A too rigid application of the doctrine of separation of powers will inevitably produce friction between the departments and impair the ability of the government rapidly and efficiently to meet international responsibilities and to decide upon and carry out national policies. This difficulty may be greatly reduced through the regular observance by each organ of certain constitutional understandings, directing the method by which discretionary power ought to be exercised. Thus before making a decision each independent organ ought to consider the views of other independent organs whose cooperation will be necessary in order to carry out such decision; and after a decision has been made by any organ acting within its constitutional powers, all other independent organs ought to consider themselves bound to so exercise their powers as to give that decision full effect. The development of and adhesion to these understandings is most essential if foreign relations are to be carried on effectively by a government guaranteeing the separation of powers by its fundamental law.13 18 Infra, sec. 249. CHAPTER IX. THE POSITION OF THE FOREIGN RELATIONS POWER IN THE CONSTITUTIONAL SYSTEM. A. Source of National Powers. 70. Distribution of Powers Between States and National Govern ment. The Constitution establishes a federal government, certain powers being expressly or impliedly delegated to the national government, the rest, unless prohibited to the states, being reserved to the states respectively or to the people. Now the control of foreign affairs has been very largely vested in the national government. Its organs are given power to send and receive diplomatic officers, to make treaties, to grant letters of marque and reprisal, to declare and conduct war, to assume jurisdiction in cases involving foreign diplomatic officers, foreign states or the interpretation of treaties, to pass laws relating to foreign commerce, naturalization, piracies and offences against the law of nations and any other laws that may be necessary and proper for carrying any of these powers into execution. On the other hand, the states are expressly forbidden to enter into any treaty, alliance, or confederation or, unless Congress consent, into any agreement or compact with a foreign power; to grant letters of marque and reprisal or without the consent of Congress to engage in war unless invaded or in imminent danger thereof; to lay tonnage, import or export duties, except for executing their inspection laws. The only powers connected with foreign relations which the states seem competent to exercise without congressional consent relate to the meeting of international responsibilities. The states have power to provide aliens within their borders the protection and to assure them the other rights, guaranteed by international law and treaty, and state judges are expressly enjoined to observe treaties as the supreme law of the land, anything in the state constitution or laws to the contrary notwithstanding. Full power to enforce treaties and international law within the state could doubtless be conferred upon national officers and courts by act of Congress under the necessary and proper clause, but the legislation at present in force is not complete and state authorities alone must be relied on to meet certain international responsibilities. 71. Theory of Sovereign Powers in National Government. In view of the almost complete prohibition of the states from the control of foreign relations, it has been argued that the national government must necessarily have all powers in this field enjoyed by sovereign nations. Thus said Justice Field in the Chinese Exclusion Cases: 1 "While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory." Justice Gray repeated the theory in Fong Yue Ting v. United States: 2 "The United States are a sovereign and independent nation, and are invested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective." Aside from the power to exclude aliens, the court has derived the power to acquire territory from this theory, but in other cases the latter power has been implied from the power to make treaties, and to declare war.1 1 Chinese Exclusion Cases, 130 U. S. 581. 2 Fong Yue Ting v. U. S., 149 U. S. 698. 3 Jones v. U. S., 137 U. S. 202, and discussion by Willoughby, op. cit., p. 340. See also cases cited, Ibid., pp. 454-455. 4 American Insurance Co. v. Canter, 1 Pet. 511; Flemming v. Page, 9 How. 603; Willoughby, op. cit., p. 339. The power to admit new states to the Union has also been suggested as a ground for annexation, though such an interpretation of the clause (Constitution, IV, sec. 3, cl. 1) was not |