existing treaty, but such resolutions may be ignored by the President.16 160. The Courts Cannot Make International Agreements. The courts, also, are devoid of treaty-making power: 17 "This court," said Justice Story, "does not possess any treaty-making power. That power belongs, by the Constitution, to another department of the government; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions." Courts must construe and interpret treaties in applying them to cases, but such constructions cannot apply to political question or supply omissions.18 A. The Power to Make Executive Agreements. 161. The Obligation of Executive Agreements. The President with advice and consent of two-thirds of the Senate may make any agreement whatever, on a subject suitable for international negotiation and not violative of constitutional limitations. This treaty-making power is not limited by the President's independent power of making agreements, but the latter power unquestionably exists. With respect to such Presidential agreements, the questions arise: (1) What subject matter may they cover? 66 16 Infra, sec. 203. Congress has undertaken regulation of Indian affairs formerly vested in the treaty-making power. During the first eighty years of government under the Constitution, agreements with the Indian Tribes were made exclusively by the President and the Senate, in the exercise of the treaty-making power. The passage of the act of 1871 was strongly opposed by certain members of the House as well as of the Senate, on the ground that it involved an infringement of the treaty-making power vested in the President and the latter body. It was admitted that if the President should undertake to make a treaty with the Indians, Congress could not interfere with his so-doing, by and with the advice and consent of the Senate, but it was, on the other hand, maintained that Congress had the power to declare whether the tribes were independent nations for the purposes of treaty-making, and to render its declaration effective by refusing to recognize any subsequent treaties with them; and this view prevailed. (See especially, Cong. Globe, 41st Cong., 3d Sess., 1870-1871, part 1, pp. 763-765; part 3, pp. 1821-1825.) " Moore, Digest, 5: 220. 17 The Amiable Isabella, 6 Wheat. 1, 71-73. 18 Ibid., and supra, sec. 107. (2) What sort of an obligation do they impose? No general answer can be given to the latter question. An executive agreement may impose an absolute obligation as would be true of the executive settlement of a claim by an American citizen against a foreign government. After the President has agreed to a settlement, the claim becomes res adjudicata and if against the American citizen, cannot be raised by a subsequent administration against the foreign government. If injustice has been done the American citizen, it is a moral duty of the United States itself to compensate him.19 On the other hand, an executive agreement may impose an obligation strictly binding only the President, who makes it, as would be true of an exchange of notes over foreign policy, such as the Root-Takahira agreement, or the Lansing-Ishii agreement. In general, the President can bind only himself and his successors in office by executive agreements, but in certain cases, executive agreements may impose a strong moral obligation upon the treatymaking power and Congress, and they may even be cognizable in the courts. The form of the obligation does not affect its obligatory character. Executive agreements may be by exchange of notes, protocols, cartels, modi vivendi, etc., but in any case the obligation depends upon the subject matter.20 162. Administrative Agreements under Authority of Act of Congress. To discover the subjects on which the President may make international agreements, we must examine his constitutional powers. For this purpose we may distinguish his powers as (1) head of the administration, (2) as commander-in-chief, (3) as the representative organ in international relations. The President is Chief Executive and head of the Federal administration with power to direct and remove officials and the duty to "take care that the laws be faithfully executed." But the exercise of these powers, and the meeting of this responsibility is dependent upon the laws which Congress may pass, organizing the administration and defin 19 Meade v. U. S., 9 Wall. 691; Borchard, op. cit., p. 379; Comegys v. Vasse, 1 Pet. 193, 212. 20 See also infra, sec. 166. PROC. AMER. PHIL. SOC., VOL. LX., V, MARCH 13, 1922. ing the, powers and responsibilities of office. In this capacity, therefore, the President may only make international agreements, under authority expressly delegated to him by Congress, or the treaty power, or agreements of a nature which he can carry out within the scope of existing legislation. Congress has often delegated power to the President to make agreements within the scope of a policy defined by statute, on such subjects as postal service, patents, trademarks, copyrights and commerce.21 Such agreements appear to be dependent for their effectiveness upon the authorizing legislation, and are terminable, both nationally and internationally, at the discretion of Congress. "It cannot be supposed," wrote Secretary of State Gresham, “that it was intended, by the simple exchange of notes on January 31, 1891, to bind our governments, as by a treaty, to certain duties or remissions of duty on the specified articles, beyond the time when the Congress of the United States might, in the exercise of its constitutional powers, repeal the legislation under which the arrangement was concluded." 22 While in effect, however, they are binding on the courts,23 and the President, through his control of the administration, can usually see that they are observed. 163. Administrative Agreements under Authority of Treaty. The administrative powers of the President permit him to carry out treaties, which are the supreme law of the land, so far as Congress has supplied him with the necessary administrative machinery and supplies. International agreements for this purpose, and under express authority of treaty, have been made with reference to the definite marking and mapping of boundaries.24 Under authority of the treaty with Cuba (1903), as well as of congressional legislation, President Roosevelt acquired a lease at Guantanamo, Cuba, for a naval base.25 The first Hague Convention of 1899 apparently gave the President power to conclude compromis for submitting cases to arbitration, but the Senate has since 21 Supra, sec. 61; Taft, op. cit., p. 135. 22 Moore, Digest, 5: 362. 23 Field v. Clark, 143 U. S. 649. 24 Crandall, op. cit., pp. 117–118. 25 Ibid., p. 139. refused to consent to treaties delegating this power to the President.28 164. Independent Administrative Agreements. The President, as head of the administration, may also make international agreements, without express authority of statute or treaty, though it would seem that such agreements should not go beyond his own powers of execution. In 1850, however, President Fillmore authorized an agreement, whereby Great Britain ceded Horseshoe Reef, near the outlet of Lake Erie, on condition that the United States erect a lighthouse thereon, and refrain from fortifying it. The execution of this agreement required congressional appropriation and permanent abstention of Congress from authorizing fortification of this island. It would seem properly a subject for treaty, rather than executive agreement, but Congress had already made the necessary appropriation in 1849. This was reenacted in 1854.27 In 1864, President Lincoln agreed to extradite Arguelles to Spain, though no treaty required such action. It has generally been held since, that he exceeded his powers in thus making an agreement for extradition, yet on September 23, 1913, the President entered into an agreement with Great Britain for extradition between the Philippine Islands or Guam and British North Borneo, of fugtives for offenses specified in existing treaties.28 165. Recent Practice. Perhaps the most remarkable example of such agreements is that made by President Roosevelt in 1905 for administering the customs houses of San Domingo: 29 "The Constitution," writes President Roosevelt in his Autobiography, "did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two 20 Willoughby, op. cit., p. 473; Crandall, op. cit., pp. 119–120, supra, sec. 62. 27 Malloy, treaties, etc., p. 663, 9 Stat. 380, 627; 10 Stat. 343. 28 Crandall, op. cit., p. 117; Corwin, The President's Control of Foreign Relations, p. 125. 29 Roosevelt, Autobiography, pp. 551-552. years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land, and not merely by a direction of the Chief Executive, which would lapse when that particular Executive left office. I, therefore, did my best to get the Senate to ratify what I had done. There was a good deal of difficulty about it. Enough Republicans were absent to prevent the securing of a two-thirds vote for the treaty, and the Senate adjourned without any action at all, and with the feeling of entire self-satisfaction at having left the country in the position of assuming a responsibility and then failing to fulfill it. Apparently the Senators in question felt that in some way they had upheld their dignity. All that they had really done was to shirk their duty. Somebody had to do that duty, so accordingly I did it. I went ahead and administered the proposed treaty anyhow, considering it as a simple agreement on the part of the Executive which would be converted into a treaty whenever the Senate acted. After a couple of years, the Senate did act, having previously made some utterly unimportant changes, which I ratified and persuaded Santo Domingo to ratify." This statement indicates that agreements of considerable political importance may be made by the President and that they cannot be prevented by the Senate, when the President controls the necessary means of execution. It is to be noted, however, that in President Roosevelt's opinion, they are binding only on the President that makes them. The latter limitation often does not apply in practice, though presumably the foreign government would have no ground for objection if a subsequent President discontinued such an executive agreement. President Taft describes the executive agreement made by him as Secretary of War, under authority of President Roosevelt, for defining the relative jurisdictions of the United States and Panama in the cities of Colon and Panama at either end of the Canal.30 The plan contained a great many different provisions. I had no power to make a treaty with Panama, but I did have, with the authority of the President, the right to make rules equivalent to law in the Zone. I therefore issued an order directing the carrying out of the plan agreed upon in so far as it was necessary to carry it out on our side of the line, on conditions that, and as long as, the regulations to be made by Panama were enforced by that government. This was approved by Secretary Hay, and the President, and has constituted down until the present day, I believe, the basis upon which the two governments are carried on in this close proximity. 30 Taft, op. cit., p. 112. |