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.81 war. The same is true of acts under the President's authority as Seizures of property under Commander-in-Chief in time of war. military necessity in occupied areas by way of requisition and contribution require subsequent compensation according to the law of 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.38 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. tions except with the consent of the President, and it has usually followed this understanding. If such resolutions are passed, doubtless the President ought to follow them as a matter of constitutional understanding, and he usually has. However, he is the judge of the considerations which are likely to make negotiations successful and retains his discretion in spite of congressional directions." 253. Acts of the Treaty-Making Power. Obligation of the Courts. The obligation of organs of government to aid in the carrying out of the undertakings of coordinate organs has been most discussed in connection with the execution of treaties. Treaties if self-executing are of the same legal effect as acts of Congress and bind the President and the courts in the same manner. The latter may declare a treaty unconstitutional and void, but has never done so. The treaty-making power covers a broader field than does the power of Congress since it is given in full to the national government while the legislative power is divided between national and state governments. Apparently the only ground on which a treaty could be declared void would be that it dealt with a subject not proper for international negotiation, a limitation so vague as to be hardly capable of judicial application, or that it violated an express or implied prohibition of the constitution.35 Since a declaration of unconstitutionality based on constitutional prohibitions would not ordinarily relieve the United States of international responsibility, the courts have always attempted, heretofore with success, to reconcile doubtful treaty provisions with the Constitution.36 The courts cannot consider voidable treaties void until the political departments have acted. Thus, the Supreme Court required the extradition of an American citizen to Italy under the treaty of 1871 even though Italy had repeatedly violated the treaty by refusing to extradite Italian citizens wanted by the United States. For the courts a treaty is law from the date of its proclamation by the President until announcement of its termination by the political departments of the 84 Supra, secs. 203, 246. 86 Supra, sec. 31. government, or its supercession by a conflicting treaty or act of Congress.$7 254. Acts of the Treaty-Making Power: Obligation of the President. The President is legally bound by treaties the same as by acts of Congress, whether they have been made by himself or his prodecesHe cannot modify them by agreements with the other party without ratification by two-thirds of the Senate, though precedents indicate that he may upon his own authority terminate them by denunciation under the terms of the treaty itself.38 In case the treaty directs the President in such political matters as the negotiation of another treaty, or the urging upon Congress or the States of legislation, he retains his discretion and is constitutionally competent to ignore such directions, though by an understanding of the Constitution he ought to make honest efforts to carry out the treaty. 255. Obligation of the Treaty-Making Power Itself as to Future Action. The treaty power cannot bind its own future action. Clearly it can repeal one treaty by negotiating a new one with the same party. But if it concluded a conflicting treaty with a different party, a more complicated situation arises. Under constitutional law, unquestionably the more recent treaty prevails though the courts ought to reconcile the two treaties by interpretation if possible. Under international law, however, the older treaty prevails on the theory that a treaty violative of the rights of an innocent third party is against the policy of international law. Therefore, although the treaty power is not legally bound to respect its earlier treaties, it ought to do so. The obligation is an understanding which has generally been observed. The Jay treaty with Great Britain in 1794 was alleged to violate certain provisions of the French treaty of 1778; and the Panama treaty of 1903 was alleged 37 Supra, sec. 182 et seq 38 Supra, secs. 172, 186. to violate provisions of the Hay-Pauncefote treaty with Great Britain of 1901, but they were not clearly proved to do so.39 Treaties may require subsequent action by the treaty-making power to give them effect. Such is the case with certain general arbitration treaties which require the conclusion of a special treaty or compromis for submission of each particular controversy coming under the general arbitration treaty. Such would also be true of the treaty of Versailles, which urges the conclusion of treaties upon such subjects as the maintenance of fair labor conditions, the maintenance of freedom of communications and transit, the prevention and control of disease, etc. Such provisions as this do not legally bind the treaty-making power, but undoubtedly the President and Senate ought to make due efforts to conclude such treaties when the occasion arises. 256. Acts of the Treaty-Making Powers: Obligation of Congress. Treaties may require action by Congress to give them effect. Where executive and judicial action alone is sufficient to give treaties effect they are said to be "self-executing," but an exact distinction between those treaty provisions which become ex propria vigore the supreme law of the land and those which require legislative action is not clear. In Foster v. Neilson (1829), Chief Justice Marshall thought the provision of the Florida cession treaty that grants of land made in Florida prior to January 24, 1818" shall be ratified and confirmed" was not self-executing and that the courts could not recognize such titles until Congress had acted. Subsequently an examination of the Spanish text of the treaty showed that the phrase should have read "shall remain ratified and affirmed" and in United States v. Percheman (1833) Chief Justice Marshall held that this rendered the clause self-executing, supporting his decision also on principles of general international law.40 However, there are many acts which the treaty power cannot itself perform or the performance of which it cannot authorize by any organ other than Congress, yet Congress is under a certain obliga39 Wright, Conflicts between International Law and Treaties, Am. Jl. Int. Law, 11: 576–579. 40 Foster v. Neilson, 2 Pet. 253 (1829); U. S. v. Percheman, 7 Pet. 51 (1833); see also supra, sec. 137. |