CHAPTER XVII. THE POWER TO ESTABLISH INSTRUMENTALITIES FOR CONDUCTING FOREIGN RELATIONS. A. Constitutional Principles. 225. The Power of Congress to Create Offices and Agencies. The establishment of an instrumentality for conducting public affairs involves two processes, (1) the creation of an office or agency, by definition of its functions, procedure and privileges, (2) the nomination, appointment and commissioning of a person or persons to fill such office or agency. Since Chief Justice Marshall's decision in McCulloch v. Maryland there has been no question but that Congress has power to create instrumentalities "necessary and proper" to give full effect to the powers delegated to any of the departments of the government.1 "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." This power extends not only to the creation of corporations but also to the organization of the executive and judicial departments of government. Congress has exclusive power to create "offices" under the United States aside from those established by the Constitution itself, "to raise and support armies" and "to provide and maintain a navy." 2 It also has power, concurrent in part with that of the President, "to make rules for the government and regulation of the land and naval forces "; and power, concurrent in part with that of the states, though supreme when exercised, to organize the 1 McCulloch v. Md., 4 Wheat. 316. 2 U. S. Constitution, Art. II, sec. 2, cl. 2; I, sec. 8, cl. 12, 13. 8 Ibid., I, sec. 8, cl. 14; Ex parte Milligan, 4 Wall. 2. militia. Thus Congress has adequate power to create any instrumentality which may be "necessary and proper" for the exercise of executive power. Hardly less complete is its power to create courts. It may "constitute tribunals inferior to the Supreme Court" for exercising the judicial power of the United States outlined in Article III of the Constitution and may regulate their jurisdiction and the appellate jurisdiction of the Supreme Court. But it may also organize courts in the territories® or abroad' and administrative courts in the United States which hear and decide cases but do not exercise the judicial power described in Article III.S Practically the only legal limitation upon the power of Congress to create and organize instrumentalities not defined by the Constitution itself, for the exercise of national powers, is (1) that it may not itself exercise judicial or executive power, (2) that it may not delegate legislative power, (3) that it may not vest non-judicial power in the federal courts, though it may in administrative courts, and (4) that it may not burden state officers, though it may vest in them powers exercisable at discretion." 226. The Power to Create Offices and Agencies by Treaty. The treaty-making power may provide instrumentalities convenient for carrying out powers in the legitimate scope of treaties, such as diplomatic and consular offices, consular courts for exercising American jurisdiction abroad or foreign jurisdiction in the United States, and international courts, councils, and administrative unions. Doubtless in many cases Congress would have to create and provide for the necessary "offices" under the United States before such treaty-established organs could become effective, but such a need of congressional cooperation is not a legal limitation 4 Ibid., I, sec. 8, cl. 16; Houston v. Moore, 5 Wheat. 1. In re Ross, 140 U. S. 453. 8 Gordon v. U. S., 2 Wall. 561; Willoughby, op. cit., p. 1277. • Supra, sec. 60; Gordon v. U. S., 2 Wall. 561; Ky. v. Dennison, 24 How. 66; Willoughby, Am. Constitutional System, p. 123. upon the treaty power. Legally the treaty power seems to be limited in its power to create and organize instrumentalities not defined by the Constitution itself, only by the condition that the instrumentality be bona fide of international interest and by the conditions stated above applicable to the power of Congress.10 227. The Power of the President to Create Offices and Agencies. The President and the courts are not specifically endowed with power to create new instrumentalities for exercising national powers. In the Neagle case, the Supreme Court went far toward recognizing a power in the President to delegate executive authority to persons not occupying a congressionally established "office." This, however, should probably be interpreted no farther than a recognition that the President may create subordinate agencies, not strictly "6 offices" necessary for performing executive functions.11 The President's authorization of personal "agents" for conducting diplomatic negotiations and representing the United States in international conferences is justified under the same inherent power. Legislative bodies and courts seem to have a similar inherent power to create subordinate positions by merely making appointments thereto. In most cases the nature and necessity of such subordinate positions has been established by practice and tradition, the issue being raised rather as to the inherent power to make appointments thereto, than as to the inherent power to create the position.12 In addition to such essential subordinate positions, the President, as representative authority of the nation, has recognized and applied international law to determine the grades of "ambassadors, public ministers and consuls" to be sent by the United States. These offices being established by the Constitution itself, congressional action is not necessary.18 As Commander-in-Chief, the President has exercised much discretion in organizing the Army and Navy. He may provide administrative agencies and courts for governing 10 In re Ross, 140 U. S. 453. 11 In re Neagle, 135 U. S. 1; Willoughby, Constitutional Law, 1155. 13 Infra, sec. 236. territory under military occupation, even after conclusion of war and annexation of the territory,14 but he cannot vest such courts with prize jurisdiction.15 This power is, of course, superseded by acts of Congress organizing the territory. 228. The Appointment of Officers and Agents. Quite different is the situation with reference to the filling of such offices or agencies once created. It is often said that the appointing power is essentially executive in character, and doubtless constitutional understandings have tended toward presidential dominance in this field, but as a matter of federal constitutional law, it seems that the President has no more inherent power in this regard than do the other departments. All power to make appointments seems to be derivable (1) from express delegation by the Constitution, (2) from act of Congress, (3) from inherent powers of the departments under the principle of separation of powers. Strictly speaking, the making of an appointment involves three processes: nomination, appointment and commissioning. The first and last have for the most part been vested in the President alone, and undoubtedly the sole power of initiation and absolute veto upon appointments thus implied makes his will paramount in appointments. It should be noticed that the courts have held that the granting of a commission is a ministerial duty after the appointment has been made but they admit there is no power to compel the President to sign a commission (except threat of impeachment) and without the commission no person is an "officer" with legal powers.1 16 1. The Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the 14 Cross v. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260. 15 Jecker v. Montgomery, 13 How. 498, but Congress may retroactively confer such jurisdiction on presidential courts. The Grapeshot, 9 Wall. 129. 16 Marbury v. Madison, 1 Cranch 137. If a commission has been signed and is in the hands of an officer, other than the President, its delivery may be mandamused, ibid. Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law." "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." To the states is "reserved. . . respectively, the appointment of the officers" of the militia even when called forth into national service.17 2. "But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." 18 3. Finally, an inherent power of appointment exists in each of the departments as an implication of the doctrine of separation of powers. "If any one of the departments," says Goodnow, "is to be expected to be independent of the others, it must have the power to appoint its subordinates. The legislature may thus appoint all its subordinate officers, while courts may appoint such officers as criers and others who are necessary in order that the courts may perform their duties properly." 19 It may be added that the President exercises such an inherent power in appointing personal agents for conducting diplomatic intercourse without congressional authorization and without consent of the Senate, a practice which the Senate has often objected to but never with success.20 It may also be noticed that in the National Government Congress has in fact conferred power on the courts to appoint such essential subordinates as clerks, criers, reporters, etc., under the constitutional clause referred to, but doubtless in the absence of such statutes the courts could make such appointments as they have done in the states. 229. Limitations upon the Appointing Power. Apparently the only constitutional limitation upon the appointing power is that which provides: 21 17 U. S. Constitution, II, sec. 2, cl. 2, 3; I, sec. 8, cl. 16. 18 Ibid., II, sec. 2, cl. 2. 19 Goodnow, op. cit., pp. 37–38. 20 Infra, secs. 238–240. |