ARTICLE II (continued 2)

Recent Cases

Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute which excluded aliens ineligible to American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.[161] But in Oyama v. California,[162] decided in 1948, a majority of the Court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of Amendment XIV, a view which has since received the endorsement of the California Supreme Court by a narrow majority.[163] Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923 between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting State legislation.[164]

WHEN IS A TREATY SELF-EXECUTING?

What is the scope of the power of American courts under article VI, clause 2, to lend ear to private claims based on treaty provisions, on the ground that such provisions are self-executing? Jay had in mind certain intended victims of State legislation; and in fact the cases reviewed above all arose within the normal field of State legislative power. Nevertheless, as early as 1801, in United States v. Schooner Peggy,[165] the Supreme Court, speaking by Chief Justice Marshall, took notice of a treaty with France, executed after a court of admiralty had entered a final judgment condemning a captured French vessel, and finding it applicable to the situation before it, set the judgment aside and ordered the vessel restored to her owners. Since that time the Court has declared repeatedly in cases in which State law was not involved that when a treaty prescribes a rule by which private rights are to be determined, the courts are bound to take judicial notice thereof and to accept it as a rule of decision in any appropriate proceeding to enforce such rights.[166] In short, whether a given treaty provision is self-executing is a question for the Court; although it does not altogether lack guiding principles in deciding it, the most important of which is the doctrine of political questions.[167] See pp. 426, 471-472.

CONSTITUTIONAL FREEDOM OF CONGRESS WITH RESPECT TO TREATIES

From the foregoing two other questions arise: first, are there types of treaty provisions which only Congress can put into effect? Second, assuming an affirmative answer to the above question, is Congress under constitutional obligation to supply such implementation? For such answer as exists to the first question resort must be had to the record of practice and nonjudicial opinion. The question arose originally in 1796 in connection with the Jay Treaty, certain provisions of which required appropriations to carry them into effect. In view of the third clause of article I, section 9 of the Constitution, which says that "no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; * * *," it was universally agreed that Congress must be applied to if the treaty provisions alluded to were to be put into execution. But at this point the second question arose, to the solution of which the Court has subsequently contributed indirectly. (See pp. 420-421). A bill being introduced into the House of Representatives to vote the needed funds, supporters of the treaty, Hamilton, Chief Justice Ellsworth, and others, argued that the House must make the appropriation willy nilly; that the treaty, having been ratified by and with the advice and consent of the Senate, was "supreme law of the land," and that the legislative branch was bound thereby no less than the executive and judicial branches.[168] Madison, a member of the House, opposed this thesis in a series of resolutions, the nub of which is comprised in the following statement: "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."[169] The upshot of the matter was that the House adopted Madison's resolutions, while at the same time voting the required funds.[170]

THE TREATY-MAKING POWER AND REVENUE LAWS

On the whole, Madison's position has prospered. Discussion whether there are other treaty provisions than those calling for an expenditure of money which require legislation to render them legally operative has centered chiefly on the question whether the treaty-making power can of itself alone modify the revenue laws. From an early date spokesmen for the House have urged that a treaty does not, and cannot, ex proprio vigore, become supreme law of the land on this subject; and while the Senate has never conceded this claim formally, yet in a number of instances, "the treaty-making power has inserted in treaties negotiated by it and affecting the revenue laws of the United States, a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress, and the House has claimed that the insertion of such requirements has been, in substance, a recognition of its claim in the premises,"[171] although there are judicial dicta which inferentially support the Senate's position. Latterly the question has become largely academic. Commercial agreements nowadays are usually executive agreements contracted by authorization of Congress itself. Today the vital issue in this area of Constitutional Law is whether the treaty-making power is competent to assume obligations for the United States in the discharge of which the President can, without violation of his oath to support the Constitution, involve the country in large scale military operations abroad without authorization by the war-declaring power, Congress to wit. Current military operations in Korea appear to assume an affirmative answer to this question.

CONGRESSIONAL REPEAL OF TREATIES

It is in respect to his contention that when it is asked to carry a treaty into effect Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question, as to what happens when a treaty provision and an act of Congress conflict. The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States in no wise diminish Congress's constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said, "Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress."[172]

TREATIES Versus PRIOR ACTS OF CONGRESS

The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. How as to the converse situation? Two early cases in which Chief Justice Marshall spoke for the Court, stand for the proposition that treaties, so far as self-executing, repeal earlier conflicting acts of Congress. In the case of the "Peggy,"[173] certain statutory provisions dealing with the trial of prize cases were held to have been modified by a subsequent treaty with France; and in Foster v.. Neilson,[174] while holding—mistakenly as he later admitted[175]—that the treaty of January 24, 1818 with Spain was not self-executing with respect to certain land grants, he went on to say that if it had been it would have repealed acts of Congress repugnant to it. With one exception, however, judicial dicta which reiterate this idea are obiter, and are disparaged by Willoughby, as follows: "In fact, however, there have been few (the writer is not certain that there have been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. Furthermore, with specific reference to commercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, has in every instance succeeded in maintaining this point."[176] The single exception just alluded to is Cook v. United States,[177] which may be regarded as part of the aftermath of National Prohibition. Here a divided Court, speaking by Justice Brandeis, ruled that the authority conferred by § 581 of the Tariff Act of 1922 and its reenactment in the tariff Act of 1930, upon officers of the Coast Guard to stop and board any vessel at any place within four leagues (12 miles) of the coast of the United States and to seize the vessel, if upon examination it shall appear that any violation of the law has been committed by reason of which the vessel or merchandise therein is liable to forfeiture, is, as respects British vessels suspected of being engaged in attempting to import alcoholic beverages into the United States in violation of its laws, modified by the Treaty of May 22, 1924, between the United States and Great Britain, so as to allow seizure of such vessels only within the distance from the coast which can be traversed in one hour by the vessel suspected of endeavoring to commit the offense.[178] Only one case is cited in support of the proposition that the treaty, being of later date than the act of Congress, superseded it so far as they were in conflict. This is Whitney v. Robertson,[179] in which an act of Congress was held to have superseded conflicting provisions of a prior treaty. Moreover, the act of Congress involved in the Cook case had, as above indicated, been reenacted subsequently to the treaty involved. The decision actually accomplishes the singular result of reversing the maxim leges posteriores. It may be suspected that it was devised to avoid a diplomatic controversy which in the low estate of Prohibition at that date would not have been worthwhile.[180]

INTERPRETATION AND TERMINATION OF TREATIES AS INTERNATIONAL COMPACTS

The repeal by Congress of the "self-executing" clauses of a treaty as "law of the land" does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence the question arises of where the Constitution lodges this power; also the closely related question of where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress, by the act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France.[181] This act was followed two days later by one authorizing limited hostilities against the same country; and in the case of Bas v. Tingy[182] the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring "public war" upon the French Republic.

TERMINATION OF TREATIES BY NOTICE

The initial precedent in the matter of termination by notice occurred in 1846, when by the Joint Resolution of April 27, Congress authorized the President at his discretion to notify the British Government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode supports the theory that international conventions to which the United States is party, even those terminable on notice, are terminable only by act of Congress.[183] Subsequently Congress has often passed resolutions denouncing treaties or treaty provisions which by their own terms were terminable on notice, and Presidents have usually carried out such resolutions, though not invariably.[184] By the La Follette-Furuseth Seamen's Act, approved March 4, 1915,[185] President Wilson was directed, "within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties," and the required notice was given.[186] When, however, by section 34 of the Jones Merchant Marine Act of 1920 the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, which the act infracted, of the termination thereof, he refused to comply, asserting that he "did not deem the direction contained in section 34 * * * an exercise of any constitutional power possessed by Congress."[187] The same intransigent attitude was continued by Presidents Harding and Coolidge.

DETERMINATION WHETHER A TREATY HAS LAPSED

At the same time, there is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton's opinion in Charlton v. Kelly[188] is pertinent: "If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. * * * That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case. * * * The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition."[189] So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.[190]

STATUS OF A TREATY A POLITICAL QUESTION

All in all, it would seem that the vast weight both of legislative practice and of executive opinion supports the proposition that the power of terminating outright international compacts to which the United States is party belongs, as a prerogative of sovereignty, to Congress alone, but that the President may, as an incident of his function of interpreting treaties preparatory to enforcing them, sometimes authoritatively find that a treaty contract with another power has or has not been breached by the latter and whether, for that reason, it is or is not longer binding on the United States.[191] At any rate, it is clear that any such questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the words of Justice Curtis in Taylor v. Morton:[192] It is not "a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. * * * These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. They belong to diplomacy and legislation, and not to the administration of existing laws. And it necessarily follows, that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government." Chief Justice Marshall's language in Foster v. Neilson[193] is to the same effect.

TREATIES AND THE NECESSARY AND PROPER CLAUSE

What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress's enumerated powers (those listed in the first 17 clauses of article I, section 8 of the Constitution), then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals with a subject which falls normally to the States to legislate upon, or a subject which falls within the national jurisdiction because of its international character, then recourse is had to the necessary and proper clause. Thus, of itself, Congress would have no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.[194] Again, Congress could not confer judicial power upon American consuls abroad to be there exercised over American citizens, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements and such legislation has been upheld.[195] Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.[196] Again, Congress could not ordinarily penalize private acts of violence within a State, but it can punish such acts if they deprive aliens of their rights under a treaty.[197] Referring to such legislation the Court has said: "The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power."[198] In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress's enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; and the only question that can be raised as to such measures will be whether they are "necessary and proper" measures for the carrying of the treaty in question into operation. The matter is further treated under the next heading.

CONSTITUTIONAL LIMITS OF THE TREATY-MAKING POWER; MISSOURI v. HOLLAND

Our system being theoretically opposed to the lodgement anywhere in government of unlimited power, the question of the scope of this exclusive power has often been pressed upon the Court, which has sometimes used language vaguely suggestive of limitation, as in the following passage from Justice Field's opinion for the Court in Geofroy v. Riggs,[199] which was decided in 1890: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. * * * But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."[200] The fact is none the less, that no treaty of the United States nor any provision thereof has ever been found by the Court to be unconstitutional. The most persistently urged proposition in limitation of the treaty-making power has been that it must not invade certain reserved powers of the States. In view of the sweeping language of the supremacy clause, it is hardly surprising that this argument has not prevailed.[201] Nevertheless, the Court was forced to answer it as recently as 1923. This was in the case of Missouri v. Holland,[202] in which the Court sustained a treaty between the United States and Great Britain providing for the reciprocal protection of migratory birds which make seasonal flights from Canada into the United States and vice versa, and an act of Congress passed in pursuance thereof which authorized the Department of Agriculture to draw up regulations to govern the hunting of such birds, subject to the penalties specified by the act. To the objection that the treaty and implementing legislation invaded the acknowledged police power of the State in the protection of game within its borders, Justice Holmes, speaking for the Court, answered: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found. (Andrews v. Andrews, 188 U.S. 14, 33 (1903)). What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. * * * The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved."[203] And again: "Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld."[204]

Justice Sutherland's later assertion in the Curtiss-Wright case[205] that the powers "to declare and wage war, to conclude peace, to make treaties," etc., belong to "the Federal Government as the necessary concomitants of nationality" leaves even less room for the notion of a limited treaty-making power, as indeed appears from his further statement that "as a member of the family of nations, the right and power of the United States * * * are equal to the right and power of the other members of the international family."[206] No doubt there are specific limitations in the Constitution in favor of private rights which "go to the roots" of all power. But these do not include the reserved powers of the States; nor do they appear to limit the National Government in its choice of matters concerning which it may treat with other governments.[207]

INDIAN TREATIES

In the early cases of Cherokee Nation v. Georgia[208] and Worcester v. Georgia[209] the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a foreign state within the meaning of that clause of the Constitution which extends the judicial power of the United States to controversies "between a State or the citizens thereof and foreign states, citizens or subjects"; secondly, that: "The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense."[210]

Later cases established that the power to make treaties with the Indian tribes was coextensive with the power to make treaties with foreign nations;[211] that the States were incompetent to interfere with rights created by such treaties;[212] that as long as the United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a State;[213] that a stipulation in an Indian treaty that laws forbidding the introduction of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of the States;[214] that an act of Congress contrary to a prior Indian treaty repealed it.[215]

Present Status of Indian Treaties

Today Indian treaties is a closed account in the Constitutional Law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871 it was provided "That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe."[216] Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, pro tanto, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the United States so long as game may be found thereon and to bring hunting by the Indians within the police power of the State.[217] Similarly, statutes modifying rights of members in tribal lands,[218] granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,[219] or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,[220] have been sustained. When, on the other hand, definite property rights have been conferred upon individual Indians, whether by treaty or under an act of Congress, they are protected by the Constitution to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence it was held that certain Indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from State taxation which were protected by the Fifth Amendment against abrogation by Congress.[221]

International Agreements Without Senate Approval

The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between "treaties" and "agreements" or "compacts," but does not indicate what the difference is; and what difference there once may have been has been seriously blurred in practice within recent decades. The President's power to enter into agreements or compacts with other governments without consulting the Senate must be referred to his powers as organ of foreign relations and as Commander in Chief. From an early date, moreover, Congress has authorized executive agreements within the field of its powers, postal agreements, trade-mark and copyright agreements, reciprocal trade agreements. Executive agreements may also stem from treaties.[222]

ROUTINE EXECUTIVE AGREEMENTS

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story's words, "the mere private rights of sovereignty."[223] Crandall lists scores of such agreements entered into with other governments by the authorization of the President.[224] Such agreements are ordinarily directed to particular and comparatively trivial disputes and by the settlement the effect of these cease ipso facto to be operative. Also there are such time-honored diplomatic devices as the "protocol" which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country's destiny. Within recent decades, in consequence particularly of our participation in World War II and our immersion in the conditions of international tension which have prevailed both before and after this war, Presidents have entered into agreements with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.

LAW-MAKING EXECUTIVE AGREEMENTS

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 brought about a delimitation of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later was laid before the Senate with a query as to whether it was within the President's power, or whether advice and consent of the Senate were required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.[225] Of a kindred type, and owing much to the President's capacity as Commander in Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border.[226] Commenting on such an agreement, the Court remarked, a bit uncertainly: "While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect."[227] Justice Gray and three other Justices were of the opinion that such action by the President must rest upon express treaty or statute.[228]

PRESIDENT McKINLEY'S CONTRIBUTION

Notable expansion of Presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, "would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars."[229] Hostilities with Spain were brought to an end in August 1898 by an armistice the conditions of which largely determined the succeeding treaty of peace,[230] just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander in Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; and a year later, again without consulting either Congress or the Senate, accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.[231] Commenting on the Peking protocol Willoughby quotes with approval the following remark: "This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character. * * *, purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Pekin, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot."[232]

EXECUTIVE AGREEMENTS AFFECTING FAR EASTERN RELATIONS

It was during this period, too, that John Hay, as McKinley's Secretary of State, initiated his "Open Door" policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.[233] Then in 1905 the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea.[234] Three years later Secretary of State Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.[235] Meantime, in 1907, by a "Gentlemen's Agreement," the Mikado's government had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson's diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan's "special interests" in China, and Japan assented to the principle of the Open Door in that country.[236]

THE INTERNATIONAL OBLIGATION OF EXECUTIVE AGREEMENTS

The question naturally suggests itself: What sort of obligation does an agreement of the above description impose upon the United States? The question was put to Secretary Lansing himself in 1918 by a member of the Foreign Relations Committee, as follows: "Has the so-called Lansing-Ishii Agreement any binding force on this country?" and replied that it had not; that it was simply a declaration of American policy so long as the President or State Department might choose to continue it.[237] Actually, it took the Washington Conference of 1921, two solemn treaties and an exchange of notes to get rid of it; while the "Gentlemen's Agreement," first drawn in 1907, was finally put an end to, after seventeen years, only by an act of Congress.[238] That executive agreements are sometimes cognizable by the courts was indicated earlier. The matter is further treated immediately below.

THE LITVINOV AGREEMENT OF 1933

The executive agreement attained its fullest development as an instrument of foreign policy under President Franklin D. Roosevelt, even at times threatening to replace the treaty-making power, if not formally yet actually, as a determinative element in the field of foreign policy. Mr. Roosevelt's first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933 with Maxim M. Litvinov, People's Commissar for Foreign Affairs, whereby American recognition was extended to the Union of Soviet Socialist Republics in consideration of certain pledges, the first of which was the promise to restrain any persons or organizations "under its direct or indirect control, * * *, from any act overt or covert liable in any way whatsoever to injure the tranquillity, prosperity, order, or security of the whole or any part of the United States, * * *"[239]

United States v. Belmont

The Litvinov Agreement is also noteworthy for giving rise to two cases which afforded the Court the opportunity to evaluate the executive agreement in terms of Constitutional Law. The earlier of these was United States v. Belmont,[240] decided in 1937. The point at issue was whether a district court of the United States was free to dismiss an action by the United States, as assignee of the Soviet government, for certain moneys which were once the property of a Russian metal corporation whose assets had been appropriated by the Soviet government. The Court, speaking by Justice Sutherland, said "No." The President's act in recognizing the Soviet government, and the accompanying agreements, constituted, said the Justice, an international compact which the President, "as the sole organ" of international relations for the United States, was authorized to enter upon without consulting the Senate. Nor did State laws and policies make any difference in such a situation; for while the supremacy of treaties is established by the Constitution in express terms, yet the same rule holds "in the case of all international compacts and agreements from the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States."[241]

United States v. Pink; National Supremacy

In the United States v. Pink,[242] decided five years later, the same course of reasoning was reiterated with added emphasis. The question here involved was whether the United States was entitled under the Executive Agreement of 1933 to recover the assets of the New York branch of a Russian insurance company. The company argued that the decrees of confiscation of the Soviet Government did not apply to its property in New York, and could not consistently with the Constitution of the United States and that of New York. The Court, speaking by Justice Douglas, brushed these arguments aside. An official declaration of the Russian government itself settled the question of the extraterritorial operation of the Russian decree of nationalization and was binding on American courts. The power to remove such obstacles to full recognition as settlement of claims of our nationals was "a modest implied power of the President who is the 'sole organ of the Federal Government in the field of international relations' * * * It was the judgment of the political department that full recognition of the Soviet Government required the settlement of outstanding problems including the claims of our nationals. * * * We would usurp the executive function if we held that that decision was not final and conclusive on the courts. 'All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature, * * *'[243] * * * It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy.[244] But State law must yield when it is inconsistent with, or impairs the policy or provisions of, a treaty or of an international compact or agreement.[245] Then, the power of a State to refuse enforcement of rights based on foreign law which runs counter to the public policy of the form * * * must give way before the superior Federal policy evidenced by a treaty or international compact or agreement.[246] * * * The action of New York in this case amounts in substance to a rejection of a part of the policy underlying recognition by this nation of Soviet Russia. Such power is not accorded a State in our constitutional system. To permit it would be to sanction a dangerous invasion of Federal authority. For it would 'imperil the amicable relations between governments and vex the peace of nations.'[247] * * * It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish. * * * No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to State laws or State policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts." And while "aliens as well as citizens are entitled to the protection of the Fifth Amendment," that amendment did not bar the Federal Government "from securing for itself and our nationals priority [against] creditors who are nationals of foreign countries and whose claims arose abroad."[248]

THE HULL-LOTHIAN AGREEMENT, 1940

The fall of France in June 1940 inspired President Roosevelt to enter the following summer into two executive agreements the total effect of which was to transform the role of the United States from one of strict neutrality toward the war then waging in Europe to one of semi-belligerency. The first of these agreements was with Canada, and provided that a Permanent Joint Board on Defense was to be set up at once by the two countries which would "consider in the broad sense the defense of the north half of the Western Hemisphere."[249] The second, and more important agreement, was the Hull-Lothian Agreement of September 2, 1940, under which, in return for the lease to it for ninety-nine years of certain sites for naval bases in the British West Atlantic, our Government handed over to the British Government fifty over-age destroyers which had been recently reconditioned and recommissioned.[250] The transaction, as justified in an opinion by the Attorney General, amounted to a claim for the President, in his capacity as Commander in Chief and organ of foreign relations, to dispose of property of the United States, although the only power to do this which the Constitution mentions is that which it assigns to Congress.[251]

On April 9, 1941, the State Department, in consideration of the fact that Germany had, on April 9, 1940, occupied Denmark, entered into an executive agreement with the Danish minister at Washington, whereby the United States acquired the right to occupy Greenland for the duration, for purposes of defense.[252]

WARTIME AGREEMENTS

That the post-war diplomacy of the United States has been greatly influenced by such executive agreements as those which are associated with Cairo, Teheran, Malta, and Potsdam, is evident.[253] The Executive Agreement thus became, in an era in which the instability of international relations forbade successful efforts at treaty-making, the principal instrument of Presidential initiative in the field of foreign relations. Whether the United Nations Charter and the Atlantic Pact signalize the end of this era will doubtless appear in due course.

EXECUTIVE AGREEMENTS BY AUTHORIZATION OF CONGRESS

"The first known use of the executive agreement under the Constitution of the United States," writes Dr. McClure, "was for the development of international communication by means of the postal service. The second Congress, in establishing the Post Office, which had theretofore been dealt with through legislation carrying it on from year to year, enacted that 'the Postmaster General may make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post-offices.' It was further provided that this act, of February 20, 1792, should 'be in force for the term of two years, from the * * * first day of June next, and no longer.'"[254]

Reciprocal Trade Agreements

Under later legislation executive agreements, or what in effect were such, have been authorized by which American patents, copyrights, and trade-marks have secured protection abroad in return for like protection by the United States of similar rights of foreign origin.[255] But the most copious source of executive agreements has been legislation which provided basis for reciprocal trade agreements, with other countries.[256] The culminating act of this species was that of June 12, 1934, which provided, in part, as follows: "* * *, the President, whenever he finds as a fact that any existing duties or other import restrictions of the United States or any foreign country are unduly burdening and restricting the foreign trade of the United States and that the purpose above declared will be promoted by the means hereinafter specified, is authorized from time to time—'(1) To enter into foreign trade agreements with foreign governments or instrumentalities thereof'; and '(2) To proclaim such modifications of existing duties and other import restrictions, or such additional import restrictions, or such continuance, and for such minimum periods, of existing customs or excise treatment of any article covered by foreign trade agreements, as are required or appropriate to carry out any foreign trade agreement that the President has entered into hereunder. No proclamation shall be made increasing or decreasing by more than 50 per centum any existing rate of duty or transferring any article between the dutiable and free lists.'"[257] This act, renewed at three-year intervals, is still in effect, and under it many trade agreements were negotiated by former Secretary of State Hull.

The Constitutionality of Trade Agreements

In Field v. Clark,[258] decided in 1892 this type of legislation was sustained against the objection that it attempted an unconstitutional delegation "of both legislative and treaty-making powers." The Court met the first objection with an extensive review of similar legislation from the inauguration of government under the Constitution. The second objection it met with the court statement that, "What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power. The Court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President."[259] Although two Justices disagreed, the question has never been revived. However, in Altman and Co. v. United States,[260] decided twenty years later, a collateral question was passed upon. This was whether an act of Congress which gave the federal circuit courts of appeal jurisdiction of cases in which "the validity or construction of any treaty, * * *, was drawn in question" embraced a case involving a trade agreement which had been made under the sanction of the Tariff Act of 1897. Said the Court: "While it may be true that this commercial agreement, made under authority of the Tariff Act of 1897, § 3, was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States, it was an international compact, negotiated between the representatives of two sovereign nations and made in the name and on behalf of the contracting countries, and dealing with important commercial relations between the two countries, and was proclaimed by the President. If not technically a treaty requiring ratification, nevertheless it was a compact authorized by the Congress of the United States, negotiated and proclaimed under the authority of its President. We think such a compact is a treaty under the Circuit Court of Appeals Act, and, where its construction is directly involved, as it is here, there is a right of review by direct appeal to this court."[261]

The Lend-Lease Act

The most extensive delegation of authority ever made by Congress to the President to enter into executive agreements occurred within the field of the cognate powers of the two departments, the field of foreign relations; and took place at a time when war appeared to be in the offing, and was in fact only a few months away. The legislation referred to was the Lend-Lease Act of March 11, 1941[262] by which the President was empowered for something over two years—and subsequently for additional periods whenever he deemed it in the interest of the national defense to do so, to authorize "the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government," to manufacture in the government arsenals, factories, and shipyards, or "otherwise procure," to the extent that available funds made possible, "defense articles"—later amended to include foodstuffs and industrial products—and "sell, transfer title to, exchange, lease, lend, or otherwise dispose of," the same to the "government of any country whose defense the President deems vital to the defense of the United States," and on any terms that he "deems satisfactory." Under this authorization the United States entered into Mutual Aid Agreements whereby the government furnished its allies in the recent war forty billions of dollars worth of munitions of war and other supplies.

PRESIDENT PLUS CONGRESS VERSUS SENATE

The partnership which has developed within recent decades between the President and Congress within the field of their cognate powers is also illustrated by the act of February 9, 1922, creating a commission to effect agreements respecting debts owed this country by certain other governments, the resulting agreements to be approved by Congress;[263] by the circumstances attending the drawing up in 1944 of the United Nations Relief and Rehabilitation Convention;[264] by the Joint Resolution of June 19, 1934, by which the President was authorized to accept membership for the United States in the International Labor Office.[265] It is altogether apparent in view of developments like these that the executive agreement power, especially when it is supported by Congressional legislation, today overlaps the treaty-making power.

ARBITRATION AGREEMENTS

In 1904-1905 Secretary of State John Hay negotiated a series of treaties providing for the general arbitration of international disputes. Article II of the treaty with Great Britain, for example, provided as follows: "In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute and the scope of the powers of the Arbitrators, and fixing the periods for the formation of the Arbitral Tribunal and the several stages of the procedure."[266] The Senate approved the British treaty by the constitutional majority having, however, first amended it by substituting the word "treaty" for "agreement." President Theodore Roosevelt, characterizing the "ratification" as equivalent to rejection, sent the treaties to repose in the archives. "As a matter of historical practice," Dr. McClure comments, "the compromis under which disputes have been arbitrated include both treaties and executive agreements in goodly numbers,"[267] a statement supported by both Willoughby and Moore.[268]

AGREEMENTS UNDER THE UNITED NATIONS CHARTER

Article 43 of the United Nations Charter provides: "1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. 2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. 3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."[269] This time the Senate did not boggle over the word "agreement."

The United Nations Participation Act

The United Nations Participation Act of December 20, 1945 implements these provisions as follows: "The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution, providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to the President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements."[270]

The Executive Establishment

"OFFICE"

"An office is a public station, or employment, conferred by the appointment of government," and "embraces the ideas of tenure duration, emolument, and duties."[271]

"AMBASSADORS AND OTHER PUBLIC MINISTERS"

The term "ambassadors and other public ministers," comprehends "all officers having diplomatic functions, whatever their title or designation."[272] It was originally assumed that such offices were established by the Constitution itself, by reference to the Law of Nations, with the consequence that appointments might be made to them whenever the appointing authority—the President and Senate—deemed desirable.[273] During the first sixty-five years of the Government Congress passed no act purporting to create any diplomatic rank, the entire question of grades being left with the President. Indeed, during the administrations of Washington, Adams and Jefferson, and the first term of Madison, no mention occurs in any appropriation act even, of ministers of a specified rank at this or that place, but the provision for the diplomatic corps consisted of so much money "for the expenses of foreign intercourse," to be expended at the discretion of the President. In Madison's second term the practice was introduced of allocating special sums to the several foreign missions maintained by the Government, but even then the legislative provisions did not purport to curtail the discretion of the President in any way in the choice of diplomatic agents.

In 1814, however, when President Madison appointed, during a recess of the Senate, the Commissioners who negotiated the Treaty of Ghent the theory on which the above legislation was based was drawn into question. Inasmuch, it was argued, as these offices had never been established by law, no vacancy existed to which the President could constitutionally make a recess appointment. To this argument it was answered that the Constitution recognizes "two descriptions of offices altogether different in their nature, authorized by the constitution—one to be created by law, and the other depending for their existence and continuance upon contingencies. Of the first kind, are judicial, revenue, and similar offices. Of the second, are Ambassadors, other public Ministers, and Consuls. The first description organize the Government and give it efficacy. They form the internal system, and are susceptible of precise enumeration. When and how they are created, and when and how they become vacant, may always be ascertained with perfect precision. Not so with the second description. They depend for their original existence upon the law, but are the offspring of the state of our relations with foreign nations, and must necessarily be governed by distinct rules. As an independent power, the United States have relations with all other independent powers; and the management of those relations is vested in the Executive."[274]

By the opening section of the act of March 1, 1855, it was provided that "from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and consent of the Senate, appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary," with a specified annual compensation for each, "to the following countries, * * *" In the body of the act was also this provision: "The President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the Government at the time of their appointment, * * *."[275] The question of the interpretation of the act having been referred to Attorney General Cushing, he ruled that its total effect, aside from its salary provisions, was recommendatory only. It was "to say, that if, and whenever, the President shall, by and with the advice and consent of the Senate, appoint an envoy extraordinary and minister plenipotentiary to Great Britain, or to Sweden, the compensation of that minister shall be so much and no more."[276]

This line of reasoning is today only partially descriptive of facts. The act of March 2, 1909, provides that new ambassadorships may be created only with the consent of Congress,[277] while the Foreign Service Act of 1924[278] organizes the foreign service, both its diplomatic and its consular divisions, in detail as to grades, salaries, appointments, promotions, and in part as to duties. Theoretically the act leaves the power of the President and Senate to appoint consular and diplomatic officials intact, but in practice the vast proportion of the selections are made in conformance with the civil service rules.

PRESIDENTIAL DIPLOMATIC AGENTS

What the President may have lost in consequence of the intervention of Congress in this field, he has made good through his early conceded right to employ, in the discharge of his diplomatic function, so-called "special," "personal," or "secret" agents without consulting the Senate. When President Jackson's right to resort to this practice was challenged in the Senate in 1831, it was defended by Edward Livingston, Senator from Louisiana, to such good purpose that Jackson made him Secretary of State. "The practice of appointing secret agents," said Livingston, "is coeval with our existence as a nation, and goes beyond our acknowledgment as such by other powers. All those great men who have figured in the history of our diplomacy, began their career, and performed some of their most important services in the capacity of secret agents, with full powers. Franklin, Adams, Lee, were only commissioners; and in negotiating a treaty with the Emperor of Morocco, the selection of the secret agent was left to the Ministers appointed to make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr. Jefferson appointed Thomas Barclay, who went to Morocco and made a treaty, which was ratified by the Ministers at Paris.

"These instances show that, even prior to the establishment of the Federal Government, secret plenipotentiaries were known, as well in the practice of our own country as in the general law of nations: and that these secret agents were not on a level with messengers, letter-carriers, or spies, to whom it has been found necessary in argument to assimilate them. On the 30th March, 1795, in the recess of the Senate, by letters patent under the great broad seal of the United States, and the signature of their President, (that President being George Washington,) countersigned by the Secretary of State, David Humphreys was appointed commissioner plenipotentiary for negotiating a treaty of peace with Algiers. By instructions from the President, he was afterwards authorized to employ Joseph Donaldson as agent in that business. In May, of the same year, he did appoint Donaldson, who went to Algiers, and in September of the same year concluded a treaty with the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the 28th November in the same year, and afterwards ratified by the Senate on the —— day of ——, 1796, and an act passed both Houses on 6th May, 1796, appropriating a large sum, twenty-five thousand dollars annually, for carrying it into effect."[279]

The precedent afforded by Humphrey's appointment without reference to the Senate has since been multiplied many times, as witness the mission of A. Dudley Mann to Hanover and other German states in 1846, of the same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848, of Commodore Perry to Japan in 1852, of J.H. Blount to Hawaii in 1893.[280] The last named case is perhaps the extremest of all. Blount, who was appointed while the Senate was in session but without its advice and consent, was given "paramount authority" over the American resident minister at Hawaii and was further empowered to employ the military and naval forces of the United States, if necessary to protect American lives and interests. His mission raised a vigorous storm of protest in the Senate, but the majority report of the committee which was created to investigate the constitutional question vindicated the President in the following terms: "A question has been made as to the right of the President of the United States to dispatch Mr. Blount to Hawaii as his personal representative for the purpose of seeking the further information which the President believed was necessary in order to arrive at a just conclusion regarding the state of affairs in Hawaii. Many precedents could be quoted to show that such power has been exercised by the President on various occasions, without dissent on the part of Congress or the people of the United States. * * * These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents, * * *"[281] For recent decades the continued vitality of the practice is attested by such names as Colonel House, late Norman H. Davis, who filled the role of "ambassador at large" for a succession of administrations of both parties, and Professor Philip Jessup, Mr. Averell Harriman, and other "ambassadors at large" of the Truman administration.

How is this practice to be squared with the express words of the Constitution? Apparently, by stressing the fact that such appointments or designations are ordinarily merely temporary and for special tasks, and hence do not fulfill the tests of "office" in the strict sense. (See p. 445). In the same way the not infrequent practice of Presidents of appointing Members of Congress as commissioners to negotiate treaties and agreements with foreign governments may be regularized, notwithstanding the provision of article I, section 6, clause 2 of the Constitution, which provides that "no Senator or Representative shall, * * *, be appointed to any civil Office under the Authority of the United States, which shall have been created," during his term; and no officer of the United States, "shall be a Member of either House during his Continuance in Office."[282] The Treaty of Peace with Spain, the treaty to settle the Behring Sea controversy, the treaty establishing the boundary line between Canada and Alaska, were negotiated by commissions containing Senators and Representatives.

CONGRESSIONAL REGULATION OF OFFICES

That the Constitution distinguishes between the creation of an office and appointment thereto for the generality of national offices has never been questioned. The former is by law, and takes place by virtue of Congress's power to pass all laws necessary and proper for carrying into execution the powers which the Constitution confers upon the government of the United States and its departments and officers. As incidental to the establishment of an office Congress has also the power to determine the qualifications of the officer, and in so-doing necessarily limits the range of choice of the appointing power. First and last, it has laid down a great variety of qualifications, depending on citizenship, residence, professional attainments, occupational experience, age, race, property, sound habits, and so on. It has required that appointees be representative of a political party, of an industry, of a geographic region, or of a particular branch of the Government. It has confined the President's selection to a small number of persons to be named by others.[283] Indeed, it has contrived at times to designate a definite eligibility, thereby virtually usurping the appointing power.[284]

CONDUCT IN OFFICE

Furthermore, Congress has very broad powers in regulating the conduct in office of officers and employees of the United States, especially regarding their political activities. By an act passed in 1876 it prohibited "all executive officers or employees of the United States not appointed by the President, with the advice and consent of the Senate, * * * from requesting, giving to, or receiving from, any other officer or employee of the Government, any money or property or other thing of value for political purposes."[285] The validity of this measure having been sustained,[286] the substance of it, with some elaborations, was incorporated in the Civil Service Act of 1883.[287] By the Hatch Act[288] all persons in the executive branch of the Government, or any department or agency thereof, except the President and Vice President and certain "policy determining" officers, are forbidden to "take an active part in political management or political campaigns," although they are still permitted to "express their opinions on all political subjects and candidates." In the United Public Workers v. Mitchell[289] these provisions were upheld as "reasonable" against objections based on Amendments I, V, IX, and X.

THE LOYALTY ISSUE

By section 9A of the Hatch Act of 1939, it is made "* * * unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States."[290] In support of this provision the 79th Congress in its second session incorporated in its appropriation acts a series of clauses which forbid the use of any of the funds appropriated to pay the salary of any person who advocates, or belongs to an organization which advocates, the overthrow of the Government by force; or any person who strikes, or who belongs to an organization of Government employees which asserts the right to strike against the Government.[291] The apparent intention of this proviso is to lay down a rule by which the appointing and disbursing authorities will be bound. Since Congress has the conceded power to lay down the qualifications of officers and employees of the United States; and since few people would contend that officers or employees of the National Government have a constitutional right to advocate its overthrow or to strike against it, the above proviso would seem to be entirely constitutional. President Truman's "Loyalty Order"—Executive Order 9835—of March 21, 1947[292] is an outgrowth in part of this legislation.

LEGISLATION INCREASING DUTIES OF AN OFFICER

Finally, Congress may devolve upon one already in office additional duties which are germane to his office without thereby "rendering it necessary that the incumbent should be again nominated and appointed." Such legislation does not constitute an attempt by Congress to seize the appointing power.[293]

"INFERIOR OFFICERS"; "EMPLOYEES"

Except the President and the Vice President all persons in the civil service of the National Government are appointive, and fall into one of three categories, those who are appointed by the President, "by and with the advice and consent of the Senate"; inferior officers, whose appointment Congress has vested by law "in the President alone, in the courts of law, or in the heads of departments"; and employees, a term which is here used in a peculiar sense. Ordinarily it denotes one who stands in a contractual relationship to his employer, but here it signifies all subordinate officials of the National Government receiving their appointments at the hands of officials who are not specifically recognized by the Constitution as capable of being vested by Congress with the appointing power.[294] Inferior officers are usually officers intended to be subordinate to those in whom their appointment is vested;[295] but the requirement is by no means absolute.[296]

STAGES OF APPOINTMENT PROCESS

Nomination

The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the Senate. The first is the "nomination" of the candidate by the President alone; the second is the assent of the Senate to the candidate's "appointment"; and the third is the final appointment and commissioning of the appointee, by the President.[297]

Senate Approval

The fact that the power of nomination belongs to the President alone prevents the Senate from attaching conditions to its approval of an appointment, such as it may do to its approval of a treaty. In the words of an early opinion of the Attorney General: "The Senate cannot originate an appointment. Its constitutional action is confined to the simple affirmation or rejection of the President's nominations, and such nominations fail whenever it rejects them. The Senate may suggest conditions and limitations to the President, but it cannot vary those submitted by him, for no appointment can be made except on his nomination, agreed to without qualification or alteration."[298] This view is borne out by early opinion[299] as well as by the record of practice under the Constitution.

When Senate Consent Is Complete

Early in January, 1931 the Senate requested President Hoover to return its resolution notifying him that it advised and consented to certain nominations to the Federal Power Commission. In support of its action the Senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within "the next two days of actual executive session of the Senate" and the recall of the notification to the President of the confirmation. The nominees involved having meantime taken the oath of office and entered upon the discharge of their duties, the President responded with a refusal, saying: "I cannot admit the power in the Senate to encroach upon the executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination." The Senate thereupon voted to reconsider the nominations in question, again approving two of the nominees, but rejecting the third, against whom it instructed the District Attorney of the District of Columbia to institute quo warranto proceedings in the Supreme Court of the District. In United States v. Smith[300] the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate's initial consent and notification to the President. In 1939 the late President Roosevelt rejected a similar demand by the Senate, action which was not challenged.[301]

Section 3. The President * * * shall Commission all the Officers of the United States.

Commissioning the Officer

This, as applied in practice, does not mean that he is under constitutional obligation to commission those whose appointments have reached that stage, but merely that it is he and no one else who has the power to commission them, which he may do at his discretion. The sealing and delivery of the commission is, on the other hand, by the doctrine of Marbury v. Madison, in the case both of appointees by the President and Senate and by the President alone, a purely ministerial act which has been lodged by statute with the Secretary of State and the performance of which may be compelled by mandamus unless the appointee has been in the meantime validly removed.[302] By an opinion of the Attorney General many years later, however, the President, even after he has signed a commission, still has a locus poenitentiae and may withhold it; nor is the appointee in office till he has his commission.[303] This is probably the correct doctrine.[304]

Clause 3. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

RECESS APPOINTMENTS

Setting out from the proposition that the very nature of the executive power requires that it shall always be "in capacity for action," Attorneys General early came to interpret "happen" to mean "happen to exist," and long continued practice securely establishes this construction. It results that whenever a vacancy may have occurred in the first instance, or for whatever reason, if it still continues after the Senate has ceased to sit and so cannot be consulted, the President may fill it in the way described.[305] But a Senate "recess" does not include holiday or temporary adjournments,[306] while by an act of Congress, if the vacancy existed when the Senate was in session, the ad interim appointee may receive no salary until he has been confirmed by the Senate.[307]

AD INTERIM DESIGNATIONS

To be distinguished from the power to make recess appointments is the power of the President to make temporary or ad interim designations of officials to perform the duties of other absent officials. Usually such a situation is provided for in advance by a statute which designates the inferior officer who is to act in place of his immediate superior. But in the lack of such provision both theory and practice concede the President the power to make the designation.[308]

THE REMOVAL POWER; THE MYERS CASE

Save for the provision which it makes for a power of impeachment of "civil officers of the United States," the Constitution contains no reference to a power to remove from office; and until its decision in Myers v. United States,[309] October 25, 1926 the Supreme Court had contrived to side-step every occasion for a decisive pronouncement regarding the removal power, its extent, and location. The point immediately at issue in the Myers case was the effectiveness of an order of the Postmaster General, acting by direction of the President, to remove from office a first class postmaster, in face of the following provision of an act of Congress passed in 1876: "Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law."[310] A divided Court, speaking through Chief Justice Taft, held the order of removal valid, and the statutory provision just quoted void. The Chief Justice's main reliance was on the so-called "decision of 1789," the reference being to Congress's course that year in inserting in the act establishing the Department of State a proviso which was meant to imply recognition that the Secretary would be removable by the President at will. The proviso was especially urged by Madison, who invoked in support of it the opening words of article II and the President's duty to "take care that the laws be faithfully executed." Succeeding passages of the Chief Justice's opinion erect on this basis a highly selective account of doctrine and practice regarding the removal power down to the Civil War which was held to yield the following results: "That article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed."[311]

The holding in the Myers case boils down to the proposition that the Constitution endows the President with an illimitable power to remove all officers in whose appointment he has participated with the exception of judges of the United States. The motivation of the holding was not, it may be assumed, any ambition on the Chief Justice's part to set history aright—or awry.[312] Rather it was the concern which he voiced in the following passage in his opinion: "There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him."[313] Thus spoke the former President Taft, and the result of his prepossession was a rule which, as was immediately pointed out, exposed the so-called "independent agencies," the Interstate Commerce Commission, the Federal Trade Commission, and the like, to Presidential domination.

"The Nature of the Office" Concept

Unfortunately, the Chief Justice, while professing to follow Madison's leadership had omitted to weigh properly the very important observation which the latter had made at the time regarding the office of Comptroller of the Treasury. "The Committee," said Madison, "has gone through the bill without making any provision respecting the tenure by which the comptroller is to hold his office. I think it is a point worthy of consideration, and shall, therefore, submit a few observations upon it. It will be necessary to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are not purely of an executive nature. It seems to me that they partake of a judiciary quality as well as executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the executive branch of the government."[314] In Humphrey v. United States,[315] decided in 1935, the Court seized upon "the nature of the office" concept and applied it as a much needed corrective to the Myers holding.

The Humphrey Case

The material element of this case was that Humphrey, a member of the Federal Trade Commission, was on October 7, 1933, notified by President Roosevelt that he was "removed" from office, the reason being their divergent views of public policy. In due course Humphrey sued for salary. Distinguishing the Myers case, Justice Sutherland, speaking for the unanimous Court, said: "A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers Case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. * * * It goes no farther;—much less does it include an officer who occupies no place in the executive department and who exercise no part of the executive power vested by the Constitution in the President.

"The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute * * * Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. * * * We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will. * * *

"The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail, over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office; the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute."[316]

Other Phases of Presidential Removal Power

Congress may "limit and restrict the power of removal as it deems best for the public interests" in the case of inferior officers.[317] But in the absence of specific legislative provision to the contrary, the President may remove at his discretion an inferior officer whose term is limited by statute,[318] or one appointed with the consent of the Senate.[319] He may remove an officer of the army or navy at any time by nominating to the Senate the officer's successor, provided the Senate approves the nomination.[320] In 1940 the President was sustained in removing Dr. E.A. Morgan from the chairmanship of TVA for refusal to produce evidence in substantiation of charges which he had levelled at his fellow directors.[321] Although no such cause of removal by the President is stated in the act creating TVA, the President's action, being reasonably required to promote the smooth functioning of TVA, was within his duty to "take care that the laws be faithfully executed." So interpreted, it did not violate the principle of administrative independence set forth in Humphrey v. United States.[322]

THE PRESIDENTIAL AEGIS

Presidents have more than once had occasion to stand in a protective relation to their subordinates, assuming their defense in litigation brought against them[323] or pressing litigation in their behalf,[324] refusing a call for papers from one of the Houses of Congress which might be used, in their absence from the seat of government, to their disadvantage,[325] challenging the constitutional validity of legislation which he deemed detrimental to their interests.[326] There is one matter, moreover, as to which he is able to spread his own official immunity to them. The courts may not require the divulging of confidential communications from or to the President, that is, communications which they choose to regard as confidential.[327] Whether a Congressional Committee of inquiry would be similarly powerless is an interesting question which has not been adjudicated.[328] Thus far such issues between the two departments have been adjusted politically.

Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and * * *

Legislative Role of the President

The above clause, which imposes a duty rather than confers a power, is the formal basis of the President's legislative leadership, which has attained great proportions since 1900. This development, however, represents the play of political and social forces rather than any pronounced change in constitutional interpretation. Especially is it the result of the rise of parties and the accompanying recognition of the President as party leader, of the appearance of the National Nominating Convention and the Party Platform, and of the introduction of the Spoils System, an ever present help to Presidents in times of troubled relations with Congress.[329] It is true that certain pre-Civil War Presidents, mostly of Whig extraction, professed to entertain nice scruples on the score of "usurping" legislative powers;[330] but still earlier ones, Washington, Jefferson, and Jackson among them, took a very different line, albeit less boldly and persistently than their later imitators.[331] Today there is no subject on which the President may not appropriately communicate to Congress, in as precise terms as he chooses, his conception of its duty. Conversely, the President is not obliged by this clause to impart information which, in his judgment, should in the public interest be withheld.[332] The President has frequently summoned both Houses into "extra" or "special sessions" for legislative purposes, and the Senate alone for the consideration of nominations and treaties. His power to adjourn the Houses has never been exercised.

The Right of Reception

SCOPE OF THE POWER

"Ambassadors and other public ministers" embraces not only "all possible diplomatic agents which any foreign power may accredit to the United States"[333] but also, as a practical construction of the Constitution, all foreign consular agents, who therefore may not exercise their functions in the United States without an exequatur from the President.[334] The power to "receive" ambassadors, etc., includes, moreover, the right to refuse to receive them, to request their recall, to dismiss them, and to determine their eligibility under our laws.[335] Furthermore, this power makes the President the sole mouthpiece of the nation in its dealings with other nations.

A PRESIDENTIAL MONOPOLY

Wrote Jefferson in 1790: "The transaction of business with foreign nations is Executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly."[336] So when Citizen Genet, envoy to the United States from the first French Republic, sought an exequatur for a consul whose commission was addressed to the Congress of the United States, Jefferson informed him that "as the President was the only channel of communication between the United States and foreign nations, it was from him alone 'that foreign nations or their agents are to learn what is or has been the will of the nation;' that whatever he communicated as such, they had a right and were bound to consider 'as the expression of the nation;' and that no foreign agent could be 'allowed to question it,' or 'to interpose between him and any other branch of government, under the pretext of either's transgressing their functions.' Mr. Jefferson therefore declined to enter into any discussion of the question as to whether it belonged to the President under the Constitution to admit or exclude foreign agents. 'I inform you of the fact,' he said, 'by authority from the President.' Mr. Jefferson therefore returned the consul's commission and declared that the President would issue no exequatur to a consul except upon a commission correctly addressed."[337]

"THE LOGAN ACT"

When in 1798 a Philadelphia Quaker named Logan went to Paris on his own to undertake a negotiation with the French Government with a view to averting war between France and the United States his enterprise stimulated Congress to pass "An Act to Prevent Usurpation of Executive Functions,"[338] which, "more honored in the breach than the observance," still survives on the statute books.[339] The year following John Marshall, then a Member of the House of Representatives, defended President John Adams for delivering a fugitive from justice to Great Britain under the 27th article of the Jay Treaty, instead of leaving the business to the courts. He said: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him. He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him."[340] Ninety-nine years later a Senate Foreign Relations Committee took occasion to reiterate Marshall's doctrine with elaboration.[341]

A FORMAL OR A FORMATIVE POWER?

In his attack, instigated by Jefferson, upon Washington's Proclamation of Neutrality in 1793, at the outbreak of war between France and Great Britain, Madison advanced the argument that all large questions of foreign policy fell within the ambit of Congress, by virtue of its power "to declare war," and in support of this proposition he disparaged the Presidential function of reception, in the following words: "I shall not undertake to examine, what would be the precise extent and effect of this function in various cases which fancy may suggest, or which time may produce. It will be more proper to observe, in general, and every candid reader will second the observation, that little, if anything, more was intended by the clause, than to provide for a particular mode of communication, almost grown into a right among modern nations; by pointing out the department of the government, most proper for the ceremony of admitting public ministers, of examining their credentials, and of authenticating their title to the privileges annexed to their character by the law of nations. This being the apparent design of the constitution, it would be highly improper to magnify the function into an important prerogative, even when no rights of other departments could be affected by it."[342]

THE PRESIDENT'S DIPLOMATIC ROLE

Hamilton, although he had expressed substantially the same view in The Federalist regarding the power of reception,[343] adopted a very different conception of it in defense of Washington's proclamation. Writing over the pseudonym "Pacificus," he said: "The right of the executive to receive ambassadors and other public ministers, may serve to illustrate the relative duties of the executive and legislative departments. This right includes that of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not; which, where a treaty antecedently exists between the United States and such nation, involves the power of continuing or suspending its operation. For until the new government is acknowledged, the treaties between the nations, so far at least as regards public rights, are of course suspended. This power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive, to decide upon the obligations of the country with regard to foreign nations. To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgment of the new government would have put the United States in a condition to become an associate in the war with France, and would have laid the legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war. This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decision. The division of the executive power in the Constitution, creates a concurrent authority in the cases to which it relates."[344]

JEFFERSON'S REAL POSITION

Nor did Jefferson himself officially support Madison's point of view, as the following extract from his "minutes of a Conversation," which took place July 10, 1793, between himself and Citizen Genet, show: "He asked if they [Congress] were not the sovereign. I told him no, they were sovereign in making laws only, the executive was sovereign in executing them, and the judiciary in construing them where they related to their department. 'But,' said he, 'at least, Congress are bound to see that the treaties are observed.' I told him no; there were very few cases indeed arising out of treaties, which they could take notice of; that the President is to see that treaties are observed. 'If he decides against the treaty, to whom is a nation to appeal?' I told him the Constitution had made the President the last appeal. He made me a bow, and said, that indeed he would not make me his compliments on such a Constitution, expressed the utmost astonishment at it, and seemed never before to have had such an idea."[345]

THE POWER OF RECOGNITION

In his endeavor in 1793 to minimize the importance of the President's power of reception Madison denied that it involved cognizance of the question, whether those exercising the government of the accrediting State have the right along with the possession. He said: "This belongs to the nation, and to the nation alone, on whom the government operates. * * * It is evident, therefore, that if the executive has a right to reject a public minister, it must be founded on some other consideration than a change in the government, or the newness of the government; and consequently a right to refuse to acknowledge a new government cannot be implied by the right to refuse a public minister. It is not denied that there may be cases in which a respect to the general principles of liberty, the essential rights of the people, or the overruling sentiments of humanity, might require a government, whether new or old, to be treated as an illegitimate despotism. Such are in fact discussed and admitted by the most approved authorities. But they are great and extraordinary cases, by no means submitted to so limited an organ of the national will as the executive of the United States; and certainly not to be brought by any torture of words, within the right to receive ambassadors."[346]