86. A Fourth Department. Functional Classification.

Functionally it would seem that the foreign relations power, which both frames and carries out foreign policies, both contracts and meets international responsibilities, is essentially different from either the legislative power, which frames domestic laws and policies, or the executive power which administers domestic laws and policies. According to the terminology of Professors Goodnow 37 and other writers on administrative law the conduct of foreign relations involves both "politics" and "administration" in external affairs and is distinct from either "politics" or "administration" in internal affairs.

87. A Fourth Department. Practice.

In practice the control of foreign relations has differed from the control of either legislation or domestic administration. While the President has suggested legislation in messages to Congress he has not as a rule taken a position of active leadership in the formulation of domestic policy. The initiative has been with the committees of Congress and the President's discretion has been closely limited by law enforceable in the courts. It is true the President controls administrative officials through his removal power. He instructs officials as to the method of executing the laws under authority given him by Congress and sometimes he even supplements legislation by instructions or regulations of a general character not specifically authorized. 38 But he must always act within the confines of an ever-increasing mass of congressional legislation. Congress has described the powers of officials and the methods of administration in considerable detail and the President, or rather his subordinates, are forced by the courts to observe such legislation. As legislation of this character increases in mass and detail, and as the practices and methods of permanent services become fixed by tradition as well as law, the President's discretion as head of the administration becomes reduced. His functions in this capacity tend to assume a purely supervisory and ministerial character.

87 Goodnow, op. cit., p. 666, and Willoughby, op. cit., p. 1156.

38 Goodnow, op. cit., pp. 47, 75.

In foreign relations, however, the President exercises discretion, both as to the means and as to the ends of policy. He exercises a discretion, very little limited by directory laws, in the method of carrying out foreign policy. He has moved the navy and the marines at will all over the world. He has exercised a broad discretion in issuing both standing regulations and instructions and special instructions for the diplomatic, consular, military and naval services. Though Congress has legislated on broad lines for the conduct of these services it has descended to much less detail than in the case of services operative in the territory of the United States. In the foreign affairs the President, also, has a constitutional discretion as the representative organ and as commander-in-chief which cannot be taken away by Congress and because of the exterritorial character of most of his action, his subordinates are not generally subject to judicial control.

But more than this he has initiated foreign policies, even those leading to treaties and those leading to war, and has generally actively pushed these policies when the cooperation of other organs of government is necessary for their carrying out. Though Congress

may by resolution suggest policies its resolutions are not mandatory and the President has on occasion ignored them. Ultimately, however, his power is limited by the possibility of a veto upon matured policies, by the Senate in the case of treaties, by Congress in the case of war. This contrast between the domestic and foreign powers of the President is thus emphasized by Rawle: 39

"On a full view of the powers and duties of the President, the reader will probably perceive that they are of more importance in respect to foreign relations than the internal administration of government.

"At home, his path though dignified, is narrow. In the tranquility which we have hitherto in time of peace enjoyed, little more has been requisite, in either his legislative or executive functions than regularly to pursue the plain mandates of laws, and the certain text of the constitution. . . .

...

"But it is in respect to external relations; to transactions with foreign nations, and the events arising from them, that the President has an arduous task. Here he must chiefly act on his own independent judgment."

88. The Foreign Relations Department. Conclusion.

In foreign affairs, therefore, the controlling force is the reverse

39 Rawle, A View of the Constitution, Philadelphia, 1825, pp. 182-183.

of that in domestic legislation. The initiation and development of details is with the President, checked only by the veto of the Senate or Congress upon completed proposals. In domestic legislation on the other hand, the initiative and drafting of details is with Congress, checked by the President's limited veto upon completed bills. In practice it seems possible to distinguish four great departments of government, not only according to their functions, but also according to their organization and methods. The legislative power is vested in Congress with a limited presidential veto. The foreign relations power is vested in the President with an absolute senatorial or congressional veto. The executive power is vested in the President acting independently within the limits of detailed congressional legislation defining the power and procedure of administrative officials. The judicial power is vested in the courts acting independently within the narrowly defined limits of procedure and jurisdiction defined by the common law and congressional legislation.

CHAPTER X.

THE POWER TO MEET INTERNATIONAL RESPONSIBILITIES.

89. The Law of International Responsibility.

The principles determining the responsibility of states under international law have not been fully formulated and such formulation has proved difficult because of the divergencies of practice which have sometimes resulted from differences in national power. Borchard has given the best survey of the subject and the following statement is based largely on his work.1

1. Acts of Government Organs.

The state is responsible for tortious acts committed by executive, diplomatic, naval, military, and superior administrative officers of the central government or local subdivisions unless plainly outside of their functions and promptly disavowed. For such acts by inferior administrative officers, the state is responsible only if there is evidence either express, by authorization of a superior officer or of the law, or tacit, by the failure to afford redress or to punish the offending officer, that it sanctioned the act.2 Judicial errors are not in themselves torts, though the courts may involve the international responsibility of the state if they fail to apply international law or deny justice.

The state is also responsible for the authorization of acts violative of international law, or treaty, or unreasonably discriminatory, by constitutional provision, legislative act, executive or administrative decree, or judicial decision of central or local de jure

1 Borchard, Diplomatic Protection of Citizens Abroad, p. 177 et seq. See also Hall, International Law (Higgins), pp. 226–232; Oppenheim, Int. Law, I sec. 148 et seq. For definition of "responsibility" see infra, sec. 141. 2 Borchard, op. cit., pp. 189-192.

8 Ibid., p. 195.

authority. The promulgation of such constitutional provision, statute, ordinance or decision, if sufficiently concrete to raise a presumption that international law will be violated, is a ground for immediate protest. Other states are not obliged to await the actual commission of an act in violation of their rights."

2. Acts or Omissions of Individuals within State Jurisdiction. The state is responsible for the nonfulfillment of contractual obligations made by private individuals or by public officers, ultra vires, and for tortious acts committed in its jurisdiction by private individuals, inferior officers or any officers acting without authority, only in case its courts "deny justice" or executive and administrative officers fail to exert "due diligence" in the maintenance of order and enforcement of international law and treaty. The definition of “denial of justice" involving an investigation of the adequacy of municipal law remedies and the degree of their observance in the particular case and of "due diligence," involving the establishment of criteria applicable to mob violence, insurrection, war and neutrality, has proved the most difficult branch of the subject of responsibility. In other cases of responsibility the government itself is at fault and the responsibility of the state is direct and immediate. In the present case the original fault is not by the government, and the state is responsible indirectly or vicariously and only after municipal law remedies have been exhausted."

3. Non-fulfillment of Obligation.

The state is responsible for the non-fufillment of contractual obligations made by any legislative, executive or administrative organ acting within legal authority derived from a de jure govern

4 Ibid., p. 181.

5 See Ambassador Bryce to Secretary of State Knox, February 27, 1913, Diplomatic History of the Panama Canal, 65th Cong., 2d sess., Sen. Doc., No. 474, p. 101, supra, sec. 15.

• Borchard, op. cit., pp. 183, 213, 283. As to two meanings of expression "denial of justice," see ibid., p. 335.

7 Ibid., p. 180. See also Hall, op. cit., p. 226. Oppenheim, loc. cit., originated the expression "vicarious responsibility" in this connection.