therefore, that the foreign relations power in common with all other national powers, exists only as far as (1) expressly delegated by the Constitution, (2) implied from expressly delegated powers, or (3) implied as a "resultant" from a group of express or implied powers.13

B. Essential Nature of the Foreign Relations Power.

74. Controversy as to Nature of Foreign Relations Power.

Since the beginning of the government under the Constitution there has been a controversy as to the essential nature of the foreign relations power. One school has contended that such powers are essentially executive and hence all delegations of power to Congress in this field must be strictly construed while delegations of power to the President may be liberally construed. Some have gone even farther and in view of the constitutional statement that "The Executive power shall be vested in a President of the United States of America" have contended that all foreign relations powers not otherwise expressly delegated are by this general grant of executive power vested in the President. Another school has taken the reverse view, supporting a liberal legislative power and a narrow construction of executive powers.

75. Foreign Relations Power not Essentially Judicial.

The courts have been perfectly clear that these powers are not of an essential judicial nature, and consequently have considered themselves incompetent to decide them. They have usually called them "political questions" and have accepted the decisions of the political branches of the government without question.14

13 Unquestionably the enumerated powers relating to foreign affairs, either by implication or combination, will permit Congress to pass practically any laws properly within that field. Consequently in practice this theory of congressional power differs little from the theory asserting that congressional powers can be deduced from national sovereignty in foreign affairs. The difficulty of the latter theory, however, lies in the fact that a recognition of congressional sovereignty in foreign affairs would seem to exempt Congress from constitutional limitations arising from individual rights, states' rights and the separation of powers in this field. Sovereignty" is not only plenitude of power, but also absence of limitation. See supra, note 5.

14 Infra, sec. 107.

PROC. AMER. PHIL. SOC., VOL. LX., P, MARCH 9, 1922.

However, the political branches of the government include both the legislative and executive branches, consequently judicial opinions give us little assistance in our effort to determine whether these powers are essentially legislative or essentially executive.

76. Theory of Essentially Executive Nature. Early Opinion.

Supporters of the essentially executive character of foreign relations powers notice that writers with whom the members of the federal convention were familiar such as Locke, Montesquieu, De Lolme and Blackstone appeared to classify the control of foreign relations as executive. In European countries, especially in Great Britain, the Chief Executive conducted foreign relations. Furthermore, they say, the debates in the federal convention tended in this direction. The treaty-making power, vested in Congress under the Confederation, was first given to the Senate by the Convention, but finally the President was added and in the ultimate draft the subject is concluded in the section dealing with Executive power, indicating that the Convention had become convinced of its executive character. Washington's recognition of the new French republic by reception of Citizen Genet upon his own responsibility set a precedent which has since been followed. His proclamation of neutrality, when many thought the French alliance treaty required war, was loudly denounced by the Jeffersonian Republicans, but the precedent has been invariably followed since when occasion has arisen for proclaiming neutrality. This first neutrality proclamation occasioned a lively pamphlet debate between Hamilton and Madison under the names of "Pacificus" and "Helvidius," and Hamilton, who supported the executive character of the proclamation, won, if future practice is to be the judge.15

"It deserves to be remarked," he wrote, "that as the participation of the Senate in the making of treaties, and the power of the legislature to declare war, are exceptions out of the general 'executive power' vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution. While, therefore, the legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the 'executive power' to do whatever else the law of nations, cooperating with the treaties, of the country enjoins in the intercourse of the United States with foreign powers."

15 Hamilton, Works (Federal ed., Lodge), 4: 443.

77. Essentially Executive Nature. Practice.

Advocates of this theory notice that in practice the President alone has recognized foreign governments and states and proclaimed neutrality. He has initiated all foreign negotiations and has held himself free to ignore congressional resolutions or acts on the subject. He has even authorized foreign military expeditions on his own authority and has initiated all wars. He has on his own responsibility executed treaties of extradition, guarantee, and intervention. He has made executive agreements terminating hostilities, outlining terms of peace, annexing territory and providing for administration in foreign territory, and he has denounced treaties.

78. Essentially Executive Nature. Recent Opinion.

A debate on the extent of executive prerogative in foreign relations was indulged in by Senators in 1906 on the occasion of President Roosevelt's negotiation of the Algeciras convention through personal agents, whose appointments had not been consented to by the Senate. Senator Spooner of Wisconsin supported the President.16

"From the foundation of the Government it has been conceded in practice and in theory that the Constitution vests the power of negotiation and the various phases-and they are multifarious-of the conduct of our foreign relations exclusively in the President. And, Mr. President, he does not exercise that constitutional power, nor can he be made to do it, under the tutelage or guardianship of the Senate or of the House or of the Senate and House combined. . . .

16 Cong. Rec., Jan. 23, Feb. 6, 1906, 40: 1417-1421, 2125-2148; Reinsch, Readings in Am. Fed. Govt., 81-124; Corwin, op. cit., pp. 170, 172, 176, 203. Senator Beveridge remarked during this debate: "Does not the Senator (Bacon) think that in the natural division of the powers of the Government into legislative, executive, and judicial the treaty-making power has always been considered an executive function, and therefore, if the Constitution had been silent upon the subject of treaties, it would have been completely under the President's control, under that provision of the Constitution which confides in the President executive power, and that the section concerning treaties is merely a limitation upon that universal power?" Ibid., p. 184. duties in connection with foreign relations not otherwise specified fall within the sphere of the executive." Sen. Doc. No. 56, 54th Cong., 2d sess. See also infra, sec. 92.

"All

"Mr. President, I do not stop at this moment to cite authorities in support of the proposition, that so far as the conduct of our foreign relations is concerned, excluding only the Senate's participation in the making of treaties, the President has the absolute and uncontrolled and uncontrollable authority. . . .

"We as the Senate, a part of the treaty-making power, have no more right under the Constitution to invade the prerogative of the President to negotiate treaties, and that is not all—the conduct of our foreign relations is not limited to the negotiation of treaties-we have no more right under the Constitution to invade that prerogative than he has to invade the prerogative of legislation.

"I do not know whether it will be any 'light' to the Senator from South Carolina, but in Mr. Jefferson's opinion on the Powers of the Senate, a very celebrated document, which he gave at the request of the President, this language was used: 'The transaction of business with foreign nations is executive altogether. It belongs, then, to the head of that department, except as to such portions of it as are especially submitted to the Senate. Exceptions are to be construed strictly.""

79. Theory of Essentially Legislative Nature. Early Opinion.

However, supporters of the essentially legislative character of the foreign relations power are not without ammunition. Whatever may have been the opinion of theoretic writers and the practice of European nations, the fact is undoubted that the first American Government vested all foreign relations powers in Congress and the Constitutional Convention started from the assumption that these powers were legislative. The particular powers in the field which they delegated to the President in part or in full may have been in view of particular expediencies. But the most important foreign relations powers were left largely legislative. The power to declare war, to define piracies and offenses against the law of nations and to regulate foreign commerce are left with Congress and the power to make treaties and to appoint ambassadors, public ministers and consuls requires the consent of the Senate.

Furthermore, whatever Jefferson may have said or done at other times, certainly he denounced Hamilton's theory of the essentially executive nature of the foreign relations power in 1793 and urged Madison to "take up your pen, select the most striking heresies, and cut him to pieces in face of the public." Madison 17 Jefferson, Writings, P. L. Ford, ed., 6: 338.

actually entered the lists and wrote, under the name of "Helvidius": 18

"In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested; and without any other qualifications than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature. . . .

66

There are sufficient indications that the power of treaties is regarded by the Constitution as materially different from mere executive power, and as having more affinity to the legislative that to the executive character.

"One circumstance indicating this is the constitutional regulation under which the Senate give their consent in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particular case, a concurrence of two-thirds at least is made necessary, as a substitute or compensation for the other branch of the legislature, which, on certain occasions, could not be conveniently a party to the transaction.

"But the conclusive circumstance is, that treaties, when formed according to the constitutional mode, are confessedly to have the force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the Constitution to be 'the supreme law of the land.'

"So far the argument from the Constitution is precisely in opposition to the doctrine. As little will be gained in its favour from a comparison of the two powers with those particularly vested in the President alone. . . .

“Thus it appears that by whatever standard we try this doctrine, it must be condemned as no less vicious in theory than it would be dangerous in practice. It is countenanced neither by the writers on law; nor by the nature of the powers themselves; nor by any general arrangements, or particular expressions, or plausible analogies, to be found in the Constitution.

"Whence then can the writer have borrowed it?

"There is but one answer to this question.

46

The power of making treaties and the power of declaring war are royal prerogatives in the British government, and are accordingly treated as executive prerogatives by British commentators."

80. Essentially Legislative Nature. Practice.

In practice it can be shown that Congress has occasionally passed resolutions advising or directing the opening of negotiations with a view to the conclusion or modification of treaties and the President has usually followed this advice. Congress has also passed resolutions directing the termination of treaties and the use of force abroad aside from the exercise of its express powers of declaring war, defining piracies and offenses against the law of na18 Madison, Writings, Hunt, ed., 6: 147–150.