from his power to prohibit it should he deem it an encroachment on our rights or prejudicial to our interests. . . . I am of the opinion, therefore, that the President has the power, in the absence of legislative enactment, to control the landing of foreign cables."

Prohibition by Congress of the importation of particular goods, such as lottery tickets, obscene literature, low grade teas, prize fight films, etc., has also been resorted to as a protective measure and has been sustained by the courts.76 Similarly the XVIII Amendment has provided for the prohibition of the import or export of alcoholic beverages.

Treaties may require the prohibition of commerce in certain articles but ordinarily legislation is necessary to execute such provisions." Thus the commerce in opium with Corea is prohibited by article VII of the treaty of 1882 but express provision is made that it "shall be enforced by appropriate legislation on the part of the United States and of Chosen."

According to international law, as applied by American courts, trading with the enemy automatically becomes illegal by the declaration of war, unless licensed by authority of Congress or the President. Congress has, however, usually passed express acts prohibiting such trade.78

220. Exclusion, Expulsion and Internment of Aliens.

Finally as a defensive measure Congress has authorized the exclusion and internment of alien enemies in time of war and the exclusion and expulsion of aliens of defined classes and nationalities in time of peace:79 The power of Congress to pass such acts has

76 Buttfield v. Stranahan, 192 U. S. 470 (1904); Weber v. Freed, 239 U. S. 325.

77 Supra, sec. 59; infra, sec. 256.

78 Trading with the Enemy Act, Oct. 6, 1917, 40 Stat. 411; Comp. Stat. 31152a.

79 Alien enemies, Rev. Stat., 4067, amended April 16, 1918; Comp. Stat., sec. 7615; Chinese Exclusion and Expulsion, May 6, 1882, 22 Stat. 58, amended 1884, Comp. Stat., sec. 4290, and act Sept. 13, 1888, 25 Stat. 479, Comp. Stat., 4313; exclusion and expulsion of undesirable aliens, act Feb. 5, 1917, secs. 3, 18, 19, 39 Stat. 875, 887, 889, and act Oct. 16, 1918, 40 Stat., c. 186, sec. I, Comp. Stat., 42894 amended May 10 and June 5, 1920, 41 stat. 593, 1009. An act of May 19, 1921, excluded all aliens beyond 3 per cent. of the number from that country resident in the United States.

been sustained, in part under the commerce clauses and in part as resulting from numerous powers in foreign relations which together constituted the usual powers of "sovereign and independent states." 99 81 These laws have delegated wide powers of enforcement, often with a minimum of judicial review, to executive officers but this delegation has been sustained.82 The temporary alien act of June 25, 1798, provided:

83

"That it shall be lawful for the President of the United States at any time during the continuance of this act to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States within such time as shall be expressed in such order." Hardly less broad is the act of October 16, 1918, providing that:

"Aliens who are anarchists, . . . who are members of or affiliated with any organization that entertains a belief in, teaches or advocates the overthrow by force or violence of the government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized governments . . . shall be excluded from the United States," and if such alien is found in the United States, he "shall upon the warrant of the Secretary of Labor be taken into custody and deported."

During the World War many alien enemies were interned by order of the President under authority of the alien enemy act of July 6, 1798, as amended to include women in April, 1918.84 221. Power to Employ Various Methods of Coercion.

Of the seven types of measures discussed, the President can, in pursuance of his constitutional duties, authorize diplomatic pressure, or display of force on national territory or on the high seas without express authority of Congress. He has, in pursuance of such duties, authorized the occupation of foreign territory and the capture and destruction of foreign military forces without express authority, though generally Congress has ratified his act by later resolution. It would seem that the President in such cases ought to await an authorizing resolution unless an immediate necessity demands promptness. Finally authority to seize or destroy private

80 Head Money Cases, 112 U. S. 580.

81 Chinese Exclusion Cases, 130 U. S. 581; Fong Yue Ting v. U. S., 149 U. S. 398.

82 U. S. v. Ju Toy, 198 U. S. 253.

83

I

Stat. 576. Limited to two years by its own terms.

84 Supra, note 77.

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."85 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

840 Ex parte Milligan, 4 Wall. 2 (1866). See also Willoughby, op. cit., 2: 1207; Taft, op. cit., pp 94-99; Wright, Col. Law Rev., 20: 134.

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 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. J. B. Moore notes that President Pierce and Secretary Marcy justified this action on the ground that "Greytown was a community claiming to exist outside the bounds of any recognized state or political entity." (Proc. Am. Phil. Soc., Minutes. 60: xvii.) This, however, does not apply to many other instances in which force has been used abroad under authority of the Presi dent and in this case the court rests the power on broader grounds.

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, "upon what act of Congress then existing can any one lay his finger in support of the action of the government in this matter." 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

99 89

"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.91 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. i.

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.