The purely military aspects of the Commander in Chiefship were those
which were originally stressed. Hamilton said the office "would amount
to nothing more than the supreme command and direction of the Military
and naval forces, as first general and admiral of the confederacy."[45]
Story wrote in his Commentaries: "The propriety of admitting the
president to be commander in chief, so far as to give orders, and have a
general superintendency, was admitted. But it was urged, that it would
be dangerous to let him command in person, without any restraint, as he
might make a bad use of it. The consent of both houses of Congress
ought, therefore, to be required, before he should take the actual
command. The answer then given was, that though the president might,
there was no necessity that he should, take the command in person; and
there was no probability that he would do so, except in extraordinary
emergencies, and when he was possessed of superior military
talents."[46] In 1850 Chief Justice Taney, for the Court, said: "His
[the President's] duty and his power are purely military. As commander
in chief, he is authorized to direct the movements of the naval and
military forces placed by law at his command, and to employ them in the
manner he may deem most effectual to harass and conquer and subdue the
enemy. He may invade the hostile country, and subject it to the
sovereignty and authority of the United States. But his conquests do not
enlarge the boundaries of this Union, nor extend the operation of our
institutions and laws beyond the limits before assigned to them by the
legislative power. * * * But in the distribution of political power
between the great departments of government, there is such a wide
difference between the power conferred on the President of the United
States, and the authority and sovereignty which belong to the English
crown, that it would be altogether unsafe to reason from any supposed
resemblance between them, either as regards conquest in war, or any
other subject where the rights and powers of the executive arm of the
government are brought into question."[47] Even after the Civil War a
powerful minority of the Court described the role of President as
Commander in Chief simply as "the command of the forces and the conduct
of campaigns."[48]
THE PRIZE CASES
The basis for a broader conception was laid in certain early acts of
Congress authorizing the President to employ military force in the
execution of the laws.[49] In his famous message to Congress of July 4,
1861,[50] Lincoln advanced the claim that the "war power" was his for
the purpose of suppressing rebellion; and in the Prize Cases[51] of
1863, a sharply divided Court sustained this theory. The immediate issue
of the case was the validity of the blockade which the President,
following the attack on Fort Sumter, had proclaimed of the Southern
ports.[52] The argument was advanced that a blockade to be valid must be
an incident of a "public war" validly declared, and that only Congress
could, by virtue of its power "to declare war," constitutionally impart
to a military situation this character and scope. Speaking for the
majority of the Court, Justice Grier answered: "If a war be made by
invasion of a foreign nation, the President is not only authorized but
bound to resist force by force. He does not initiate the war, but is
bound to accept the challenge without waiting for any special
legislative authority. And whether the hostile party be a foreign
invader, or States organized in rebellion, it is none the less a war,
although the declaration of it be '_unilateral_.' Lord Stowell (1
Dodson, 247) observes, 'It is not the less a war on _that account_, for
war may exist without a declaration on either side. It is so laid down
by the best writers on the law of nations. A declaration of war by one
country only is not a mere challenge to be accepted or refused at
pleasure by the other.' The battles of Palo Alto and Resaca de la Palma
had been fought before the passage of the act of Congress of May 13,
1846, which recognized '_a state of war as existing by the act of the
Republic of Mexico_.' This act not only provided for the future
prosecution of the war, but was itself a vindication and ratification of
the Act of the President in accepting the challenge without a previous
formal declaration of war by Congress. This greatest of civil wars was
not gradually developed by popular commotion, tumultuous assemblies, or
local unorganized insurrections. However long may have been its previous
conception, it nevertheless sprung forth suddenly from the parent brain,
a Minerva in the full panoply of _war_. The President was bound to meet
it in the shape it presented itself, without waiting for Congress to
baptize it with a name; and no name given to it by him or them could
change the fact. * * * Whether the President in fulfilling his duties,
as Commander in Chief, in suppressing an insurrection, has met with such
armed hostile resistance, and a civil war of such alarming proportions
as will compel him to accord to them the character of belligerents, is a
question to be decided _by him_, and this Court must be governed by the
decisions and acts of the political department of the Government to
which this power was entrusted. 'He must determine what degree of force
the crisis demands.' The proclamation of blockade is itself official and
conclusive evidence to the Court that a state of war existed which
demanded and authorized a recourse to such a measure, under the
circumstances peculiar to the case."[53]
IMPACT OF THE PRIZE CASES ON WORLD WARS I AND II
In brief, the powers claimable for the President under the Commander in
Chief clause at a time of wide-spread insurrection were equated with his
powers under the clause at a time when the United States is engaged in a
formally declared foreign war; and--impliedly--vice versa. And since
Lincoln performed various acts especially in the early months of the
Civil War which, like increasing the Army and Navy, admittedly fell
within the constitutional province of Congress, it seems to have been
assumed during World War I and World War II that the Commander in
Chiefship carries with it the power to exercise like powers practically
at discretion; and not merely in wartime but even at a time when war
becomes a strong possibility. Nor was any attention given the fact that
Lincoln had asked Congress to ratify and confirm his acts, which
Congress promptly did,[54] with the exception of his suspension of the
_habeas corpus_ privilege which was regarded by many as attributable to
the President in the situation then existing, by virtue of his duty to
take care that the laws be faithfully executed.[55] Nor is this the only
respect in which war or the approach of war operates to enlarge the
scope of power which is claimable by the President as Commander in Chief
in wartime.[56] For at such time the maxim that Congress may not
delegate its powers is, by the doctrine of the Curtiss-Wright case,[57]
in a state of suspended animation.[58]
PRESIDENTIAL THEORY OF THE COMMANDER IN CHIEFSHIP IN WORLD WAR II
In his message of September 7, 1942 to Congress, in which he demanded
that Congress forthwith repeal certain provisions of the Emergency Price
Control Act of the previous January 30th,[59] the late President
Roosevelt formulated his conception of his powers as "Commander in Chief
in wartime" as follows:
"I ask the Congress to take this action by the first of October.
Inaction on your part by that date will leave me with an inescapable
responsibility to the people of this country to see to it that the war
effort is no longer imperiled by threat of economic chaos.
"In the event that the Congress should fail to act, and act adequately,
I shall accept the responsibility, and I will act.
"At the same time that farm prices are stabilized, wages can and will be
stabilized also. This I will do.
"The President has the powers, under the Constitution and under
Congressional acts, to take measures necessary to avert a disaster which
would interfere with the winning of the war.
"I have given the most thoughtful consideration to meeting this issue
without further reference to the Congress. I have determined, however,
on this vital matter to consult with the Congress. * * *
"The American people can be sure that I will use my powers with a full
sense of my responsibility to the Constitution and to my country. The
American people can also be sure that I shall not hesitate to use every
power vested in me to accomplish the defeat of our enemies in any part
of the world where our own safety demands such defeat.
"When the war is won, the powers under which I act automatically revert
to the people--to whom they belong."[60]
PRESIDENTIAL WAR AGENCIES
While congressional compliance with the President's demand rendered
unnecessary an effort on his part to amend the Price Control Act, there
were other matters as to which he repeatedly took action within the
normal field of congressional powers, not only during the war, but in
some instances prior to it. Thus in exercising both the powers which he
claimed as Commander in Chief and those which Congress conferred upon
him to meet the emergency, Mr. Roosevelt employed new emergency
agencies, created by himself and responsible directly to him, rather
than the established departments or existing independent regulatory
agencies. Oldest of all these Presidential agencies was the Office for
Emergency Management (OEM), which was created by an executive order
dated May 25, 1940. Others were the Board of Economic Warfare (BEW), the
National Housing Agency (NHA), the National War Labor Board (NWLB), or
more shortly (WLB), the Office of Censorship (OC), the Office of
Civilian Defense (OCD), the Office of Defense Transportation (ODT), the
Office of Facts and Figures (OFF), presently absorbed into the Office of
War Information (OWI), the War Production Board (WPB), which superseded
the earlier Office of Production Management (OPM), the War Manpower
Commission (WMC), etc. Earlier there had been the Office of Price
Administration and Civilian Supply (OPACS), but was replaced under the
Emergency Price Control Act of January 30, 1942, by OPA. Later OWI was
created by executive order, as was also the Office of Economic
Stabilization (OES). The Office of War Mobilization and Reconversion
(OWMR), one of the last of the war agencies to appear, was established
by the War Mobilization and Reconversion Act of October 3, 1944.[61]
CONSTITUTIONAL STATUS OF PRESIDENTIAL AGENCIES
The question of the legal status of the presidential agencies was dealt
with judicially but once. This was in the decision, in June 1944, of the
United States Court of Appeals of the District of Columbia in a case
styled Employers Group of Motor Freight Carriers _v._ National War Labor
Board,[62] which was a suit to annul and enjoin a "directive order" of
the War Labor Board. The Court refused the injunction on the ground that
at the time when the directive was issued any action of the Board was
"informatory," "at most advisory." In support of this view the Court
quoted approvingly a statement by the chairman of the Board itself:
"These orders are in reality mere declarations of the equities of each
industrial dispute, as determined by a tripartite body in which
industry, labor, and the public share equal responsibility; and the
appeal of the Board is to the moral obligation of employers and workers
to abide by the nonstrike, no-lock-out agreement and * * * to carry out
the directives of the tribunal created under that agreement by the
Commander in Chief." Nor, the Court continued, had the later War Labor
Disputes Act vested War Labor Board's orders with any greater authority,
with the result that they were still judicially unenforceable and
unreviewable. Following this theory, War Labor Board was not an office
wielding power, but a purely advisory body, such as Presidents have
frequently created in the past without the aid or consent of Congress.
Congress itself, nevertheless, both in its appropriation acts and in
other legislation, treated the Presidential agencies as in all respects
offices.[63]
THE WEST COAST JAPANESE
On February 19, 1942 the President issued an executive order the
essential paragraphs of which read as follows:
"Whereas the successful prosecution of the war requires every possible
protection against espionage and against sabotage to national-defense
material, national-defense premises, and national-defense utilities
* * *
"Now, therefore, by virtue of the authority vested in me as
President of the United States, and Commander in Chief of the Army and
Navy, I hereby authorize and direct the Secretary of War, and the
Military Commanders whom he may from time to time designate, whenever he
or any designated Commander deems such action necessary or desirable, to
prescribe military areas in such places and of such extent as he or the
appropriate Military Commander may determine, from which any or all
persons may be excluded, and with respect to which, the right of any
person to enter, remain in, or leave shall be subject to whatever
restrictions the Secretary of War or the appropriate Military Commander
may impose in his discretion. The Secretary of War is hereby authorized
to provide for residents of any such area who are excluded therefrom,
such transportation, food, shelter, and other accommodations as may be
necessary, in the judgment of the Secretary of War or the said Military
Commander, and until other arrangements are made, to accomplish the
purpose of this order. * * *
"I hereby further authorize and direct all Executive Departments,
independent establishments and other Federal Agencies, to assist the
Secretary of War or the said Military Commanders in carrying out this
Executive Order, including the furnishing of medical aid,
hospitalization, food, clothing, transportation, use of land, shelter,
and other supplies, equipment, utilities, facilities and services."[64]
In pursuance of this order more than 112,000 Japanese residents of
Western States, of whom nearly two out of every three were natural-born
citizens of the United States, were eventually removed from their farms
and homes and herded, first in temporary camps, later in ten so-called
"relocation centers," situated in the desert country of California,
Arizona, Idaho, Utah, Colorado, and Wyoming and in the delta areas of
Arkansas.
The Act of March 21, 1942
It was apparently the original intention of the Administration to rest
its measures concerning this matter on the general principle of military
necessity and the power of the Commander in Chief in wartime. But before
any action of importance was taken under Executive Order 9066, Congress
ratified and adopted it by the act of March 21, 1942,[65] by which it
was made a misdemeanor to knowingly enter, remain in, or leave
prescribed military areas contrary to the orders of the Secretary of War
or of the commanding officer of the area. The cases which subsequently
arose in consequence of the order were decided under the order plus the
act. The question at issue, said Chief Justice Stone for the Court, "is
not one of Congressional power to delegate to the President the
promulgation of the Executive Order, but whether, acting in cooperation,
Congress and the Executive have constitutional * * * [power] to impose
the curfew restriction here complained of."[66] This question was
answered in the affirmative, as was the similar question later raised by
an exclusion order.[67]
PRESIDENTIAL GOVERNMENT OF LABOR RELATIONS
The most important segment of the home front regulated by what were in
effect Presidential edicts was the field of labor relations. Exactly six
months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his
proclamation thirteen days earlier of an unlimited national emergency,
issued an Executive Order seizing the North American Aviation Plant at
Inglewood, California, where, on account of a strike, production was at
a standstill. Attorney General Jackson justified the seizure as growing
out of the "'duty constitutionally and inherently rested upon the
President to exert his civil and military as well as his moral authority
to keep the defense efforts of the United States a going concern,'" as
well as "to obtain supplies for which Congress has appropriated the
money, and which it has directed the President to obtain."[68] Other
seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive
Order 9017, created the National War Labor Board. "Whereas," the order
read in part, "by reason of the state of war declared to exist by joint
resolutions of Congress, * * *, the national interest demands that there
shall be no interruption of any work which contributes to the effective
prosecution of the war; and Whereas as a result of a conference of
representatives of labor and industry which met at the call of the
President on December 17, 1941, it has been agreed that for the duration
of the war there shall be no strikes or lockouts, and that all labor
disputes shall be settled by peaceful means, and that a National War
Labor Board be established for a peaceful adjustment of such disputes.
Now, therefore, by virtue of the authority vested in me by the
Constitution and the statutes of the United States, it is hereby
ordered: 1. There is hereby created in the Office for Emergency
Management a National War Labor Board, * * *"[69] In this field, too,
Congress intervened by means of the War Labor Disputes Act of June 25,
1943,[70] which however still left ample basis for Presidential activity
of a legislative character.[71]
"SANCTIONS"
To implement his directives as Commander in Chief in wartime, and
especially those which he issued in governing labor relations, Mr.
Roosevelt often resorted to "sanctions," which may be described as
penalties lacking statutory authorization. Ultimately, the President
sought, by Executive Order 9370 of August 16, 1943, to put sanctions in
this field on a systematic basis. This order read:
"(a) To other departments or agencies of the Government directing the
taking of appropriate action relating to withholding or withdrawing from
a noncomplying employer any priorities, benefits or privileges extended,
or contracts entered into, by executive action of the Government, until
the National War Labor Board has reported that compliance has been
effectuated;
"(b) To any Government agency operating a plant, mine or facility,
possession of which has been taken by the President under section 3 of
the War Labor Disputes Act, directing such agency to apply to the
National War Labor Board, under section 5 of said act, for an order
withholding or withdrawing from a noncomplying labor union any benefits,
privileges or rights accruing to it under the terms of conditions of
employment in effect (whether by agreement between the parties or by
order of the National War Labor Board, or both) when possession was
taken, until such time as the noncomplying labor union has demonstrated
to the satisfaction of the National War Labor Board its willingness and
capacity to comply; but, when the check-off is denied, dues received
from the check-off shall be held in escrow for the benefit of the union
to be delivered to it upon compliance by it.
"(c) To the War Manpower Commission, in the case of noncomplying
individuals, directing the entry of appropriate orders relating to the
modification or cancellation of draft deferments or employment
privileges, or both.
"Franklin D. Roosevelt.
"The White House, _Aug. 16, 1943._"[72]
CONSTITUTIONAL BASIS OF SANCTIONS
Sanctions were also occasionally employed by statutory agencies, as by
OPA, to supplement the penal provisions of the Emergency Price Control
Act of January 30, 1942;[73] and in the case of Steuart and Bro., Inc.
_v._ Bowles,[74] the Supreme Court had the opportunity to attempt to
regularize this type of executive emergency legislation. Here a retail
dealer in fuel oil in the District of Columbia was charged with having
violated a rationing order of OPA by obtaining large quantities of oil
from its supplier without surrendering ration coupons, by delivering
many thousands of gallons of fuel oil without requiring ration coupons,
and so on, and was prohibited by the agency from receiving oil for
resale or transfer for the ensuing year. The offender conceded the
validity of the rationing order in support of which the suspension order
was issued, but challenged the validity of the latter as imposing a
penalty that Congress has not enacted, and asked the district court to
enjoin it. The Court refused to do so and was sustained by the Supreme
Court in its position. Said Justice Douglas, speaking for the Court:
"Without rationing, the fuel tanks of a few would be full; the fuel
tanks of many would be empty. Some localities would have plenty;
communities less favorably situated would suffer. Allocation or
rationing is designed to eliminate such inequalities and to treat all
alike who are similarly situated. * * * But middlemen--wholesalers and
retailers--bent on defying the rationing system could raise havoc with
it. * * * These middlemen are the chief if not the only conduits between
the source of limited supplies and the consumers. From the viewpoint of
a rationing system a middleman who distributes the product in violation
and disregard of the prescribed quotas is an inefficient and wasteful
conduct. * * * Certainly we could not say that the President would lack
the power under this Act to take away from a wasteful factory and route
to an efficient one a previous supply of material needed for the
manufacture of articles of war. * * * From the point of view of the
factory owner from whom the materials were diverted the action would be
harsh. * * * But in times of war the national interest cannot wait on
individual claims to preference. * * * Yet if the President has the
power to channel raw materials into the most efficient industrial units
and thus save scarce materials from wastage it is difficult to see why
the same principle is not applicable to the distribution of fuel
oil."[75] Sanctions were, therefore, constitutional when the
deprivations they wrought were a reasonably implied amplification of the
substantive power which they supported and were directly conservative of
the interests which this power was created to protect and advance. It is
certain, however, that sanctions not uncommonly exceeded this
pattern.[76]
MARTIAL LAW AND CONSTITUTIONAL LIMITATIONS
Two theories of martial law are reflected in decisions of the Supreme
Court. By one, which stems from the Petition of Right, 1628, the common
law knows no such thing as martial law;[77] at any rate martial law is
not established by official authority of any sort, but arises from the
nature of things, being the law of paramount necessity, of which
necessity the civil courts are the final judges.[78] By the other
theory, martial law can be validly and constitutionally established by
supreme political authority in wartime. The latter theory is recognized
by the Court in Luther _v._ Borden,[79] where it was held that the Rhode
Island legislature had been within its rights in 1842 in resorting to
the rights and usages of war in combating insurrection in that State.
The decision in the Prize Cases,[80] while not dealing directly with the
subject of martial law, gave national scope to the same general
principle in 1863. The Civil War being safely over, however, a sharply
divided Court, in the elaborately argued Milligan case,[81] reverting to
the older doctrine, pronounced void President Lincoln's action,
following his suspension of the writ of _habeas corpus_ in September,
1863, in ordering the trial by military commission of persons held in
custody as "spies" and "abettors of the enemy." The salient passage of
the Court's opinion bearing on this point is the following: "If, in
foreign invasion or civil war, the courts are actually closed, and it is
impossible to administer criminal justice according to law, _then_, on
the theatre of active military operations, where war really prevails,
there is a necessity to furnish a substitute for the civil authority,
thus overthrown, to preserve the safety of the army and society; and as
no power is left but the military, it is allowed to govern by martial
rule until the laws can have their free course. As necessity creates the
rule, so it limits its duration; for, if this government is continued
_after_ the courts are reinstated, it is a gross usurpation of power.
Martial rule can never exist where the courts are open, and in proper
and unobstructed exercise of their jurisdiction. It is also confined to
the locality of actual war."[82] Four Justices, speaking by Chief
Justice Chase, while holding Milligan's trial to have been void because
violative of the act of March 3, 1863 governing the custody and trial of
persons who had been deprived of the _habeas corpus_ privilege, declared
their belief that Congress could have authorized Milligan's trial. Said
the Chief Justice: "Congress has the power not only to raise and support
and govern armies but to declare war. It has, therefore, the power to
provide by law for carrying on war. This power necessarily extends to
all legislation essential to the prosecution of war with vigor and
success, except such as interferes with the command of the forces and
the conduct of campaigns. That power and duty belong to the President as
Commander in Chief. Both these powers are derived from the Constitution,
but neither is defined by that instrument. Their extent must be
determined by their nature, and by the principles of our institutions.
* * * We by no means assert that Congress can establish and apply the
laws of war where no war has been declared or exists. Where peace exists
the laws of peace must prevail. What we do maintain is, that when the
nation is involved in war, and some portions of the country are invaded,
and all are exposed to invasion, it is within the power of Congress to
determine in what States or districts such great and imminent public
danger exists as justifies the authorization of military tribunals for
the trial of crimes and offences against the discipline or security of
the army or against the public safety."[83] In short, only Congress can
authorize the substitution of military tribunals for civil tribunals for
the trial of offenses; and Congress can do so only in wartime.
MARTIAL LAW IN HAWAII
The question of the constitutional status of martial law was raised in
World War II by the proclamation of Governor Poindexter of Hawaii, on
December 7, 1941, suspending the writ of _habeas corpus_ and conferring
on the local commanding General of the Army all his own powers as
governor and also "all of the powers normally exercised by the judicial
officers * * * of this territory * * * during the present emergency and
until the danger of invasion is removed." Two days later the Governor's
action was approved by President Roosevelt. The regime which the
proclamation set up continued with certain abatements until October 24,
1944.
By section 67 of the Organic Act of April 30, 1900,[84] the Territorial
Governor is authorized "in case of rebellion or invasion, or imminent
danger thereof, when the public safety requires it, [to] suspend the
privilege of the writ of _habeas corpus_, or place the Territory, or any
part thereof, under martial law until communication can be had with the
President and his decision thereon made known." By section 5 of the
Organic Act, "the Constitution, * * *, shall have the same force and
effect within the said Territory as elsewhere in the United States." In
a brace of cases which reached it in February 1945 but which it
contrived to postpone deciding till February 1946,[85] the Court,
speaking by Justice Black, held that the term "martial law" as employed
in the Organic Act, "while intended to authorize the military to act
vigorously for the maintenance of an orderly civil government and for
the defense of the Islands against actual or threatened rebellion or
invasion, was not intended to authorize the supplanting of courts by
military tribunals."[86] The Court relied on the majority opinion in Ex
parte Milligan. Chief Justice Stone concurred in the result. "I assume
also," said he, "that there could be circumstances in which the public
safety requires, and the Constitution permits, substitution of trials by
military tribunals for trials in the civil courts";[87] but added that
the military authorities themselves had failed to show justifying facts
in this instance. Justice Burton, speaking for himself and Justice
Frankfurter, dissented. He stressed the importance of Hawaii as a
military outpost and its constant exposure to the danger of fresh
invasion. He warned that "courts must guard themselves with special care
against judging past military action too closely by the inapplicable
standards of judicial, or even military, hindsight."[88]
THE CASE OF THE NAZI SABOTEURS[89]
The saboteurs were eight youths, seven Germans and one an American, who,
following a course of training in sabotage in Berlin, were brought to
this country in June 1942 aboard two German submarines and put ashore,
one group on the Florida coast, the other on Long Island, with the idea
that they would proceed forthwith to practice their art on American
factories, military equipment, and installations. Making their way
inland, the saboteurs were soon picked up by the FBI, some in New York,
others in Chicago, and turned over to the Provost Marshal of the
District of Columbia. On July 2, the President appointed a military
commission to try them for violation of the laws of war, to wit: for not
wearing fixed emblems to indicate their combatant status. In the midst
of the trial, the accused petitioned the Supreme Court and the United
States District Court for the District of Columbia for leave to bring
_habeas corpus_ proceedings. Their argument embraced the contentions:
(1) that the offense charged against them was not known to the laws of
the United States; (2) that it was not one arising in the land and naval
forces; and (3) that the tribunal trying them had not been constituted
in accordance with the requirements of the Articles of War.
The first argument the Court met as follows: The act of Congress in
providing for the trial before military tribunals of offenses against
the law of war is sufficiently definite, although Congress has not
undertaken to codify or mark the precise boundaries of the law of war,
or to enumerate or define by statute all the acts which that law
condemns. "* * * those who during time of war pass surreptitiously from
enemy territory into * * * [that of the United States], discarding
their uniforms upon entry, for the commission of hostile acts involving
destruction of life or property, have the status of unlawful combatants
punishable as such by military commission."[90] The second argument it
disposed of by showing that petitioners' case was of a kind that was
never deemed to be within the terms of Amendments V and VI, citing in
confirmation of this position the trial of Major Andre.[91] The third
contention the Court overruled by declining to draw the line between the
powers of Congress and the President in the premises,[92] thereby, in
effect, attributing to the latter the right to amend the Articles of War
in a case of the kind before the Court _ad libitum_.
The decision might well have rested on the ground that the Constitution
is without restrictive force in wartime in a situation of this sort. The
saboteurs were invaders; their penetration of the boundary of the
country, projected from units of a hostile fleet, was essentially a
military operation, their capture was a continuation of that operation.
Punishment of the saboteurs was therefore within the President's purely
martial powers as Commander in Chief. Moreover, seven of the petitioners
were enemy aliens, and so, strictly speaking, without constitutional
status. Even had they been civilians properly domiciled in the United
States at the outbreak of the war they would have been subject under the
statutes to restraint and other disciplinary action by the President
without appeal to the courts.[93]
THE WAR CRIMES CASES
As a matter of fact, in General Yamashita's case,[94] which was brought
after the termination of hostilities for alleged "war crimes," the Court
abandoned its restrictive conception altogether. In the words of Justice
Rutledge's dissenting opinion in this case: "The difference between the
Court's view of this proceeding and my own comes down in the end to the
view, on the one hand, that there is no law restrictive upon these
proceedings other than whatever rules and regulations may be prescribed
for their government by the executive authority or the military and, on
the other hand, that the provisions of the Articles of War, of the
Geneva Convention and the Fifth Amendment apply."[95] And the adherence
of the United States to the Charter of London in August 1945, under
which the Nazi leaders were brought to trial, is explicable by the same
theory. These individuals were charged with the crime of instigating
aggressive war, which at the time of its commission was not a crime
either under International Law or under the laws of the prosecuting
governments. It must be presumed that the President is not in his
capacity as Supreme Commander bound by the prohibition in the
Constitution of _ex post facto_ laws; nor does International Law forbid
_ex post facto_ laws.[96]
THE PRESIDENT AS COMMANDER OF THE FORCES
While the President customarily delegates supreme command of the forces
in active service, there is no constitutional reason why he should do
so; and he has been known to resolve personally important questions of
military policy. Lincoln early in 1862 issued orders for a general
advance in the hope of stimulating McClellan to action; Wilson in 1918
settled the question of an independent American command on the Western
Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and
Nagasaki. As against an enemy in the field the President possesses all
the powers which are accorded by International Law to any supreme
commander. "He may invade the hostile country, and subject it to the
sovereignty and authority of the United States."[97] In the absence of
attempts by Congress to limit his power, he may establish and prescribe
the jurisdiction and procedure of military commissions, and of tribunals
in the nature of such commissions, in territory occupied by Armed Forces
of the United States, and his authority to do this sometimes survives
cessation of hostilities.[98] He may employ secret agents to enter the
enemy's lines and obtain information as to its strength, resources, and
movements.[99] He may, at least with the assent of Congress, authorize
intercourse with the enemy.[100] He may also requisition property and
compel services from American citizens and friendly aliens who are
situated within the theatre of military operations when necessity
requires, thereby incurring for the United States the obligation to
render "just compensation."[101] By the same warrant he may bring
hostilities to a conclusion by arranging an armistice, stipulating
conditions which may determine to a great extent the ensuing peace.[102]
He may not, however, effect a permanent acquisition of territory;[103]
though he may govern recently acquired territory until Congress sets up
a more permanent regime.[104] He is the ultimate tribunal for the
enforcement of the rules and regulations which Congress adopts for the
government of the forces, and which are enforced through
courts-martial.[105] Indeed, until 1830, courts-martial were convened
solely on his authority as Commander in Chief.[106] Such rules and
regulations are, moreover, it would seem, subject in wartime to his
amendment at discretion.[107] Similarly, the power of Congress to "make
rules for the government and regulation of the law and naval forces"
(Art. I, Sec. 8, cl. 14) did not prevent President Lincoln from
promulgating in April, 1863 a code of rules to govern the conduct in the
field of the armies of the United States which was prepared at his
instance by a commission headed by Francis Lieber and which later
became the basis of all similar codifications both here and abroad.[108]
One important power he lacks, that of choosing his subordinates, whose
grades and qualifications are determined by Congress and whose
appointment is ordinarily made by and with the advice and consent of the
Senate, though undoubtedly Congress could if it wished vest their
appointment in "the President alone."[109] Also, the President's power
to dismiss an officer from the service, once unlimited, is today
confined by statute in time of peace to dismissal "in pursuance of the
sentence of a general court-martial or in mitigation thereof."[110] But
the provision is not regarded by the Court as preventing the President
from displacing an officer of the Army or Navy by appointing with the
advice and consent of the Senate another person in his place.[111] The
President's power of dismissal in time of war Congress has never
attempted to limit.
THE COMMANDER IN CHIEF A CIVILIAN OFFICER
Is the Commander in Chiefship a military or civilian office in the
contemplation of the Constitution? Unquestionably the latter. A recent
opinion by a New York surrogate deals adequately, though not
authoritatively, with the subject: "The President receives his
compensation for his services, rendered as Chief Executive of the
Nation, not for the individual parts of his duties. No part of his
compensation is paid from sums appropriated for the military or naval
forces; and it is equally clear under the Constitution that the
President's duties as Commander in Chief represents only a part of
duties _ex officio_ as Chief Executive [Article II, sections 2 and 3 of
the Constitution] and that the latter's office is a civil office.
[Article II, section 1 of the Constitution; vol. 91, Cong. Rec.
4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does
not enlist in, and he is not inducted or drafted into the armed forces.
Nor, is he subject to court-martial or other military discipline. On the
contrary, article II, section 4 of the Constitution provides that 'The
President, [Vice President] and All Civil Officers of the United States
shall be removed from Office on Impeachment for, and Conviction of
Treason, Bribery or other high Crimes and Misdemeanors.' * * * The last
two War Presidents, President Wilson and President Roosevelt, both
clearly recognized the civilian nature of the President's position as
Commander in Chief. President Roosevelt, in his Navy Day Campaign speech
at Shibe Park, Philadelphia, on October 27, 1944, pronounced this
principle as follows:--'It was due to no accident and no oversight that
the framers of our Constitution put the command of our armed forces
under civilian authority. It is the duty of the Commander in Chief to
appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is
also to be noted that the Secretary of War, who is the regularly
constituted organ of the President for the administration of the
military establishment of the Nation, has been held by the Supreme Court
of the United States to be merely a civilian officer, not in military
service. (United States _v._ Burns, 79 U.S. 246 (1871)). On the general
principle of civilian supremacy over the military, by virtue of the
Constitution, it has recently been said: 'The supremacy of the civil
over the military is one of our great heritages.' Duncan _v._
Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210."[112]
Presidential Advisers
THE CABINET
The above provisions are the meager residue from a persistent effort in
the Federal Convention to impose a council on the President.[113] The
idea ultimately failed, partly because of the diversity of ideas
concerning the Council's make-up. One member wished it to consist of
"members of the two houses," another wished it to comprise two
representatives from each of three sections, "with a rotation and
duration of office similar to those of the Senate." The proposal which
had the strongest backing was that it should consist of the heads of
departments and the Chief Justice of the Supreme Court, who should
preside when the President was absent. Of this proposal the only part
to survive was the above cited provision. The consultative relation here
contemplated is an entirely one-sided affair, is to be conducted with
each principal officer separately and in writing, and to relate only to
the duties of their respective offices.[114] The _Cabinet_, as we know
it today, that is to say, the Cabinet _meeting_, was brought about
solely on the initiative of the first President, and may be dispensed
with on Presidential initiative at any time, being totally unknown to
the Constitution. Several Presidents have in fact reduced the Cabinet
meeting to little more than a ceremony with social trimmings.[115]
Pardons and Reprieves
THE LEGAL NATURE OF A PARDON
In the first case to be decided concerning the pardoning power, Chief
Justice Marshall, speaking for the Court, said: "As this power had been
exercised from time immemorial by the executive of that nation whose
language is our language, and to whose judicial institutions ours bear a
close resemblance; we adopt their principles respecting the operation
and effect of a pardon, and look into their books for the rules
prescribing the manner in which it is to be used by the person who would
avail himself of it. A pardon is an act of grace, proceeding from the
power entrusted with the execution of the laws, which exempts the
individual, on whom it is bestowed, from the punishment the law inflicts
for a crime he has committed. It is the private, though official act of
the executive magistrate, delivered to the individual for whose benefit
it is intended, and not communicated officially to the Court. * * * A
pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance. It may then be rejected by
the person to whom it is tendered; and if it be rejected, we have
discovered no power in a court to force it on him." Marshall thereupon
proceeded to lay down the doctrine, that "a pardon is a deed to the
validity of which delivery is essential, and delivery is not complete
without acceptance"; and that to be noticed judicially this deed must be
pleaded, like any private instrument.[116]
Qualification of the Above Theory
In the case of Burdick _v._ United States,[117] decided in 1915,
Marshall's doctrine was put to a test that seems to have overtaxed it,
perhaps fatally. Burdick, having declined to testify before a federal
grand jury on the ground that his testimony would tend to incriminate
him, was proffered by President Wilson "a full and unconditional pardon
for all offenses against the United States" which he might have
committed or participated in in connection with the matter he had been
questioned about. Burdick, nevertheless, refused to accept the pardon
and persisted in his contumacy with the unanimous support of the Supreme
Court. "The grace of a pardon," remarked Justice McKenna sententiously,
"may be only a pretense * * * involving consequences of even greater
disgrace than those from which it purports to relieve. Circumstances may
be made to bring innocence under the penalties of the law. If so
brought, escape by confession of guilt implied in the acceptance of a
pardon may be rejected, * * *"[118] Nor did the Court give any
attention to the fact that the President had accompanied his proffer to
Burdick with a proclamation, although a similar procedure had been held
to bring President Johnson's amnesties to the Court's notice.[119] In
1927, however, in sustaining the right of the President to commute a
sentence of death to one of life imprisonment, against the will of the
prisoner, the Court abandoned this view. "A pardon in our days," it
said, "is not a private act of grace from an individual happening to
possess power. It is a part of the Constitutional scheme. When granted
it is the determination of the ultimate authority that the public
welfare will be better served by inflicting less than what the judgment
fixed."[120] Whether these words sound the death knell of the acceptance
doctrine is perhaps doubtful.[121] They seem clearly to indicate that by
substantiating a commutation order for a deed of pardon, a President can
always have his way in such matters, provided the substituted penalty is
authorized by law and does not in common understanding exceed the
original penalty.[122]
SCOPE OF THE POWER
The power embraces all "offences against the United States," except
cases of impeachment, and includes the power to remit fines, penalties,
and forfeitures, except as to money covered into the Treasury or paid an
informer;[123] also the power to pardon absolutely or conditionally; and
includes the power to commute sentences, which, as seen above, is
effective without the convict's consent.[124] It has been held,
moreover, in face of earlier English practice, that indefinite
suspension of sentence by a court of the United States is an invasion of
the Presidential prerogative, amounting as it does to a condonation of
the offense.[125] It was early assumed that the power included the power
to pardon specified classes or communities wholesale, in short, the
power to amnesty, which is usually exercised by proclamation. General
amnesties were issued by Washington in 1795, by Adams in 1800, by
Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868,
and by the first Roosevelt--to Aguinaldo's followers--in 1902.[126] Not,
however, till after the Civil War was the point adjudicated, when it was
decided in favor of Presidential prerogative.[127]
"OFFENSES AGAINST THE UNITED STATES"; CONTEMPT OF COURT
In the first place, such offenses are not offenses against the States.
In the second place, they are completed offenses;[128] the President
cannot pardon by anticipation, otherwise he would be invested with the
power to dispense with the laws, his claim to which was the principal
cause of James II's forced abdication.[129] Lastly, the term has been
held to include criminal contempts of court. Such was the holding in Ex
parte Grossman,[130] where Chief Justice Taft, speaking for the Court,
resorted once more to English conceptions as being authoritative in
construing this clause of the Constitution. Said he: "The King of
England before our Revolution, in the exercise of his prerogative, had
always exercised the power to pardon contempts of court, just as he did
ordinary crimes and misdemeanors and as he has done to the present day.
In the mind of a common law lawyer of the eighteenth century the word
pardon included within its scope the ending by the King's grace of the
punishment of such derelictions, whether it was imposed by the court
without a jury or upon indictment, for both forms of trial for contempts
were had. [Citing cases.] These cases also show that, long before our
Constitution, a distinction had been recognized at common law between
the effect of the King's pardon to wipe out the effect of a sentence for
contempt in so far as it had been imposed to punish the contemnor for
violating the dignity of the court and the King, in the public interest,
and its inefficacy to halt or interfere with the remedial part of the
court's order necessary to secure the rights of the injured suitor.
Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed.
(1787), Vol. 2, 553. The same distinction, nowadays referred to as the
difference between civil and criminal contempts, is still maintained in
English law[131]." Nor was any new or special danger to be apprehended
from this view of the pardoning power. "If," says the Chief Justice, "we
could conjure up in our minds a President willing to paralyze courts by
pardoning all criminal contempts, why not a President ordering a general
jail delivery?" Indeed, he queries further, in view of the peculiarities
of procedure in contempt cases, "may it not be fairly said that in order
to avoid possible mistake, undue prejudice or needless severity, the
chance of pardon should exist at least as much in favor of a person
convicted by a judge without a jury as in favor of one convicted in a
jury trial[132]?"
EFFECTS OF A PARDON; EX PARTE GARLAND
The great leading case is Ex parte Garland[133] which was decided
shortly after the Civil War. By an act passed in 1865 Congress had
prescribed that before any person should be permitted to practice in a
federal court he must take oath asserting that he had never voluntarily
borne arms against the United States, had never given aid or comfort to
enemies of the United States, and so on. Garland, who had been a
Confederate sympathizer and so was unable to take the oath, had however
received from President Johnson the same year "a full pardon 'for all
offences by him committed, arising from participation, direct or
implied, in the Rebellion,' * * *" The question before the Court was
whether, armed with this pardon, Garland was entitled to practice in the
federal courts despite the act of Congress just mentioned. Said Justice
Field for a sharply divided Court: "The inquiry arises as to the effect
and operation of a pardon, and on this point all the authorities concur.
A pardon reaches both the punishment prescribed for the offence and the
guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of
the law the offender is as innocent as if he had never committed the
offense. If granted before conviction, it prevents any of the penalties
and disabilities consequent upon conviction from attaching; [thereto],
if granted after conviction, it removes the penalties and disabilities,
and restores him to all his civil rights; it makes him, as it were, a
new man, and gives him a new credit and capacity."[134] Justice Miller
speaking for the minority protested that the act of Congress involved
was not penal in character, but merely laid down an appropriate test of
fitness to practice the law. "The man who, by counterfeiting, by theft,
by murder, or by treason, is rendered unfit to exercise the functions of
an attorney or counsellor at law, may be saved by the executive pardon
from the penitentiary or the gallows, but he is not thereby restored to
the qualifications which are essential to admission to the bar."[135]
Justice Field's language must today be regarded as much too sweeping in
light of a decision rendered in 1914 in the case of Carlesi _v._ New
York.[136] Carlesi had some years before been convicted of committing a
federal offense. In the instant case the prisoner was being tried for a
subsequent offense committed in New York. He was convicted as a second
offender, although the President had pardoned him for the earlier
federal offense. In other words, the fact of prior conviction by a
federal court was considered in determining the punishment for a
subsequent State offense. This conviction and sentence were upheld by
the Supreme Court. While this case involved offenses against different
sovereignties, the Court declared by way of dictum that its decision
"must not be understood as in the slightest degree intimating that a
pardon would operate to limit the power of the United States in
punishing crimes against its authority to provide for taking into
consideration past offenses committed by the accused as a circumstance
of aggravation even although for such past offenses there had been a
pardon granted."[137]
LIMITS TO THE EFFICACY OF A PARDON
But Justice Field's latitudinarian view of the effect of a pardon
undoubtedly still applies ordinarily where the pardon is issued _before
conviction_. He is also correct in saying that a full pardon restores a
_convict_ to his "civil rights," and this is so even though simple
completion of the convict's sentence would not have had that effect. One
such right is the right to testify in court, and in Boyd _v._ United
States the Court held that the disability to testify being a
consequence, according to principles of the common law, of the judgment
of conviction, the pardon obliterated that effect.[138] But a pardon
cannot "make amends for the past. It affords no relief for what has
been suffered by the offender in his person by imprisonment, forced
labor, or otherwise; it does not give compensation for what has been
done or suffered, nor does it impose upon the government any obligation
to give it. The offence being established by judicial proceedings, that
which has been done or suffered while they were in force is presumed to
have been rightfully done and justly suffered, and no satisfaction for
it can be required. Neither does the pardon affect any rights which have
vested in others directly by the execution of the judgment for the
offence, or which have been acquired by others whilst that judgment was
in force. If, for example, by the judgment a sale of the offender's
property has been had, the purchaser will hold the property
notwithstanding the subsequent pardon. And if the proceeds of the sale
have been paid to a party to whom the law has assigned them, they cannot
be subsequently reached and recovered by the offender. The rights of the
parties have become vested, and are as complete as if they were acquired
in any other legal way. So, also, if the proceeds have been paid into
the treasury, the right to them has so far become vested in the United
States that they can only be secured to the former owner of the property
through an act of Congress. Moneys once in the treasury can only be
withdrawn by an appropriation by law."[139]
CONGRESS AND AMNESTY
Congress cannot limit the effects of a Presidential amnesty. Thus the
act of July 12, 1870, making proof of loyalty necessary to recover
property abandoned and sold by the government during the Civil War,
notwithstanding any Executive proclamation, pardon, amnesty, or other
act of condonation or oblivion, was pronounced void. Said Chief Justice
Chase for the majority: "* * * the legislature cannot change the effect
of such a pardon any more than the executive can change a law. Yet this
is attempted by the provision under consideration. The Court is required
to receive special pardons as evidence of guilt and to treat them as
null and void. It is required to disregard pardons granted by
proclamation on condition, though the condition has been fulfilled, and
to deny them their legal effect. This certainly impairs the executive
authority and directs the Court to be instrumental to that end."[140] On
the other hand, Congress may itself, under the necessary and proper
clause, enact amnesty laws remitting penalties incurred under the
national statutes,[141] and may stipulate that witnesses before courts
or other bodies qualified to take testimony shall not be prosecuted by
the National Government for any offenses disclosed by their
testimony.[142]
Clause 2. He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress may by Law vest
the Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments.
The Treaty-Making Power
PRESIDENT AND SENATE
The plan which the Committee of Detail reported to the Federal
Convention on August 6, 1787 provided that "the Senate of the United
States shall have power to make treaties, and to appoint Ambassadors,
and Judges of the Supreme Court."[143] Not until September 7, ten days
before the Convention's final adjournment, was the President made a
participant in these powers.[144] The constitutional clause evidently
assumes that the President and Senate will be associated throughout the
entire process of making a treaty, although Jay, writing in The
Federalist, foresaw that the initiative must often be seized by the
President without benefit of Senatorial counsel.[145] Yet so late as
1818 Rufus King, Senator from New York, who had been a member of the
Convention, declared on the floor of the Senate: "In these concerns the
Senate are the Constitutional and the only responsible counsellors of
the President. And in this capacity the Senate may, and ought to, look
into and watch over every branch of the foreign affairs of the nation;
they may, therefore, at any time call for full and exact information
respecting the foreign affairs, and express their opinion and advice to
the President respecting the same, when, and under whatever other
circumstances, they may think such advice expedient."[146]
NEGOTIATION A PRESIDENTIAL MONOPOLY
Actually, the negotiation of treaties had long since been taken over by
the President; the Senate's role in relation to treaties is today
essentially legislative in character.[147] "He alone negotiates. Into
the field of negotiation, the Senate cannot intrude; and Congress itself
is powerless to invade it," declared Justice Sutherland for the Court
in 1936.[148] The Senate must, moreover, content itself with such
information as the President chooses to furnish it.[149] In performing
the function that remains to it, however, it has several options. It may
consent unconditionally to a proposed treaty, or it may refuse its
consent, or it may stipulate conditions in the form of amendments to the
treaty or of reservations to the act of ratification, the difference
between the two being that, whereas amendments, if accepted by the
President and the other party or parties to the Treaty,[150] change it
for all parties, reservations limit only the obligations of the United
States thereunder. The act of ratification for the United States is the
President's act, but may not be forthcoming unless the Senate has
consented to it by the required two-thirds of the Senators present,
which signifies two-thirds of a quorum, otherwise the consent rendered
would not be that of the Senate as organized under the Constitution to
do business.[151] Conversely, the President may, if dissatisfied with
amendments which have been affixed by the Senate to a proposed treaty or
with the conditions stipulated by it to ratification, decide to abandon
the negotiation, which he is entirely free to do.[152]
TREATIES AS LAW OF THE LAND
Treaty commitments of the United States are of two kinds. In the
language of Chief Justice Marshall in 1829; "A treaty is, in its nature,
a contract between two nations, not a legislative act. It does not
generally effect, of itself, the object to be accomplished; especially,
so far as its operation is infraterritorial; but is carried into
execution by the sovereign power of the respective parties to the
instrument. In the United States, a different principle is established.
Our constitution declares a treaty to be the law of the land. It is,
consequently, to be regarded in courts of justice as equivalent to an
act of the legislature, whenever it operates of itself, without the aid
of any legislative provision. But when the terms of the stipulation
import a contract--when either of the parties engages to perform a
particular act, the treaty addresses itself to the political, not the
judicial department; and the legislature must execute the contract,
before it can become a rule for the Court."[153] To the same effect, but
more accurate, is Justice Miller's language for the Court a half century
later, in Head Money Cases: "A treaty is primarily a compact between
independent nations. It depends for the enforcement of its provisions on
the interest and the honor of the governments which are parties to it.
* * * But a treaty may also contain provisions which confer certain
rights upon the citizens or subjects of one of the nations residing in
the territorial limits of the other, which partake of the nature of
municipal law, and which are capable of enforcement as between private
parties in the courts of the country."[154]
Origin of the Conception
How did this distinctive feature of the Constitution come about, by
virtue of which the treaty-making authority is enabled to stamp upon its
promises the quality of municipal law, thereby rendering them
"self-executory," as it is said; in other words, enforceable by the
courts? The answer is that article VI, paragraph 2 was, at its
inception, an outgrowth of a major weakness of the Articles of
Confederation. Although the Articles entrusted the treaty-making power
to Congress, fulfillment of Congress' promises was dependent on the
State legislatures. The result was that two highly important Articles
of the Treaty of Peace of 1783 not only went unenforced, but were in
some instances directly flouted by the local legislatures. These were
articles IV and VI, which contained stipulations in favor, respectively,
of British creditors of American citizens and of the former Loyalists;
in short of _private persons_. Confronted with the reiterated protests
of the British government, John Jay, Secretary of the United States for
Foreign Affairs, suggested to Congress late in 1786 that it request the
State legislatures to repeal all legislation repugnant to the Treaty of
Peace, and at the same time authorize their courts in all cases arising
from the said treaty to decide and adjudge according to the true intent
and meaning of the same, "anything in the said acts * * * to the
contrary notwithstanding." On April 13, 1787 Congress unanimously voted
Jay's proposal, which on the eve of the assembling of the Federal
Convention was transmitted to the State legislatures, by seven of which
it was promptly adopted.[155]
TREATY RIGHTS VERSUS STATE POWER
The first case to arise under article VI, clause 2, was Ware _v._
Hylton.[156] The facts and bearing of the decision are indicated in the
syllabus: "A debt, due before the war from an American to a British
subject, was during the war, paid into the loan office of Virginia, in
pursuance of a law of that State of the 20th of December, 1777,
sequestering British property and providing that such payment, and a
receipt therefor, should discharge the debt. Held: That the legislature
of Virginia which from the 4th of July, 1776, and before the
Confederation of the United States, * * * possessed and exercised all
the rights of independent governments, had authority to make such law
and that the same was obligatory, since every nation at war with another
may confiscate all property of, including private debts due, the enemy.
Such payment and discharge would therefore be a bar to a subsequent
action, unless the creditor's right was revived by the treaty of peace,
by which alone the restitution of, or compensation for, British property
confiscated during the war by any of the United States could only be
provided for. Held, that the fourth article of the treaty of peace
between Great Britain and the United States, of September 3, 1783,
nullifies said law of Virginia, destroys the payment made under it, and
revives the debt, and gives a right of recovery against the principal
debtor, notwithstanding such payment thereof, under the authority of
State law." In Hopkirk _v._ Bell[157] the Court further held that this
same treaty provision prevented the operation of a Virginia statute of
limitation to bar collection of antecedent debts. In numerous subsequent
cases the Court invariably ruled that treaty provisions supersede
inconsistent State laws governing the right of aliens to inherit real
estate.[158] Such a case was Hauenstein _v._ Lynham,[159] in which the
Court upheld the right of a citizen of the Swiss Republic, under the
treaty of 1850 with that country, to recover the estate of a relative
dying intestate in Virginia, to sell the same and to export the proceeds
from the sale.[160]
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 Sec. 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, Sec. 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