"upon what act of Congress then existing can any one lay his finger in support of the action of the government in this matter." " In view of these incidents and judicial endorsements, we may accept Borchard's statement; with the sole qualification that "the manner must not amount to a making of war: 90

"Inasmuch as the Constitution vests in Congress authority 'to declare war' and does not empower Congress to direct the President to perform his constitutional duties of protecting American citizens on foreign soil, it is believed that the Executive has unlimited authority to use the armed forces of the United States for protective purposes abroad in any manner and on any occasion he considers expedient."

91

The Constitution also guarantees the States a Republican form of government and protection against invasion. Furthermore the right of national self-defense is recognized at international law and the corresponding duty of the government has been asserted by the Supreme Court: 92

"To preserve its independence and give security against foreign aggression and encroachment is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated."

Thus, if he considers such action essential for the enforcement of acts of Congress and treaties and for the protection of the citizens and territory of the United States, the President is obliged by the Constitution itself to use his power as commander-in-chief to direct the forces abroad, and this duty resting on the Constitution itself cannot be taken away by act of Congress. Thus says President Taft: 93

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

90 Borchard, op. cit., p. 452. See also Root, address in Senate, Aug. 14, 1912, Cong. Rec., 48: 10929; Military and Colonial Policy of the United States, 1916, p. 157.

91 U. S. Constitution, Art. IV, sec. 4.

92 Chinese Exclusion Cases, 130 U. S. 581 (1889).

93 Taft, op. cit., pp. 128-129. See also Wright, Col. Law Rev., 20: 135136, and Am. Jl. Int. Law, 12: 77; supra, secs. 125, 126, 151. By reduction of the army and navy or refusal of supplies, Congress might seriously impair the de facto power of the President to perform these duties, but it can not limit his legal power as Commander-in-Chief to employ the means at his disposal for these purposes. See Ex parte Milligan, 4 Wall. 2, supra,

sec. 221.

"The President is made Commander-in-Chief of the Army and Navy by the Constitution, evidently for the purpose of enabling him to defend the country against invasion, to suppress insurrection and to take care that the laws be faithfully executed. If Congress were to attempt to prevent his use of the army for any of these purposes, the action would be void."

223. Purposes for Which the President May Employ Force under Statute.

Aside from the purposes defined by the Constitution itself, for which the President may utilize the forces, other purposes have been defined by act of Congress. It is true, the general delegations of power to use the militia and the similar delegation to use the army and navy to execute the laws of the union, suppress insurrection and repel invasions" have been given an interpretation confining such use to the territory.94 Laws in this phrase has been held to mean laws of territorial application and says Pomeroy: 95

"Insurrection and invasion must be internal. We do not repel an invasion by attacking the invading nation upon its own soil. Still there can be no question that the militia may be called out before the invaders set foot upon our territory. It is a fair construction of language to say that one means of repelling' an invasion is to have a force ready to receive the threatened invaders when they shall arrive."

Attorney-General Wickersham, however, makes the qualification: 96

"If the militia were called into the service of the General government to repel an invasion, it would not be necessary to discontinue their use at the boundary line, but they might (within certain limits, at least) pursue and capture the invading force, even beyond that line. . . . This may well be held to be within the meaning of the term 'to repel invasion.'"

The expatriation act of July 27, 1858, however, authorizes the President to demand the release of American citizens unjustly deprived of liberty and: 97

94 Act of Jan. 21, 1913 (Dick Act), 32 Stat., 776, sec. 4; 35 Stat. 400; 38 Stat. 284, based on Acts of May 2, 1794, and Feb. 28, 1795, 1 Stat. 264, 424. Judge Ad. Gen. Davis held in 1908 that the term "laws" might apply to any congressional resolution of extraterritorial effect (Cong. Rec., 42: 6943), but this was not sustained by the Attorney General, infra, note 96.

95 Pomeroy, Constitutional Law, 9th ed., p. 387.

96 Wickersham, Att. Gen., 29 Op. 322 (1912). 97 Rev. Stat., sec. 2001; Comp. Stat., sec. 3957.

"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."

Aside from such general acts,98 Congress may authorize a broad use of force by acts or resolutions applying to particular incidents and by declarations of war.99

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.

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

104 Supra, sec. 126.

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

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

66

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,

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

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

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

5 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.

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

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

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