CHAPTER VIII

THE CLAIM OF SUPREMACY OF THE TREATY POWER OVER THE HOUSE OF REPRESENTATIVES CONSIDERED PRESIDENT WASHINGTON'S CONTEST WITH THE HOUSE OVER THE JAY TREATY PRESIDENTS FROM JOHN ADAMS TO MCKINLEY HAVE NOT FOLLOWED WASHINGTON'S PRECEDENT

§ 184. The advocates of the unlimited scope of the treatymaking power rest their argument largely upon the language of Article VI of the Constitution, which declares that treaties are "the supreme law of the land," and without reference to its relation to the other clauses of the Constitution, but considering merely the language of this clause, they assert its supremacy over all else, including the Constitution itself, and at one stroke seek to obliterate the whole scheme of the Constitution with its limitations and prohibitions, and establish this one power, affecting the relations of our country and its people with foreign nations, as the one supreme unlimited power in our system. They deny the limitations as to treaties which they admit apply to laws of Congress, and while conceding that every law must be constitutional, they deny such requirements in a treaty. The executive, the legislative, and the judicial powers of the Constitution, subject to the limitations of the Constitution which creates them, must be exercised within prescribed limits or be set aside by the judiciary whose province it is to preserve within proper bounds every department of the Constitution. The Congress may not exceed its powers granted by the Constitution; the President may not; the Judiciary may not; the States may not; but the treaty-making power, declared to be

the supreme law of the land, it is claimed is practically subject to no limitations in its scope and no restraint in its operations.

§ 185. A treaty between two countries, in its final analysis, is but an agreement by the parties regarding certain subjects. Where such agreements contain prohibitory provisions on both parties, the agreement in those respects is concluded, for such things cannot be done by either party, but if such treaty requires the doing of certain things by the parties to the convention, which things can only be done by some other branch of the government than that to which the making of treaties is assigned, the doing of such things by the co-ordinate branches of the respective governments makes the agreement or treaty executory as to such subjects, and the failure of that branch of the government to which is assigned the duty of carrying out such provisions to act may prevent the execution of the treaty. If the department of the government that makes the treaty has, under the Constitution of its country, the power to carry out the executory parts of the contract, no trouble can arise; but if that department that makes the treaty cannot, under the Constitution of its country, carry out the executory parts of such treaty, because such power is conferred upon another branch of the government, its execution may be delayed or hindered; and it is this question which has been the source of many contests in the United States from its earliest history. This question has often arisen in the United States where treaties have been made between the United States and foreign countries which carried appropriations, or which sought to change the revenue laws by reciprocal agreements. Can the treaty power of the United States execute such a treaty of itself? If the President and Senate may make a treaty with a foreign country carrying an appropriation of money, must the House of Representatives carry it out by making the appropriation? § 186. On this subject John Randolph Tucker1 makes the following statement :

1 Tucker on the Constitution, Vol. II, p. 739.

"Treaty is international compact. The root of the word (tractare) indicates negotiation between two or more. In itself treaty is a bargain, not law. 'It has the force of law, but derives it from the obligations of good faith.'1 No power is given to the President and Senate to effectuate the terms of the treaty by legislation. On the other hand, power is given to Congress by law to carry into execution all the powers vested in other departments, of which the treaty-making power is one. Can the conclusion be reached that the law-making department must then concur in action with the treaty-making power to make the treaty effectual as law to the people, or to execute its terms by needful and proper laws, especially as to those matters which are peculiarly confided to Congress? Can an inference in favor of executive authority be admissible in the face of this expressed delegation of power to Congress to carry the treaty into execution; and can it be held that it is obligatory upon Congress to do all of this, not discretionary, and that Congress must register the will of the President and Senate without power to dissent?"

Judge Cooley says:2

"CHECK ON THE TREATY-MAKING POWER. The full treatymaking power is in the President and Senate; but the House of Representatives has a restraining power upon it in that it may in its discretion at any time refuse to give assent to legislation necessary to give a treaty effect. Many treaties need no such legislation; but when moneys are to be paid by the United States, they can be appropriated by Congress alone; and in some other cases laws are needful. An unconstitutional or manifestly unwise treaty the House of Representatives may possibly refuse to aid; and this, when legislation is needful, would be equivalent to a refusal of the government, through one of its branches, to carry the treaty into effect. This would be an extreme measure, but it is conceivable that a case might arise in which a resort to it would be justified."

§ 187. Has the House the right to withhold its assent to an appropriation contained in a treaty? Or, is it obliged to vote the appropriation? These are questions which have engaged 1 Mr. Hamilton, The Federalist, No. LXXV. 'Cooley, "Principles of Constitutional Law,” p. 175.

the attention of American statesmen from the year 1796 to the present day. The question has been by repeated decisions settled in favor of the right of the House to exercise an untrammelled judgment in every case where an appropriation is asked at its hands - whether that appropriation be for the purpose of carrying out a treaty or for other purposes. A recent author on this subject says:1

"It is accepted on both sides, nor has it ever been questioned, that a treaty stipulating for an appropriation of money can be fully carried into effect only by an act of Congress."

This statement is certainly misleading, for while it is true that a treaty carrying an appropriation can only be made effective by an act of Congress making the appropriation, the point of difference between the two opposing schools on this subject was this: The one, led by President Washington and Mr. Hamilton, maintained that the House of Representatives practically had no choice or discretion, but was morally bound to vote an appropriation when it was placed in a treaty. The other party, led by Jefferson, claimed that in this matter, as in all matters pertaining to their duties, the House of Representatives was to be controlled by its own judgment as to the propriety or impropriety of granting the appropriation.

§ 188. One of the earliest occasions on which this question was brought into discussion, was upon the ratification of the Jay Treaty in 1796. This treaty carried under its provisions an appropriation of money.

Article I, § 9, Clause 7 of the Constitution provides: "No money shall be drawn from the treasury, but in consequence of appropriations made by law." The House declined to appropriate the money and insisted that before it could be called upon to do so, it was entitled to know all the facts and inspect the papers bearing upon the negotiations, and by resolution passed by a vote of sixty-two to thirty-seven requested the President to send them such documents. President Washing

1 Crandall, "Treaties, Their Making and Enforcement," p. 132.

ton declined to accede to their request, and sent a message of much power and dignity to the House, stating his reasons therefor. In reply to President Washington's message the House, by a vote of fifty-seven to thirty-five, passed a resolution which disclaimed on their part any agency in the making of the treaty, but with characteristic boldness proclaimed the doctrine for the first time, that has been adhered to ever since, that where a treaty contains an appropriation that could not be effective without the action of Congress, that their right to deliberate and exercise their judgment as to the propriety of such appropriation could not be taken from them by any power in the Constitution, for the right to appropriate money carries with it, ex necessitate, the right to exercise their individual judgments and their own discretion in such matter: nor could the negotiators of a treaty in placing an appropriation in the treaty compel them against their judgment to do what they did not approve. The resolution passed was as follows:

"RESOLVED: It being declared by the second section of the second article of the Constitution that the President shall have power, by and with the advice and consent of the Senate, to made treaties, provided two-thirds of the Senators present concur, the House of Representatives do not claim any agency in making treaties; but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress, and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good."

§ 189. While neither President Washington nor Mr. Hamilton, nor any of those who agreed with them openly maintained the position that the treaty by its own force could make an appropriation it cannot be doubted that in effect their position,

1 Richardson, "Messages and Papers of the Presidents," Vol. I,

p. 194.