encroachments.

The doctrine of separation of powers does not limit the power of the United States to make national decisions on international questions. It does, however, limit the power of particular organs to make such decisions. The details of this distribution of power will be considered in a later chapter.113 A few of the controversies which have arisen may be suggested here.

Congressional resolutions recognizing foreign states or governments, expressing national sentiment or policy, directing the Pres ident in foreign policy, or ordering the detailed movement of troops, have been alleged to encroach upon the President's exclusive power in these matters.

Congressional delegations of power to the President to decide when the conditions, previsioned by statutes, actually exist, and upon such decision to put legislative policies into effect by proclamation have been questioned.

Presidential proclamations of neutrality and war, and confiscation orders in time of war, have been questioned as encroachments. upon the powers of Congress.

Reservation No. 7 but eliminated in revision voted on March 19, 1920. This conflicts with the constitutional provision: "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." II, sec. 2, cl. 3. See Wright, Col. Law Rev., 20: 138.

112 Infra, chap. XIV.

118 Infra, chap. XV.

Finally, judicial decisions on political questions have been alleged to encroach upon the powers of the President and Congress.

CHAPTER VIII.

CONCLUSION ON CONSTITUTIONAL LIMITATIONS.

67. Traditional Statements of Limitations upon the Treaty Power. As we have seen, limitations upon the power of national organs are of three kinds, in defense of the rights and privileges of individuals, the rights and privileges of the states, and the rights, privileges and powers of the organs of the national government. The observance of these limitations is considered essential to the preservation respectively of individual liberty, the autonomy of the states, and the separation of powers.

These three types of limitations are expressed in the classic statement of Justice Field in reference to the treaty power:1

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; People v. Gerke, 5 California 381."

Jefferson and Calhoun each attempted to define the limits of the treaty power in well-known statements. Calhoun wrote: 2

"It (the treaty-making power) is . . . limited by all the provisions of the Constitution which inhibit certain acts from being done by the government, or any of its departments; of which description there are many. It is also limited by such provisions of the Constitution as direct certain acts to 1 Geofroy . Riggs, 133 U. S. 258, 267 (1890).

2 Calhoun, Discourse on Constitutional Government of U. S., Works, I: 203: Moore, Digest, 5: 166.

be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law. This not only imposes an important restriction on the power, but gives to Congress as the law-making power, and to the House of Representatives as a portion of Congress, the right to withhold appropriations; and thereby, an important control over the treaty-making power, whenever money is required to carry a treaty into effect; which is usually the case, especially in reference to those of much importance. There still remains another, and more important limitation, but of a more general and indefinite character. It can enter into no stipulation calculated to change the character of the government; or to do that which can only be done by the constitution-making power; or which is inconsistent with the nature and structure of the government."

This seems to follow the recognized view. It should be noticed, however, that while, under constitutional law (though not under international law), Congress has the right to withhold appropriations, yet by constitutional understandings it ought not to do so. Thus though a treaty could not vest the power to make appropriations in any organ other than Congress, yet, the fact that a treaty requires an appropriation does not impeach the validity of a treaty, as Calhoun himself clearly stated while Secretary of State: *

"The treaty-making power has, indeed, been regarded to be so comprehensive as to embrace, with few exceptions, all questions that can possibly arise between us and other nations, and which can only be adjusted by their mutual consent, whether the subject matter be comprised among the delegated or the reserved powers. So far, indeed, is it from being true, as the report supposed, that the mere fact of a power being delegated to Congress excludes it from being the subject of treaty stipulations; that even its exclusive delegation, if we may judge from the habitual practice of the government, does not-of which the power of appropriating money affords a striking example. It is expressly and exclusively delegated to Congress, and yet scarcely a treaty has been made of any importance which does not stipulate for the payment of money. No objection has ever been made on this account. The only question ever raised in reference to it is, whether Congress has not unlimited discretion to grant or withhold the appropriation."

3 Infra, sec. 256.

4 Mr. Calhoun, Sec. of State, to Mr. Wheaton, Minister to Prussia, June 28, 1844, Moore, Digest, 5: 164. See also infra, sec. 59.

Jefferson wrote in his Manual of Parliamentary Practice: 5

"To what subjects this power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty and cannot be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. (4) And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others."

This statement is both erroneous and incomplete, it seems, therefore, unfortunate that it should be reprinted in both Senate and House manuals without explanatory comment. It does not state all of the limitations which actually exist and the last two limitations stated do not exist. The last is effectively refuted by the statement quoted from Calhoun. The third is thus dealt with by Attorney General Griggs:7

"The regulation of fisheries in navigable waters within the territorial limits of the several States is, in the absence of a treaty, a subject of State rather than of Federal jurisdiction; but the government of the United States has power to enter into treaty stipulations on the subject, e.g., with Great Britain, for the regulation of the fisheries in the waters of the United States and Canada along the international boundary; and the fact that a treaty provision would annul and supersede a particular State law on the subject would be no objection to the validity of the treaty."

The limitation referred to last by Justice Field and first and second by Jefferson applies to the exercise of all powers in the field of foreign relations. They must be bona fide directed toward the conduct of international relations. Thus a purported declaration of war, really designed to excuse an invasion of the residual powers of the states, would doubtless be void; though it might be difficult to discover a court with sufficient temerity to declare it so, if con5 Art. 52, Moore, Digest, 5: 162.

6 Senate, Manual, 1913, p. 149; Rules of H. of R., 1914, sec. 587, p. 252. Griggs, Att. Gen., 22 Op. 214 (1898), Moore, Digest, 5: 161-162. See also supra, sec. 50.

stitutional government had so lapsed in vigilance as to present the opportunity. Such acts can only be prevented by operation of the political checks upon government.

8

68. Most Limitations Unimportant in Practice.

9.

Although in theory constitutional limitations apply to the organs of government in the conduct of foreign relations, as well as domestic affairs, yet in practice it is discovered that many limitations, especially those for the protection of individual and states' rights, are applicable only within American territory and hence do not limit the exterritorial action of national organs. Furthermore, even when limitations are legally applicable, their enforcement is apt to belong to the political departments of government because of the disinclination of the courts to pass on "political questions." 10 Obviously the political departments are more likely to err on the side of an efficient exercise of national power than on the side of an excessive regard for constitutional limitations. Finally, even when such cases do come before the courts, they show an unquestionable tendency to interpret limitations less rigorously where foreign affairs are involved." 11 "In the exercise of its international and military power," says Freund, "the state is freed from many of the restraints under which it must conduct the peaceful government of its own citizens." 12 Though this can hardly be accepted in constitutional theory, except as explained above, undoubtedly, it is true in fact,13 and for reasons thus explained by Hamilton: 14

"As the duties of superintending the national defense and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power 8 Willoughby, op. cit., p. 504; Corwin, National Supremacy, pp. 302–308. 9 In re Ross, 140 U. S. 453.

10 Foster v. Neilson, 2 Pet. 253; The Prize Case, 2 Black 635; Texas v. White, 7 Wall. 700, Infra, sec. 107.

11 Dillon's case, 7 Sawyer 561, Fed. Cas. No. 3914 (1854); Moore, Digest, 5: 79; Supra, sec. 46.

12 Freund, The Police Power, Chicago, 1904, P. 4.

18 Note the long leash given to the military power during the Civil War as compared with the law as subsequently stated in Ex Parte Milligan, 4 Wall. 2; Rhodes, History of U. S., 4: 248 et seq.

14 The Federalist, No. 31, Ford ed., p. 194.