of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community."

69. Important Limitations from Separation of Powers.

In fact the only important legal limitation upon the foreign. relations power seems to be that, resulting from the doctrine of separation of powers, that all acts must be performed by the organ designated for that purpose by the Constitution. With a proper application of the understandings of the Constitution this limitation does not interfere with an adequate meeting of international responsibilities and carrying out of national policies except in one case. This is where the achievement of these ends requires that powers be vested in an international body created by treaty. As we have seen there is no difficulty in vesting such a body with authority to decide on questions of fact and law since the treaty power, or the treaty power supplemented by congressional legislation have been held fully competent to create agencies for these purposes.15 A difficulty might arise, in case such a body were given appellate jurisdiction over the Supreme Court but this could be eliminated either by treaty provision for starting original action in the international tribunal or, in certain cases, by congressional provision for special tribunals within the United States, not exercising the judicial power of the United States, for the original hearing, from which appeal might be taken to the international court.1

16

A delegation of political power, that is legislative or treaty-making power, to such a body would be unconstitutional, but this never seems to have been contemplated. Bodies such as the Assembly and Council of the League of Nations, in which all binding political decisions require the assent of the American representative, would not violate this principle, since the American representative would presumably be instructed to withhold his consent or give merely tentative consent in any matter within the exclusive competence of Congress or the treaty-making power until those organs had acted.17

15 Supra, sec. 60, note 42; infra, secs. 225-227.

16 Supra, sec. 64.

17 Supra, sec. 63.

A too rigid application of the doctrine of separation of powers will inevitably produce friction between the departments and impair the ability of the government rapidly and efficiently to meet international responsibilities and to decide upon and carry out national policies. This difficulty may be greatly reduced through the regular observance by each organ of certain constitutional understandings, directing the method by which discretionary power ought to be exercised. Thus before making a decision each independent organ ought to consider the views of other independent organs whose cooperation will be necessary in order to carry out such decision; and after a decision has been made by any organ acting within its constitutional powers, all other independent organs ought to consider themselves bound to so exercise their powers as to give that decision full effect. The development of and adhesion to these understandings is most essential if foreign relations are to be carried on effectively by a government guaranteeing the separation of powers by its fundamental law. 18

PART IV.

THE POWER TO CONDUCT FOREIGN RELATIONS UNDER THE CONSTITUTION.

CHAPTER IX.

THE POSITION OF THE FOREIGN RELATIONS POWER IN THE CONSTITUTIONAL SYSTEM.

A. Source of National Powers.

70. Distribution of Powers Between States and National Govern

ment.

The Constitution establishes a federal government, certain powers being expressly or impliedly delegated to the national government, the rest, unless prohibited to the states, being reserved to the states respectively or to the people. Now the control of foreign 18 Infra, sec. 249.

affairs has been very largely vested in the national government. Its organs are given power to send and receive diplomatic officers, to make treaties, to grant letters of marque and reprisal, to declare and conduct war, to assume jurisdiction in cases involving foreign diplomatic officers, foreign states or the interpretation of treaties, to pass laws relating to foreign commerce, naturalization, piracies and offences against the law of nations and any other laws that may be necessary and proper for carrying any of these powers into execution.

On the other hand, the states are expressly forbidden to enter into any treaty, alliance, or confederation or, unless Congress consent, into any agreement or compact with a foreign power; to grant letters of marque and reprisal or without the consent of Congress to engage in war unless invaded or in imminent danger thereof; to lay tonnage, import or export duties, except for executing their inspection laws. The only powers connected with foreign relations which the states seem competent to exercise without congressional consent relate to the meeting of international responsibilities. The states have power to provide aliens within their borders the protection and to assure them the other rights, guaranteed by international law and treaty, and state judges are expressly enjoined to observe treaties as the supreme law of the land, anything in the state constitution or laws to the contrary notwithstanding. Full power to enforce treaties and international law within the state could doubtless be conferred upon national officers and courts by act of Congress under the necessary and proper clause, but the legislation at present in force is not complete and state authorities alone must be relied on to meet certain international responsibilities.

71. Theory of Sovereign Powers in National Government.

In view of the almost complete prohibition of the states from the control of foreign relations, it has been argued that the national government must necessarily have all powers in this field enjoyed by sovereign nations. Thus said Justice Field in the Chinese Exclusion Cases: 1

1 Chinese Exclusion Cases, 130 U. S. 581.

"While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory."

Justice Gray repeated the theory in Fong Yue Ting v. United States: 2

"The United States are a sovereign and independent nation, and are invested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective."

Aside from the power to exclude aliens, the court has derived the power to acquire territory from this theory, but in other cases the latter power has been implied from the power to make treaties, and to declare war.1

The general theory of national powers derived from sovereignty has not been approved by commentators or by the weight of judicial decisions. Thus in Kansas v. Colorado Justice Brewer emphatically repudiated the "doctrine of sovereign and inherent powers."

2 Fong Yue Ting v. U. S., 149 U. S. 698.

3 Jones v. U. S., 137 U. S. 202, and discussion by Willoughby, op. cit., p. 340. See also cases cited, Ibid., pp. 454-455.

4 American Insurance Co. v. Canter, I Pet. 511; Flemming v. Page, 9 How. 603; Willoughby, op. cit., p. 339. The power to admit new states to the Union has also been suggested as a ground for annexation, though such an interpretation of the clause (Constitution, IV, sec. 3, cl. 1) was not intended by the drafter of the Constitution. See letter of Gouverneur Morris to Livingston, 1803, Life and Writings (Sparks), 3: 192, quoted in Willoughby, op. cit., p. 328.

5 Willoughby, op. cit., p. 69, who, however, approves a limited application of the theory in respect to foreign relations, Ibid., p. 45. "It cannot, therefore, be maintained that, merely because the United States is classed as a sovereign nation,' the government or any part of it can therefore perform a sovereign act beyond the scope of the purposes for which it was created, for although the nation is sovereign the Government is not. Complete sovereignty resides in the people as a whole, and not in any or all of the public officers." D. J. Hill, Present Problems of Foreign Policy, N. Y., 1919, p. 155.

e Kansas v. Colorado, 206 U. S. 46.

66

But," he said, "the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment."

Chief Justice Taney had earlier insisted that no argument could be drawn from the nature of sovereignty, or the necessities of government for self-defense in time of tumult and danger." 7 72. Theory of National Sovereignty in Foreign Relations.

997

But though the general theory of sovereign powers, which would vest in the national government all powers not expressly prohibited, cannot be maintained, more support can be cited for the theory if confined to the control of foreign relations. Thus Willoughby says:*

8

"From these express grants of power to the General Government, and prohibitions of treaty powers to the States, the intention of the framers of the Constitution to invest the Federal Government with the exclusive control of foreign affairs is readily deducible.

'The control of international relations vested in the General Government is not only exclusive but all-comprehensive. That is to say, the authority of the United States in its dealings with foreign powers includes not only those powers which the Constitution specifically grants it, but all those powers which States in general possess with regard to matters of international concern.

"This appeal, however, to the fact of 'national sovereignty' as a source of federal power is not a valid one outside of the international field. It cannot properly be resorted to when recognition of an international obligation on the part of the United States is not involved, and when, therefore, the matter is purely one relating to the reserved powers of the States or to the private rights of the individuals. To permit the doctrine to apply within these fields would at once render the Federal Government one of unlimited powers."

The writer is unable to accept this doctrine. The fact that powers relating to the control of foreign relations are expressly enumerated Ex Parte Merryman, Taney's reports, p. 246; Thayer, Cases on Const. Law, 2: 2361, 2368. p. 65.

8 Willoughby, op. cit., pp. 451, 454. See also Ibid.,