B. Cooperation of Independent Organs. 249. Constitutional Understanding Respecting the Cooperation of Independent Organs. The difficulty which arises from the frequent need of cooperation between independent and coordinate departments in carrying out the powers of the national government is met by a constitutional understanding which may be stated in the following words: Where action contemplated by any independent department requires the cooperation of another independent department for its carrying out, the advice of that department ought to be sought before the action is taken, but where such action has already been taken the department whose cooperation is required ought to perform the necessary acts even though its advice had not been asked or if asked had not been followed. "Whenever," reported the Senate Foreign Relations Committee, "affirmative action of either the executive or the legislative branch of the government may involve a call upon the assistance of the other, the branch about to take action should, if possible, first obtain indications of the other's desires." 19 "It is a general principle," says Finley-Sanderson, "that any valid act done by either the legislative, executive or judicial branches of the government is binding upon each of the others, and is not subject to be set aside by either of them." 20 Each department of the national government may exercise powers which will require the cooperation of one or more of the other departments in carrying out. Such acts by the courts, the President, Congress and the treaty-making power will be considered in succession. 250. Decisions by the Courts. Most decisions of the Federal Courts will be ineffective unless the President enforces them. Undoubtedly to so enforce them is a legal obligation of the President under his duty "to take care that the laws be faithfully executed" and an attitude such as that taken by President Jackson when he remarked: "John Marshall has 19 Sen. Doc. 56, 54th Cong., 2d sess., p. 5. See also Hill, Present Problems in Foreign Policy, 1919, p. 171, and infra, sec. 256. 20 Finley-Sanderson, The Executive, p. 217; Wright, Am. Jl. Int. Law, 12: 94; supra, sec. 69. made his decision, now let him enforce it" is a violation of his oath to the Constitution.21 He has no independent discretion as to whether the court's decision was really a correct interpretation of the Constitution and law. There is in this case no duty on the part of the court to consider the President's probable attitude before making its decision. On the contrary, the court ought to apply the law impartially and irrespective of the views of the political organs of government. Decisions of the Supreme Court which involve an interpretation of the Constitution, statutes, treaties or other laws of the United States form precedents which by constitutional understanding ought to be followed in future cases by all organs of the government. The political organs of the government in performing acts within their discretionary powers may exercise independent judgment as to the meaning of the Constitution, laws and treaties. Thus, Congressmen and Senators would not be violating their oaths to support the Constitution if, honestly believing the decision erroneous, they repassed a statute which had just been declared unconstitutional nor would the President if he signed it. Likewise the treaty power and the President are not legally bound to follow judicial decisions as to the scope of their powers in conducting foreign relations and as we have seen foreign nations are entitled to regard the statements of the President on the subject as practically authoritative. However, it is believed that the other organs of government ought to regard the interpretation of law by the Supreme Court as final and to be departed from only in extreme cases.22 But adherence to this understanding implies acceptance by the court of its converse, namely, that in making decisions on constitutional questions affecting the competence of independent organs, the court must carefully weigh the opinions of these departments and follow them if possible. This understanding has been accepted by the court in its repeated assertion that it will hold the view of the political departments, as evidenced through the 21 Sumner's Jackson, p. 227. 22 The President and Congress may, of course, adhere to stricter canons of constitutional interpretation than the court. Wright, Col. L. R., 20: 140; Willoughby, op. cit., p. 1306; Taft, op. cit., p. 136; Finley-Sanderson, op. cit., p. 218; Cushman, Minn. Law Rev., 4: 275. formal conclusion of a statute or treaty, in the highest respect and will not regard such acts as unconstitutional unless so beyond reasonable doubt.23 251. Acts of the President. The President, as well as the courts, may need the cooperation of other organs in order to make his acts effective. In the performance of political acts within his power, the courts have considered themselves bound to give effect to his decisions. Thus the courts have held themselves bound to give effect to his decisions as to which of two contending governments in a state of the Union is legitimate, as to whether the government in a state is republican in form, as to the extent of American territory, as to the existence of a contingency requiring a calling forth of the militia, as to the existence of civil war in the United States, as to the condition of belligerency or neutrality of the United States, as to the status of foreign governments and their representatives, as to the extent of territory of foreign states, as to the existence of insurgency, civil war or international war abroad, and as to the settlement of claims of American citizens upon foreign governments. In giving effect to such political decisions the court has usually grouped the President and Congress together as the "political department of the government" and has not often discussed the relative competence of each in such matters.24 Unquestionably, it might do so, and could properly refuse to follow a political decision of the President if on a subject beyond his competence. Thus in his dissent in the prize cases,25 Justice Nelson, supported by three colleagues, was unwilling to accept the President's proclamation of blockade as the initiation of civil war, holding that the power to declare the existence of war, even civil war, was confined to Congress. The majority, however, thought themselves bound by the political decision of the President. The courts also consider themselves bound to apply 23 Willoughby, op. cit., p. 20; Cushman, Mich. Law Rev., 19: 771. 24 Supra, sec. 107. 25 The Prize Cases, 2 Black 635, 690. executive orders of the President, if made under legal authority, in the same manner as acts of Congress.26 On the other hand, if acts of the President require for their carrying out cooperation by Congress or by the treaty-making power, the obligation of these organs is founded not upon law but upon a constitutional understanding. The President may make executive agreements which require action by Congress. Such was that by which Great Britain ceded Reef Island in Lake Erie on condition that the United States would erect a lighthouse thereon; that providing for the administration of San Domingan customs houses; and that providing for reciprocity with Canada. So also the President may make agreements requiring action by the treatymaking power. Such were the preliminaries of peace with Spain in 1898 and with Germany in 1918. Such also were protocols with Costa Rica and Nicaragua looking toward the conclusion of treaties providing for the construction of a Trans-Isthmian Canal. Though Congress and the treaty-making power ought to give effect to such agreements if made within the President's power, it unquestionably is within their legal power to refuse. Such executive agreements are not supreme law of the land. Consequently before making such agreements the President ought to get the advice of these bodies if possible.27 Draft treaties negotiated by the President are of even less obligation than such executive agreements, and experience has shown that the Senate does not hesitate to reject or amend them.28 Consequently it is especially important that the President keep himself informed of the attitude of that body during the course of negotiation and conform his policy thereto.20 The conduct of diplomatic negotiations by the President and the employment of troops for defense of American citizens abroad or defense of the territory may easily lead to military undertakings which will require either congressional appropriations or a declaration of war. Thus all so-called declarations of war by Congress have in fact been declarations of the "existence of war" and the act of Congress of July 13, 1861, was a ratification of the proclamation of the President of April 19, 1861, which was held to have signified the actual beginning of war.30 Doubtless, in each of these cases Congress was under a practical, though not a legal obligation to carry out the undertaking begun by the President, and unquestionably in such undertakings the President ought to keep himself informed of and give due consideration to the opinion of Congress.3 The same is true of acts under the President's authority as Commander-in-Chief in time of war. Seizures of property under military necessity in occupied areas by way of requisition and contribution require subsequent compensation according to the law of war. Also the emancipation proclamation, if indeed it was within the President's power at all, certainly required action by Congress, if not the amending power, to remain effective after the war. After the Civil War Congress actually provided for compensation in certain cases or seizure and the amending power passed the thirteenth amendment abolishing slavery.32 252. Acts of Congress. Congress when acting within its powers makes laws which legally bind the courts and the President. The courts, as the official interpreters of the Constitution, may examine the competence of Congress and refuse to apply unconstitutional statutes. The President, in his capacity as head of the national administration, has not even this power.33 While acting as the representative organ of the government in foreign relations, however, he has an independent constitutional position, and is not subject to the direction of Congress. Treaties are on a par with acts of Congress, consequently while conducting negotiations with a view to treaty making, the President is not bound to follow resolutions or directions of Congress even though mandatory in terms. As a matter of constitutional understanding Congress ought not to pass such resolu 30 The Prize Cases, 2 Black 635, and supra, sec. 208. 81 Supra, sec. 209. 32 Supra, secs. 216-218. 33 Supra, sec. 246. |