The general theory of national powers derived from sovereignty has not been approved by commentators or by the weight of judicial decisions. Thus in Kansas v. Colorado Justice Brewer emphatically repudiated the "doctrine of sovereign and inherent powers."

6

"But," he said, "the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment."

Chief Justice Taney had earlier insisted that no argument could be drawn "from the nature of sovereignty, or the necessities of government for self-defense in time of tumult and danger." "

72. Theory of National Sovereignty in Foreign Relations.

But though the general theory of sovereign powers, which would vest in the national government all powers not expressly prohibited, cannot be maintained, more support can be cited for the theory if confined to the control of foreign relations. Thus Willoughby says:

"From these express grants of power to the General Government, and prohibitions of treaty powers to the States, the intention of the framers

intended by the drafter of the Constitution. See letter of Gouverneur Morris to Livingston, 1803, Life and Writings (Sparks), 3: 192, quoted in Willoughby, op. cit., p. 328.

5 Willoughby, op. cit., p. 69, who, however, approves a limited application of the theory in respect to foreign relations, Ibid., p. 45. "It cannot, therefore, be maintained that, merely because the United States is classed as a 'sovereign nation,' the government or any part of it can therefore perform a sovereign act beyond the scope of the purposes for which it was created, for although the nation is sovereign the Government is not. Complete sovereignty resides in the people as a whole, and not in any or all of the public officers." D. J. Hill, Present Problems of Foreign Policy, N. Y., 1919, p. 155.

Kansas v. Colorado, 206 U. S. 46.

Ex Parte Merryman, Taney's reports, p. 246; Thayer, Cases on Const. Law, 2: 2361, 2368.

of the Constitution to invest the Federal Government with the exclusive control of foreign affairs is readily deducible.

"The control of international relations vested in the General Government is not only exclusive but all-comprehensive. That is to say, the authority of the United States in its dealings with foreign powers includes not only those powers which the Constitution specifically grants it, but all those powers which States in general possess with regard to matters of international concern.

"This appeal, however, to the fact of 'national sovereignty' as a source of federal power is not a valid one outside of the international field. It cannot properly be resorted to when recognition of an international obligation on the part of the United States is not involved, and when, therefore, the matter is purely one relating to the reserved powers of the States or to the private rights of the individuals. To permit the doctrine to apply within these fields would at once render the Federal Government one of unlimited powers." 8

The writer is unable to accept this doctrine. The fact that powers relating to the control of foreign relations are expressly enumerated by the Constitution, which enumeration would be rendered superfluous by the theory, the fact that the states actually exercise some powers which directly affect foreign relations, such as the protection of domiciled aliens, the fact that certain constitutional limitations such as those contained in the bill of rights are generally acknowledged to limit the scope of treaty-making and other activities in the control of foreign relations seem to indicate that the national foreign relations power is neither implied from sovereignty, nor exclusive, nor all-comprehensive, though it undoubtedly, very nearly enjoys the two latter characteristics. The writer is not aware of any judicial decision which requires the theory for support, and he considers that certain judicial dicta, unquestionably supporting it, are overborne by the repeated assertions of the Supreme Court that the national government is a government of delegated power. Consequently in the field of foreign relations as in other fields he assumes that all national powers must be founded upon express or implied delegation by the Constitution.

73. Theory of Resultant Powers.

However, powers may be implied as a "resultant" of a group

• Willoughby, op. cit., pp. 451, 454. See also Ibid., p. 65.

of express powers-it is not necessary that implied powers be traced always to a single express delegation.

"It is to be observed," said Chief Justice Marshall, "that it is not indispensable to the existence of every power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and to infer from them all that the power claimed has been conferred."9

Thus the power to recognize foreign states and governments may be implied from the powers of receiving and commissioning diplomatic officers; 10 the power to exclude and expel aliens may be implied from the powers of regulating foreign commerce, naturalizing aliens and declaring war; 11 the power to annex and govern territory may be implied from the power of making treaties, declaring war, and admitting new states to the Union.12 We assume,

9 Cohens v. Va., 6 Wheat. 264; U. S. v. Gettysburg Electric Ry. Co., 160 U. S. 668, 681-683 (1896). See Willoughby, op. cit., p. 66, and Legal Tender Cases, 12 Wall. 457, quoted ibid., p. 65.

10 Corwin, The President's Control of Foreign Relations, p. 71.

11 Although in the Chinese Exclusion Cases (130 U. S. 581, 1889) and Fong Yue Ting v. U. S. (149 U. S. 698, 1893) certain expressions of the court support the contention that the power of exclusion and expulsion are derived from national sovereignty in foreign affairs, yet it is to be noted that in both of these cases the court carefully enumerated the specific grants of power of which these so-called sovereign powers are the resultant. The argument in the Chinese Exclusion Cases, that the power to make war for defense implies a power to take lesser defensive measure, and that the occasion for and methods of such defense is a political question not subject to judicial determination, may also be noticed. "It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers." Thus when the court spoke of "sovereign powers" it had in mind powers resultant from a group of express or implied powers, and not powers deduced from an abstract theory of sovereignty.

12 The case of Jones v. U. S. (137 U. S. 202), which is cited by Willoughby as not only practically upholding the right of the United States to acquire territory by discovery and occupation, but applying the principle that the

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.1

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 for

United States may exercise a power not enumerated in the Constitution, provided it be an international power generally possessed by sovereign states (op. cit., p. 341), really turned on the principle of "political question." "Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances." Apparently the President's power to recognize acquisitions of territory by the United States, through the operation of international law, flows from his constitutional position as the representative organ of the government. It is to be noted that he has recognized such acquisitions aside from congressional legislation. (Moore, Digest, 1: 555.) Thus such acquisitions are made by operation of international law. Recognition thereof is a political function of the President, and the courts are bound by such decision. The act of Congress (Act of Aug. 18, 1856, Rev. Stat., secs. 5570–5578) involved in this case defines the circumstances under which and the procedure by which American citizens, discovering Guano Islands, can benefit by the rule of international law and the rights and degree of protection to which they are entitled, thus falling under the power to govern territory. Constitution, art. IV, sec. 3, par. 2. (See Moore, Digest, 1: 556 et seq.)

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. J. B. Moore in Proc. Am. Phil. Soc., Minutes, 60: xvi, quoting Taney, C. J., in Holmes vs. Jennison, 14, Pet. 540; “all the powers which relate to our foreign intercourse are confided to the general government." The difficulty of the sovereignty 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.

eign 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 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 char

14 Infra, sec. 107,