Изображения страниц
PDF
EPUB

international agreements and by a congressional veto upon national decisions calling for positive action.

For meeting the ordinary responsibilities and exercising the ordinary powers of states in the family of nations, guided by international law, the President alone is competent, and his powers, being in the main derived from the Constitution itself, he is not subject to the detailed direction of Congress, as he is in exercising his powers in domestic administration. For departures from the normal, whether by way of international agreement or national policy, though the President initiates, the Senate or Congress must consent. While the powers upon which these organs are able to insist go little beyond a discretionary veto upon consummations, yet the President ought to understand that to avoid the possibility of this contingency he should consider their advice during the course of negotiations and diplomacy.

The dominating position of the President in foreign relations results from his initiative, and this is a necessary consequence of the position he occupies as the representative authority of the United States under international law. His office is the only door through which foreign nations can approach the United States. His voice is the only medium through which the United States can speak to foreign nations. Moreover the fathers appear to have intended him to occupy this position and subsequent history has shown his exercise of the initiative and essential control. On occasions when foreign affairs have not pressed he has subordinated his initiative to congressional policies but always when crises have arisen he has met them with a prompt decision and adequate resources of power. Only rarely has the veto of coordinate departments destroyed his achievements.

PART V.

THE UNDERSTANDINGS OF THE CONSTITUTION.

CHAPTER XVIII.

UNDERSTANDINGS CONCERNING THE RELATIONS OF THE

INDEPENDENT DEPARTMENTS.

244. Reason for Constitutional Understandings.

The various organs of the national government are together vested with sufficient power to conduct foreign affairs and meet international 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 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

"2

(C) Organs properly adapted to meeting certain international responsibilities may not exist. The general principle which ought

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.

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."

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 Brown v. Turner, 70 N. C. 93, 102.

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.

« ПредыдущаяПродолжить »