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 15 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, 1 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. 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 Such acts by the courts, the other departments in carrying out. 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. |