lion, or the President, of course, can appoint anyone he chooses to represent him in a negotiation, because the power of initiating and negotiating a treaty is in his hands. "We have an example at this moment in the treaty with Germany now before us. As I stated on Saturday, the Gentleman who represented us in Berlin had been sent there by President Wilson, taken from the diplomatic service and charged to represent the United States as far as it could be done as a commissioner. He was simply a personal agent of the President. He could not officially represent the United States. We could not have an ambassador because we were technically at war with Germany. Therefore he was sent there, and he represented the President in negotiating the treaty with Germany now before us and signed it." Finally notice may be taken of the 7th proposed Senate reservation to the Treaty of Versailles. As considered on November 19, 1919, it provided: "No citizen of the United States shall be selected or appointed as a member of said commisssions, committees, tribunals, courts, councils, or conferences except with the approval of the Senate of the United States." Later this sentence was omitted, and, as considered on March 19, 1920, reservation seven retained merely the requirement that the United States should only be represented in the League of Nations, and, on the agencies established by the treaty, by persons authorized thereto by "an act of the Congress of the United States providing for his appointment and defining his powers and duties." " 241. Presidential Agent Not an Officer. The power of the President independently to dispatch diplomatic agents seems to be considered a proper implication from the President's diplomatic powers and is well established in practice. Such an agent, however, is not an officer of the United States. This is evidenced by the fact that Senators who, according to the Constitution, cannot at the same time hold offices under the United States, have occasionally served on special missions and also by express statement of the Attorney-General. He is not, under the law, entitled to compensation. Thus the President is limited in the use of such missions by the size of the contingent fund.73 72 The League of Nations, III, no. 4, pp. 179, 196 (Aug., 1920). A reservation of similar effect was made by the Senate in consenting to ratification of the German peace treaty of August 25, 1921, Cong. Rec., Oct. 18, 1921, 61: 7194. 242. International Administrative and Judicial Agencies. The third class of instrumentalities for conducting foreign relations are international in character and rest on treaty or agreement alone. Arbitration courts for hearing particular questions have been set up by executive agreement alone, by executive agreement authorized by general treaties and by treaties. The Bureau of the Universal Postal Union is authorized, so far as the United States is concerned, by executive agreement under an act of Congress. The Bureau of other international unions and of the Hague Permanent Court of Arbitration as well as the panel of arbitrators of the court are set up by treaty. International courts were established for trial of slave traders by the treaty of 1863-1870 with Great Britain and by the XII Hague Convention of 1907 an international prize court was provided for, but the latter treaty, though consented to by the Senate, has never been ratified. The President has usually appointed representatives in such bodies on the authority of the agreement or treaty alone, though if the body is permanent, the need of appropriation makes congressional action necessary. Congress has provided by law for participation of the United States in the Pan-American Union," the Bureau of the Hague Permanent Court of Arbitration,75 the International Prison Commission,76 and other organs. It has not attempted to control the organization or method of appointing representatives on such bodies, though the proposed seventh reservation to the Peace Treaty of Versailles would have done so for organs set up by that treaty. In general the congressional acts seem to have assumed that the power to appoint commissioners to such bodies is vested in the President alone, and that such commissioners are not "officers" of the United States, since Senators have frequently served, especially on courts of arbitration. In 1913, however, Congress attempted to forbid presidential participation in 73 The U. S. Constitution, I, sec. 6, cl. 2; Knox, Att. Gen., 23 Op. 533 (1901); Moore, Digest, 4: 440; Corwin, op. cit., pp. 65-66. 74 Act July 14, 1890, 26 Stat. 275. 75 Act March 22, 1902, 32 Stat. 81. 76 Act Feb. 22, 1913, 37 Stat. 692; Act re International Waterways Commission, June 13, 1902, 42 Stat. 373; Comp. Stat., sec. 4984. PROC. AMER. PHIL. SOC., VOL. LX., BB, MARCH 15, 1922, any "international congress, conference or like event, without first having specific authority of law to do so."77 Congress through its control of appropriations has been gaining an increasing influence in regulating the grade, location and number of offices in the permanent foreign service, and the President's constitutional discretion in these matters has been seriously impaired. The President has, however, retained his independence both of Congress and of the Senate in the sending of special missions, and the appointment of representatives on international organs. Although the consular service has to a considerable extent been brought under civil service regulations, the diplomatic service has not for positions above that of Secretary. Appointments are regarded as political and the President exercises discretion, limited by the legislation establishing the office and the need of senatorial advice and consent. These services are subject to the direction of the President, enforceable through his independent removal power. 243. Conclusion on Power to Conduct Foreign Relations. We conclude that under the Constitution the control of foreign relations is given almost exclusively to the national government, but it extends only so far as expressly or impliedly delegated. In fact, this delegation has been almost, if not entirely complete, and the constitutional limitations upon its exercise in defense of individual rights, states rights and the rights and privileges of national organs of government are comparatively unimportant. Adequate powers exist in the President, the treaty-making power, Congress and the courts to meet all international responsibilities, to make agreements of a genuinely international character, to make decisions of international importance, and to carry out national policies. But these powers have been distributed among independent organs. Is there a single principle underlying this distribution? We believe there is. The President initiates, controls and concludes, checked by the possibility of a Senate veto on permanent international agreements and by a congressional veto upon national decisions calling for positive action. 77 Supra, notes 61, 72. 78 Report on the Foreign Service, supra, note 55, pp. 21-31, 45, 65; supra, sec. 230. For meeting the ordinary responsibilities and exercising the ordinary powers of states in the family of nations, guided by international law, the President alone is competent, and his powers, being in the main derived from the Constitution itself, he is not subject to the detailed direction of Congress, as he is in exercising his powers in domestic administration. For departures from the normal, whether by way of international agreement or national policy, though the President initiates, the Senate or Congress must consent. While the powers upon which these organs are able to insist go little beyond a discretionary veto upon consummations, yet the President ought to understand that to avoid the possibility of this contingency he should consider their advice during the course of negotiations and diplomacy. The dominating position of the President in foreign relations results from his initiative, and this is a necessary consequence of the position he occupies as the representative authority of the United States under international law. His office is the only door through which foreign nations can approach the United States. His voice is the only medium through which the United States can speak to foreign nations. Moreover the fathers appear to have intended him to occupy this position and subsequent history has shown his exercise of the initiative and essential control. On occasions when foreign affairs have not pressed he has subordinated his initiative. to congressional policies but always when crises have arisen he has met them with a prompt decision and adequate resources of power. Only rarely has the veto of coordinate departments destroyed his achievements. PART V. THE UNDERSTANDINGS OF THE CONSTITUTION. CHAPTER XVIII. UNDERSTANDINGS CONCERNING THE RELATIONS OF THE 244. Reason for Constitutional Understandings. The various organs of the national government are together vested with sufficient power to conduct foreign affairs and meet in ternational responsibilities, but, according to the doctrine of separation of powers, each of the three departments of government exercises an independent discretion, legally uncontrolled by any other authority. Three difficulties may arise from this situation: (A) The powers of two departments may overlap, giving rise to contrary action on the same occasion. "The existence," said a Senate Foreign Relations Committee report of 1898, "of the same power for the same purposes in both the legislative and executive branches of the Government might lead to most unfortunate results. For instance, if the legislative and executive branches both possessed the power of recognizing the independence of a foreign nation, and one branch should declare it independent, while the other denied its independence, then, since they are coordinate, how could the problem be solved by the judicial branch? "1 (B) An independent department may lack sufficient power to achieve a desired end without the cooperation of another independ ent department. "A treaty," said the Circuit Court, "is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of 'Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution." 2 (C) Organs properly adapted to meeting certain international responsibilities may not exist. The general principle which ought to govern the discretion of the departments in the presence of such difficulties has been thus expressed by the Supreme Court of North Carolina: 3 "While the executive, legislative, and supreme judicial powers of the government ought to be forever separate and distinct, it is also true that the science of government is a practical one; therefore, while each should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three coordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of what seems to be a 'common because of vicinage' bordering on the domains of each." 1 Sen. Doc. 56, 54th Cong., 2d sess., p. 4; Corwin, op. cit., p. 36, supra, sec. 191. 2 Turner v. Am. Baptist Missionary Union, 5 McLean 347; Wharton, Digest, 2: 73; Moore, Digest, 5: 222. Brown v. Turner, 70 N. C. 93, 102. |