are all at the discretion of the President. Furthermore, many agreements of a temporary or purely executive or military character may be made by him without consulting the Senate at all. While executive agreements usually terminate with the passing from office of the President under whose authority they were negotiated, or the repeal of the statute on which they were founded, this would not be true of agreements transferring a lease or other title to territory for a term of years or permanently. Treaties may be terminated as municipal law by legislative abrogation or judicial recognition of their obsolescence under principles of international law, but the international obligation may be ended only by operation of international law recognized by the President, by legislative denunciation of a voidable treaty, or by denunciation under the terms of the treaty itself by the President acting ordinarily with consent of the Senate or Congress. CHAPTER XV. THE POWER TO MAKE POLITICAL DECISIONS IN FOREIGN AFFAIRS, RECOGNITION, ANNEXATION, CITIZENSHIP AND THE DETERMINATION OF POLICY. 189. Distinction Between Domestic and Foreign Affairs. The meeting of international responsibilities and the making of international agreements do not include all matters which have to do with the conduct of foreign relations. Many decisions which may be made by nations without the consent of other states and practically without limitation by international law and treaty, affect foreign nations very closely. The recognition of foreign states and governments, the declaration of war and the proclamation of neutrality are examples which at once spring to the mind. This field is, however, difficult accurately to define. There is hardly a law. passed by even a state legislature which may not affect a resident alien and so under conceivable circumstances become a subject of international discussion. Such matters, however, as the regulation of foreign commerce, the control of immigration, the raising of armies, the development of a navy and the building of fortifications within its territory, are of very direct interest to foreign nations. Yet, except so far as regulated by treaties, they are considered domestic questions. Arbitration treaties have often excepted questions affecting national "independence" from compulsory submission and the League of Nations Covenant (Art. XV) recognizes that disputes between nations may arise out of a matter which by international law is solely within the domestic jurisdiction" of one party, and in such disputes the Council of the League is incompetent to make a recommendation. The United States Supreme Court has similarly recognized certain questions undoubtedly interesting to foreign nations as within the "independence" of the nation.1 "That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence." Writers on international law have usually drawn the line between foreign affairs and domestic affairs according to the line of territorial jurisdiction.2 "It being a necessary result of independence that the will of the state shall be exclusive over its territory, it also asserts authority as a general rule over all persons and things, and decides what acts shall or shall not be done within its dominion. It consequently exercises jurisdiction there, not only with respect to the members of its own community and their property, but with respect to foreign persons and property." 3 Although in practice states are responsible for many events which occur or acts which take effect entirely within their borders, yet territorial autonomy is generally recognized by international law and we will confine attention to those political decisions directly affecting matters beyond national boundaries. 190. State Power to Make Political Decisions in Foreign Affairs. The states have been deprived of almost all power to make political decisions in foreign affairs. Their war power is confined to the 1 The Chinese Exclusion Case, 130 U. S. 581 (1889). 2 Hall, Int. Law, p. 49. 3 Supra, sec. 89. maintenance of a militia for domestic use or to ward off an actual or imminent invasion. "No state," says the Constitution, "shall grant letters of marque and reprisal, . . . or without the consent of Congress keep troops or ships of war in time of peace or engage in war unless actually invaded or in such imminent danger as will not admit of delay." 4 They have no powers dependent upon war and treaty-making such as that of annexing territory, nor upon diplomatic and representative powers such as those of recognizing new states and governments, though state legislatures have sometimes passed resolutions recommending national action in these matters." In political matters even indirectly affecting foreign relations the states are excluded. They cannot lay export or import duties except to enforce inspection laws; they cannot lay tonnage duties; regulate immigration or foreign commerce except necessary local regulations upon which Congress has not acted, nor naturalize aliens. The intention of the Constitution is undoubtedly to render the states incompetent to make political decisions which affect foreign nations in more than the most remote degree, yet state laws have occasionally given rise to international controversy, especially where discrimination against resident aliens is alleged. The San Francisco ordinance of 1906 segregating Japanese school children and the California laws of 1913 and 1920 forbidding landholding to certain classes of aliens are in point." "Even a state of the Union," said a Senate report of 1897, "although having admittedly no power whatever in foreign relations, may take action uncontrollable by the Federal Government, and which, if not properly a casus belli, might nevertheless as a practical matter afford to some foreign nation the excuse of a declaration of war. We may instance the action which might have been taken by the State of Wyoming in relation to the Chinese massacres, or by the State of Louisiana in relation to the Italian lynchings, 4 U. S. Const., Art. I, sec. 10, cl. 3. 5 In 1897 Nebraska adopted a resolution extending to Cuba their sympathy. Sen. Doc. 82, 54th Cong., 2d sess. For state resolutions favoring recognition of Ireland, Armenia, Jewish State, the League of Nations, etc., see Cong. Rec., 57: 3866; 58: 43, 48-51, 54, 6859; 59: 7510. Ibid.; The Passenger Cases, 7 How. 283; Cooley v. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259. 7 Supra, sec. 15, note 10; sec. 50, note 83. or by the State of New York in its recent controversy with German insurance companies with relation to the treatment of its own insurance companies by Germany." 8 191. National Power to Make Political Decisions in Foreign Affairs. The national government is given by the Constitution political powers, not only directly affecting foreign relations, such as the war power, the treaty-making power, and the power to send and receive diplomatic officers; but also most powers which might indirectly affect them, such as the powers to regulate foreign commerce, to levy customs duties, and to naturalize aliens. So extensive are these powers that the court has construed them as together conferring upon the national government all the powers in foreign relations enjoyed by other sovereign nations." "The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and make it effective." How are these powers distributed among the departments of government? "It is clear all through the Constitution, and has never been disputed, that the intention was to distribute the powers of the Government between its three branches, subject to such checks as the veto of the President or advice and consent of the Senate; and not to place any given power in two or all three branches of the Government concurrently. "The existence of the same power for the same purposes in both the legislative and executive branches of the Government might lead to most unfortunate results. For instance, if the legislative and executive branches both possessed the power of recognizing the independence of a foreign nation, and one branch should declare it independent while the other denied its independence, then, since they are coordinate, how could the problem be solved by the judicial branch? "The distinction must be borne in mind between the existence of a constitutional power and the existence of an ability to effect certain results. For instance, Congress alone has the power to declare war. The Executive, however, can do many acts which would constitute a casus belli, and thus indirectly result in war; but this does not imply in the Executive a concurrent power to declare war, and the war which would result would be one declared by a foreign power. It is possible even that the judiciary, by declaring some act of Congress at an inopportune moment to be unconstitutional or otherwise 8 Sen. Doc. No. 56, 54th Cong., 2d sess., p. 5. • Fong Yue Ting v. U. S., 149 U. S. 698 (1893). incapable of execution according to its intent, or by some decision in a prize cause or otherwise, could give rise to a war with a foreign power, yet no one would claim that the judiciary had the power to declare war." 10 Though the constitutional fathers doubtless had the purpose ascribed to them in this Senate report, yet it is by no means true that they succeeded in keeping the powers of the various departments from overlapping in the field of foreign affairs. An illustration is furnished by the power to regulate the landing of submarine cables.11 "I am of the opinion," wrote the Acting Attorney General in 1898, “that the President has the power, in the absence of legislative enactment, to control the landing of foreign submarine cables." But "the Executive permission to land a cable is, of course, subject to subsequent congressional action." The President as Chief Executive, Commander-in-Chief and the representative organ, seems to have sufficient power to make all political decisions in foreign affairs not exclusively vested in Congress or the treaty-making power and not conflicting with international law, treaty or existing act of Congress. Congress, on the other hand, can make political decisions in foreign affairs so far as it can bring them under its express, implied or resultant powers, the most important of which in this connection are the powers to declare war, to annex territory, to naturalize aliens, to regulate commerce and means of conveyance and communication with foreign nations, and to regulate immigration and exclude or expel aliens. When Congress has validly acted, its act binds the President except in so far as it encroaches upon his constitutional discretion to receive and commission diplomatic officers and to act as Commander-in-Chief. The courts have no power to make political decisions whatever. Their functions are purely judicial and when confronted with a political question they accept the decision of the political departments of the government.12 It results that judicial precedents are not of great assistance in determining the constitutional line separating the powers of the President from those of Congress in this field. 10 Sen. Doc. No. 56 (cited supra, note 7), p. 4. 11 Moore, Digest, 2: 463. See also infra, secs. 245-248. 12 Supra, sec. 107. |