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maintenance of a militia for domestic use or to ward off an actual or imminent invasion.

"No state," says the Constitution, "shall grant letters of marque and reprisal, . . . or without the consent of Congress keep troops or ships of war in time of peace or engage in war unless actually invaded or in such imminent danger as will not admit of delay." 4

They have no powers dependent upon war and treaty-making such as that of annexing territory, nor upon diplomatic and representative powers such as those of recognizing new states and governments, though state legislatures have sometimes passed resolutions recommending national action in these matters."

In political matters even indirectly affecting foreign relations the states are excluded. They cannot lay export or import duties except to enforce inspection laws; they cannot lay tonnage duties; regulate immigration or foreign commerce except necessary local regulations upon which Congress has not acted, nor naturalize aliens. The intention of the Constitution is undoubtedly to render the states incompetent to make political decisions which affect foreign nations in more than the most remote degree, yet state laws have occasionally given rise to international controversy, especially where discrimination against resident aliens is alleged. The San Francisco ordinance of 1906 segregating Japanese school children and the California laws of 1913 and 1920 forbidding landholding to certain classes of aliens are in point."

"Even a state of the Union," said a Senate report of 1897, "although having admittedly no power whatever in foreign relations, may take action uncontrollable by the Federal Government, and which, if not properly a casus belli, might nevertheless as a practical matter afford to some foreign nation the excuse of a declaration of war. We may instance the action which might have been taken by the State of Wyoming in relation to the Chinese massacres, or by the State of Louisiana in relation to the Italian lynchings,

4 U. S. Const., Art. I, sec. 10, cl. 3.

5 In 1897 Nebraska adopted a resolution extending to Cuba their sympathy. Sen. Doc. 82, 54th Cong., 2d sess. For state resolutions favoring recognition of Ireland, Armenia, Jewish State, the League of Nations, etc., see Cong. Rec., 57: 3866; 58: 43, 48-51, 54, 6859; 59: 7510.

6 Ibid.; The Passenger Cases, 7 How. 283; Cooley v. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259.

7 Supra, sec. 15, note 10; sec. 50, note 83.

or by the State of New York in its recent controversy with German insurance companies with relation to the treatment of its own insurance companies by Germany." 8

191. National Power to Make Political Decisions in Foreign Affairs.

The national government is given by the Constitution political powers, not only directly affecting foreign relations, such as the war power, the treaty-making power, and the power to send and receive diplomatic officers; but also most powers which might indirectly affect them, such as the powers to regulate foreign commerce, to levy customs duties, and to naturalize aliens. So extensive are these powers that the court has construed them as together conferring upon the national government all the powers in foreign relations enjoyed by other sovereign nations.9

"The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and make it effective."

How are these powers distributed among the departments of government?

"It is clear all through the Constitution, and has never been disputed, that the intention was to distribute the powers of the Government between its three branches, subject to such checks as the veto of the President or advice and consent of the Senate; and not to place any given power in two or all three branches of the Government concurrently.

"The existence of the same power for the same purposes in both the legislative and executive branches of the Government might lead to most unfortunate results. For instance, if the legislative and executive branches both possessed the power of recognizing the independence of a foreign nation, and one branch should declare it independent while the other denied its independence, then, since they are coordinate, how could the problem be solved by the judicial branch?

"The distinction must be borne in mind between the existence of a constitutional power and the existence of an ability to effect certain results. For instance, Congress alone has the power to declare war. The Executive, however, can do many acts which would constitute a casus belli, and thus indirectly result in war; but this does not imply in the Executive a concurrent power to declare war, and the war which would result would be one declared by a foreign power. It is possible even that the judiciary, by declaring some act of Congress at an inopportune moment to be unconstitutional or otherwise

8 Sen. Doc. No. 56, 54th Cong., 2d sess., p. 5.

Fong Yue Ting v. U. S., 149 U. S. 698 (1893).

incapable of execution according to its intent, or by some decision in a prize cause or otherwise, could give rise to a war with a foreign power, yet no one would claim that the judiciary had the power to declare war." 10

Though the constitutional fathers doubtless had the purpose ascribed to them in this Senate report, yet it is by no means true that they succeeded in keeping the powers of the various departments from overlapping in the field of foreign affairs. An illustration is furnished by the power to regulate the landing of submarine cables.11

"I am of the opinion," wrote the Acting Attorney General in 1898, “that the President has the power, in the absence of legislative enactment, to control the landing of foreign submarine cables." But "the Executive permission to land a cable is, of course, subject to subsequent congressional action."

The President as Chief Executive, Commander-in-Chief and the representative organ, seems to have sufficient power to make all political decisions in foreign affairs not exclusively vested in Congress or the treaty-making power and not conflicting with international law, treaty or existing act of Congress.

Congress, on the other hand, can make political decisions in foreign affairs so far as it can bring them under its express, implied or resultant powers, the most important of which in this connection. are the powers to declare war, to annex territory, to naturalize aliens, to regulate commerce and means of conveyance and communication with foreign nations, and to regulate immigration and exclude or expel aliens. When Congress has validly acted, its act binds the President except in so far as it encroaches upon his constitutional discretion to receive and commission diplomatic officers and to act as Commander-in-Chief.

The courts have no power to make political decisions whatever. Their functions are purely judicial and when confronted with a political question they accept the decision of the political departments of the government.12 It results that judicial precedents are not of great assistance in determining the constitutional line separating the powers of the President from those of Congress in this field.

10 Sen. Doc. No. 56 (cited supra, note 7), p. 4.

11 Moore, Digest, 2: 463. See also infra, secs. 245-248.

12 Supra, sec. 107.

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It must be added that the distinction between constitutional power" and "ability to effect certain results" is one often difficult to draw in practice, though doubtless valid in theory. If, for instance, the President has the "ability to effect certain results for which Congress is given express power, through the exercise of his own undoubted constitutional powers, it would not seem far from the truth to state that the constitutional powers of Congress and the President overlap. The same end may often be attained by different means.

A. The Power to Recognize Foreign States, Governments, and Belligerency.

192. The Power of Recognition.

The President as the representative organ has the power to recognize facts in international relations. He has recognized foreign states by receiving diplomatic officers or granting exequators to consuls from them, and by sending diplomatic officers or commissioners to them.13 He has, by diplomatic correspondence through the Department of State, recognized acquisitions of territory and the establishment of protectorates by existing states.14 Likewise, beginning with the recognition of the French revolutionary government through reception of Citizen Genet in 1793, the President has recognized new governments and he has refused to recognize de facto governments, thereby contributing to their ultimate downfall, as was the case with the Huerta government in Mexico and the Tinoco government in Costa Rica.15 The President has recognized the existence of foreign war through proclamation of neutrality. Though the first such proclamation, issued in 1793 by Washington, was vigorously attacked by Jefferson and Madison, who considered it beyond his powers and contrary to the French alliance treaty of 1778, the precedent has been followed in all subsequent foreign wars, both international and civil.16 The President has also held 13 Moore, Digest, 1: 74-119.

14 Williams v. Suffolk Ins. Co., 13 Pet. 415.

15 Moore, Digest, 1: 164; Moore, Principles of Am. Diplomacy, 213–225.
16 Moore, Digest, 1: 164; Corwin, op. cit., pp. 7–28.
PROC. AMER. PHIL. SOC., VOL. LX., X, MARCH 13, 1922,

17

himself competent to recognize the termination of foreign wars and the consequent termination of American neutrality. He has recognized the existence of insurgency and domestic violence in foreign countries by proclamation and by diplomatic correspondence through the Department of State, and the courts have held that such action creates a status covered by special principles of international law. Thus in the case of the Three Friends the court distinguished between war in the material sense" and " war in the legal sense."1s "Here," it said, "the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time and since this forfeiture is alleged to have been incurred."

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After describing two presidential proclamations calling attention to "serious civil disturbances" and "insurrection" in Cuba, the court continues:

"We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgment of the insurgents as belligerents by the political department has not taken place."

With respect to the President's power of recognition, two questions have been raised: What are its limits? and, Is it exclusive? 193. Limits of Recognition Power.

The courts have taken cognizance of the President's recognition of states, governments, belligerency, insurgency and foreign acquisitions of territory on numerous occasions and they have never held that the President exceeded his powers.19 It is clear, however, that if unlimited, the power of recognition could be used to usurp the power to declare war. Thus recognition of a foreign revolting state, if premature, would furnish a casus belli. This possibility was envisaged by Secretary of State Adams when occasion arose for recognizing the revolting South American Republics and he stated: 20

17 Mr. Seward, Sec. of State, to Mr. Goñi, Spanish Minister, July 22, 1868, Moore, Digest, 7: 337, supra, sec. 213.

18 Ibid., 1: 242; The Three Friends, 166 U. S. 63–66 (1897).

19 Ibid., 1: 247.

20 Mr. Adams, Sec. of State, to the President, Aug. 24, 1818, ibid., 1: 78. For discussion of circumstances justifying recognition, see Dana, Notes to Wheaton, Elements of International Law, pp. 35, 41.

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