ment. The general doctrine of the Constitution then is, that the executive power of the nation is vested in the President, subject only to the exceptions and qualifications which are expressed in the instrument." 18 President Roosevelt affirmed belief in the same doctrine over a century later in his autobiography :19 "I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common wellbeing of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition." As an illustration of the exercise of power "not explicitly given me by the Constitution" he cites the making and carrying out of the executive agreement with San Domingo whereby he took over the administration of her customs houses.20 This view of executive authority has not been supported by writers of a more legalistic temperament: "The general grant of executive power to the President," says Goodnow, “meant little except that the President was to be the authority in the government that was to exercise the powers afterwards enumerated as his." 21 “The true view of the Executive functions is," says President Taft, “as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be of public interest, and there is nothing in the Neagle case and its definition of a law of the United States, or in other precedents, warranting such an inference." 18 Hamilton, in document quoted supra, sec. 78. 19 Roosevelt, Autobiography, pp. 388-389. 20 Op. cit., pp. 551-552. 21 Goodnow, op. cit., p. 73. Later President Taft attacks the Roosevelt doctrine on practical grounds: "My judgment is that the view of Mr. Garfield and Mr. Roosevelt ascribing an undefined residuum of power to the President is an unsafe doctrine and that it might lead under emergencies to results of an arbitrary character, doing irremediable injustice to private right. The mainspring of such a view is that the Executive is charged with responsibility for the welfare of all people in a general way, that he is to play the part of a Universal Providence and set all things right and that anything that in his judgment will help the people, he ought to do, unless he is expressly forbidden not to do it. The wide field of action that this would give to the Executive one can hardly limit." 22 93. President's Duty to Execute the Laws. The responsibility of the President to "take care that the laws be faithfully executed" was held in the Neagle case23 to confer power upon the President to authorize an individual to employ force for the protection of a federal justice. Here again we seem to find power derived from responsibility. If this doctrine were carried out and as the court said in this case, the term "laws" includes not only acts of congress and treaties but also "the rights, duties and obligations growing out of . . . international relations," a most inadmissible result would be reached. The President would be found to have power to declare war, pay out money, reduce the military establishment and perform all other acts necessary to meet international responsibilities. We must agree with Willoughby" that the doctrine of the Neagle case is "justified only in exceptional circumstances" and "the obligation to take care that the laws of the United States are faithfully executed, is an obligation but confers in itself no powers. It is an obligation which is to be fulfilled by the exercise of those powers which the Constitution and Congress have seen fit to confer." The constitutional requirement in question means that the President shall exercise his power as commander-in-chief to 22 Taft, op. cit., pp. 140, 144. See also Senatorial debate of 1831, quoted Corwin, op. cit., p. 59. 23 In re Neagle, 135 U. S. 1. 24 Willoughby, op. cit., pp. 1155. But see Goodnow, op. cit., pp. 47, 75, and Hamilton, quoted Corwin, op. cit., p. 15. move the forces, his power as head of the civil administration to direct and instruct diplomatic, consular and other officers within. the scope of their powers as fixed by congress, his power to negotiate treaties, his power to receive diplomatic officers and his other powers given specifically by the Constitution or by congress in the manner most appropriate to execute the laws, including international law and treaties. It does not mean that he can supply means not provided by law or take measure not within the scope of his delegated powers, however appropriate they might be for the meeting of international responsibilities. Within his recognized powers, however, assuming the existence of the military, naval and civil organizations as provided by congress, the President has power to meet many international responsibilities without the aid of congress. 94. Power of Courts to Meet International Responsibilities. The federal courts are obliged by the Constitution to apply treaties as the supreme law of the land and have held that they must apply international law in appropriate cases, though subsequent express statutes will prevail in either case.25 This, however, is an obligation and not a power. The view taken by the courts in a few early cases that from these duties they could derive jurisdiction to enforce international law even by criminal punishments has not prevailed.26 The extension of federal judicial power by Article III of the Constitution: "to all cases, in law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority; to all Cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; and to controversies... between a State or the Citizens thereof, and Foreign states, Citizens or Subjects" seems to give an opportunity for a full cooperation of the federal courts in meeting international responsibilities. This jurisdiction, however, with exception of the original jurisdiction of the Supreme Court which includes cases affecting diplomatic officers and consuls, 25 Infra, secs. 106-108. 26 Infra, sec. 129. is subject to regulation by congress. Thus in fact, aside from the recourses offered diplomatic officers and consuls to the Supreme Court, the federal courts can aid in the meeting of international responsibilities only in so far as congress has specifically conferred jurisdiction upon them. Their jurisdiction has in fact been extended to most of the cases described in the Constitution and their application of international law and treaties, in prize cases, cases affecting foreign sovereigns, diplomatic, military and naval officers, cases affecting domiciled aliens, sojourning foreign vessels and others is an effective means of meeting many international responsibilities. Congress has defined a considerable number of crimes at international law, such as piracy, offenses against neutrality, offenses against foreign ministers and offenses against foreign currency, which are made punishable by the federal courts.27 95. Power of Congress to Meet International Responsibilities. Aside from the exercise of specific powers, such as the appropriation of money, the regulation of commerce, provision for the punishment of piracies and offenses against the law of nations, declaration of war, grant of letters of marque and reprisal, making of rules concerning capture, maintenance and regulation of an army and navy, Congress can "make all laws which shall be necessary and proper for carrying into execution . . . all.. powers vested by this Constitution in the Government of the United States or in any department or officer thereof." This clause unquestionably confers power upon Congress sufficient to meet every possible international responsibility. Accepting the doctrine of the Supreme Court that the exercise of sovereignty may be limited only by its own consent,28 it follows that every international responsibility must have originated in a constitutional exercise of power by some organ of the national government, either through positive action or tacit recognition. Thus responsibilities founded on treaty originate in a 27 Infra, secs. 113-118. 28 The Schooner Exchange v. McFaddon, 7 Cranch 116, quoted with approval in the Chinese Exclusion Cases, 130 U. S. 581 (1889). See also infra, sec. 138. valid act of the treaty power, responsibilities founded on arbitral decisions originate either in a valid act of the treaty power or of the President, responsibilities founded on general international law originate in the tacit acceptance of that law by the terms of the Constitution29 and by the President in continuing membership in the family of nations, as evidenced through the continued exchange of diplomatic officers.30 In providing for carrying these powers into execution, therefore, Congress would be providing for meeting the international responsibilities they created. Thus if the President or the Courts are unable properly to meet any international responsibility it is not from a defect in the Constitution, but from failure of Congress fully to exercise its powers under the "necessary and proper" clause. Congress has in fact enacted many laws whose purpose is the enforcement of international law and treaty. It has never failed to make an appropriation when called for by treaty and has often made appropriations to satisfy claims based on international law as determined by diplomatic correspondence or arbitration.82 31 96. Power to Meet International Responsibilities by Treaty. An international responsibility may occasionally require conclusion of a treaty. Suffice it to say that the President, acting with advice and consent of two-thirds of the senate, is authorized to make treaties on all subjects suitable for international agreement.33 29 Willoughby, op. cit., p. 1018, and Am. Jl. Int. Law, 2: 357. 81 Infra, secs. 112-118. 82 Infra, sec. 149. 39 Infra, sec. 173. |