"If unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release."

98

Aside from such general acts, Congress may authorize a broad use of force by acts or resolutions applying to particular incidents and by declarations of war.

99

According to Justice Story in Martin v. Mott, it belongs to the President himself to interpret the exigencies in which a use of force is justifiable: 100

"He is necessarily constituted the judge of the existence of the exigency in the first instance and is bound to act according to his belief of the facts. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts."

This case applied to the act of 1795 delegating the President power to call forth the militia, but the same principle would seem valid whatever the source of his authority, whether statute, treaty or the Constitution itself.

224. Conclusion.

Thus in practice the President has an exceedingly broad discretion to authorize the use of the forces. Under the Constitution he can use the military and naval forces to defend the territory and to protect American citizens abroad and on the high seas. The use of force to protect inchoate citizens, such as Martin Koszta, and inchoate territority such as San Domingo in 1871 is more questionable.101 For the meeting of responsibilities under international law and treaty the President likewise has authority to use the army and navy on the high seas and in foreign territory.102 To meet responsibilities under inchoate international law, such as the Monroe 98 For legislation authorizing the use of force to meet international responsibilities, see Chap. XII, A.

99 Moore, Digest, 7: 109, 155; Wright, Am. Jl. Int. Law, 12: 77.

100 Martin v. Mott, 12 Wheat. 19.

101 Corwin, op. cit., pp. 142, 158, and debate there quoted from Cong. Globe, 42 Cong., 1st sess., pt. 1, p. 294.

102 Supra, Chap. XII, A.

Doctrine, the power, though often exercised, is more questionable,103 and for the use of forces within the territory, even to meet international responsibilities, statutory authorization is generally advisable, though apparently not strictly necessary. 104 Finally, for the purpose of bringing pressure upon foreign governments for political objects, it is doubtful whether the President has constitutional power to use force, although he may bring diplomatic pressure. For political intervention, authorization by special resolution of Congress seems proper and has been the usual practice.

103 Corwin, op. cit., p. 162.

104 Supra, sec. 126.

CHAPTER XVII.

THE POWER TO ESTABLISH INSTRUMENTALITIES FOR CONDUCTING FOREIGN RELATIONS.

A. Constitutional Principles.

225. The Power of Congress to Create Offices and Agencies.

The establishment of an instrumentality for conducting public affairs involves two processes, (1) the creation of an office or agency, by definition of its functions, procedure and privileges, (2) the nomination, appointment and commissioning of a person or persons to fill such office or agency. Since Chief Justice Marshall's decision in McCulloch v. Maryland there has been no question but that Congress has power to create instrumentalities "necessary and proper" to give full effect to the powers delegated to any of the departments of the government.1

"Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

This power extends not only to the creation of corporations but also to the organization of the executive and judicial departments of government. Congress has exclusive power to create "offices" under the United States aside from those established by the Constitution itself, "to raise and support armies" and "to provide and maintain a navy." It also has power, concurrent in part with that of the President, "to make rules for the government and regulation of the land and naval forces "; 3 and power, concurrent in part with that of the states, though supreme when exercised, to organize the

1 McCulloch v. Md., 4 Wheat. 316.

2 U. S. Constitution, Art. II, sec. 2, cl. 2; I, sec. 8, cl. 12, 13.

8 Ibid., I, sec. 8, cl. 14; Ex parte Milligan, 4 Wall, 2.

militia. Thus Congress has adequate power to create any instrumentality which may be "necessary and proper" for the exercise of executive power.

Hardly less complete is its power to create courts. It may "constitute tribunals inferior to the Supreme Court" for exercising the judicial power of the United States outlined in Article III of the Constitution and may regulate their jurisdiction and the appellate jurisdiction of the Supreme Court. But it may also organize courts in the territories or abroad' and administrative courts in the United States which hear and decide cases but do not exercise the judicial power described in Article III.8

Practically the only legal limitation upon the power of Congress to create and organize instrumentalities not defined by the Constitution itself, for the exercise of national powers, is (1) that it may not itself exercise judicial or executive power, (2) that it may not delegate legislative power, (3) that it may not vest non-judicial power in the federal courts, though it may in administrative courts, and (4) that it may not burden state officers, though it may vest in them powers exercisable at discretion."

226. The Power to Create Offices and Agencies by Treaty.

The treaty-making power may provide instrumentalities convenient for carrying out powers in the legitimate scope of treaties, such as diplomatic and consular offices, consular courts for exercising American jurisdiction abroad or foreign jurisdiction in the United States, and international courts, councils, and administrative unions. Doubtless in many cases Congress would have to create and provide for the necessary "offices" under the United States before such treaty-established organs could become effective, but such a need of congressional cooperation is not a legal limitation

4 Ibid., I, sec. 8, cl. 16; Houston v. Moore, 5 Wheat. 1.

* Ibid., I, sec. 8, cl. 9; III, sec. 2, cl. 2; Ex parte McCardle, 7 Wall. 506.

6 Am. Ins. Co. v. Canter, 1 Pet. 511.

In re Ross, 140 U. S. 453.

8 Gordon v. U. S., 2 Wall. 561; Willoughby, op. cit., p. 1277.

Supra, sec. 60; Gordon v. U. S., 2 Wall. 561; Ky, v. Dennison, 24 How. 66; Willoughby, Am. Constitutional System, p. 123.

upon the treaty power. Legally the treaty power seems to be limited in its power to create and organize instrumentalities not defined by the Constitution itself, only by the condition that the instrumentality be bona fide of international interest and by the conditions stated above applicable to the power of Congress.10

227. The Power of the President to Create Offices and Agencies.

The President and the courts are not specifically endowed with power to create new instrumentalities for exercising national powers. In the Neagle case, the Supreme Court went far toward recognizing a power in the President to delegate executive authority to persons not occupying a congressionally established "office." This, however, should probably be interpreted no farther than a recognition that the President may create subordinate agencies, not strictly "offices" necessary for performing executive functions.11 The President's authorization of personal "agents" for conducting diplomatic negotiations and representing the United States in international conferences is justified under the same inherent power. Legislative bodies and courts seem to have a similar inherent power to create subordinate positions by merely making appointments thereto. In most cases the nature and necessity of such subordinate positions has been established by practice and tradition, the issue being raised rather as to the inherent power to make appointments thereto, than as to the inherent power to create the position.1

12

In addition to such essential subordinate positions, the President, as representative authority of the nation, has recognized and applied international law to determine the grades of "ambassadors, public ministers and consuls" to be sent by the United States. These offices being established by the Constitution itself, congressional action is not necessary.13 As Commander-in-Chief, the President has exercised much discretion in organizing the Army and Navy. He may provide administrative agencies and courts for governing

10 In re Ross, 140 U. S. 453.

11 In re Neagle, 135 U. S. 1; Willoughby, Constitutional Law, 1155. 12 Infra, sec. 228 (3).

13 Infra, sec. 236.