ternational responsibilities, but, according to the doctrine of separation of powers, each of the three departments of government exercises an independent discretion, legally uncontrolled by any other authority. Three difficulties may arise from this situation: (A) The powers of two departments may overlap, giving rise to contrary action on the same occasion. "The existence," said a Senate Foreign Relations Committee report of 1898, "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? " 1 (B) An independent department may lack sufficient power to achieve a desired end without the cooperation of another independent department. A treaty," said the Circuit Court, "is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution." 2 (C) Organs properly adapted to meeting certain international responsibilities may not exist. The general principle which ought to govern the discretion of the departments in the presence of such difficulties has been thus expressed by the Supreme Court of North Carolina: 3 "While the executive, legislative, and supreme judicial powers of the government ought to be forever separate and distinct, it is also true that the science of government is a practical one; therefore, while each should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three coordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of what seems to be a 'common because of vicinage' bordering on the domains of each." 1. Sen. Doc. 56, 54th Cong., 2d sess., p. 4; Corwin, op. cit., p. 36, supra, sec. 191. 2 Turner v. Am. Baptist Missionary Union, 5 McLean 347; Wharton, Digest, 2: 73; Moore, Digest, 5: 222. 3 Brown v. Turner, 70 N. C. 93, 102. A. The Overlapping of Powers of Independent Departments. 245. Constitutional Understanding Respecting the Overlapping of Powers. The difficulty arising from the overlapping of the powers of two independent and coordinate departments of the government has been met in part by the legal principle that the most recent exercise of power prevails and in part by the understanding that each department should so exercise its concurrent powers as not to impair the validity of action already taken by the other department without that department's consent. 246. Concurrent Powers of President and Congress. The powers of the President or of the courts cannot conflict with those of Congress or the treaty-making power, because the constitutional acts of the latter are declared the supreme law of the land. Consequently, a conflicting act of the President or the courts would be contrary to law and void. The President and courts, however, have certain powers concurrent with congressional powers in the sense that they may validly act, until Congress has acted. Thus the Supreme Court could determine its appellate jurisdiction upon the basis of Article III of the Constitution alone,* and the President could organize and conduct military government in newly acquired territory, regulate the landing of cables, and issue regulations for branches of the civil service before Congress had acted. But once Congress, or the treaty-making power, has acted, if its act is constitutional, there is no doubt but that it is the supreme law of the land, and the President and courts are henceforth bound by it. An act either of Congress or of the treaty-mak Ex parte McCardle, 7 Wall. 506, 513, and Marshall, C. J., in Durousseau v. U. S., 6 Cranch 307, 313, and U. S. v. Moore, 3 Cranch 159, 170, 172. Santiago v. Nogueras, 214 U. S. 260; Richards, Acting Att. Gen., 22 Op. 13; Moore, Digest, 2: 452–463; supra, sec. 219. • Where two organs enjoy concurrent powers to produce a status, the one acting first, of course, effects the result. Thus a presidential recognition of war would be effective irrespective of subsequent acts of Congress. "In short, it frequently happens that the same legal result may be produced by very different powers of government; nor need the fact lead to confusion, since, as soon as any of the competent powers has acted, the result is produced." Corwin, Mich. Law Rev., 18: 672, but see his President's Control of Foreign Relations, p. 36. ternational responsibilities, but, according to the doctrine of separation of powers, each of the three departments of government exercises an independent discretion, legally uncontrolled by any other authority. Three difficulties may arise from this situation: (4) The powers of two departments may overlap, giving ↑ to contrary action on the same occasion. 66 The existence," said a Senate Foreign Relations Committee re 1898, "of the same power for the same purposes in both the legislat executive branches of the Government might lead to most unfortunat For instance, if the legislative and executive branches both possessed t of recognizing the independence of a foreign nation, and one brar declare it independent, while the other denied its independence, they are coordinate, how could the problem be solved by the judicia (B) An independent department may lack sufficien achieve a desired end without the cooperation of anoth ent department. A treaty," said the Circuit Court, "is the supreme law respect of such matters only as the treaty-making power, w Congress, can carry into effect. Where a treaty stipulates of money for which an appropriation is required, it is not sense of the Constitution." 2 (C) Organs properly adapted to meeting cer responsibilities may not exist. The general pri to govern the discretion of the departments in th difficulties has been thus expressed by the Supre Carolina: 3 "While the executive, legislative, and supreme government ought to be forever separate and distinct, science of government is a practical one; therefore, v maintain the essential powers belonging to it, it cann three coordinate parts constitute one brotherhood, quires a mutual toleration of what seems to be vicinage' bordering on the domains of each." 1 Sen. Doc. 56, 54th Cong., 2d sess., p. 4; Cor sec. 191. 2 Turner v. Am. Baptist Missionary Union, Digest, 2: 73; Moore, Digest, 5: 222. 3 Brown v. Turner, 70 N. C. 93, 102. T ing power which encroaches upon the constitutional powers of the President or courts is of course unconstitutional and void. The courts may so declare it, but it has been generally held that the President is confined to the veto to invalidate unconstitutional legislation. If an act has been signed by a predecessor, is passed over his veto, or is signed by himself inadvertently, it is held that he must obey it, even though the act is clearly unconstitutional, until such time as the courts may declare it void. This principle is not, however, extended to congressional acts affecting the inherent powers and the foreign relations powers of the President. Such acts, if encroachments upon presidential powers, even though mandatory in terms and formally valid, have been interpreted as merely advisory and as leaving the President discretion to ignore them. Thus, the President has ignored congressional acts and resolutions prescribing conditions for the removal of administrative officers, defining the grades of diplomatic officers, directing the negotiation or modification of treaties,1o and formulating foreign policy.11 247. Concurrent Powers of the President and the Courts. The power of the President to settle international controversies may, however, overlap the jurisdiction of the courts to settle private controversies. The understanding that the authority taking prior action should govern, has usually been applied in such cases. Thus a German prize crew brought the British vessel Appam into an American port, while the country was neutral. The original owner promptly libelled the vessel in the United States District Court and while the case was pending the German government sought, through the Department of State, to have their claim submitted to arbitration. Secretary Lansing replied in a note of April 7, 1916:12 7 Willoughby, op. cit., pp. 1306-1309. 8 As President Johnson's refusal to accept the tenure of office act, for which he was impeached, but not convicted. See also President Cleveland's action in the Duskin case, Presidential Problems, 1904, p. 56, and Parsons ". U. S., 167 U. S. 324. 9 Cushing, Att. Gen., 7 Op. 186; supra, sec. 236. 10 Crandall, op. cit., p. 74; supra, sec. 174. 11 Supra, sec. 203. 12 Department of State, White Book, European War, No. 3, p. 344. |