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delegated to another organ or give away a power so delegated to itself.13 But it is sometimes contended, that in addition, one organ cannot so exercise its own powers as to limit the discretion of another organ or of itself in the future exercise of its powers. These two interpretations are very different and much misconception has arisen from their confusion. Thus for the treaty power to provide that in defined circumstances the United States would automatically be at war, would be a clear invasion of the power of Congress to declare war. On the other hand for the treaty power to provide that in defined circumstances the United States would declare war, would not invade the power of Congress but would merely limit its discretion in the future exercise of this power. In certain circumstances the practical effect might be the same, but the legal difference would nevertheless exist. It appears that constitutional law merely guarantees to each organ continued possession of its delegated powers. The degree of discretion which the organ may actually enjoy in exercising these powers depends largely upon constitutional understandings.

55. Prohibition upon Exercise of Uncharacteristic Power by Any Department.

Each department is prohibited from "exercising powers (not inherent or expressly delegated) which from their essential nature do not fall within its division of governmental functions.1 Thus Congress cannot exercise such judicial powers as punishing for contempt unless necessary for performing its legislative functions,' nor such executive powers as directing the detailed movement of troops16 or appointing officers.17 The courts cannot exercise such

15

13 Legislative power cannot be delegated even by the legislature itself, but the Constitution gives considerable power to Congress over the determination of executive and judicial competence. Infra, sec. 60. But see Goodnow, op. cit., p. 41.

14 Willoughby, op. cit., p. 1263.

15 Kilbourn v. Thompson, 103 U. S. 168. Nor can Congress exercise judicial power by deciding specific cases involving private rights, Willoughby, op. cit., p. 1264.

16 Ex parte Milligan, 4 Wall. 2, Willoughby, op. cit., p. 1207.

17 Constitution, II, sec. 2. Congress, however, has the inherent power to appoint subordinate officers necessary for the conduct of its internal business, Goodnow, op. cit., p. 38.

executive powers as the giving of advisory opinions18 or the making of decisions which are reviewable by executive or legislative officers.19 The theory has been most difficult to apply as a restriction upon the executive because methods closely approaching a judicial and a legislative character often seem essential to the performance of executive duties. Though the theory that the legislature cannot delegate its power exists, the courts actually give the force of law to executive orders and regulations issued under authority of statute.20 This is justified by the theory that the ordinances are not legislation but merely the application of a policy determined by Congress in the delegating act. So also executive boards and commissions are permitted to proceed as courts and give decisions of a definitive character in certain types of cases.21 The almost complete control over the organization and jurisdiction of federal courts given by the Constitution to Congress22 makes any attempt by the courts to prevent the vesting of judicial functions in administrative bodies virtually impossible.23

A. Effect on the Power to Meet International Responsibilities. 56. The Government as a Whole Competent to Meet Responsibilities.

The doctrine of separation of powers does not impose any limitation upon the power of the United States to meet its international responsibilities. International law and treaty provisions have very seldom directed the instrumentality through which responsibilities shall be met. The responsibility rests on the nation and it can ordinarily determine its own instrumentality for performance. Consequently if any organ of the government has power to meet a particular responsibility, or to provide for meeting 18 See Thayer, Cases of Const. Law, 1: 175, and Willoughby, op. cit.,

P. 13.

19 Hayburn's Case, 2 Dall. 409; Gordon v. U. S., 2 Wall. 561; Willoughby, op. cit., p. 1275.

20 Field v. Clark, 143 U. S. 649; Goodnow, op. cit., pp. 42, 85.

21 U. S. v. Ju Toy, 198 U. S. 253; Willoughby, op. cit., p. 1278, et seq. 22 Constitution, I, sec. 8, cl. 9; III, sec. I, sec. 2, cl. 2, seems to give Congress complete control over the courts except the original jurisdiction of the Supreme Court. Ex Parte McCardle, 7 Wall. 506.

23 Willoughby, op. cit., p. 1277.

it, we may be sure the government as a whole has the power. Treaties have occasionally required that responsibilities be met through a particular instrumentality, as that certain controversies be submitted to an international tribunal, or that the compromis of arbitrations be made by the President with advice and consent of the Senate.24 Such reference to domestic organs has usually been declaratory of the Constitution, and has been inserted out of excess of caution to give notice to the foreign government of constitutional steps which must be taken, or by insistence of one department of the government to prevent anticipated usurpations by another. If, however, a treaty required that certain acts be performed by a particular organ, which, under the theory of separation of powers, could not exercise such a power, that clause of the treaty could not be executed by the United States. Such a treaty clause, however, would be unconstitutional from the start. The question would relate, therefore, to the power to make treaties rather than to the power to meet international responsibilities.25 57. Power of the President to Meet International Responsibilities.

Although the doctrine of separation of powers does not legally limit the power of the government to meet its responsibilities, it often throws practical difficulties in the way of prompt action. Congress is by nature slow moving but often under the constitutional distribution of powers it alone has power to meet certain international responsibilities. Were the President and the courts vested with adequate authority to act, delay in the meeting of responsibilities might often be avoided. The President and courts. cannot, under the doctrine which prohibits the delegation of legislative power be vested with such exclusive congressional powers as that to appropriate money and to declare war. Thus a prompt meeting of responsibilities requiring such acts depends upon congressional observance of the constitutional understanding which

24 See pecuniary claims convention with Latin American States, 1910, Charles, Treaties, 345; arbitration treaty with Great Britain, 1908, Art. V, Malloy, Treaties, p. 814. For other treaty provisions referring to specific organs see Wright, Columbia Law Rev., 20: 123-4.

25 Supra, secs. 45, 46.

PROC. AMER. PHIL. SOC., VOL. LX., N, MARCH 8, 1922.

enjoins all departments to exercise such powers as they have in order promptly to meet international responsibilities.26

Often, however, it is within the power of Congress to vest the President and courts by general law with adequate power to meet responsibilities, and a mass of legislation with this purpose has grown up dealing especially with the enforcement of neutrality, the protection of diplomatic officers, the protection of foreign securities, the suppression of piracy, the extradition of criminals, and the enforcement of many treaties such as that for supressing the slave trade and for the protection of migratory birds. No general law has as yet been passed giving the President and courts adequate power to protect the rights of resident aliens guaranteed by international law and treaty, though Congress, undoubtedly. has power to pass such laws.27

B. Effect on the Power to Make International Agreements.

58. Limitations upon the Government as a Whole.

In considering limitations derived from the separation of powers, upon the power of the national government to make international agreements, we need consider only the limitations upon the full treaty-making power. Whatever independent power the President may enjoy in making international agreements is a fortiori subject to the same limitations. These limitations exist by virtue of the constitutional prerogatives of Congress, of the courts and of the President.

59. Limitations Derived from Powers of Congress.

"The treaty making power," said Calhoun, "is limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law.'" 28

Undoubtedly, the treaty power is prohibited from depriving organs of the government of rights, privileges or powers inherent or delegated by the Constitution, or from giving them powers not 26 Infra, sec. 258.

27 Infra, sec. 120.

28 Works, 1: 203; Moore, Digest, 5: 166.

appropriate to their nature. There does not appear to have ever been a treaty attempting to deprive Congress of a delegated power It is or to confer upon it power of a non-legislative nature. believed that a treaty declaring that war should automatically exist in certain circumstances would be an unconstitutional deprivation of Congress's power to declare war,29 and that a treaty giving Congress power to appoint an officer of the United States, as for instance a representative in an international body, would be an unconstitutional delegation to Congress of power not of a legislative character.30

Jefferson stated among "exeptions" from the treaty-making power: "those subjects of legislation in which it gave a participation to the House of Representatives." He noticed, however, that this exception "would leave very little matter for the treaty power to work on." 31 Practice does not sustain Jefferson's contention. Most treaties have dealt with subjects within the delegated powers of Congress and have been held valid.32 Congress has questioned the validity of treaties requiring an appropriation, notably the Jay

29 See Taft, address before League to Enforce Peace, May 26, 1916, Enforced Peace, p. 64, and Hughes address, May 28, 1917, Proc. Acad. Pol. Sci., vol. 7, No. 2, p. 14, quoted in Am. Jl. Int. Law, 12: 75-76.

30 The exclusive mode of making appointments described in the Constitution, II, sec. 2, does not include appointments by Congress. See also Goodnow, op. cit., p. 39; Willoughby, op. cit., p. 1180.

31 Jefferson, Manual of Parl. Prac., sec. 52, printed in Senate rules, 1913; H. of R. Rules, 1914; and Moore, Digest, 5: 162.

32 Crandall, op. cit., p. 182; Wright, Am. Jl. Int. Law, 12: 93. “The principle of interpretation on which the doubt is suggested appears to be radically unsound and to belong in the category of notions which tend to bring constitutional law into disrepute. That the United States cannot internationally agree to forego the exercise of any power which the Constitution has conferred on Congress, or other department of government, is a supposition contradicted by every exercise of the treaty-making power since the government came into existence. When we reflect upon the number and extent of the powers conferred upon the national govrnment, and upon their distribution and the methods prescribed for their exercise, it is obvious that the attempt to act upon such a supposition would exclude the United States from any part in the progress of the world through the amelioration of law and practice by international action." Moore, Principles of American Diplomacy, 1918, p. 65.

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