8

power is a limitation rather, than a source of power for each department. We may express the doctrine in three principles. 53. Protection of Independence of Departments.

Each department is endowed with such rights, privileges and inherent powers as will assure its independence of the others. Thus members of Congress are immune from arrest during the session, each house is given exclusive authority to judge the qualifications of its own members, to make its own rules of procedure, to discipline and expel its own members and to subpoena witness and commit for contempt when necessary for performing its legislative functions.10 The President is immune from judicial process except trial of impeachment and holds himself entitled to exclusive control of the personnel of the national civil and military service through the power to commission and remove officials." The Federal Justices are assured permanence of tenure and compensation and the courts hold themselves to enjoy certain inherent privileges such as the power to commit for contempt and perhaps to control admissions to the bar and rules of practice.12 These rights, privileges and inherent powers cannot be impaired by action of the organ itself or by that of other organs.

54. Protection of Delegated Powers of Departments.

Each department is entitled to exercise the powers delegated to it by the Constitution. Two interpretations of this guarantee of quite divergent effect must be distinguished. Thus it is generally recognized that one organ cannot, unless the Constitution expressly provides otherwise, take away a power specifically or impliedly 8 Infra, secs. 53-55.

9 Goodnow, op. cit., p. 38.

10 Constitution, I, secs. 5, 6, and supra, note 6.

11 Mississippi v. Johnson, 4 Wall. 475; Willoughby, op. cit., 1300–1304; Constitution, II, sec. 3, and supra, note 4.

12 Constitution, III, sec. 1, supra, note 5. Illinois and Pennsylvania hold the setting of standards for admission to the bar is an inherent judicial power (In re Day, 181 III, 73, In re Splane, 123 Pa. 527), while New York and North Carolina hold the contrary (Matter of Cooper, 22 N. Y. 67, Re applicants for license, 143 N. C. 1). Indiana holds that statutes cannot lower the standard set by court rules of procedure. (Epstein v. State, 128 N. F. 353, Ind. 1920, and note in Minn. Law Rev., 5: 73, Dec., 1920.)

delegated to another organ or give away a power so delegated to itself.13 But it is sometimes contended, that in addition, one organ cannot so exercise its own powers as to limit the discretion of another organ or of itself in the future exercise of its powers. These two interpretations are very different and much misconception has arisen from their confusion. Thus for the treaty power to provide that in defined circumstances the United States would automatically be at war, would be a clear invasion of the power of Congress to declare war. On the other hand for the treaty power to provide that in defined circumstances the United States would declare war, would not invade the power of Congress but would merely limit its discretion in the future exercise of this power. In certain circumstances the practical effect might be the same, but the legal difference would nevertheless exist. It appears that constitutional law merely guarantees to each organ continued possession of its delegated powers. The degree of discretion which the organ may actually enjoy in exercising these powers depends largely upon constitutional understandings.

55. Prohibition upon Exercise of Uncharacteristic Power by Any Department.

Each department is prohibited from "exercising powers (not inherent or expressly delegated) which from their essential nature do not fall within its division of governmental functions. Thus Congress cannot exercise such judicial powers as punishing for contempt unless necessary for performing its legislative functions,15 nor such executive powers as directing the detailed movement of troops1 or appointing officers.17 The courts cannot exercise such

13 Legislative power cannot be delegated even by the legislature itself, but the Constitution gives considerable power to Congress over the determination of executive and judicial competence. Infra, sec. 60. But see Goodnow, op. cit., p. 41.

14 Willoughby, op. cit., p. 1263.

15 Kilbourn v. Thompson, 103 U. S. 168. Nor can Congress exercise judicial power by deciding specific cases involving private rights, Willoughby, op. cit., p. 1264.

16 Ex parte Milligan, 4 Wall. 2, Willoughby, op. cit., p. 1207.

17 Constitution, II, sec. 2. Congress, however, has the inherent power to appoint subordinate officers necessary for the conduct of its internal business, Goodnow, op. cit., p. 38.

executive powers as the giving of advisory opinions18 or the making of decisions which are reviewable by executive or legislative officers.19 The theory has been most difficult to apply as a restriction upon the executive because methods closely approaching a judicial and a legislative character often seem essential to the performance of executive duties. Though the theory that the legislature cannot delegate its power exists, the courts actually give the force of law to executive orders and regulations issued under authority of statute.20 This is justified by the theory that the ordinances are not legislation but merely the application of a policy determined by Congress in the delegating act. So also executive boards and commissions are permitted to proceed as courts and give decisions of a definitive character in certain types of cases.21 The almost complete control over the organization and jurisdiction of federal courts given by the Constitution to Congress 22 makes any attempt by the courts to prevent the vesting of judicial functions in administrative bodies virtually impossible.23

A. Effect on the Power to Meet International Responsibilities. 56. The Government as a Whole Competent to Meet Responsibilities.

The doctrine of separation of powers does not impose any limitation upon the power of the United States to meet its international responsibilities. International law and treaty provisions have very seldom directed the instrumentality through which responsibilities shall be met. The responsibility rests on the nation and it can ordinarily determine its own instrumentality for performance. Consequently if any organ of the government has power to meet a particular responsibility, or to provide for meeting 18 See Thayer, Cases of Const. Law, 1: 175, and Willoughby, op. cit., P. 13.

19 Hayburn's Case, 2 Dall. 409; Gordon v. U. S., 2 Wall. 561; Willoughby, op. cit., p. 1275.

20 Field v. Clark, 143 U. S. 649; Goodnow, op. cit., pp. 42, 85.

21 U. S. v. Ju Toy, 198 U. S. 253; Willoughby, op. cit., p. 1278, et seq. 22 Constitution, I, sec. 8, cl. 9; III, sec. 1, sec. 2, cl. 2, seems to give Congress complete control over the courts except the original jurisdiction of the Supreme Court. Ex Parte McCardle, 7 Wall. 506.

23 Willoughby, op. cit., p. 1277.

it, we may be sure the government as a whole has the power. Treaties have occasionally required that responsibilities be met through a particular instrumentality, as that certain controversies be submitted to an international tribunal, or that the compromis of arbitrations be made by the President with advice and consent of the Senate.24 Such reference to domestic organs has usually been declaratory of the Constitution, and has been inserted out of excess of caution to give notice to the foreign government of constitutional steps which must be taken, or by insistence of one department of the government to prevent anticipated usurpations by another. If, however, a treaty required that certain acts be performed by a particular organ, which, under the theory of separation of powers, could not exercise such a power, that clause of the treaty could not be executed by the United States. Such a treaty clause, however, would be unconstitutional from the start. The question would relate, therefore, to the power to make treaties rather than to the power to meet international responsibilities.25 57. Power of the President to Meet International Responsibilities.

Although the doctrine of separation of powers does not legally limit the power of the government to meet its responsibilities, it often throws practical difficulties in the way of prompt action. Congress is by nature slow moving but often under the constitutional distribution of powers it alone has power to meet certain international responsibilities. Were the President and the courts vested with adequate authority to act, delay in the meeting of responsibilities might often be avoided. The President and courts cannot, under the doctrine which prohibits the delegation of legislative power be vested with such exclusive congressional powers as that to appropriate money and to declare war. Thus a prompt meeting of responsibilities requiring such acts depends upon congressional observance of the constitutional understanding which

24 See pecuniary claims convention with Latin American States, 1910, Charles, Treaties, 345; arbitration treaty with Great Britain, 1908, Art. V, Malloy, Treaties, p. 814. For other treaty provisions referring to specific organs see Wright, Columbia Law Rev., 20: 123-4.

25 Supra, secs. 45, 46.

PROC. AMER. PHIL. SOC., VOL. LX., N, MARCH 8, 1922.

enjoins all departments to exercise such powers as they have in order promptly to meet international responsibilities.20

Often, however, it is within the power of Congress to vest the President and courts by general law with adequate power to meet responsibilities, and a mass of legislation with this purpose has grown up dealing especially with the enforcement of neutrality, the protection of diplomatic officers, the protection of foreign securities, the suppression of piracy, the extradition of criminals, and the enforcement of many treaties such as that for supressing the slave trade and for the protection of migratory birds. No general law has as yet been passed giving the President and courts adequate power to protect the rights of resident aliens guaranteed by international law and treaty, though Congress, undoubtedly. has power to pass such laws.27

B. Effect on the Power to Make International Agreements.

58. Limitations upon the Government as a Whole.

In considering limitations derived from the separation of powers, upon the power of the national government to make international agreements, we need consider only the limitations upon the full treaty-making power. Whatever independent power the President may enjoy in making international agreements is a fortiori subject to the same limitations. These limitations exist by virtue of the constitutional prerogatives of Congress, of the courts and of the President.

59. Limitations Derived from Powers of Congress.

"The treaty making power," said Calhoun, "is limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law.'" 28

Undoubtedly, the treaty power is prohibited from depriving organs of the government of rights, privileges or powers inherent or delegated by the Constitution, or from giving them powers not 26 Infra, sec. 258.

27 Infra, sec. 120.

28 Works, 1: 203; Moore, Digest, 5: 166.