had acted. But once Congress, or the treaty-making power, has acted, if its act is constitutional, there is no doubt but that it is the supreme law of the land, and the President and courts are henceforth bound by it. An act either of Congress or of the treaty-making power which encroaches upon the constitutional powers of the President or courts is of course unconstitutional and void. The courts may so declare it, but it has been generally held that the President is confined to the veto to invalidate unconstitutional legislation. If an act has been signed by a predecessor, is passed over his veto, or is signed by himself inadvertently, it is held that he must obey it, even though the act is clearly unconstitutional, until such time as the courts may declare it void. This principle is not, however, extended to congressional acts affecting the inherent powers and the foreign relations powers of the President. Such acts, if encroachments upon presidential powers, even though mandatory in terms and formally valid, have been interpreted as merely advisory and as leaving the President discretion to ignore them. Thus, the President has ignored congressional acts and resolutions prescribing conditions for the removal of administrative officers, defining the grades of diplomatic officers, directing the negotiation or modification of treaties,10 and formulating foreign policy."1

Santiago v. Nogueras, 214 U. S. 260; Richards, Acting Att. Gen., 22 Op. 13; Moore, Digest, 2: 452-463; supra, sec. 219.

• Where two organs enjoy concurrent powers to produce a status, the one acting first, of course, effects the result. Thus a presidential recognition of war would be effective irrespective of subsequent acts of Congress. "In short, it frequently happens that the same legal result may be produced by very different powers of government; nor need the fact lead to confusion, since, as soon as any of the competent powers has acted, the result is produced." Corwin, Mich. Law Rev., 18: 672, but see his President's Control of Foreign Relations, p. 36.

Willoughby, op. cit., pp. 1306-1309.

8 As President Johnson's refusal to accept the tenure of office act, for which he was impeached, but not convicted. See also President Cleveland's action in the Duskin case, Presidential Problems, 1904, p. 56, and Parsons v. U. S., 167 U. S. 324.

Cushing, Att. Gen., 7 Op. 186; supra, sec. 236.

10 Crandall, op. cit., p. 74; supra, sec. 174.

11 Supra, sec. 203.

247. Concurrent Powers of the President and the Courts.

The power of the President to settle international controversies may, however, overlap the jurisdiction of the courts to settle private controversies. The understanding that the authority taking prior action should govern, has usually been applied in such cases. Thus a German prize crew brought the British vessel Appam into an American port, while the country was neutral. The original owner promptly libelled the vessel in the United States District Court and while the case was pending the German government sought, through the Department of State, to have their claim submitted to arbitration. Secretary Lansing replied in a note of April 7, 1916:12

"Moreover, inasmuch as the Appam has been libeled in the United States District Court by the alleged owners, this government, under the American system of government in which the judicial and executive branches are entirely separate and independent, could not vouch for a continuance of the status quo of the prize during the progress of the arbitration proposed by the Imperial Government. The United States Court, having taken jurisdiction of the vessel, that jurisdiction can only be dissolved by judicial proceedings leading to a decision of the court discharging the case-a procedure which the executive cannot summarily terminate."

On this statement two comments may be made. Unquesionably, the President, through the Secretary of State, had power to settle the controversy with Germany by arbitration or otherwise, irrespective of the results of the District Court's decision. The fact that the United States could not vouch for a continuance of the status quo of the vessel was no reason for refusing to arbitrate the international issue. In the second place, even if constitutional difficulties did prevent the President meeting responsibilities under international law, such difficulties would not be a valid defense against claims by foreign nations. Foreign nations are entitled to expect satisfaction of their claims through the President, according to the measure of international law alone. However, the case illustrates the operation of the constitutional understanding whereby the President refuses to consider controversies already in process of consideration by the courts.

12 Department of State, White Book, European War, No. 3, p. 344.

Conversely, the courts ordinarily refuse to pass on controversies in process of diplomatic settlement. Thus, in the case of Cooper, the Supreme Court was asked to issue a writ of prohibition to restrain the United States District Court of Alaska from enforcing a sentence of forfeiture of a British vessel alleged illegally to have taken seal in American jurisdictional waters fifty-seven miles from shore. Discussion was going on between Great Britain and the Department of State as to whether this point was in American jurisdiction and the court expressed the opinion that the President had power to settle the controversy.

"If this be so, the application calls upon the court, while negotiations are pending, to decide whether the Government is right or wrong, and to review the action of the political departments upon the question contrary to the settled law in that regard."

The court dismissed the suit on finding that there had been no definite facts found as to the place of seizure, but its opinion indicates the feeling that it ought not to prejudice the results of the controversy pending before the Department of State. The court, however, seemed to regard this feeling as an understanding rather than a legal requirement, for it said: 13

"We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the Executive to do so, to render judgment, since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."

This latter power seems to have been exercised in the case of Pearcy v. Stranahan, where the Supreme Court decided upon the status of Pine Island off Cuba, although the matter was and had been for seven years pending in the State Department. Where a decision has actually been given by the political departments on such questions as the limits of jurisdiction, the status of governments and states, etc., the courts follow such decisions implicitly.14

13 In re Cooper, 143 U. S. 472; Moore, Digest, 1: 744; Willoughby, op. cit., p. 1010.

14 Pearcy v. Stranahan, 205 U. S. 257 (1907); Jones v. U. S., 137 U. S. 202; supra, sec. 107.

248. Concurrent Powers of Treaty Power and Congress.

The most notable overlapping of power, however, occurs in the case of Congress and the treaty-making power. Treaties may require the payment of money, establish customs duties, regulate foreign commerce, fix a standard of weights and measures, provide for international postal service and international copyright, provide courts for the trial of seamen on foreign vessels sojourning in the United States, define and provide for punishing offenses against the law of nations, require the meeting of guarantees by armed force or declaration of war, regulate declarations of war or forbid them in certain circumstances, prohibit the granting of letters of marque and reprisal, make rules concerning captures on land and water, limit the size or disposition of military forces, make rules for the conduct of land and naval forces in war, annex or dispose of territory, in fact there are very few of the enumerated powers of Congress which have not been the subject of treaty. It has been suggested that the treaty power lacks "constitutional competency" to act on these subjects. To this the answer of Calhoun seems adequate : 15

"If this be the true view of the treaty-making power, it may be truly said that its exercise has been one continual series of habitual and uninterrupted infringements of the Constitution. From the beginning and throughout the whole existence of the Federal Government it has been exercised constantly on commerce, navigation, and other delegated powers."

The court has often recognized this overlapping and considering that acts of Congress " made in pursuance of " the Constitution, and treaties "made under the authority of the United States" are both the supreme law of the land, has regarded them of equal validity and applied the most recent in date in case a conflict is too definite to reconcile.16 Thus, according to the law neither treatymaking power nor Congress is limited by the previous exercises of concurrent power by the other. In practice, however, it has been recognized that Congress ought not to violate treaties at will and

18 Moore, Digest, 5: 164.

16 Head Money Cases, 112 U. S. 580; Chinese Exclusion Cases, 130 U. S. 58; U. S. v. The Peggy, I Cranch 103.

that the treaty-making power ought not to alter congressional policies at random. The fact that the President and Senate participate in both treaty-making and legislation tends to minimize such conflicts, but in some cases they have occurred. Thus the Chinese exclusion acts of 1889 were in conflict with the Burlingame treaty of 1868. Congress, however, has usually refrained from impairing treaties by legislation and if treaties were found to conflict with. proposed legislative policies, has advised the President to negotiate modifications in the treaty. As such negotiation and ratification of the resulting treaty is always discretionary with the President and Senate, the practice means that changes are in fact brought about by concert of Congress and the treaty-making power.17

Treaties have very seldom been found to conflict with earlier acts of Congress. Perhaps the only case is a treaty with France of 1801, which required the return of uncondemned prizes and thereby divested certain captors of their rights to prize money as provided by an earlier act of Congress.18 This is accounted for by two reasons. Many treaties which would affect established legislative policies in such matters as tariffs, commercial regulation, etc., are by their own terms made to depend for effectiveness upon congressional acceptance. Most other treaties conflicting with legislative policy are held not to be self-executing and consequently cannot be carried into effect until Congress acts. This is true of treaties requiring an appropriation, a declaration of war, criminal punishment, etc. The obligation of Congress to pass such legislation will be considered later. However, whichever reason applies, the treaty power does not in practice modify existing acts of Congress without the consent of Congress.

17 See La Follette Seaman's Act of 1915 and Jones Merchant Marine Act of 1920, supra, secs. 184, 187.

18 U. S. v. The Peggy, I Cranch 103. See also La Ninfa, 75 Fed. 513, applying the award of the Behring Sea Arbitration based on treaty and opposed to the earlier interpretation of an act of Congress; and also application of most-favored-nation clause in Swiss treaty of 1850 in 1898, supra, sec. 154.