property, to enforce commercial discriminations, restrictions or prohibitions and to exclude, expel or intern aliens must be given by act of Congress, treaty or international law, but much discretion may be delegated the President. The existence of war, whether by declaration of Congress or recognition by the President, ex propria vigore, authorizes the President, as Commander-in-Chief, to enforce such of these measures of coercion as are permitted by the international law of war, and Congress cannot interfere with him in the direction of military and naval forces:

66

'Congress," said the Supreme Court, "has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. The power to make the necessary laws is in Congress, the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authority essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress can not direct the conduct of campaigns." 84a

222. Purposes for Which the President May Employ Force under the Constitution.

However, we cannot distinguish the respective powers of the President and Congress merely by considering the method of coercion. The purposes or ends in view are even more important. The Constitution requires the President to "take care that the laws be faithfully executed." Though this imposes a responsibility and is not a grant of power, yet it indicates certain purposes for which the President must use the constitutional powers elsewhere granted. What does the term "laws" embrace? In the Neagle case, the court held that it should be broadly interpreted.86

84a Ex parte Milligan, 71 U. S. 2 (1866). See also Willoughby, op. cit., 2: 1207; Taft, op. cit., pp 94-99; Wright, Col. Law Rev., 20: 134.

85 U. S. Constitution, II, sec. 3; supra, sec. 93.

86 In re Neagle, 135 U. S. 1; Willoughby, op. cit., p. 1135.

"Is this duty limited to the enforcement of Acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations and the protection implied by the nature of the government under the Constitution?"

The Constitution guarantees the "privileges and immunities of citizens of the United States" and these were held in the Slaughter House cases to include the right to protection abroad.87 Consequently the President's duty to execute the laws includes a duty to protect citizens abroad and in pursuance of this duty he may utilize his powers as Commander-in-Chief. Thus the court justified the President in authorizing the bombardment of Greytown, Nicaragua, in 1854:88

"As respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence to the citizen or his property cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action. Under our system of Government, the citizen abroad is as much entitled to protection as the citizen at home. The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth the preserving."

In the Neagle case the Supreme Court referred to and endorsed executive action in 1853 in protecting Martin Koszta, a Hungarian revolutionist who had not completed his American naturalization. Captain Ingraham, in command of the American sloop-of-war St. Louis arrived in Smyrna as Koszta was being abducted, “demanded his surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with." The court notes that Secretary of State Marcy's defense of this action and insistence upon the liberation of Koszta who had been placed in charge of the French consul at Smyrna "met the approval of the country and Congress, who voted a gold medal to Captain Ingraham for his conduct of the affair." Yet says the court, 87 U. S. Constitution, Amendment XIV; Slaughter House Cases, 16 Wall. 36.

88 Durand v. Hollins, 4 Blatch 451, 454; Corwin, op. cit., p. 144.

"upon what act of Congress then existing can any one lay his finger in support of the action of the government in this matter." 89 In view of these incidents and judicial endorsements, we may accept Borchard's statement; with the sole qualification that "the manner must not amount to a making of war:

90

"Inasmuch as the Constitution vests in Congress authority 'to declare war' and does not empower Congress to direct the President to perform his constitutional duties of protecting American citizens on foreign soil, it is believed that the Executive has unlimited authority to use the armed forces of the United States for protective purposes abroad in any manner and on any occasion he considers expedient."

The Constitution also guarantees the States a Republican form of government and protection against invasion."1 Furthermore the right of national self-defense is recognized at international law and the corresponding duty of the government has been asserted by the Supreme Court: 92

"To preserve its independence and give security against foreign aggression and encroachment is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated."

Thus, if he considers such action essential for the enforcement of acts of Congress and treaties and for the protection of the citizens and territory of the United States, the President is obliged by the Constitution itself to use his power as commander-in-chief to direct the forces abroad, and this duty resting on the Constitution itself cannot be taken away by act of Congress. Thus says President Taft: 93

89 In re Neagle, 135 U. S. 1.

90 Borchard, op. cit., p. 452. See also Root, address in Senate, Aug. 14, 1912, Cong. Rec., 48: 10929; Military and Colonial Policy of the United States, 1916, p. 157.

91 U. S. Constitution, Art. IV, sec. 4.

92 Chinese Exclusion Cases, 130 U. S. 581 (1889).

93 Taft, op. cit., pp. 128-129. See also Wright, Col. Law Rev., 20: 135136, and Am. Jl. Int. Law, 12: 77; supra, secs. 125, 126, 151. By reduction of the army and navy or refusal of supplies, Congress might seriously impair the de facto power of the President to perform these duties, but it can not limit his legal power as Commander-in-Chief to employ the means at his disposal for these purposes. See Ex parte Milligan, 4 Wall. 2, supra,

sec. 221.

"The President is made Commander-in-Chief of the Army and Navy by the Constitution, evidently for the purpose of enabling him to defend the country against invasion, to suppress insurrection and to take care that the laws be faithfully executed. If Congress were to attempt to prevent his use of the army for any of these purposes, the action would be void."

223. Purposes for Which the President May Employ Force under Statute.

Aside from the purposes defined by the Constitution itself, for which the President may utilize the forces, other purposes have been defined by act of Congress. It is true, the general delegations of power to use the militia and the similar delegation to use the army and navy to execute the laws of the union, suppress insurrection and repel invasions" have been given an interpretation confining such use to the territory.94 Laws in this phrase has been held to mean laws of territorial application and says Pomeroy: 95

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"Insurrection and invasion must be internal. We do not repel an invasion by attacking the invading nation upon its own soil. Still there can be no question that the militia may be called out before the invaders set foot upon our territory. It is a fair construction of language to say that one means of 'repelling' an invasion is to have a force ready to receive the threatened invaders when they shall arrive."

Attorney-General Wickersham, however, makes the qualification:96

"If the militia were called into the service of the General government to repel an invasion, it would not be necessary to discontinue their use at the boundary line, but they might (within certain limits, at least) pursue and capture the invading force, even beyond that line. . . . This may well be held to be within the meaning of the term 'to repel invasion."

The expatriation act of July 27, 1868, however, authorizes the President to demand the release of American citizens unjustly deprived of liberty and: 97

94 Act of Jan. 21, 1913 (Dick Act), 32 Stat., 776, sec. 4; 35 Stat. 400; 38 Stat. 284, based on Acts of May 2, 1794, and Feb. 28, 1795, 1 Stat. 264, 424. Judge Ad. Gen. Davis held in 1908 that the term "laws" might apply to any congressional resolution of extraterritorial effect (Cong. Rec., 42: 6943), but this was not sustained by the Attorney General, infra, note 96.

95 Pomeroy, Constitutional Law, 9th ed., p. 387.

96 Wickersham, Att. Gen., 29 Op. 322 (1912). 97 Rev. Stat., sec. 2001; Comp. Stat., sec. 3957.

"If unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release."

Aside from such general acts, Congress may authorize a broad use of force by acts or resolutions applying to particular incidents and by declarations of war."

99

According to Justice Story in Martin v. Mott, it belongs to the President himself to interpret the exigencies in which a use of force is justifiable: 100

"He is necessarily constituted the judge of the existence of the exigency in the first instance and is bound to act according to his belief of the facts. ... Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts."

This case applied to the act of 1795 delegating the President power to call forth the militia, but the same principle would seem valid whatever the source of his authority, whether statute, treaty or the Constitution itself.

224. Conclusion.

Thus in practice the President has an exceedingly broad discretion to authorize the use of the forces. Under the Constitution he can use the military and naval forces to defend the territory and to protect American citizens abroad and on the high seas. The use of force to protect inchoate citizens, such as Martin Koszta, and inchoate territority such as San Domingo in 1871 is more questionable.101 For the meeting of responsibilities under international law and treaty the President likewise has authority to use the army and navy on the high seas and in foreign territory.102 To meet responsibilities under inchoate international law, such as the Monroe 98 For legislation authorizing the use of force to meet international responsibilities, see Chap. XII, A.

99 Moore, Digest, 7: 109, 155; Wright, Am. Jl. Int. Law, 12: 77. 100 Martin v. Mott, 12 Wheat. 19.

101 Corwin, op. cit., pp. 142, 158, and debate there quoted from Cong. Globe, 42 Cong., 1st sess., pt. 1, p. 294.

102 Supra, Chap. XII, A.