appropriate to their nature. There does not appear to have ever been a treaty attempting to deprive Congress of a delegated power or to confer upon it power of a non-legislative nature. It is believed that a treaty declaring that war should automatically exist in certain circumstances would be an unconstitutional deprivation of Congress's power to declare war,20 and that a treaty giving Congress power to appoint an officer of the United States, as for instance a representative in an international body, would be an unconstitutional delegation to Congress of power not of a legislative character.30

66

Jefferson stated among exeptions" from the treaty-making power: "those subjects of legislation in which it gave a participation to the House of Representatives." He noticed, however, that this exception "would leave very little matter for the treaty power to work on." 31 Practice does not sustain Jefferson's contention. Most treaties have dealt with subjects within the delegated powers of Congress and have been held valid. 32 Congress has questioned the validity of treaties requiring an appropriation, notably the Jay

29 See Taft, address before League to Enforce Peace, May 26, 1916, Enforced Peace, p. 64, and Hughes address, May 28, 1917, Proc. Acad. Pol. Sci., vol. 7, No. 2, p. 14, quoted in Am. Jl. Int. Law, 12: 75-76.

30 The exclusive mode of making appointments described in the Constitution, II, sec. 2, does not include appointments by Congress. See also Goodnow, op. cit., p. 39; Willoughby, op. cit., p. 1180.

31 Jefferson, Manual of Parl. Prac., sec. 52, printed in Senate rules, 1913; H. of R. Rules, 1914; and Moore, Digest, 5: 162.

32 Crandall, op. cit., p. 182; Wright, Am. Jl. Int. Law, 12: 93. “The principle of interpretation on which the doubt is suggested appears to be radically unsound and to belong in the category of notions which tend to bring constitutional law into disrepute. That the United States cannot internationally agree to forego the exercise of any power which the Constitution has conferred on Congress, or other department of government, is a supposition contradicted by every exercise of the treaty-making power since the government came into existence. When we reflect upon the number and extent of the powers conferred upon the national govrnment, and upon their distribution and the methods prescribed for their exercise, it is obvious that the attempt to act upon such a supposition would exclude the United States from any part in the progress of the world through the amelioration of law and practice by international action." Moore, Principles of American Diplomacy, 1918, p. 65.

36

"35

treaty of 179433 and the Alaska Purchase treaty of 1867.34 The Senate refused consent to a commercial treaty with the German states in 1844 because of " want of constitutional competency." President Jefferson himself seriously questioned the constitutionality of the Louisiana annexation treaty, and authorities have questioned the constitutionality of treaties making certain acts crimes,37 treaties of guarantee which might require war for fulfillment,38 and treaties forbidding privateering.39 But treaties on all these subjects and in fact most other subjects within the delegated powers of Congress have been made, regularly acted upon and applied by the courts without question of constitutionality.

"If this be the true view of the treaty-making power," said Calhoun with reference to the Senate rejection of the German treaty in 1844, “it may be truly said that its exercise has been one continual series of habitual and uninterrupted infringements of the Constitution. From the beginning and throughout the whole existence of the Federal Government it has been exercised constantly on commerce, navigation, and other delegated

powers." 40

Treaties of this kind often require action by Congress for execution and the degree of discretion Congress may exercise in executing them is determined by constitutional understandings, but the treaty is undoubtedly valid. It does not deprive Congress of power but only of its full discretion in the exercise of power. 60. The Delegation of Legislative Power.

41

As an implication from the doctrine of separation of powers it is recognized that legislative power cannot be delegated. The 33 Wharton, Digest, 2: 19; Moore, Digest, 5: 224; Crandall, op. cit., p. 165; Wright, Am. Jl. Int. Law, 12: 66.

34 Moore, Digest, 5: 226-228; Crandall, op. cit., p. 175.

35 Crandall, op. cit., pp. 189-190; Wright, Am. Jl. Int. Law, 12: 68. 36 Crandall, op. cit., p. 172; Moore, Digest, 5: 225; Wright, Am. Jl. Int. Law, 12: 69; Adams, History of U. S., 2: 83.

37 For objection of Secretary of State Marcy to treaties making privateering a crime see Moore, Digest, 2: 978; 5: 169; Wright, Am. Jl. Int. Law, 12: 79-80; Crandall, op. cit., p. 242.

38 For objection of W. J. Bryan and others see Wright, Am. J. Int. Law, 12: 73.

30 Black, Constitutional Law, 1910, p. 274; Moore, Principles of American Diplomacy, p. 64.

40 Moore, Digest, 5: 164; Willoughby, op. cit., p. 491; Wright, Am. J. Int. Law, 12: 68.

41 Field . Clark, 143 U. S. 649; Willoughby, op. cit., pp. 1317-1332.

Constitution gives to Congress and to the treaty-making power considerable authority to designate or even create organs for the exercise of judicial and executive power12 and such provision is not considered incompatible with the theory of separation of powers, but no organs other than those specifically empowered thereto by the Constitution can be authorized to exercise legislative power.

"The Legislative," said John Locke, "neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." 48

However, this does not mean that all powers which the Legislature might exercise are incapable of delegation. It is well established that Congress can delegate to the President or other authority power to decide when and where45 the conditions exist which are to bring its enacted policy into operation, and the method by which such a policy is to be administered. The legislative power, which cannot be delegated, is not confined to the making of permanent laws but includes such political powers of Congress as appropriating money and declaring war. Furthermore, "legislative power" is not confined to the powers of Congress but includes political powers given by the Constitution to other organs. Thus the treaty-making power exercises legislative power which cannot be delegated since its acts, by Article VI, constitute

47

42 Congress has power to create inferior federal courts (Constitution, I, sec. 8, cl. 9; III, sec. 1), to regulate their jurisdiction and the appellate jurisdiction of the Supreme Court (III, sec. 2, cl. 2), to create "offices" (II, sec. 2, cl. 2), and to create and regulate a military and naval establishment (I, sec. 8, cl. 12-16). See also McCulloch v. Md., 4 Wheat. 316, holding that Congress may create other instrumentalities, necessary and proper for carrying out constitutional powers. The treaty power may provide for courts. In re Ross, 140 U. S. 453; The Königin Luise, 184 Fed. 170 (1910); Wright, Am. Jl. Int. Law, 12: 70. See also infra, secs. 225, 226.

43 Treatise on Civil Government, Works, vol. 5, sec. 142, quoted Cooley, Constitutional Limitations, 6th ed., p. 137.

44 Martin v. Mott, 12 Wheat. 19; Field v. Clark, 143 U. S. 649 (1892). 45 Dalby v. Wolf, 14 Iowa 228 (1862). Legislative power may be dele

gated to local bodies, State v. Noyes, 30 N. H. 279.

46 Morrill v. Jones, 106 U. S. 466; Ex Parte Killock, 165 U. S. 526.

47 The phraseology of the clauses conferring these powers indicates that

they cannot be delegated. Constitution, I, sec. 8, cl. 2; sec. 9, cl. 7.

"the supreme law of the land" and this, nothwithstanding the apparent contradiction in the statement of Article I, section 1, that "All Legislative power herein granted shall be vested in a Congress of the United States." 48

Thus "legislative power" includes the power to make general laws and political decisions in whatever organ vested by the Constitution and does not include the executive power of carrying out policies and enforcing decisions, nor the judicial power of deciding questions of fact and applying law to particular cases.

61. Congressional Delegation of Power to Make International Agreements.

Although Congress has no power to make treaties, it has power to make laws on many subjects which may be appropriate for international agreement. Within this field it has delegated power to the President to make international agreements in pursuance of a policy outlined by Legislation and such delegation has been sustained by the courts. Thus by an act of 187250 Congress provided that "for the purpose of making better postal arrangements with foreign countries," the postmaster-general, acting under the advice of the President, might "negotiate and conclude postal treaties." The United States has become a party to the Universal Postal Union Convention under this authority.51 Similar provision for the conclusion of patent, copyright and trademark agreements have been made.52

48 The principle that legislative power cannot be delegated has always been assumed to be applicable to the treaty power. See Senate For. Rel. Committee. Rept. 62d Cong., 1st sess., S. Doc. 98, p. 6, and remarks of Senator Walsh, Mont., Cong. Rec., 58: 8609, Nov. 8, 1919, quoted in Am. Jl. Int. Law, 12: 91, and Col. Law Rev., 20: 133.

49 A possible encroachment upon the Senate's prerogative in treaty-making is considered infra, secs. 159, 162.

50 U. S. Rev. Stat., sec. 398, Compiled Stat., sec. 587, founded on Act of 1792, see Crandall, op. cit., p. 131.

51 Moore, Digest, 5: 870.

52 Patents Act, March 3, 1903, 32 Stat. 1225, Rev. Stat., sec. 4887. Copyrights Acts, March 3, 1891, 26 Stat. 1110, Moore, Digest, 2: 45, and March 4, 1909, sec. 8, 35 Stat. 1077, Comp. Stat., sec. 9220, Crandall, op. cit., p. 127. Trademarks Act, March 3, 1881, 21 Stat. 502; Feb. 20, 1905, 33 Stat. 724, as amended in 1906 and 1909, Comp. Stat., sec. 9485. In the Trademark

Under the McKinley Tariff Act of 1890 authority was given the President to suspend by proclamation the free entry of specified articles from countries which did not give reciprocity. Ten reciprocity agreements were negotiated by the President through exchange of notes which were made effective by proclamation and remained so until repeal of the McKinley Act in 1894.58 In Field v. Clark the Supreme Court held this provision of the McKinley Act valid since by it Congress had not delegated legislative power but merely power to carry out the policy outlined by Congress in the Act. The Dingley Tariff of 1897 and the Payne-Aldrich Tariff of 1909 contained similar provisions for reciprocity which have been carried out by a number of agreements.55 Similar provision for reciprocity with Canada made in an act of 1911 has never been carried out because of the unwillingness of Canada to act.56 We may conclude that power to make agreements in pursuance of enacted legislative policy is not "legislative power" and may be delegated.

Cases (100 U. S. 82, 99) the Supreme Court held Congress incompetent to pass and enforce general trademarks laws but implied that such laws if confined to interstate and foreign commerce or to the protection of treaty rights would be valid. In most cases trademark agreements have been by treaty (See Secretary of State Hay to the Secretary of the Interior, Nov. 4, 1898, Moore, Digest, 2: 37), but the statute provided for the registration of trademarks used in interstate or foreign commerce by persons residing in foreign countries which, “by treaty, convention or law, applies such privileges to citizens of the United States (sec. 3, Comp. Stat., sec. 9489). Apparently the President might independently recognize the extension of laws to American citizens by foreign nations, entitling their citizens to the privileges of the act, but in fact, such recognition seems always to have been by treaty, except with reference to reciprocal protection in consular courts in China and Morocco. See Crandall, op. cit., p. 130; Willoughby, op. cit., p. 477.

53 U. S. Tariff Commission, Reciprocity and Commercial Treaties, 1919, pp. 27, 153; Crandall, op. cit., p. 122; Willoughby, op. cit., pp. 478. See also Gresham, Secretary of State, to Mr. Mendonça, Brazilian Minister, Oct. 26, 1894, Moore, Digest, 5: 359-362.

54 Field v. Clark, 143 U. S. 649 (1892).

55 U. S. Tariff Commission, op. cit., pp. 29, 32, 205, 271; Crandall, op. cit., p. 123; Fish, Am. Diplomacy, p. 471.

56 Act July 26, 1911, 37 Stat. 4, Comp. Stat., sec. 5326; Crandall, op. cit., p. 125; U. S. Tariff Commission, op. cit., pp. 36–38, 371.