OATH OF OFFICE

What is the time relationship between a President's assumption of office and his taking the oath? Apparently the former comes first. This answer seems to be required by the language of the clause itself, and is further supported by the fact that, while the act of March 1, 1792 assumes that Washington became President March 4, 1789, he did not take the oath till April 30th. Also, in the parallel case of the coronation oath of the British Monarch, its taking has been at times postponed for years after the heir's succession.

Effect of the Oath

Does the oath add anything to the President's powers? Again to judge from its English-British antecedent, its informing purpose is to restrain rather than to aggrandize power. Jackson, it is true, appealed to the oath in his Bank Veto Message of July 10, 1832; and Lincoln did so in his Message of July 4, 1861; as did Johnson's counsel in his impeachment trial; but in each of these instances the Presidential exercise of power involved rested primarily on other grounds.

Section 2. Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The Commander in Chiefship

HISTORICAL

The purely military aspects of the Commander in Chiefship were those which were originally stressed. Hamilton said the office "would amount to nothing more than the supreme command and direction of the Military and naval forces, as first general and admiral of the confederacy."[45] Story wrote in his Commentaries: "The propriety of admitting the president to be commander in chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person, without any restraint, as he might make a bad use of it. The consent of both houses of Congress ought, therefore, to be required, before he should take the actual command. The answer then given was, that though the president might, there was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents."[46] In 1850 Chief Justice Taney, for the Court, said: "His [the President's] duty and his power are purely military. As commander in chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. * * * But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question."[47] Even after the Civil War a powerful minority of the Court described the role of President as Commander in Chief simply as "the command of the forces and the conduct of campaigns."[48]

THE PRIZE CASES

The basis for a broader conception was laid in certain early acts of Congress authorizing the President to employ military force in the execution of the laws.[49] In his famous message to Congress of July 4, 1861,[50] Lincoln advanced the claim that the "war power" was his for the purpose of suppressing rebellion; and in the Prize Cases[51] of 1863, a sharply divided Court sustained this theory. The immediate issue of the case was the validity of the blockade which the President, following the attack on Fort Sumter, had proclaimed of the Southern ports.[52] The argument was advanced that a blockade to be valid must be an incident of a "public war" validly declared, and that only Congress could, by virtue of its power "to declare war," constitutionally impart to a military situation this character and scope. Speaking for the majority of the Court, Justice Grier answered: "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.' The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized 'a state of war as existing by the act of the Republic of Mexico.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress. This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. * * * Whether the President in fulfilling his duties, as Commander in Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. 'He must determine what degree of force the crisis demands.' The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case."[53]

IMPACT OF THE PRIZE CASES ON WORLD WARS I AND II

In brief, the powers claimable for the President under the Commander in Chief clause at a time of wide-spread insurrection were equated with his powers under the clause at a time when the United States is engaged in a formally declared foreign war; and—impliedly—vice versa. And since Lincoln performed various acts especially in the early months of the Civil War which, like increasing the Army and Navy, admittedly fell within the constitutional province of Congress, it seems to have been assumed during World War I and World War II that the Commander in Chiefship carries with it the power to exercise like powers practically at discretion; and not merely in wartime but even at a time when war becomes a strong possibility. Nor was any attention given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly did,[54] with the exception of his suspension of the habeas corpus privilege which was regarded by many as attributable to the President in the situation then existing, by virtue of his duty to take care that the laws be faithfully executed.[55] Nor is this the only respect in which war or the approach of war operates to enlarge the scope of power which is claimable by the President as Commander in Chief in wartime.[56] For at such time the maxim that Congress may not delegate its powers is, by the doctrine of the Curtiss-Wright case,[57] in a state of suspended animation.[58]

PRESIDENTIAL THEORY OF THE COMMANDER IN CHIEFSHIP IN WORLD WAR II

In his message of September 7, 1942 to Congress, in which he demanded that Congress forthwith repeal certain provisions of the Emergency Price Control Act of the previous January 30th,[59] the late President Roosevelt formulated his conception of his powers as "Commander in Chief in wartime" as follows:

"I ask the Congress to take this action by the first of October. Inaction on your part by that date will leave me with an inescapable responsibility to the people of this country to see to it that the war effort is no longer imperiled by threat of economic chaos.

"In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.

"At the same time that farm prices are stabilized, wages can and will be stabilized also. This I will do.

"The President has the powers, under the Constitution and under Congressional acts, to take measures necessary to avert a disaster which would interfere with the winning of the war.

"I have given the most thoughtful consideration to meeting this issue without further reference to the Congress. I have determined, however, on this vital matter to consult with the Congress. * * *

"The American people can be sure that I will use my powers with a full sense of my responsibility to the Constitution and to my country. The American people can also be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat.

"When the war is won, the powers under which I act automatically revert to the people—to whom they belong."[60]

PRESIDENTIAL WAR AGENCIES

While congressional compliance with the President's demand rendered unnecessary an effort on his part to amend the Price Control Act, there were other matters as to which he repeatedly took action within the normal field of congressional powers, not only during the war, but in some instances prior to it. Thus in exercising both the powers which he claimed as Commander in Chief and those which Congress conferred upon him to meet the emergency, Mr. Roosevelt employed new emergency agencies, created by himself and responsible directly to him, rather than the established departments or existing independent regulatory agencies. Oldest of all these Presidential agencies was the Office for Emergency Management (OEM), which was created by an executive order dated May 25, 1940. Others were the Board of Economic Warfare (BEW), the National Housing Agency (NHA), the National War Labor Board (NWLB), or more shortly (WLB), the Office of Censorship (OC), the Office of Civilian Defense (OCD), the Office of Defense Transportation (ODT), the Office of Facts and Figures (OFF), presently absorbed into the Office of War Information (OWI), the War Production Board (WPB), which superseded the earlier Office of Production Management (OPM), the War Manpower Commission (WMC), etc. Earlier there had been the Office of Price Administration and Civilian Supply (OPACS), but was replaced under the Emergency Price Control Act of January 30, 1942, by OPA. Later OWI was created by executive order, as was also the Office of Economic Stabilization (OES). The Office of War Mobilization and Reconversion (OWMR), one of the last of the war agencies to appear, was established by the War Mobilization and Reconversion Act of October 3, 1944.[61]

CONSTITUTIONAL STATUS OF PRESIDENTIAL AGENCIES

The question of the legal status of the presidential agencies was dealt with judicially but once. This was in the decision, in June 1944, of the United States Court of Appeals of the District of Columbia in a case styled Employers Group of Motor Freight Carriers v. National War Labor Board,[62] which was a suit to annul and enjoin a "directive order" of the War Labor Board. The Court refused the injunction on the ground that at the time when the directive was issued any action of the Board was "informatory," "at most advisory." In support of this view the Court quoted approvingly a statement by the chairman of the Board itself: "These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the Board is to the moral obligation of employers and workers to abide by the nonstrike, no-lock-out agreement and * * * to carry out the directives of the tribunal created under that agreement by the Commander in Chief." Nor, the Court continued, had the later War Labor Disputes Act vested War Labor Board's orders with any greater authority, with the result that they were still judicially unenforceable and unreviewable. Following this theory, War Labor Board was not an office wielding power, but a purely advisory body, such as Presidents have frequently created in the past without the aid or consent of Congress. Congress itself, nevertheless, both in its appropriation acts and in other legislation, treated the Presidential agencies as in all respects offices.[63]

THE WEST COAST JAPANESE

On February 19, 1942 the President issued an executive order the essential paragraphs of which read as follows:

"Whereas the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities * * *

"Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. The Secretary of War is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of War or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. * * *

"I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of War or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and services."[64] In pursuance of this order more than 112,000 Japanese residents of Western States, of whom nearly two out of every three were natural-born citizens of the United States, were eventually removed from their farms and homes and herded, first in temporary camps, later in ten so-called "relocation centers," situated in the desert country of California, Arizona, Idaho, Utah, Colorado, and Wyoming and in the delta areas of Arkansas.

The Act of March 21, 1942

It was apparently the original intention of the Administration to rest its measures concerning this matter on the general principle of military necessity and the power of the Commander in Chief in wartime. But before any action of importance was taken under Executive Order 9066, Congress ratified and adopted it by the act of March 21, 1942,[65] by which it was made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the act. The question at issue, said Chief Justice Stone for the Court, "is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional * * * [power] to impose the curfew restriction here complained of."[66] This question was answered in the affirmative, as was the similar question later raised by an exclusion order.[67]

PRESIDENTIAL GOVERNMENT OF LABOR RELATIONS

The most important segment of the home front regulated by what were in effect Presidential edicts was the field of labor relations. Exactly six months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his proclamation thirteen days earlier of an unlimited national emergency, issued an Executive Order seizing the North American Aviation Plant at Inglewood, California, where, on account of a strike, production was at a standstill. Attorney General Jackson justified the seizure as growing out of the "'duty constitutionally and inherently rested upon the President to exert his civil and military as well as his moral authority to keep the defense efforts of the United States a going concern,'" as well as "to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain."[68] Other seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. "Whereas," the order read in part, "by reason of the state of war declared to exist by joint resolutions of Congress, * * *, the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941, it has been agreed that for the duration of the war there shall be no strikes or lockouts, and that all labor disputes shall be settled by peaceful means, and that a National War Labor Board be established for a peaceful adjustment of such disputes. Now, therefore, by virtue of the authority vested in me by the Constitution and the statutes of the United States, it is hereby ordered: 1. There is hereby created in the Office for Emergency Management a National War Labor Board, * * *"[69] In this field, too, Congress intervened by means of the War Labor Disputes Act of June 25, 1943,[70] which however still left ample basis for Presidential activity of a legislative character.[71]

"SANCTIONS"

To implement his directives as Commander in Chief in wartime, and especially those which he issued in governing labor relations, Mr. Roosevelt often resorted to "sanctions," which may be described as penalties lacking statutory authorization. Ultimately, the President sought, by Executive Order 9370 of August 16, 1943, to put sanctions in this field on a systematic basis. This order read:

"(a) To other departments or agencies of the Government directing the taking of appropriate action relating to withholding or withdrawing from a noncomplying employer any priorities, benefits or privileges extended, or contracts entered into, by executive action of the Government, until the National War Labor Board has reported that compliance has been effectuated;

"(b) To any Government agency operating a plant, mine or facility, possession of which has been taken by the President under section 3 of the War Labor Disputes Act, directing such agency to apply to the National War Labor Board, under section 5 of said act, for an order withholding or withdrawing from a noncomplying labor union any benefits, privileges or rights accruing to it under the terms of conditions of employment in effect (whether by agreement between the parties or by order of the National War Labor Board, or both) when possession was taken, until such time as the noncomplying labor union has demonstrated to the satisfaction of the National War Labor Board its willingness and capacity to comply; but, when the check-off is denied, dues received from the check-off shall be held in escrow for the benefit of the union to be delivered to it upon compliance by it.

"(c) To the War Manpower Commission, in the case of noncomplying individuals, directing the entry of appropriate orders relating to the modification or cancellation of draft deferments or employment privileges, or both.

"Franklin D. Roosevelt.

"The White House, Aug. 16, 1943."[72]

CONSTITUTIONAL BASIS OF SANCTIONS

Sanctions were also occasionally employed by statutory agencies, as by OPA, to supplement the penal provisions of the Emergency Price Control Act of January 30, 1942;[73] and in the case of Steuart and Bro., Inc. v. Bowles,[74] the Supreme Court had the opportunity to attempt to regularize this type of executive emergency legislation. Here a retail dealer in fuel oil in the District of Columbia was charged with having violated a rationing order of OPA by obtaining large quantities of oil from its supplier without surrendering ration coupons, by delivering many thousands of gallons of fuel oil without requiring ration coupons, and so on, and was prohibited by the agency from receiving oil for resale or transfer for the ensuing year. The offender conceded the validity of the rationing order in support of which the suspension order was issued, but challenged the validity of the latter as imposing a penalty that Congress has not enacted, and asked the district court to enjoin it. The Court refused to do so and was sustained by the Supreme Court in its position. Said Justice Douglas, speaking for the Court: "Without rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. * * * But middlemen—wholesalers and retailers—bent on defying the rationing system could raise havoc with it. * * * These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduct. * * * Certainly we could not say that the President would lack the power under this Act to take away from a wasteful factory and route to an efficient one a previous supply of material needed for the manufacture of articles of war. * * * From the point of view of the factory owner from whom the materials were diverted the action would be harsh. * * * But in times of war the national interest cannot wait on individual claims to preference. * * * Yet if the President has the power to channel raw materials into the most efficient industrial units and thus save scarce materials from wastage it is difficult to see why the same principle is not applicable to the distribution of fuel oil."[75] Sanctions were, therefore, constitutional when the deprivations they wrought were a reasonably implied amplification of the substantive power which they supported and were directly conservative of the interests which this power was created to protect and advance. It is certain, however, that sanctions not uncommonly exceeded this pattern.[76]

MARTIAL LAW AND CONSTITUTIONAL LIMITATIONS

Two theories of martial law are reflected in decisions of the Supreme Court. By one, which stems from the Petition of Right, 1628, the common law knows no such thing as martial law;[77] at any rate martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, of which necessity the civil courts are the final judges.[78] By the other theory, martial law can be validly and constitutionally established by supreme political authority in wartime. The latter theory is recognized by the Court in Luther v. Borden,[79] where it was held that the Rhode Island legislature had been within its rights in 1842 in resorting to the rights and usages of war in combating insurrection in that State. The decision in the Prize Cases,[80] while not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863. The Civil War being safely over, however, a sharply divided Court, in the elaborately argued Milligan case,[81] reverting to the older doctrine, pronounced void President Lincoln's action, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as "spies" and "abettors of the enemy." The salient passage of the Court's opinion bearing on this point is the following: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."[82] Four Justices, speaking by Chief Justice Chase, while holding Milligan's trial to have been void because violative of the act of March 3, 1863 governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan's trial. Said the Chief Justice: "Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions. * * * We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety."[83] In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

MARTIAL LAW IN HAWAII

The question of the constitutional status of martial law was raised in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also "all of the powers normally exercised by the judicial officers * * * of this territory * * * during the present emergency and until the danger of invasion is removed." Two days later the Governor's action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.

By section 67 of the Organic Act of April 30, 1900,[84] the Territorial Governor is authorized "in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known." By section 5 of the Organic Act, "the Constitution, * * *, shall have the same force and effect within the said Territory as elsewhere in the United States." In a brace of cases which reached it in February 1945 but which it contrived to postpone deciding till February 1946,[85] the Court, speaking by Justice Black, held that the term "martial law" as employed in the Organic Act, "while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals."[86] The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result. "I assume also," said he, "that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts";[87] but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that "courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight."[88]

THE CASE OF THE NAZI SABOTEURS[89]

The saboteurs were eight youths, seven Germans and one an American, who, following a course of training in sabotage in Berlin, were brought to this country in June 1942 aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. "* * * those who during time of war pass surreptitiously from enemy territory into * * * [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission."[90] The second argument it disposed of by showing that petitioners' case was of a kind that was never deemed to be within the terms of Amendments V and VI, citing in confirmation of this position the trial of Major Andre.[91] The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,[92] thereby, in effect, attributing to the latter the right to amend the Articles of War in a case of the kind before the Court ad libitum.

The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President's purely martial powers as Commander in Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war they would have been subject under the statutes to restraint and other disciplinary action by the President without appeal to the courts.[93]

THE WAR CRIMES CASES

As a matter of fact, in General Yamashita's case,[94] which was brought after the termination of hostilities for alleged "war crimes," the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge's dissenting opinion in this case: "The difference between the Court's view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply."[95] And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under International Law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws; nor does International Law forbid ex post facto laws.[96]

THE PRESIDENT AS COMMANDER OF THE FORCES

While the President customarily delegates supreme command of the forces in active service, there is no constitutional reason why he should do so; and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued orders for a general advance in the hope of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American command on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and Nagasaki. As against an enemy in the field the President possesses all the powers which are accorded by International Law to any supreme commander. "He may invade the hostile country, and subject it to the sovereignty and authority of the United States."[97] In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.[98] He may employ secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements.[99] He may, at least with the assent of Congress, authorize intercourse with the enemy.[100] He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the United States the obligation to render "just compensation."[101] By the same warrant he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions which may determine to a great extent the ensuing peace.[102] He may not, however, effect a permanent acquisition of territory;[103] though he may govern recently acquired territory until Congress sets up a more permanent regime.[104] He is the ultimate tribunal for the enforcement of the rules and regulations which Congress adopts for the government of the forces, and which are enforced through courts-martial.[105] Indeed, until 1830, courts-martial were convened solely on his authority as Commander in Chief.[106] Such rules and regulations are, moreover, it would seem, subject in wartime to his amendment at discretion.[107] Similarly, the power of Congress to "make rules for the government and regulation of the law and naval forces" (Art. I, Sec. 8, cl. 14) did not prevent President Lincoln from promulgating in April, 1863 a code of rules to govern the conduct in the field of the armies of the United States which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.[108] One important power he lacks, that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in "the President alone."[109] Also, the President's power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal "in pursuance of the sentence of a general court-martial or in mitigation thereof."[110] But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place.[111] The President's power of dismissal in time of war Congress has never attempted to limit.

THE COMMANDER IN CHIEF A CIVILIAN OFFICER

Is the Commander in Chiefship a military or civilian office in the contemplation of the Constitution? Unquestionably the latter. A recent opinion by a New York surrogate deals adequately, though not authoritatively, with the subject: "The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Constitution that the President's duties as Commander in Chief represents only a part of duties ex officio as Chief Executive [Article II, sections 2 and 3 of the Constitution] and that the latter's office is a civil office. [Article II, section 1 of the Constitution; vol. 91, Cong. Rec. 4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does not enlist in, and he is not inducted or drafted into the armed forces. Nor, is he subject to court-martial or other military discipline. On the contrary, article II, section 4 of the Constitution provides that 'The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.' * * * The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President's position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows:—'It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States v. Burns, 79 U.S. 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: 'The supremacy of the civil over the military is one of our great heritages.' Duncan v. Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210."[112]

Presidential Advisers

THE CABINET

The above provisions are the meager residue from a persistent effort in the Federal Convention to impose a council on the President.[113] The idea ultimately failed, partly because of the diversity of ideas concerning the Council's make-up. One member wished it to consist of "members of the two houses," another wished it to comprise two representatives from each of three sections, "with a rotation and duration of office similar to those of the Senate." The proposal which had the strongest backing was that it should consist of the heads of departments and the Chief Justice of the Supreme Court, who should preside when the President was absent. Of this proposal the only part to survive was the above cited provision. The consultative relation here contemplated is an entirely one-sided affair, is to be conducted with each principal officer separately and in writing, and to relate only to the duties of their respective offices.[114] The Cabinet, as we know it today, that is to say, the Cabinet meeting, was brought about solely on the initiative of the first President, and may be dispensed with on Presidential initiative at any time, being totally unknown to the Constitution. Several Presidents have in fact reduced the Cabinet meeting to little more than a ceremony with social trimmings.[115]

Pardons and Reprieves

THE LEGAL NATURE OF A PARDON

In the first case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: "As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. * * * A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him." Marshall thereupon proceeded to lay down the doctrine, that "a pardon is a deed to the validity of which delivery is essential, and delivery is not complete without acceptance"; and that to be noticed judicially this deed must be pleaded, like any private instrument.[116]

Qualification of the Above Theory

In the case of Burdick v. United States,[117] decided in 1915, Marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by President Wilson "a full and unconditional pardon for all offenses against the United States" which he might have committed or participated in in connection with the matter he had been questioned about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. "The grace of a pardon," remarked Justice McKenna sententiously, "may be only a pretense * * * involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, * * *"[118] Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice.[119] In 1927, however, in sustaining the right of the President to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the Court abandoned this view. "A pardon in our days," it said, "is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."[120] Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful.[121] They seem clearly to indicate that by substantiating a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty.[122]

SCOPE OF THE POWER

The power embraces all "offences against the United States," except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer;[123] also the power to pardon absolutely or conditionally; and includes the power to commute sentences, which, as seen above, is effective without the convict's consent.[124] It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the Presidential prerogative, amounting as it does to a condonation of the offense.[125] It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by the first Roosevelt—to Aguinaldo's followers—in 1902.[126] Not, however, till after the Civil War was the point adjudicated, when it was decided in favor of Presidential prerogative.[127]

"OFFENSES AGAINST THE UNITED STATES"; CONTEMPT OF COURT

In the first place, such offenses are not offenses against the States. In the second place, they are completed offenses;[128] the President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of James II's forced abdication.[129] Lastly, the term has been held to include criminal contempts of court. Such was the holding in Ex parte Grossman,[130] where Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. Said he: "The King of England before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day. In the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the King's grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [Citing cases.] These cases also show that, long before our Constitution, a distinction had been recognized at common law between the effect of the King's pardon to wipe out the effect of a sentence for contempt in so far as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court's order necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law[131]." Nor was any new or special danger to be apprehended from this view of the pardoning power. "If," says the Chief Justice, "we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" Indeed, he queries further, in view of the peculiarities of procedure in contempt cases, "may it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial[132]?"

EFFECTS OF A PARDON; EX PARTE GARLAND

The great leading case is Ex parte Garland[133] which was decided shortly after the Civil War. By an act passed in 1865 Congress had prescribed that before any person should be permitted to practice in a federal court he must take oath asserting that he had never voluntarily borne arms against the United States, had never given aid or comfort to enemies of the United States, and so on. Garland, who had been a Confederate sympathizer and so was unable to take the oath, had however received from President Johnson the same year "a full pardon 'for all offences by him committed, arising from participation, direct or implied, in the Rebellion,' * * *" The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Said Justice Field for a sharply divided Court: "The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; [thereto], if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity."[134] Justice Miller speaking for the minority protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice the law. "The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor at law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar."[135] Justice Field's language must today be regarded as much too sweeping in light of a decision rendered in 1914 in the case of Carlesi v. New York.[136] Carlesi had some years before been convicted of committing a federal offense. In the instant case the prisoner was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent State offense. This conviction and sentence were upheld by the Supreme Court. While this case involved offenses against different sovereignties, the Court declared by way of dictum that its decision "must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted."[137]

LIMITS TO THE EFFICACY OF A PARDON

But Justice Field's latitudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued before conviction. He is also correct in saying that a full pardon restores a convict to his "civil rights," and this is so even though simple completion of the convict's sentence would not have had that effect. One such right is the right to testify in court, and in Boyd v. United States the Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.[138] But a pardon cannot "make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law."[139]

CONGRESS AND AMNESTY

Congress cannot limit the effects of a Presidential amnesty. Thus the act of July 12, 1870, making proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War, notwithstanding any Executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pronounced void. Said Chief Justice Chase for the majority: "* * * the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end."[140] On the other hand, Congress may itself, under the necessary and proper clause, enact amnesty laws remitting penalties incurred under the national statutes,[141] and may stipulate that witnesses before courts or other bodies qualified to take testimony shall not be prosecuted by the National Government for any offenses disclosed by their testimony.[142]

Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Treaty-Making Power

PRESIDENT AND SENATE

The plan which the Committee of Detail reported to the Federal Convention on August 6, 1787 provided that "the Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."[143] Not until September 7, ten days before the Convention's final adjournment, was the President made a participant in these powers.[144] The constitutional clause evidently assumes that the President and Senate will be associated throughout the entire process of making a treaty, although Jay, writing in The Federalist, foresaw that the initiative must often be seized by the President without benefit of Senatorial counsel.[145] Yet so late as 1818 Rufus King, Senator from New York, who had been a member of the Convention, declared on the floor of the Senate: "In these concerns the Senate are the Constitutional and the only responsible counsellors of the President. And in this capacity the Senate may, and ought to, look into and watch over every branch of the foreign affairs of the nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the President respecting the same, when, and under whatever other circumstances, they may think such advice expedient."[146]

NEGOTIATION A PRESIDENTIAL MONOPOLY

Actually, the negotiation of treaties had long since been taken over by the President; the Senate's role in relation to treaties is today essentially legislative in character.[147] "He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it," declared Justice Sutherland for the Court in 1936.[148] The Senate must, moreover, content itself with such information as the President chooses to furnish it.[149] In performing the function that remains to it, however, it has several options. It may consent unconditionally to a proposed treaty, or it may refuse its consent, or it may stipulate conditions in the form of amendments to the treaty or of reservations to the act of ratification, the difference between the two being that, whereas amendments, if accepted by the President and the other party or parties to the Treaty,[150] change it for all parties, reservations limit only the obligations of the United States thereunder. The act of ratification for the United States is the President's act, but may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under the Constitution to do business.[151] Conversely, the President may, if dissatisfied with amendments which have been affixed by the Senate to a proposed treaty or with the conditions stipulated by it to ratification, decide to abandon the negotiation, which he is entirely free to do.[152]

TREATIES AS LAW OF THE LAND

Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829; "A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court."[153] To the same effect, but more accurate, is Justice Miller's language for the Court a half century later, in Head Money Cases: "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. * * * But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country."[154]

Origin of the Conception

How did this distinctive feature of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them "self-executory," as it is said; in other words, enforceable by the courts? The answer is that article VI, paragraph 2 was, at its inception, an outgrowth of a major weakness of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress' promises was dependent on the State legislatures. The result was that two highly important Articles of the Treaty of Peace of 1783 not only went unenforced, but were in some instances directly flouted by the local legislatures. These were articles IV and VI, which contained stipulations in favor, respectively, of British creditors of American citizens and of the former Loyalists; in short of private persons. Confronted with the reiterated protests of the British government, John Jay, Secretary of the United States for Foreign Affairs, suggested to Congress late in 1786 that it request the State legislatures to repeal all legislation repugnant to the Treaty of Peace, and at the same time authorize their courts in all cases arising from the said treaty to decide and adjudge according to the true intent and meaning of the same, "anything in the said acts * * * to the contrary notwithstanding." On April 13, 1787 Congress unanimously voted Jay's proposal, which on the eve of the assembling of the Federal Convention was transmitted to the State legislatures, by seven of which it was promptly adopted.[155]

TREATY RIGHTS VERSUS STATE POWER

The first case to arise under article VI, clause 2, was Ware v. Hylton.[156] The facts and bearing of the decision are indicated in the syllabus: "A debt, due before the war from an American to a British subject, was during the war, paid into the loan office of Virginia, in pursuance of a law of that State of the 20th of December, 1777, sequestering British property and providing that such payment, and a receipt therefor, should discharge the debt. Held: That the legislature of Virginia which from the 4th of July, 1776, and before the Confederation of the United States, * * * possessed and exercised all the rights of independent governments, had authority to make such law and that the same was obligatory, since every nation at war with another may confiscate all property of, including private debts due, the enemy. Such payment and discharge would therefore be a bar to a subsequent action, unless the creditor's right was revived by the treaty of peace, by which alone the restitution of, or compensation for, British property confiscated during the war by any of the United States could only be provided for. Held, that the fourth article of the treaty of peace between Great Britain and the United States, of September 3, 1783, nullifies said law of Virginia, destroys the payment made under it, and revives the debt, and gives a right of recovery against the principal debtor, notwithstanding such payment thereof, under the authority of State law." In Hopkirk v. Bell[157] the Court further held that this same treaty provision prevented the operation of a Virginia statute of limitation to bar collection of antecedent debts. In numerous subsequent cases the Court invariably ruled that treaty provisions supersede inconsistent State laws governing the right of aliens to inherit real estate.[158] Such a case was Hauenstein v. Lynham,[159] in which the Court upheld the right of a citizen of the Swiss Republic, under the treaty of 1850 with that country, to recover the estate of a relative dying intestate in Virginia, to sell the same and to export the proceeds from the sale.[160]

Recent Cases

Certain more recent cases stem from California legislation, most of it directed against Japanese immigrants. A statute which excluded aliens ineligible to American citizenship from owning real estate was upheld in 1923 on the ground that the treaty in question did not secure the rights claimed.[161] But in Oyama v. California,[162] decided in 1948, a majority of the Court indicated a strongly held opinion that this legislation conflicted with the equal protection clause of Amendment XIV, a view which has since received the endorsement of the California Supreme Court by a narrow majority.[163] Meantime, California was informed that the rights of German nationals, under the Treaty of December 8, 1923 between the United States and the Reich, to whom real property in the United States had descended or been devised, to dispose of it, had survived the recent war and certain war legislation, and accordingly prevailed over conflicting State legislation.[164]

WHEN IS A TREATY SELF-EXECUTING?

What is the scope of the power of American courts under article VI, clause 2, to lend ear to private claims based on treaty provisions, on the ground that such provisions are self-executing? Jay had in mind certain intended victims of State legislation; and in fact the cases reviewed above all arose within the normal field of State legislative power. Nevertheless, as early as 1801, in United States v. Schooner Peggy,[165] the Supreme Court, speaking by Chief Justice Marshall, took notice of a treaty with France, executed after a court of admiralty had entered a final judgment condemning a captured French vessel, and finding it applicable to the situation before it, set the judgment aside and ordered the vessel restored to her owners. Since that time the Court has declared repeatedly in cases in which State law was not involved that when a treaty prescribes a rule by which private rights are to be determined, the courts are bound to take judicial notice thereof and to accept it as a rule of decision in any appropriate proceeding to enforce such rights.[166] In short, whether a given treaty provision is self-executing is a question for the Court; although it does not altogether lack guiding principles in deciding it, the most important of which is the doctrine of political questions.[167] See pp. 426, 471-472.

CONSTITUTIONAL FREEDOM OF CONGRESS WITH RESPECT TO TREATIES

From the foregoing two other questions arise: first, are there types of treaty provisions which only Congress can put into effect? Second, assuming an affirmative answer to the above question, is Congress under constitutional obligation to supply such implementation? For such answer as exists to the first question resort must be had to the record of practice and nonjudicial opinion. The question arose originally in 1796 in connection with the Jay Treaty, certain provisions of which required appropriations to carry them into effect. In view of the third clause of article I, section 9 of the Constitution, which says that "no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; * * *," it was universally agreed that Congress must be applied to if the treaty provisions alluded to were to be put into execution. But at this point the second question arose, to the solution of which the Court has subsequently contributed indirectly. (See pp. 420-421). A bill being introduced into the House of Representatives to vote the needed funds, supporters of the treaty, Hamilton, Chief Justice Ellsworth, and others, argued that the House must make the appropriation willy nilly; that the treaty, having been ratified by and with the advice and consent of the Senate, was "supreme law of the land," and that the legislative branch was bound thereby no less than the executive and judicial branches.[168] Madison, a member of the House, opposed this thesis in a series of resolutions, the nub of which is comprised in the following statement: "When a Treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good."[169] The upshot of the matter was that the House adopted Madison's resolutions, while at the same time voting the required funds.[170]

THE TREATY-MAKING POWER AND REVENUE LAWS

On the whole, Madison's position has prospered. Discussion whether there are other treaty provisions than those calling for an expenditure of money which require legislation to render them legally operative has centered chiefly on the question whether the treaty-making power can of itself alone modify the revenue laws. From an early date spokesmen for the House have urged that a treaty does not, and cannot, ex proprio vigore, become supreme law of the land on this subject; and while the Senate has never conceded this claim formally, yet in a number of instances, "the treaty-making power has inserted in treaties negotiated by it and affecting the revenue laws of the United States, a proviso that they should not be deemed effective until the necessary laws to carry them into operation should be enacted by Congress, and the House has claimed that the insertion of such requirements has been, in substance, a recognition of its claim in the premises,"[171] although there are judicial dicta which inferentially support the Senate's position. Latterly the question has become largely academic. Commercial agreements nowadays are usually executive agreements contracted by authorization of Congress itself. Today the vital issue in this area of Constitutional Law is whether the treaty-making power is competent to assume obligations for the United States in the discharge of which the President can, without violation of his oath to support the Constitution, involve the country in large scale military operations abroad without authorization by the war-declaring power, Congress to wit. Current military operations in Korea appear to assume an affirmative answer to this question.

CONGRESSIONAL REPEAL OF TREATIES

It is in respect to his contention that when it is asked to carry a treaty into effect Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question, as to what happens when a treaty provision and an act of Congress conflict. The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States in no wise diminish Congress's constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said, "Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress."[172]

TREATIES Versus PRIOR ACTS OF CONGRESS

The cases are numerous in which the Court has enforced statutory provisions which were recognized by it as superseding prior treaty engagements. How as to the converse situation? Two early cases in which Chief Justice Marshall spoke for the Court, stand for the proposition that treaties, so far as self-executing, repeal earlier conflicting acts of Congress. In the case of the "Peggy,"[173] certain statutory provisions dealing with the trial of prize cases were held to have been modified by a subsequent treaty with France; and in Foster v.. Neilson,[174] while holding—mistakenly as he later admitted[175]—that the treaty of January 24, 1818 with Spain was not self-executing with respect to certain land grants, he went on to say that if it had been it would have repealed acts of Congress repugnant to it. With one exception, however, judicial dicta which reiterate this idea are obiter, and are disparaged by Willoughby, as follows: "In fact, however, there have been few (the writer is not certain that there have been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing Federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. Furthermore, with specific reference to commercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, has in every instance succeeded in maintaining this point."[176] The single exception just alluded to is Cook v. United States,[177] which may be regarded as part of the aftermath of National Prohibition. Here a divided Court, speaking by Justice Brandeis, ruled that the authority conferred by Sec. 581 of the Tariff Act of 1922 and its reenactment in the tariff Act of 1930, upon officers of the Coast Guard to stop and board any vessel at any place within four leagues (12 miles) of the coast of the United States and to seize the vessel, if upon examination it shall appear that any violation of the law has been committed by reason of which the vessel or merchandise therein is liable to forfeiture, is, as respects British vessels suspected of being engaged in attempting to import alcoholic beverages into the United States in violation of its laws, modified by the Treaty of May 22, 1924, between the United States and Great Britain, so as to allow seizure of such vessels only within the distance from the coast which can be traversed in one hour by the vessel suspected of endeavoring to commit the offense.[178] Only one case is cited in support of the proposition that the treaty, being of later date than the act of Congress, superseded it so far as they were in conflict. This is Whitney v. Robertson,[179] in which an act of Congress was held to have superseded conflicting provisions of a prior treaty. Moreover, the act of Congress involved in the Cook case had, as above indicated, been reenacted subsequently to the treaty involved. The decision actually accomplishes the singular result of reversing the maxim leges posteriores. It may be suspected that it was devised to avoid a diplomatic controversy which in the low estate of Prohibition at that date would not have been worthwhile.[180]

INTERPRETATION AND TERMINATION OF TREATIES AS INTERNATIONAL COMPACTS

The repeal by Congress of the "self-executing" clauses of a treaty as "law of the land" does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence the question arises of where the Constitution lodges this power; also the closely related question of where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress, by the act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France.[181] This act was followed two days later by one authorizing limited hostilities against the same country; and in the case of Bas v. Tingy[182] the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring "public war" upon the French Republic.

TERMINATION OF TREATIES BY NOTICE

The initial precedent in the matter of termination by notice occurred in 1846, when by the Joint Resolution of April 27, Congress authorized the President at his discretion to notify the British Government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode supports the theory that international conventions to which the United States is party, even those terminable on notice, are terminable only by act of Congress.[183] Subsequently Congress has often passed resolutions denouncing treaties or treaty provisions which by their own terms were terminable on notice, and Presidents have usually carried out such resolutions, though not invariably.[184] By the La Follette-Furuseth Seamen's Act, approved March 4, 1915,[185] President Wilson was directed, "within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties," and the required notice was given.[186] When, however, by section 34 of the Jones Merchant Marine Act of 1920 the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, which the act infracted, of the termination thereof, he refused to comply, asserting that he "did not deem the direction contained in section 34 * * * an exercise of any constitutional power possessed by Congress."[187] The same intransigent attitude was continued by Presidents Harding and Coolidge.

DETERMINATION WHETHER A TREATY HAS LAPSED

At the same time, there is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton's opinion in Charlton v. Kelly[188] is pertinent: "If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. * * * That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case. * * * The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition."[189] So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.[190]

STATUS OF A TREATY A POLITICAL QUESTION

All in all, it would seem that the vast weight both of legislative practice and of executive opinion supports the proposition that the power of terminating outright international compacts to which the United States is party belongs, as a prerogative of sovereignty, to Congress alone, but that the President may, as an incident of his function of interpreting treaties preparatory to enforcing them, sometimes authoritatively find that a treaty contract with another power has or has not been breached by the latter and whether, for that reason, it is or is not longer binding on the United States.[191] At any rate, it is clear that any such questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the words of Justice Curtis in Taylor v. Morton:[192] It is not "a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. * * * These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. They belong to diplomacy and legislation, and not to the administration of existing laws. And it necessarily follows, that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government." Chief Justice Marshall's language in Foster v. Neilson[193] is to the same effect.

TREATIES AND THE NECESSARY AND PROPER CLAUSE

What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress's enumerated powers (those listed in the first 17 clauses of article I, section 8 of the Constitution), then it is these powers which it exercises in carrying such treaty into effect. But if the treaty deals with a subject which falls normally to the States to legislate upon, or a subject which falls within the national jurisdiction because of its international character, then recourse is had to the necessary and proper clause. Thus, of itself, Congress would have no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.[194] Again, Congress could not confer judicial power upon American consuls abroad to be there exercised over American citizens, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements and such legislation has been upheld.[195] Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.[196] Again, Congress could not ordinarily penalize private acts of violence within a State, but it can punish such acts if they deprive aliens of their rights under a treaty.[197] Referring to such legislation the Court has said: "The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power."[198] In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress's enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; and the only question that can be raised as to such measures will be whether they are "necessary and proper" measures for the carrying of the treaty in question into operation. The matter is further treated under the next heading.

CONSTITUTIONAL LIMITS OF THE TREATY-MAKING POWER; MISSOURI v. HOLLAND

Our system being theoretically opposed to the lodgement anywhere in government of unlimited power, the question of the scope of this exclusive power has often been pressed upon the Court, which has sometimes used language vaguely suggestive of limitation, as in the following passage from Justice Field's opinion for the Court in Geofroy v. Riggs,[199] which was decided in 1890: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. * * * But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."[200] The fact is none the less, that no treaty of the United States nor any provision thereof has ever been found by the Court to be unconstitutional. The most persistently urged proposition in limitation of the treaty-making power has been that it must not invade certain reserved powers of the States. In view of the sweeping language of the supremacy clause, it is hardly surprising that this argument has not prevailed.[201] Nevertheless, the Court was forced to answer it as recently as 1923. This was in the case of Missouri v. Holland,[202] in which the Court sustained a treaty between the United States and Great Britain providing for the reciprocal protection of migratory birds which make seasonal flights from Canada into the United States and vice versa, and an act of Congress passed in pursuance thereof which authorized the Department of Agriculture to draw up regulations to govern the hunting of such birds, subject to the penalties specified by the act. To the objection that the treaty and implementing legislation invaded the acknowledged police power of the State in the protection of game within its borders, Justice Holmes, speaking for the Court, answered: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found. (Andrews v. Andrews, 188 U.S. 14, 33 (1903)). What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. * * * The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved."[203] And again: "Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld."[204]