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ment or generally recognized de facto government of the state as a whole, and for the non-performance of acts required by international law. Contractual obligations made under authority of political subdivisions of the state or under authority of local de facto governments, or de facto governments which never attain general recognition, do not involve an international responsibility unless the state received a benefit therefrom. The question of whether force may be used to compel the payment of public contract debts (involved in the Drago Doctrine and II Hague Conventions 1907) relates to the remedy and not to the legal responsibility."

The state is responsible for the reparation which treaty or international law may impose, in case of failure to meet any of the foregoing responsibilities.

90. State Power to Meet International Responsibilities.

Extensive powers for the employment of military force, the raising and appropriation of money, the administration of justice and criminal law, and the organization and administration of public services are given to the national government by the Constitution. Are these powers sufficient to meet all present and possible international responsibilities? The states originally had full power to meet international responsibilities except as restricted by their own constitutions and they retain that power except as expressly or impliedly limited by the Federal Constitution. The delegation of power to the national government does not of itself deprive states of concurrent power, unless the power is by nature exclusive.10 The express prohibition of treaty-making and of agreement-making without consent of congress prevents them from extraditing criminals. without express authorization by congress or treaty. Justice Taney held in 1839 that extradition belonged "exclusively to the Federal Government" and the action of Governor Jennison of Vermont in issuing a warrant for the arrest of one Holmes charged with murder in Canada was "repugnant to the Constitution of the United States." 11

8 Borchard, op. cit., p. 184.

Ibid., pp. 286, 308.

10 Cooley v. Board of Port Wardens, 13 How. 294.

11 Holmes v. Jennison, 14 Pet. 540, 579 (1840); Moore, Digest, 4: 242.

However, the states still have power to meet many international responsibilities involving action within their own borders. Thus the jurisdiction of state courts usually extends to many cases involving the enforcement of treaty provisions such as those according civil rights, rights of property and inheritance to resident aliens, and in such cases, under the Federal Constitution they are obliged to apply the treaty as the supreme law of the land. State courts usually also have jurisdiction under common law to give justice to aliens in civil cases and to punish many offenses against the law of nations such as libels and conspiracies against foreign governments. The state executive ordinarily has power to employ the militia to preserve order and accord aliens within the state's territory the protection required by international law and treaty and state legislatures generally have power to pass acts for the punishment of offenses against international law.12

91. National Power to Meet International Responsibilities.

Does the national government have power to take over the entire burden from the states? Authorities say yes, and have rested on three theories. The argument drawn from the assumed enjoyment by the national government of sovereign powers with respect to matters transcending state limits has been discussed and found wanting.13 Repudiating this argument, Willoughby says: 14

"Starting from the premise that in all that pertains to international relations the United States appears as a single sovereign nation, and that upon it rests the constitutional duty of meeting all international responsibilities, the Supreme Court has deduced corresponding federal powers."

This argument seems equally untenable. It commits the fallacy of deducing powers from responsibilities which Professor Willoughby himself denounced later in the same book.15 The supreme court has not relied on such an argument but on specific delegations of power by the Constitution;10

12 Infra, secs. 98, 110, 136.

13 Supra, sec. 71.

14 Willoughby, op. cit., p. 64. See also ibid., p. 451.

15 See infra, sec. 93.

16 U. S. v. Arjona, 120 U. S. 479, 483; Moore, Digest, 2: 430.

As all official intercourse between a State and foreign nation is prevented by the Constitution and exclusive authority for that purpose given to the United States, the National Government is responsible to foreign nations for all violations by the United States of their international obligations, and for this reason Congress is expressly authorized to define and punish . . . offenses against the law of nations."

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In addition to the clause here referred to, the necessary and proper" clause accords the national government powers adequate to meet all international responsibilities, derived from valid acts or commitments made by national organs.17

92. Theory of Inherent Executive Power to Meet International Responsibilities

How is the power to meet international responsibilities distributed among the departments of the national government?

Hamilton, Roosevelt and others have considered the President empowered to take measures for meeting all responsibilities by the first clause of Article II which vests him with "the executive power of the United States."

"It would not consist with the rules of sound construction, to consider this enumeration of particular authorities" (in Article II), wrote Hamilton in the Pacificus Paper, "as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the cooperation of the Senate in the appointment of officers, and making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improbable that specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government the expressions are, 'All legislative powers herein granted shall be vested in a Congress of the United States.' In that which grants the executive power, the expressions are, 'The executive power shall be vested in a President of the United States.' This enumeration ought, therefore, to be considered as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free govern

17 Infra, sec. 95.

ment. The general doctrine of the Constitution then is, that the executive power of the nation is vested in the President, subject only to the exceptions and qualifications which are expressed in the instrument.” 18

President Roosevelt affirmed belief in the same doctrine over a century later in his autobiography:19

"I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws. Under this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of departments. I did not usurp power, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common wellbeing of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legislative prohibition."

As an illustration of the exercise of power "not explicitly given me by the Constitution" he cites the making and carrying out of the executive agreement with San Domingo whereby he took over the administration of her customs houses.20

This view of executive authority has not been supported by writers of a more legalistic temperament:

"The general grant of executive power to the President," says Goodnow, 'meant little except that the President was to be the authority in the government that was to exercise the powers afterwards enumerated as his." 21

"The true view of the Executive functions is," says President Taft, "as I conceive it, that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be of public interest, and there is nothing in the Neagle case and its definition of a law of the United States, or in other precedents, warranting such an inference."

18 Hamilton, in document quoted supra, sec. 78.

19 Roosevelt, Autobiography, pp. 388–389.

20 Op. cit., pp. 551-552.

21 Goodnow, op. cit., p. 73.

Later President Taft attacks the Roosevelt doctrine on practical grounds:

"My judgment is that the view of Mr. Garfield and Mr. Roosevelt ascribing an undefined residuum of power to the President is an unsafe doctrine and that it might lead under emergencies to results of an arbitrary character, doing irremediable injustice to private right. The mainspring of such a view is that the Executive is charged with responsibility for the welfare of all people in a general way, that he is to play the part of a Universal Providence and set all things right and that anything that in his judgment will help the people, he ought to do, unless he is expressly forbidden not to do it. The wide field of action that this would give to the Executive one can hardly limit." 22

93. President's Duty to Execute the Laws.

The responsibility of the President to "take care that the laws be faithfully executed" was held in the Neagle case23 to confer power upon the President to authorize an individual to employ force for the protection of a federal justice. Here again we seem to find power derived from responsibility. If this doctrine were carried out and as the court said in this case, the term "laws" includes not only acts of congress and treaties but also "the rights, duties and obligations growing out of . . . international relations," a most inadmissible result would be reached. The President would be found to have power to declare war, pay out money, reduce the military establishment and perform all other acts necessary to meet international responsibilities. We must agree with Willoughby24 that the doctrine of the Neagle case is "justified only in exceptional circumstances" and "the obligation to take care that the laws of the United States are faithfully executed, is an obligation but confers in itself no powers. It is an obligation which is to be fulfilled by the exercise of those powers which the Constitution and Congress have seen fit to confer." The constitutional requirement in question means. that the President shall exercise his power as commander-in-chief to

22 Taft, op. cit., pp. 140, 144. See also Senatorial debate of 1831, quoted Corwin, op. cit., p. 59.

23 In re Neagle, 135 U. S. 1.

24 Willoughby, op. cit., pp. 1155. But see Goodnow, op. cit., pp. 47, 75, and Hamilton, quoted Corwin, op. cit., p. 15.

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